THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Case no: 144/2012
Reportable
In the matter between:

COLLEEN MZINGISI DUMANI

Appellant

and

DESMOND NAIR

First Respondent
THE MAGISTRATES COMMISSION

Second Respondent

Neutral citation: Collen Mzingisi Dumani v Desmond Nair & another (144/2012)
[2012] ZASCA 196 (30 November 2012)

Coram:
MPATI P, CLOETE, HEHER, CACHALIA and THERON
JJA

Heard:

23 November 2012

Delivered
30 November 2012

Summary:
Review – Grounds for - Promotion of Administrative Justice Act 3
of 2000 - decision of presiding officer in disciplinary enquiry.
Material mistake of fact – misdirection of the presiding officer in
evaluating the evidence does not render the decision reviewable on
ground of material error of fact.
Decision so unreasonable that no reasonable person could have
reached it – this ground not established on the evidence.

___________________________________________________________________
ORDER
___________________________________________________________________
On appeal from: Eastern Cape High Court, Grahamstown (Pickering and
Chetty JJ sitting as court of appeal):
The appeal is dismissed with costs.
___________________________________________________________________
JUDGMENT
___________________________________________________________________
THERON JA (MPATI P, CLOETE, HEHER and CACHALIA JJA
concurring):

[1] This appeal is against the dismissal of an application, in terms of s 6 of
the Promotion of Administrative Justice Act 3 of 2000 (PAJA), for the review
and setting aside of the appellant‟s conviction, at a disciplinary hearing, on three
counts of misconduct.

[2] The appellant is Mr Collen Mzingisi Dumani (Dumani), a magistrate,
currently on suspension, who was appointed as acting head of the Graaff-Reinet
Magistrate‟s Court, with effect from 1 November 2008. The first respondent,
Mr Desmond Nair (the presiding officer), is the chief magistrate of Pretoria,
who presided over an inquiry into misconduct charges brought against Dumani
by the second respondent, the Magistrates Commission.

[3] On 5 March 2009, the Magistrates Commission charged Dumani with
four counts of misconduct in terms of regulation 26(4)(a) of the Regulations for
Judicial Officers in the Lower Courts issued under the Magistrates Act 90 of

1993. All the complainants were employed in various capacities at the Graaff-
Reinet Magistrates‟ Court where Dumani had been stationed. The first charge
related to an incident that occurred during December 2008, when Dumani
allegedly stroked the cheek of Ms Salome Hartney (Hartney), who was
employed as an administrative clerk at the court. The second charge related to
Dumani allegedly stroking the cheek of a security officer, Ms Marilyn Slavers
(Slavers), with the back of his hand. In respect of the third charge, it was alleged
that Dumani had touched the back of the neck of Ms Regina Karolus (Karolus),
a cleaner at the court. The complainant in the final charge was Ms Edwina Ele
(Ele), a senior administrative clerk, and it was alleged that Dumani had put his
hand between her breasts.

[4] During March 2009, the Magistrates Commission appointed the presiding
officer to hold a disciplinary enquiry into the misconduct charges. On 19 March
2010, and after hearing evidence, the presiding officer found Dumani guilty of
three counts of misconduct and acquitted him on count two relating to the
complaint by Slavers. On 24 May 2010, the presiding officer recommended to
the Magistrates Commission, in terms of sub-regulation 26(17)(b) of the
Regulations, that Dumani be removed from office as a magistrate as
contemplated in s 13 of the Magistrates Act. On 14 June 2010, Dumani made
written representations to the Magistrates Commission, requesting it to overturn
the convictions, not to recommend to Parliament that he be removed from office
and not to impose any sanction on him. By letter dated 1 September 2010,
Dumani was advised that the Magistrates Commission had resolved to accept
the recommendation that he be removed from office on grounds of misconduct
in terms of s 13(4)(a)(i) of the Magistrates Act. The Commission informed
Dumani that its recommendation had been forwarded to the Minister of Justice
and Constitutional Development.

[5] Dumani instituted proceedings in the Eastern Cape High Court
(Grahamstown) to review and set aside the findings of the presiding officer. The
high court (Chetty J, Pickering J concurring) dismissed the application. Dumani
now appeals with the leave of this court. The grounds of review relied upon are
that: (a) the presiding officer committed a material error of fact (this is dealt
with in the judgment of Cloete JA in which I concur);  (b) the presiding officer
acted arbitrarily; and (c) the presiding officer‟s decision is so unreasonable that
no reasonable person could have reached it.

[6] The enquiry into the misconduct charges was held in Graaff-Reinet. The
complainants and Mrs Rene Viljoen (Viljoen), the court manager, testified on
behalf of the Magistrates Commission. Dumani testified in his own defence.
The presiding officer called Mr Mzimkulu Walter Claassen (Claassen), a senior
clerk at the court, as a witness.

[7] Hartney testified that she had, during the first week of December 2008,
been requested to go to Dumani‟s office to assist him with his computer. While
they were alone and she was sitting in front of the computer, Dumani, who was
standing next to her, stroked her cheek with his hand. It was her testimony that
she, in response, then requested him not to touch her. According to her, Dumani
then apologised. When she had completed her task at the computer, she stood
up and he once again touched her cheek. She voiced her displeasure and he
again apologised and requested that she not disclose the details of the incident
to anyone. The following day she reported the incident to Viljoen, but asked
Viljoen not to take the matter further and said that she, Hartney, would only
take the matter further if it happened again.

[8] Slavers, a security officer at the court, testified that she had, on 16
January 2009, been sitting at the security scanner at the entrance to the court.

Dumani, upon returning from lunch, greeted her by name, touched her cheek,
proceeded past the security scanner and entered the building. She mentioned it
to her colleague but the latter had not observed the incident. Karolus, a cleaner,
testified that she had been emptying the waste-paper basket in Dumani‟s office
on 29 January 2009, when he inappropriately touched the back of her head, in
„soft motions‟.

[9] Ele, a senior administrative clerk, testified that she usually worked in the
regional court, but when the court was not in session, she assisted in the cash
hall or with administration. On a Friday, 30 January 2009, she received a
telephone call from Dumani requesting that she come to his office. She asked if
she could see him after two o‟clock as it was close to lunch time and he agreed.
Thereafter, and shortly before lunch time (one o‟clock) Dumani approached her
in the cash hall. After attending to his query, she went towards the door as it
was already lunch time, with Dumani following closely behind her. She turned
back  to fetch her cellular telephone which she had left on her desk, and as she
turned Dumani put his hand between her breasts. She entered the cash hall and
asked Hartney whether Dumani was „sexually hyperactive‟ and reported to
Hartney that he had touched her breasts. Ele then went outside where she met
Karolus and Slavers and told them about the incident. It was then that the
complainants shared amongst themselves their respective experiences with
Dumani. It was also then that the complainants decided to take the matter
further. Reports were subsequently made to Viljoen. The complainants were
referred to Ms Diane Bertram, a social worker in the Department of Social
Services, for counselling, which they underwent.

[10] Viljoen, the court manager, confirmed that Hartney had, during
December 2008, reported the incident with Dumani to her. Viljoen said that in
January 2009, she was advised of the incidents of inappropriate conduct

involving Dumani and the other three complainants. She testified in cross-
examination that most of the court‟s business was conducted in Afrikaans and
certain members of the court staff (who did not include her) had not been in
favour of Dumani‟s appointment because he could not speak Afrikaans.

[11] Dumani testified in his own defence. He was 58 years old at the time and
had, prior to his appointment as magistrate, been in practice as an attorney. He
took up his post as acting head of the court in Graaff-Reinet with effect from 1
December 2008 and was to have been on probation for a period of about six
months. He denied having inappropriately touched the complainants and said he
believed they had concocted these charges against him as they were dissatisfied
because a black man had been appointed as head of office over Afrikaans-
speaking people and he could not speak Afrikaans.  He added it was his strong
belief that the motive of the complainants was to undermine transformation.

[12] Dumani testified that Hartney had been disrespectful towards him. He
said that she had on two occasions reprimanded him for being late for work. On
another occasion she had come into his office while he had been dealing with a
member of the public sitting there, and demanded that he immediately attend to
a particular file that she was carrying. When he refused to do so immediately,
she pushed the file against his chest and the contents thereof fell onto the floor.
It was his evidence that Karolus only cleaned his office in December and not
again, so that he subsequently had to arrange with persons doing community
service at the court to clean his office. Dumani denied that he had gone to the
cash hall on 30 January 2009. He said he left the court at 12h45 that day.

[13] Claassen was called as a witness by the presiding officer. In his evidence-
in-chief he said that Dumani had given him certain documents at about 9h00
that morning that needed to be transmitted by telefax. He said that Dumani

telephoned him shortly before one o‟ clock on 30 January 2009, and requested
that Claassen deliver the documents to Dumani. At the time, Dumani was in his
vehicle, parked in the vicinity of the court. Claassen arranged for the newspaper
vendor to take the documents to where Dumani was waiting in his vehicle.

[14] I turn now to deal with the analysis of the evidence necessitated by the
two review grounds with which this judgment is concerned. It was initially
contended by Mr Daubermann, who represented Dumani at the enquiry and has
since continued to do so, that Claassen was a satisfactory witness and that there
were no material inconsistencies or improbabilities in his version. It was further
argued that his evidence supported Dumani‟s version. As I have said, in his
evidence-in-chief Claassen testified that Dumani had given him the documents
to send by telefax at about 9h00 on that morning and he had taken the
documents to Dumani shortly before 13h00. During cross-examination the
following was put to Claassen:
„Now this happened a long time ago, so I want you just to think carefully, because Mr
Dumani says that the way it happened was that at about quarter-to-one he called you to come
and fetch the documents to fax for him and that he then left his office and met you downstairs
and handed the documents to you to fax. In other words he says on his way out he in fact
handed the documents to you. Could it have happened that way?‟
Claassen‟s response to this was:
„It can happen like that because it is quite a long time ago, but what I can clearly remember is
that when he phoned me and requested [me] to bring the documents he was outside, that is
when I went out to go and give him the documents‟.
This was a dramatic change in Claassen‟s evidence. Whereas he had earlier
testified that he had received the documents at 09h00 he was prepared to
concede that this could have occurred shortly before 13h00. This raises
questions about Claassen‟s recollection of the events and his reliability as a
witness.

[15] It was also initially contended on behalf of Dumani that Claassen
supported Dumani‟s version that the latter was not in the cash hall shortly
before 13h00 on 30 January 2009 as alleged by Ele. Claassen‟s evidence in this
regard was as follows:
„MR DAUBERMANN
Did Mr Dumani come into the cash hall at any stage after half-
past-twelve that afternoon?
MR CLAASSEN
As I am saying that I was dealing with clients, but if he came in I did
not see him.
MR DAUBERMANN
Would you have seen him if he had come in?
MR CLAASSEN
That is correct, because I usually saw him when he comes in.‟
(Emphasis added.)

Claassen‟s evidence does not assist either party. It does not establish that
Dumani was not in the cash hall shortly before 13h00 and nor does it rule out
the possibility that Dumani could have been in the cash hall at that time. It was
ultimately submitted on behalf of Dumani that Claassen‟s evidence contained
contradictions that made him an unreliable witness; and that accordingly, whilst
his evidence did not support Dumani, at best for the Magistrates Commission it
did not support its case either. I agree with this approach. Counsel for Dumani
conceded, and rightly so, that Claassen‟s evidence on this aspect was neutral.

[16] It was argued by counsel for Dumani that the complainants were
unreliable witnesses who had contradicted themselves in material respects. The
following attacks were directed at their evidence. Hartney was criticised for not
reporting the incident to her mother that same night. It was argued that there
were a number of contradictions between Karolus‟ evidence and the statement
she made to the police, namely, on whether (a) Dumani had been seated or
standing when she entered his office, (b) he had touched the back of her head or
her neck, and (c) she was bending or standing when he touched her. Karolus
was also criticised for not telling her husband about the incident and it was

contended that her explanation that she did not tell her husband because he
would have said she was responsible for what happened to her, was not
credible. It was also contended that there were contradictions between Ele‟s
testimony and her statement to the police. The first was in respect of the time of
the incident (whether it had occurred before or after one o‟ clock) and secondly,
whether Dumani had inserted his hand or only a few fingers between her
breasts.

[17] I will deal with these criticisms in turn. The fact that Hartney did not tell
her mother about the incident on the evening it occurred and only told her
mother that the new magistrate was making her feel uncomfortable does not, to
my mind, detract from her evidence.  Karolus and Ele may have contradicted
themselves on the actual incident (back of the head or neck, a few fingers or
whole hand) but each incident still relates to inappropriate touching and the
differences, in my view, are not material. The discrepancies between the police
statements and the oral evidence of the complainants are trifling.

[18] The presiding officer, in his judgment, noted that the complainants had
been subjected to thorough cross-examination. That observation is amply borne
out by the record. He stated that Hartney and Karolus had testified in a
„convincing manner‟ while Ele and Hartney had made a good impression on
him. He later referred to Ele as an „outstanding witness‟. He concluded that the
contradictions, such as there were, were minor and did not adversely affect the
complainants‟ credibility. There is no reason to doubt these findings.

[19]    Counsel for Dumani urged the court to find that it was highly improbable
that Dumani would act in the manner suggested by the complainants and face
the risk of losing his new-found employment. Counsel suggested that it was
improbable that Dumani would have engaged in such bizarre behaviour as

alleged by the complainants almost immediately after taking up his position at
the court. It was argued that the complainants had conspired to bring false
charges against the appellant because they were displeased with his
appointment. Viljoen was asked in cross-examination about the reaction of the
court staff when they discovered that a black magistrate who could not speak
Afrikaans had been appointed as head of the office. She said that the staff were
concerned as the majority of people in the Graaff-Reinet area were Afrikaans-
speaking. She explained that reports that needed to be compiled in the
Children‟s Court and the Domestic Violence section were compiled in
Afrikaans and this was within the area of Dumani‟s work.

[20]    There is no evidence to support the conspiracy theory. Viljoen would
have had to have been part of that conspiracy. If she was part of the conspiracy,
it is unlikely she would have conceded a motive for it, namely that people were
unhappy because Dumani did not speak Afrikaans. Karolus and Slavers, a
cleaner and security guard at the court respectively, would not have had much
contact with Dumani in the performance of their duties. The fact that he did not
speak Afrikaans would not have affected their work environment in any
significant manner and could not therefore serve as a credible explanation for
their being part of a conspiracy to get rid of him. If the complainants had
conspired to bring these charges against Dumani, they would surely have
complained of more serious conduct than the stroking of a cheek or touching of
the back of the head. Furthermore, it is difficult to imagine that they would
receive counselling from a social worker and thereby risk being exposed as
liars. It is much more probable that they needed counselling. The common
element in the evidence of the three complainants is that Dumani touched them
inappropriately. In the absence of a conspiracy, the cumulative effect of their
evidence is to render the denial by Dumani less probable.

[21]    The fact that the conspiracy theory has not been proved does not entitle
this court to draw an adverse inference against Dumani. There is, however, one
aspect of Dumani‟s evidence that I find improbable. This is that Hartney would
have treated him in the manner suggested by him. It is improbable that she, an
administrative clerk, would have had the effrontery to treat Dumani, the acting
head of the office, with such disrespect and that he would have allowed her to
get away with this conduct as he said he did.

[22]    The enquiry before the presiding officer was whether, on a balance of
probabilities, Dumani was guilty of misconduct, bearing in mind that because
such conduct amounted to a criminal offence, it is inherently unlikely that
anyone, particularly a magistrate, would have indulged in it. The enquiry before
this court is not whether the presiding officer was correct in his conclusion that
Dumani was guilty on three of the charges. The main enquiry before this court
is whether the presiding officer‟s decision is so unreasonable that no reasonable
person could have reached it. The further ground of review relied upon by
Dumani, namely that the presiding officer acted arbitrarily, is linked to the main
enquiry in that the presiding officer would have acted arbitrarily if it were to be
found that his finding of guilt on the part of Dumani could not be justified on
the acceptable evidence. I am not persuaded that the review grounds relied upon
have been established. I am satisfied that a reasonable person in the position of
the presiding officer on the evidence disclosed in the record and applying the
correct test in law could have reached the conclusion that Dumani was guilty of
the three counts of misconduct of which he was convicted.

[23]    At the hearing of this matter, it was argued on behalf of the Magistrates
Commission that the findings and recommendations made by the presiding
officer to the Magistrates Commission were only part of a multi-stage decision,
and that no attempt had been made to review the decision and recommendation

of the Magistrates Commission itself.  In view of my finding in para 23 above it
is not necessary to deal with this argument that was raised for the first time on
appeal. In any event, it is stated in the notice of appeal that Dumani would, on
appeal, seek an order, inter alia, reviewing and setting aside the Magistrates
Commission‟s decision to support the recommendation that he, Dumani, be
removed from office and indeed, such relief was foreshadowed in Dumani‟s
founding affidavit (albeit not in the notice of motion).

[24]    Costs of two counsel were sought on appeal. Counsel for the respondents
was unable to advance any convincing reason why such an order should be
made.

[25]    The appeal is dismissed with costs.

_______________
L V THERON
JUDGE OF APPEAL

CLOETE JA (MPATI P, HEHER, CACHALIA AND THERON JJA
CONCURRING)

[26] The appellant‟s attorney submitted that the presiding officer at the inquiry
into the appellant‟s misconduct committed a material misdirection of fact that
entitled the high court and entitles this court to „review the convictions and
consider the matter afresh‟ in terms of the decision in Pepcor Retirement Fund v
Financial Services Board 2003 (6) SA 38 (SCA). The argument requires a
consideration of the parameters of material error of fact as a ground of review. I

shall deal first with the facts relied on for this part of the argument and then the
law.

[27] So far as the facts are concerned, the submission was based on the
presiding officer‟s reliance on the evidence of Mr Mzimkulu Walter Claassen, a
clerk in the employ of the Department of Justice at the Graaff-Reinet
Magistrate‟s Court. Claassen‟s evidence related to the fourth count of
misconduct but it is evident from the following passage in the presiding
officer‟s judgment that he accorded it wider significance:
„[W]hat is potent in my assessment is the variance between [the appellant] and
Mr Claassen, in their testimonies and in the answers given . . . But Mr Claassen
differs to a large extent from [the appellant]. In fact to my mind it made a very
big impression on me, the variance between Mr Claassen and [the appellant‟s]
testimony . . . It is a weakness in [the appellant‟s] case.‟
The appellant‟s attorney argued that Claassen had conceded under cross-
examination that the appellant‟s version, which was put to him, could be correct
and that this removed any basis for the findings made by the presiding officer
which I have quoted, thus leading to a material error of fact.

[28] The high court reasoned:
„[Counsel on behalf of the appellant] laid great emphasis on the [presiding
officer‟s] treatment of the evidence of Claassen. Seizing upon the use of the
word “potent” in the judgment, counsel sought to persuade us that the
[appellant‟s] version was rejected on that score alone. There is no merit in this
submission. The [presiding officer‟s] use of the word was imprecise and
unfortunate but it is obvious from the judgment that upon an appraisal of the
totality of the evidence, whatever conflict existed between the [appellant‟s]
evidence and that of Claassen, played no meaningful role in the decision arrived
at by him.‟

This reasoning cannot be supported. The passage I have quoted from the
presiding officer‟s judgment shows that he was considerably influenced by the
contradictions found by him to exist between the evidence of Claassen and that
of the appellant.

[29] I turn to consider the law. Material error of fact was first recognised as a
ground of review by this court in Pepcor where the following was said in para
47:
„In my view, a material mistake of fact should be a basis upon which a Court
can review an administrative decision. If legislation has empowered a
functionary to make a decision, in the public interest, the decision should be
made on the material facts which should have been available for the decision
properly to be made. And if a decision has been made in ignorance of facts
material to the decision and which therefore should have been before the
functionary, the decision should . . . be reviewable at the suit of, inter alios, the
functionary who made it ─ even although the functionary may have been guilty
of negligence and even where a person who is not guilty of fraudulent conduct
has benefited by the decision. The doctrine of legality which was the basis of
the decisions in Fedsure1, Sarfu2 and Pharmaceutical Manufacturers3 requires
that the power conferred on a functionary to make decisions in the public
interest, should be exercised properly, ie on the basis of the true facts; it should
not be confined to cases where the common law would categorise the decision
as ultra vires.‟
But the court went on in the immediately succeeding paragraph, paragraph 48,
to say:

1 Fedsure Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan Council 1999 (1) SA 374 (CC)
(1998 (12) BCLR 1458).
2 President of the Republic of South African Rugby Football Union 2000 (1) SA 1 (CC) (1999 (10) BCLR 1059).
3 Pharmaceutical Manufacturers Association of SA: In re Ex Parte President of the Republic of South Africa 2000
(2) SA 674 (CC) (2000 (3) BCLR 241).

„Recognition of material mistake of fact as a potential ground of review
obviously has its dangers. It should not be permitted to be misused in such a
way as to blur, far less eliminate, the fundamental distinction in our law
between two distinct forms of relief: appeal and review. For example, where
both the power to determine what facts are relevant to the making of a decision,
and the power to determine whether or not they exist, has been entrusted to a
particular functionary (be it a person or a body of persons), it would not be
possible to review and set aside its decision merely because the reviewing Court
considers that the functionary was mistaken either in its assessment of what
facts were relevant, or in concluding that the facts exist. If it were, there would
be no point in preserving the time-honoured and socially necessary separate and
distinct forms of relief which the remedies of appeal and review provide.‟
The importance of the qualification contained in the paragraph just quoted was
emphasized in the subsequent decision of this court in Government Employees
Pension Fund v Buitendag 2007 (4) SA 2 (SCA) para 12.

[30] In Chairperson’s Association v Minister of Arts and Culture 2007 (5) SA
236 (SCA) Farlam JA said (in para 48):
„In my opinion the legal position as set out in the Pepcor case based as it is on
the principle of legality still applies under PAJA, s 6(2)(e)(iii) of which
provides that administrative action taken because “irrelevant considerations
were taken into account or relevant considerations were not considered” can be
set aside on review.‟
Most recently, in Chairman State Tender Board v Digital Voice Processing
(Pty) Ltd; Chairman State Tender Board v Sneller Digital (Pty) Ltd 2012 (2) SA
16 (SCA), Plasket AJA said in para 34:
„It is now well established in South Africa (and in some other common-law
jurisdictions) that a material error of fact is a ground of review‟,

and went on to point out that this ground could just as easily be accommodated
in s 6(2)(i) of PAJA,4 the catch-all provision that allows for the development of
new grounds of review by providing that administrative action may be reviewed
and set aside on the basis of it being „otherwise unconstitutional or unlawful‟.

[31] In the judgment I have just mentioned Plasket AJA referred to the chapter
by Christopher Forsyth and Emma Dring entitled „The Final Frontier: The
Emergence of Material Error of Fact as a Ground for Judicial Review‟ in
Christopher Forsyth, Mark Elliott, Swati Jhaveri, Michael Ramsden and Anne
Scully-Hill (eds) Effective Judicial Review: A Cornerstone of Good Governance
(2010) 245. In that chapter the learned authors deal with the orthodox approach
to errors of fact in English law, which was similar to our law prior to Pepcor,
and go on to consider the extent to which that approach has been developed to
permit clear errors of fact to be reviewed. The developments in England and in
several common law jurisdictions (Australia, South Africa, New Zealand and
Hong Kong) are then briefly examined. For present purposes, it is the view
expressed by the authors at p 258 that requires consideration:
„It is submitted that, ultimately, the suggestion that the recognition of this new
ground for review destroys the distinction between review and appeal rests on a
misunderstanding of the nature of an administrative decision. An administrative
decision-maker may need to make various findings of law (which he must get
right) and he may also need to make findings of fact (which it is submitted he
must also get right), but then the decision-maker has to exercise his judgment.
This is his realm of autonomy in which he is free to decide as his judgment
ordains without any judicial intervention. For so long as the power to review on
the ground of error of fact does not intrude into that area of judgment, the
distinction between merits and review remains. It needs to be recognised though
that the loss of the power to make errors of fact necessarily narrows the area of

4 Promotion of Administrative Justice Act, 3 of 2000.

the [sic] in which the decision-maker may decide without any judicial
intervention. But this is of course true of every extension of judicial review. In
any event, it is submitted that the test laid down in E [v Secretary of State for
the Home Department [2004] EWCA Civ 49, [2004] QB1044] largely preserves
the decision-maker‟s area of judgement, by requiring that a factual error must
be “existing” and “established” (objectively verifiable) before the court will
intervene.‟

[32] In none of the jurisdictions surveyed by the authors have the courts gone
so far as to hold that findings of fact made by the decision-maker can be
attacked on review on the basis that the reviewing court is free, without more, to
substitute its own view as to what the findings should have been ─ ie an appeal
test. In our law, where the power to make findings of fact is conferred on a
particular functionary ─ an „administrator‟ as defined in PAJA ─ the material
error of fact ground of review does not entitle a reviewing court to reconsider
the matter afresh. This appears, in the context of the particular ground of review
being considered, from para 48 of Pepcor,  quoted in para 29 above; and in the
context of review generally, from the following passage in the judgment of
O‟Regan J in Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs
2004 (4) SA 490 (CC) para 45:
„Although the review functions of the Court now have a substantive as well as a
procedural ingredient, the distinction between appeals and reviews continues to
be significant. The Court should take care not to usurp the functions of
administrative agencies. Its task is to ensure that the decisions taken by
administrative agencies fall within the bounds of reasonableness as required by
the Constitution.‟
The ground must be confined to the situation, as in the English law as set out in
E para 66, to a fact that is established in the sense that it is uncontentious and

objectively verifiable. Examples appear from the cases decided in this court to
which I have already referred:
(a)
In Pepcor the Registrar of the Financial Services Board had granted
statutory approvals, to effect the „unbundling‟ of the appellant fund, relying on
actuarial calculations that the high court categorised as „arbitrary and
indefensible‟ and in respect of which no justification was attempted on appeal
(paras 4 to 6). The challenge by the appellants that the Registrar‟s decision
would have been no different had the correct information been furnished, was
rejected by the high court and this finding was confirmed on appeal (para 29).
(b)
In the Chairperson’s Association case the Minister of Arts and Culture
took a decision to approve the change of name of the town Louis Trichardt to
Makhado. The Minister was influenced (see para 47) by a memorandum from
the Director General that contained an assurance from the Names Council that
proper consultation about the name change had occurred, when it plainly had
not (para 46).
(c)
In the Chairman, State Tender Board case the State Tender Board
resolved to restrict a company, Sneller Digital (Pty) Ltd, and its directors from
doing business with all three spheres of government institutions for a period of
ten years. It did so because it concluded that the directors had been appointed
after a tender had been submitted by the company, and that the company had
accordingly made a fraudulent misrepresentation to it and been guilty of
„fronting‟ so as to claim equity ownership points, to which it was not entitled, in
order to obtain a tender (para 12). As a matter of objective fact, the directors
had been appointed before the tender was submitted. This court concluded (para
36) that had the State Tender Board taken its decision based on the proper facts
it could not have concluded that the company and directors had made fraudulent
misrepresentations to it; and that this factual error was material because it was
the direct cause of the decision to blacklist the company and directors.

[33] For these reasons, even if there was a misdirection by the presiding
officer in regard to the evidence of Claassen, the convictions would not be
reviewable on the ground of material error of fact, nor under the guise of the
provisions of s 6(2)(e)(iii) of PAJA viz „because irrelevant considerations were
taken into account or relevant considerations were not considered‟. That leaves
the following grounds of review relied upon by the appellant, namely that the
presiding officer acted arbitrarily (based on s 6(2)(e)(vi) of PAJA) and that the
presiding officer‟s decision was so unreasonable that no reasonable person
could have reached it (based on ss 6(2)(f)(ii)(cc) and (h) of PAJA). (The alleged
misdirection to which I have referred would be relevant, if established, to the
latter ground in considering whether, on the facts before the presiding officer as
disclosed in the record, no reasonable person could have found the appellant
guilty.) These grounds are dealt with in the judgment of my colleague Theron
JA in whose judgment I concur.

_______________
T D CLOETE
JUDGE OF APPEAL

Appearances
For the Appellant:

P Daubermann
Instructed by:
P Daubermann Attorneys, Grahamstown
Symington & De Kok: Bloemfontein

For the Second Respondent:
SK Hassim SC (with N Gaisa)

Instructed by:
Netteltons Attorneys, Grahamstown

State Attorney: Bloemfontein
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:
30 November 2012
Status:
Immediate

Please note that the media summary is intended for the benefit of the media and does not
form part of the judgment of the Supreme Court of Appeal.

Collen Mzingisi Dumani v Desmond Nair & another

Today the Supreme Court of Appeal (SCA) dismissed an appeal by Dumani.

The appellant is Mr Collen Mzingisi Dumani (Dumani), a magistrate, currently on
suspension, who was appointed as acting head of the Graaff-Reinet Magistrate’s Court,
with effect from 1 November 2008. The first respondent, Mr Desmond Nair (the presiding
officer), is the chief magistrate of Pretoria, who presided over an inquiry into misconduct
charges brought against Dumani by the second respondent, the Magistrates Commission.

On 5 March 2009, the Magistrates Commission charged Dumani with four counts of
misconduct in terms of sub-regulation 26(4)(a) of the Regulations for Judicial Officers in
the Lower Courts issued under the Magistrates Act 90 of 1993. All the complainants were
employed in various capacities at the Graaff-Reinet Magistrates’ Court where Dumani had
been stationed. The first charge related to an incident that occurred during December
2008, when Dumani allegedly stroked the cheek of Ms Salome Hartney (Hartney), who
was employed as an administrative clerk at the court. The second charge related to

Dumani allegedly stroking the cheek of a security officer, Ms Marilyn Slavers (Slavers),
with the back of his hand. In respect of the third charge, it was alleged that Dumani had
touched the back of the neck of Ms Regina Karolus (Karolus), a cleaner at the court. The
complainant in the final charge was Ms Edwina Ele (Ele), a senior administrative clerk, and
it was alleged that Dumani had put his hand between her breasts.

During March 2009, the Magistrates Commission appointed the presiding officer to hold a
disciplinary enquiry into the misconduct charges. On 19 March 2010, and after hearing
evidence, the presiding officer found Dumani guilty of three counts of misconduct and
acquitted him on count two relating to the complainant Slavers. On 24 May 2010, the
presiding officer recommended to the Magistrates Commission that Dumani be removed
from office as a magistrate.  The Magistrates Commission accepted the recommendation
that he be removed from office on grounds of misconduct and forwarded its
recommendation to the Minister of Justice and Constitutional Development.

[Dumani instituted proceedings in the Eastern Cape High Court (Grahamstown) to review
and set aside the findings of the presiding officer. The high court (Chetty J, Pickering J
concurring) dismissed the application.

On appeal, the grounds of review relied upon were that: (a) the presiding officer committed
a material misdirection of fact;  (b) the presiding officer acted arbitrarily; and (c) the
presiding officer’s decision is so unreasonable that no reasonable person could have
reached it.

The court held that even if there was a misdirection by the presiding officer in regard to the
evidence of Claassen, one of the witnesses, the convictions would not be reviewable on
the ground of material error of fact, nor under the guise of the provisions of s 6(2)(e)(iii) of
PAJA viz ‘because irrelevant considerations were taken into account or relevant
considerations were not considered’.

The court found that there was no evidence to support the suggestion that the
complainants had concocted these charges against him as they were dissatisfied because
a black man had been appointed as head of office over Afrikaans-speaking people and he

could not speak Afrikaans. The court was not persuaded that the review grounds relied
upon have been established. The court found that a reasonable person in the position of
the presiding officer on the evidence disclosed in the record and applying the correct test
in law could have reached the conclusion that Dumani was guilty of the three counts of
misconduct of which he was convicted. For these reasons, the appeal was dismissed.