THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case no: 611/2021

In the matter between:
JOHN HENRY STEENHUISEN
FIRST APPLICANT
KEVIN MILEHAM
SECOND APPLICANT
and
DAVID DOUGLAS DES VAN ROOYEN
FIRST RESPONDENT
THE OFFICE OF THE PUBLIC
PROTECTOR

SECOND RESPONDENT
THE PUBLIC PROTECTOR

THIRD RESPONDENT
PRESIDENT OF THE REPUBLIC
OF SOUTH AFRICA

FOURTH RESPONDENT

Neutral citation: Steenhuisen and Another v Van Rooyen and Others (Case
no 611/2021) [2023] ZASCA 78 (29 MAY 2023)
Coram:
DAMBUZA ADP, ZONDI, PLASKET and GORVEN JJA and
SALIE AJA

Heard:
08 November 2022
Delivered: 29 May 2023
Summary: Administrative law – review of Public Protector’s decision on
whether in responding to a written parliamentary question the first respondent
wilfully misled parliament – Public Protector’s investigation and decision not
rationally related to the question posed.

ORDER

On appeal from: Gauteng Division of the High Court, Pretoria (Hughes J,
sitting as court of first instance):
The application for leave to appeal is dismissed.

JUDGMENT
Dambuza ADP (Zondi, Plasket and Gorven JJA and Salie AJA
concurring)
[1] In this application the first applicant, Mr John Henry Steenhuisen (Mr
Steenhuisen) seeks leave to appeal against the judgment of the Gauteng
Division of the High Court, Pretoria (the high court) in terms of which the
Public Protector’s report, including the remedial action directed pursuant to a
complaint lodged with her by the second applicant, Mr Kevin Mileham (Mr
Mileham), was declared unlawful and set aside. In her report, the Public
Protector upheld a complaint that the first respondent, Mr David Douglas Des
Van Rooyen (Mr Van Rooyen) made a misleading statement in response to a
question asked of him during a National Assembly (Parliament) sitting,
thereby violating the provisions of ss 96(1) and (2)(b) of the Constitution,
together with paragraph 2.3(a) of the Executives Ethics Code (the Code).1
Leave to appeal was refused by the high court. This application was referred

1 The Executive Ethics Code published in terms of s 2(1) of the Executive Members’ Ethics Act 82 of 1998.

for oral argument in an open court in terms of s 17(2)(d) of the Superior Courts
Act 10 of 2013.

[2] At the time of the complaint, Mr Van Rooyen was a member of
Parliament. On 9 December 2015, the former President, Mr Jacob
Gedleyihlekisa Zuma (Mr Zuma) appointed him as Minister of Finance. Four
days thereafter, on 13 December 2015, Mr Zuma removed Mr Van Rooyen
from the position of Minister of Finance and appointed him as Minister of
Cooperative Governance and Traditional Affairs.

[3] Whilst Mr Van Rooyen was serving in the latter office, on 11 April
2016 at a Parliamentary sitting, Mr. Steenhuisen, in his capacity as a member
of Parliament for the Democratic Alliance political party (DA), posed the
following written question to him:
‘Has (a) [Mr Van Rooyen] and/or (b) his Deputy Ministers ever (i) met with any (aa)
member, (bb) employee and/or (cc) close associate of the Gupta family and/or (ii) attended
any meeting with the specified persons (aa) at the Gupta’s Saxonworld Estate in
Johannesburg or (bb) anywhere else since taking office; if not, what is the position in this
regard; if so, in each specified case, (aaa) what are the names of the persons who were
present at each meeting, (bbb) (aaaa) when and (bbbb) where did each such meeting take
place and (ccc) what was the purpose of each specified meeting?’2

[4] Mr Van Rooyen responded to the question as follows:
‘(a) (aa) (cc) (b)
The Minister and his Deputy Ministers have never met with the members, employees
and/or close associates of the Gupta family in their official capacities.
(aa)(bb)(aaa)(bbb)(aaaa)(bbbb)(ccc)
Not applicable’.

2 Question No 927 in 2016.

[5] This exchange resulted in Mr Mileham, also a member of Parliament
for the DA, lodging with the Public Protector the complaint against Mr Van
Rooyen for violation of the Code. In the complaint Mr Mileham stated that:
‘It has recently been reported in several news outlets that Minister Des van Rooyen visited
the Gupta family residence in Saxonworld several times in the run up to his short lived
tenure as Finance Minister. The reports claim that the Minister visited the Gupta family
home on consecutive days between 2 December and 8 December 2015. In contrast, (sic) in
reply to a Democratic Alliance Parliamentary question the Minister had denied ever visiting
the residence of the Gupta family. It is thus clear that the Minister lied and intentionally
misled parliament; in so doing he has contravened the Executive Ethics Code to which all
Cabinet members are bound.’ (Emphasis added.)

[6] In response to the complaint, Mr. Van Rooyen replied that during the
period 4 to 11 December 2015 he was in Durban with his family. On 7
December, he travelled from Durban to Johannesburg for a meeting of the
Mkhonto Wesizwe Military Veterans Association (MKMVA) where ‘they’
also met with the Gupta family. His conduct, he explained, was in his capacity
as a Treasurer General of the MKMVA and in discharge of the responsibility
of that organisation to enlist the support of business for its members’
programs. In later correspondence with the Public Protector Mr. Van Rooyen
added that: ‘If the question [had been] phrased to include whether I visited the said family
in my official capacity as a Minister OR in any other capacity, the answer would have been
YES.’

[7]  To reach her conclusion, the Public Protector reasoned that Mr
Steenhuisen’s question was related to allegations that had surfaced in the

public domain and was aimed at ascertaining whether Mr Van Rooyen’s visits
to the Gupta residence were linked to his appointment as Minister of Finance.
She found that there was never any reference, in the question, to Mr Van
Rooyen meeting the Guptas in his capacity as a Minister. Mr Van Rooyen had
deliberately distorted the meaning of the words ‘since taking office’, in the
question, and attributed thereto a meaning that would align with his intention
of misleading the members of Parliament. The nub of the question, she
concluded, concerned when he had met the Guptas and had nothing to do with
the capacity in which he met them.

[8]  She referred to cell phone records which, according to her, revealed that
Mr Van Rooyen’s phone was in Saxonwold, in the vicinity of the Gupta family
home, on 8 December 2015, the day prior to his appointment as Minister of
Finance. She also identified more phone calls which were made from Mr Van
Rooyen’s cellphone ‘within the Saxonwold area’ in the weeks following his
appointment as Minister of Finance. She, however, disavowed reliance on the
cell phone records for her findings. She ultimately found that:
‘…Mr Van Rooyen conveniently structured his answer to favour a distorted interpretation
of the phrase “since taking office” to mean only in his official capacity. The Minister
tailored his response in order to evade answering a question that was clear and
straightforward.’

[9]  In reviewing and setting aside the Public Protector’s decision, the high
court found that the starting point of her investigation was misguided.
Whereas the words ‘since taking office’ referred to the period following Mr
Van Rooyen’s assumption of office as a Minister, the investigation incorrectly
related to the period preceding his appointment as such. The high court found

that Mr Van Rooyen’s response was not evasive or misleading and was
relevant to the question asked. Furthermore, the complaint was not related to
the parliamentary question that had been posed. In addition, the Public
Protector relied on irrelevant evidence in reaching her decision. Consequently,
the decision of the Public Protector was set aside as irrational.

[10] In this Court, the applicants insisted that the parliamentary question was
not limited in time or capacity, it was simply an inquiry into whether Mr. Van
Rooyen had ever met with the Gupta family or their associates. Instead of
giving an honest answer, Mr Van Rooyen designed a response intended to
conceal his interactions with the Guptas. The applicants maintained that the
evidence showed that Mr Van Rooyen met the Guptas first, before his
appointment.

[11] To succeed in this application the applicants must show that another
court would reasonably find that the Public Protector’s decision was a result
of a properly conducted investigation into the complaint that Mr. Van Rooyen
wilfully3 misled parliament in replying to the question. The starting point is
the Public Protector’s interpretation of the question, as it is fundamental to the
manner in which the investigation was conducted, and the conclusion reached.

[12] Mr. Steenhuisen’s question is no model of clarity. It is long and
convoluted. The Public Protector interpreted it as inquiring into:

3 The Public Protector used the words ‘deliberately and inadvertently misled’. Clause 2.3(a) of the Code
provides that: ‘Members of the Executive may not wilfully mislead the legislature to which they are
accountable.’ As such she applied the wrong test.

‘5.1.2.1 Whether [Mr. Van Rooyen], since taking office ever met with any member,
employee or close associate of the Gupta family; and/or,
5.1.2.2 Whether [Mr Van Rooyen] since taking office, ever attended any meeting with any
member, employee or close associate of the Gupta family at the Gupta’s Saxonwold Estate
or anywhere else.’

[13] On the Public Protector’s interpretation, the words ‘since taking office’
are an integral part of both parts of the question. They directed both parts of
the inquiry to the period subsequent to Mr Van Rooyen taking office as a
Minister. Mr Van Rooyen’s response was consistent with the Public
Protector’s interpretation of the question. It accounted for all the words used
in the question, including the reference to his Deputy Ministers. However, the
Public Protector’s investigation and conclusion, did not account for her own
interpretation of the question. She ignored the words ‘since taking office’.

[14] In insisting that the Public Protector’s conclusion should be upheld the
applicants interpreted the question as a two part inquiry into whether:
‘Mr. Van Rooyen and/or his deputy ministers had ever:
(i) met with any member (aa), employee (bb) and/or close association(c) of the Gupta
family; and or
(ii) attended any meeting with the specified business persons (aa) at the Gupta’s
Saxonworld Estate in Johannesburg….”

[15] Notably, the applicants’ interpretation of the question differed from that
of the Public Protector. On the applicants’ interpretation the emphasis was on
the word ‘ever’, and the words ‘since taking office’ were ignored. Such
disregard of words used in a text is impermissible, except where their
inclusion leads to an absurdity. The inclusion of the words ‘since taking

office’ does not lead to an absurdity in this case. Even if the applicants’
interpretation is plausible it is not the only credible one, as demonstrated in
the Public Protector’s interpretation. But more importantly, for the Public
Protector to reach her conclusion that there was willful misleading, she had to
abandon her interpretation of the question. Her interpretation was the same as
Mr Van Rooyen’s and accounted for the text, context and purpose of the
question.

[16]  I agree with the submission on behalf of Mr Van Rooyen that the
reference, in both the complaint and the Public Protector’s report to the media
reports, compounded the misdirection on the part of the Public Protector by
directing the investigation to a period that was not included in the question.

[17] Much was made on behalf of the applicants, of the importance of the
parliamentary question and answer procedure in promoting accountability by
members of the executive. It was submitted on their behalf that the application
raises a discrete issue of public importance in relation to the extent to which
members of cabinet may avoid accountability by distorting parliamentary
questions in order to avoid answering the substance thereof.

[18] The importance of the Parliamentary question and answer procedure
cannot be overemphasised. As this Court held in Minister of Home Affairs v
Somali Association of South Africa,4 the procedure, which is designed to
ensure accountability, responsiveness and openness, is one of the pillars on

4 Minister of Home Affairs and Others v Somali Association of South Africa Eastern Cape (SASA EC) and
Another [2015] ZASCA 35; 2015 (3) SA 545 (SCA); [2015] 2 All SA 294 (SCA) para 22.

which our multi-party system of democratic government is anchored.5
However, vague and ambiguous questions can only detract from the efficiency
of the process, and any inquiry into the veracity of the answers given must
accord with the relevant legality prescripts. The Speaker would be well
advised to heed the Public Protector’s advice, as expressed in the report, that
care should be taken to ensure that parliamentary questions are clear before
members are called upon to respond.

[19] The applicants contended that if the report is to be set aside, the matter
should be remitted to the Public Protector. No purpose would be served by
doing so. The complaint was founded on media reports which had not been
included in the question and which related to a different period from that
specified in the question. Any investigation conducted on the complaint would
yield a negative result on the issue of wilful misleading of Parliament. The
irregularities pertaining to the question, the complaint and the investigation
thereof are irremediable.

[20] For the reasons I have given above, the application for leave to appeal
must fail. But given the importance of the system of parliamentary questions
for open, accountable and responsive governance, I would, on the basis of the
Biowatch principle, make no order as to costs.

[21] Consequently, I make the following order:

5 Section 1(d) of the Constitution states as follows:
‘1. The Republic of South Africa is one, sovereign, democratic state, founded on the following values:
...
(d) Universal adult suffrage, a national common voters roll, regular elections and a multi-party system of
democratic government, to ensure accountability, responsiveness and openness.’

The application for leave to appeal is dismissed.

_________________________
N DAMBUZA
JUDGE OF APPEAL

Appearances:

For applicants:

M Bishop, with M De Beer

Instructed by:

Minde Schapiro Smith Inc, Bellville

Symington De Kok Attorneys, Bloemfontein

For first respondent:
T Masuku SC, with M Mathipa
Instructed by:

Lucky Thekiso Inc, Pretoria

McIntyre Van der Post, Bloemfontein.

THE SUPREME COURT OF APPEAL OFSOUTH AFRICA

MEDIA SUMMARY OF JUDGMENT DELIVERED

FROM
The Registrar, Supreme Court of Appeal

DATE
29 May 2023

STATUS

Immediate

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

Steenhuisen and Another v Van Rooyen and Others (case no 611/2021) [2023] ZASCA 78 (29 May
2023)

MEDIA STATEMENT

Today the Supreme Court of Appeal (SCA) dismissed an application brought by Mr John Steenhuisen,
a member of the Democratic Alliance in which he sought to appeal an order reviewing and setting aside
a report and remedial action ordered by the Public Protector. In her report the Public Protector found
that Mr Des Van Rooyen wilfully misled parliament when answering a parliamentary question posed to
him as Minister of a Government Department. The report was set aside by the Gauteng Division of the
High Court, Pretoria.

The Public Protector’s report emanated from her investigation of a complaint lodged by Mr Kevin
Mileham, also a member of the DA, against Mr Van Rooyen. The complaint was that during 2015, when
Mr Van Rooyen was a Minister of the Department of Co-operative Governance and Traditional Affairs,
he lied and intentionally made a misleading statement during a National Assembly sitting. The
statement, made in response to a written question posed to Mr Van Rooyen by Mr Steenhuisen, was
expressed as follows:
‘Has (a) [Mr Van Rooyen] and/or (b) his Deputy Ministers ever (i) met with any (aa) member, (bb)
employee and/or (cc) close associate of the Gupta family and/or (ii) attended any meeting with the
specified persons (aa) at the Gupta’s Saxonworld Estate in Johannesburg or (bb) anywhere else since
taking office; if not, what is the position in this regard; if so, in each specified case, (aaa) what are the
names of the persons who were present at each meeting, (bbb) (aaaa) when and (bbbb) where did
each such meeting take place and (ccc) what was the purpose of each specified meeting?

Mr Van Rooyen responded that:
‘(a) (aa) (cc) (b)

The Minister and his Deputy Ministers have never met with the members, employees and/or close
associates of the Gupta family in their official capacities.
(aa)(bb)(aaa)(bbb)(aaaa)(bbbb)(ccc)

Not applicable’.
Following this response Mr Mileham lodged the complaint with the Public Protector, referring to reports
by several news outlets that Mr Van Rooyen had visited the home of the Gupta family on several
occasions during the period between 2 and 8 December 2015, in the run up to her appointment as
Minister of Finance. He went on to allege that, contrary to these reports, in reply to the parliamentary
question Mr Van Rooyen lied and intentionally misled parliament by denying that he had ever visited
the Gupta family.
In finding that Mr Van Rooyen wilfully misled parliament, the Public Protector reasoned that the question
related to the media reports, and that there was no reference in the question to Mr Van Rooyen meeting
the Guptas in his capacity as a Minister. According to the Public Protector Mr Van Rooyen distorted the
meaning of the words ‘since taking office’ in the question so that he could give the misleading response.
The Supreme Court of Appeal found that the Public Protector’s own interpretation of the question
accounted for the words ‘since taking office’. She interpreted the question as an inquiry into whether,
since taking office, Mr Van Rooyen, had ever met with any member or close associate of the Gupta
family and/or whether, since taking office, he had ever attended any meeting with any member or close
associate of that family. Her conclusion that Mr Van Rooyen used the words ‘since taking office’ to
distort the meaning of the question, was inconsistent with her own interpretation and was not rationally
connected to the question. Furthermore, her investigation was based on the media reports rather than
the question that had been posed to Mr Van Rooyen. Her report and remedial action had to be set aside
and no purpose would be served by referring the matter back to her.

--- ends --