LB;  5 February 2025 

True to her word, MM Annaleen Vorster released the preliminary Vermaak report, and with it strong warning from the Municipality’s legal Counsel, Attorney Evelynn Jorge. 

Vorster advised Council accordingly: “As I have warned, there is immense legal ramifications for the Municipality in publishing this report.  As I have met my fiduciary duty as Accounting Officer, I am now releasing the report to the public with due notice that the Administration takes no responsibility for any damages or claims against the Municipality.” 

Copies of the report are available at all libraries in all towns, as well as a copy at the administrative office in Voortrek Street.  The report is available on the Swellendam Municipality’s website. 

Legal Opinion: Salient point (in summary) 

Can the Vermaak report be made public and posted as per the council resolution dated 3rd of February 2025? In order for us to provide a comprehensive opinion we had to peruse and consider applicable and relevant legislation, policies by-law and case law. 

  Protection of Personal Information Act 4 of 2013: 

  A municipality is obligated to comply with the act when information of data subjects are processed and must ensure that same is done in a reasonable manner, that does not infringe a data subjects right to privacy. The municipality has a duty to safeguard a data subjects information. 

  Chapter 11 of the POPIA act sets out penalties and offences when the provisions, of the act is breached and Section 107 clearly stipulates that a penalty of fine or imprisonment up to 10 years may be imposed for such a breach which entail criminal liability. 

  Chapter 11 of the POPIA act sets out penalties and offences when the provisions, of the act is breached and Section 107 clearly stipulates that a penalty of fine or imprisonment up to 10 years may be imposed for such a breach which entail criminal liability 

  A data subject or, at the request of the data subject, the Regulator, may institute a civil action for damages in a court having jurisdiction against a responsible party for breach of any provision of this Act as referred to in Section 73, whether or not there is intent or negligence on the part of the responsible party 

  In the event of a breach the responsible party may raise any of the following defences against an action for damages: 

1. vis major;
2. consent of the plaintiff;
3. fault on the part of the plaintiff;
4. compliance was not reasonably practicable in the circumstances of

the particular case; or 

5. the Regulator has granted an exemption in terms of section 3

  A court hearing proceedings in terms of subsection (1) may award an amount that is just and equitable, including—  

1. payment of damages as compensation for patrimonial and non-patrimonial loss suffered by a data subject as a result of breach of the provisions of this Act;
2. aggravated damages, in a sum determined in the discretion of the Court;

interest; and 

3. costs of suit on such scale as may be determined by the Court.

  We are of the humble opinion that the release of the report will possibly violate several data subject’s rights in terms of POPIA and will constitute a breach of the provisions as set out and contained in POPIA, this will have serious financial consequences for the Municipality. 

Defamation   

Secondly the municipality will in all likelihood expose itself to defamation claims. Defamation is defined as the infringement of someone’s good name, reputation or dignity. The elements for defamation are as follows, wrongful and intentional publication of defamatory statements concerning another. 

  It is our instructions that the report has not been tested and may contain defamatory statements, people and entities named in report will almost certainly institute claims for damages. 

  We are of the humble opinion that should the report be posted as per the council resolution dated 3rd of February 2025, this will expose the Municipality to an imminent threat of litigation in that individuals and entities named therein will in all likelihood claim damages against the municipality for defamation and breach of the provisions of the POPIA act. 

It is noteworthy to bear in mind that the report is preliminary, it is not the final report, nor has the full investigation taken place, the evidence and contents as is, has not been verified nor tested, and a claim for defamation against the Municipality will most likely be successful. 

Municipal Finance Management Act 56 of 2003 

  The Accounting Officer must take reasonable steps to guard against unauthorized, irregular, fruitless and wasteful expenditure and ensure that other losses are prevented, Section 95 of the Act confirms same once again. 

  In the event that claim arise as a result of the preliminary report being released, it should be noted that if a claimant then be successful, it will entail that a claimant is awarded an amount for damages and a cost order will likely be granted against the Municipality. We are of the opinion that such expenditure will amount to wasteful expenditure as reasonable care was not applied to safeguard against such expenditure. 

  Preliminary Report in terms of Regulation 3 read with Regulation 5 of MFMA 

  What is very concerning here is that the report by Adv. Vermaak is a preliminary report and it seems that there is confusion that it is a final report. 

  It should be expressly stated that the report is a mere preliminary report, in terms of which Adv. Vermaak recommends that a full investigation be conducted. 

  The recommendation has been accepted by council, however very importantly, it should be noted that the full investigation has not been conducted. 

  The contents of the report have not been tested, the full report will entail a compressive investigation. 

Disciplinary actions will also follow from the Vermaak’s report. We are of the humble opinion that release of the preliminary report will be prejudicial to the full investigation and the integrity of disciplinary actions that will follow. 

  Audi Alternam Partem Rule 

  With regards to the disciplinary actions that will follow it should be noted that no person should be judged without a fair hearing in which each party is given the opportunity to respond to the evidence against them. 

We reiterate the investigation is not complete it is a mere preliminary report and release thereof may be detrimental to any proceedings that might follow from the final investigation. 

  The audi alteram partem rule implies that a person must be given the opportunity to argue his case. This applies not only to formal administrative enquiries or hearings, but also to any prior proceedings that could lead to an infringement of existing rights, privileges and freedoms, and implies that potentially prejudicial facts and considerations must be communicated to the person who may be affected by the adverse decision by the decisionmaker, to enable him to rebut the allegations.  

  The investigation is still in the preliminary stage and essentially comprises of an information gathering exercise. The investigative process is a fact finding mission which includes personal interaction and engagement with the complainant, the applicant, and factual witnesses.” 

  Thus we reiterate the investigation is not complete it is a mere preliminary report and release thereof may be detrimental to any proceedings that might follow from the final investigation. 

  Anti-Fraud and Corruption Policy 

  Furthermore we have perused the anti-fraud and corruption policy of the Municipality Section 10.4 read with 10.5 is of particular importance. 

  Section 10.4 determines that all information relating to fraud and corruption will be treated with confidentiality and progression will be handled in a confidential manner and not be disclosed to any other person than those who has a legitimate right. 

  Section 10.5 further states that Municipality accepts that people who reports alleged fraud or corruption must be assured that the matter is progressing but confidentially must be maintained. 

  It should be noted that the full investigation has not been concluded nor has it even started and we are of the opinion that the preliminary report should be treated confidential to ensure the integrity of the full investigation. 

  It should be noted that the full investigation has not been concluded nor has it even started and we are of the opinion that the preliminary report should be treated confidential to ensure the integrity of the full investigation. 

  It is our humble opinion that to release the preliminary report at this sensitive stage into the investigation, is in neither parties best interest for various reasons set out above and that no report should be released until such time as that the full investigation has been completed. 

  It can certainly not be in any persons best interest to release the report at a premature stage when none of the facts has been verified or tested, which will be done during the full investigation. 

  Therefore, we are of the humble opinion for reasons set out above that the release of the report will be detrimental however it should be noted that the Municipality must adhere to council’s decisions and may not simply ignore them on the basis that it may be invalid. 

  Resolution of Council Must be adhered to 

  The Municipality must adhere to council’s resolutions until such time as that a resolution is reviewed or set aside. The executive authority of the Municipality does not vest in the Municipal Manager or any other employee but in the municipal council as our Constitution. 

  Taken into account the above case law and the findings of our courts it is our humble opinion that the Municipality and the Municipal Manager as Accounting officer is bound by the resolution of the council dated 3rd of February 2025, even though such resolutions might be invalid the municipality must adhere to the resolution of the council, however any decision taken by council is reviewable and may be rescinded should there be sufficient grounds to do so.