Suspended Lotto secretary Nene on a 'fishing expedition', loses again in court

Suspended National Lotteries Commission (NLC) company secretary Nompumelelo Nene has failed, in what was described as a “fishing expedition”, to get documents from the Auditor-General, the Ministry of Trade, Industry and Competition, and the NLC.

In her application before Acting Judge Le Grange in the Gauteng High Court in Pretoria, Nene claimed she needs the documents for her review application in which she is seeking to set aside findings of irregular expenditure by the NLC under her watch, which led to her suspension in November 2022.

But Judge Le Grange has dismissed the application. He said he was tempted to order that she pay punitive costs, or even costs from her own pocket, but said it was too early in the review litigation process to do that.

Read the judgment here.

GroundUp reported this week that Nene remains on full pay and has been paid out almost R5-million since her suspension.

Earlier this year, Nene launched urgent proceedings to stay the disciplinary proceedings against her. But this was dismissed and she was ordered to pay the costs personally.

In her review application, she is seeking to set aside the Auditor-General reports for the financial years 2018 to 2020, which implicated her in misconduct relating to unauthorised expenditure on media services, accountants and auditors.

The matter before Judge Le Grange was an interlocutory application seeking to compel the production of the record of the decisions which led to her suspension.

Judge Le Grange said he doubted that Nene had legal standing to even bring the review application in her own name, but that was an issue which would be dealt with later.

He said the main objection (of the government respondents) was that in terms of the rules of court (Rule 30A), the Auditor-General had already filed a comprehensive record of proceedings, that the application was nothing but a fishing expedition, and that it was clear from the list of documents that she sought that most were irrelevant to the review application.

Judge Le Grange said the Auditor-General had provided her with the record even before the review application had been filed.

“In my view, the applicant [Nene] appreciated that her ‘wish list’ simply did not form part of the record of proceedings, but were rather documents which are extraneous to and which go beyond the record, to what she considered to be relevant to identify and prove the Auditor-General inconsistencies spanning the years.”

For this reason Nene had “skilfully” attempted to move away from Rule 30 to Rule 35, which provides for discovery of documents.

However, discovery could only be considered once the “contours of the dispute” had been drawn (when all the pleadings were in) and the relevancy of documentation could be determined.

In her affidavit, Nene said the dispute (in the review) was about the simple question of whether the Auditor-General consistently applied and interpreted audit standards and she wished, through the documents, to show there had been an “abrupt change” in stance, especially prior to 2018.

But Judge Le Grange said in a review the test was not inconsistency but rationality.

“The Auditor-General may, in answer, admit to having been inconsistent, which will leave the bulk of, if not all, of the listed documents now sought totally irrelevant for the purpose of the review. Discovery is best left for after the close of the pleadings.”

Nene had also sought an order compelling the NLC to provide her with documentation which she had sought under the Promotion to Access to Information Act in October 2023.

Judge Le Grange said it was common cause that the NLC had failed to answer this request. This constituted a “deemed refusal” and the default position was that she had to follow internal appeal processes before she had the right to approach a court.

In dismissing her application, with costs, the judge said he had been requested by all the respondents to grant costs on a punitive scale and some had even suggested a personal cost order.

“I cannot say I have not been tempted due to her unreasonable persistence with the application, which may also have as a basis an ulterior purpose. I believe however, that I should not grant such an order at this early stage of the litigation, especially due to the fact that the applicant is an individual who does not have access to state funds, as the majority of the respondents do.” DM

First published by GroundUp.