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Special Investigative Unit v Odendaal Erasmus & Thulare Incorparated and Others (33867/17) [2019] ZAGPPHC 28

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Special Investigative Unit v Odendaal Erasmus & Thulare Incorparated and Others (33867/17) [2019] ZAGPPHC 28

1st March 2019

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1.              This is an opposed interlocutory application, seeking amendment in terms of Rule 28(4).

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BACKGROUND

2.              As per the particulars of claim, the plaintiff is cited as the Special Investigating Unit established in terms of the Special Investigating Units and Special Tribunals Act 74 of 1996 (" the SIU Act'), and with powers to investigate serious malpractices or maladministration within state institutions in terms of the SIU Act, and to conduct and institute civil proceedings in relation to such malpractices or maladministration in any court of law in its own name or on behalf of state institutions. 

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3.               These powers and competency it derives from the SIU Act and the relevant proclamation authorising the investigation whose scope it  defines.

4.               For purposes of these proceedings the plaintiff/applicant was under section 2(1) of the SIU Act and in terms of Proclamation R33 of 2011 published in Government Gazette Number 34305 of 20 May 2011, requested to investigate the matters relating to any alleged inter alia serious maladministration in connection with the affairs of the Midvaal Local Municipality ( "the MLM or the Municipality"),  of  improper  or  unlawful  conduct  by  councillors,  officials, employees and/or agents of the Municipality unlawful appropriation or expenditure of public money or property, unlawful irregular or unapproved acquisitive act, transaction, measure or practice having a bearing upon state property, unlawful and improper conduct by any person which has caused, may cause serious harm to the interest of the public, or any category thereof.

5.       The Plaintiff, as alleged in the Particulars of Claim, was by such Proclamation directed to thereafter investigate, exercise or perform all the functions and powers assigned to or conferred upon the Special Investigating Unit by the SIU Act including the recovery of any losses suffered by the municipality in relation to the matters referred to in the SIU Act. The referred maladministration, malpractices, unlawful and improper conduct it was required to investigate covered the period between and included those which occurred prior to 1 January 2002, and the date of proclamation being published  or after the date  of publication  of the proclamation.

6.       As per the Particulars of Claim, it is further alleged that after conclusion of these investigation and the delivery of a report in which certain findings were made of some malpractices discovered by its investigations, the Applicant issued Summons against the Defendants in which it claimed for the following relief: firstly that a declaratory order be made against the Defendants that their disposal of certain fix properties on behalf of the MLM while they were acting as its agents is unlawful. Further, that all such profits made as a results or pursuant to the unlawful conduct be paid to the State. Secondly, that the Defendants had breached their fiduciary duties to the MLM and that such profits

 made in breach of their fiduciary duties be disgorged from them and paid over to the State.

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