Latest update September 3rd, 2026 10:25 AM
What Justice Nugent actually said
Dear Editor,
I read with interest, the recent letter by Mr. Christopher Ram published in your edition of July 19 and in particular his references to extracts of the judgment of Nugent JA in The Public Protector v Mail & Guardian Ltd and Others (2011 (4) SA 420 (SCA)).
If I understood Ram correctly, he is using those extracts from the judgment to suggest that an investigation can properly begin without any foundational evidence as the basis for an inquiry. That interpretation, however, does not reflect what, in my interpretation, the learned judge actually decided.
Justice Nugent’s observations were directed not at eliminating any requirement for a basis to investigate, but at explaining the different responsibilities of an investigator compared with a court adjudicating a dispute. His criticism was of an investigator who accepted denials from persons in authority and treated those responses as conclusive, rather than conducting an independent inquiry.
As Justice Nugent observed, “Truth and deceit know no status or occupation.” He warned that the position or standing of a person providing information cannot determine whether that information is truthful. The investigator’s task is to examine the material, not to accept assertions simply because they come from persons holding high office.
The learned judge was particularly critical of an investigation where “responses were sought from people in high office and recited without question as if they were fact.” He explained that an investigator who adopts such an approach becomes “no more than a spokesman” for those whose answers he has accepted. This was the central failing identified by the Court.
Justice Nugent also stated that:
“There is no justification for saying to the public that it must simply accept that there has not been conduct of that kind, only because evidence has not been advanced that proves the contrary.”
That statement does not mean that allegations require no foundation before an investigation begins. Rather, it means that once an investigation has commenced, the investigator cannot conclude that nothing improper occurred merely because the evidence available has not reached the standard required in a trial.
Reference has also been made to Justice Nugent’s observation that:
“The politicians who made the requests had no independent knowledge of the matters to which the requests related. They were prompted to do so by concern at information that had been published by the M&G.”
In saying this, the judge did not mean that because the politicians had merely read a newspaper article, that alone was sufficient to justify an investigation. The court was making a narrower point: a person requesting an investigation does not need to already possess direct evidence proving the allegation. That would defeat the very purpose of an investigation.
There is a significant difference between saying that a complainant does not need to prove an allegation before requesting an investigation and saying that no factual basis is required before an investigation can begin. Justice Nugent did not say that questions alone are sufficient. He did not suggest that every allegation, rumour, suspicion, or unanswered question automatically requires an investigation.
The proper reading of the judgment is that there must be some information, circumstances, or material giving rise to a legitimate basis for inquiry. A newspaper report may provide such information. A complaint may provide such information. A whistleblower’s disclosure may provide such information. Indeed, the central criticism by Justice Nugent was directed at an investigation that failed precisely because the investigator did not properly test information.
The lesson from the judgment is therefore not that investigations can be launched simply because someone asks questions. The lesson is that a person seeking an investigation need not arrive with a completed case. There must be a basis to inquire; and once the inquiry begins, the investigator must do the work necessary to establish the truth.
To suggest otherwise would transform Justice Nugent’s defence of proper investigation into a justification for investigations without a proper foundation — a proposition that the judgment does not support.
Yours faithfully,
Roopnauth Hardyal
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