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[2017] ZAWCHC 5
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Democratic Alliance v Motsoeneng and Others (18107/16) [2017] ZAWCHC 5 (7 February 2017)
THE
HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No:18107/16
In
the matter between
DEMOCRATIC
ALLIANCE
APPLICANT
and
GEORGE
HLAUDI
MOTSOENENG
1
st
RESPONDENT
THE
SOUTH AFRICAN BROADCASTING
CORPORATION
SOC LTD
(“SABC”)
2
nd
RESPONDENT
THE
BOARD OF DIRECTORS OF THE
SABC
3
rd
RESPONDENT
THE
ACTING GROUP CHIEF EXECUTIVE OFFICER OF
THE
SABC
4
th
RESPONDENT
THE
PUBLIC
PROTECTOR
5
th
RESPONDENT
MBULAHENI
MAGUVHE
6
th
RESPONDENT
LEAH
THABISILE
KHUMALO
7
th
RESPONDENT
JAMES
AGUMA
8
th
RESPONDENT
AUDREY
RAPHELA
9
th
RESPONDENT
NOMVUYO
MEMORY
MHLAKAZA
10
th
RESPONDENT
NDIVHONISWANI
TSHIDZUMBA
11
th
RESPONDENT
VUSI
MAVUSO
12
th
RESPONDENT
KRISH
NAIDOO
13
th
RESPONDENT
BESSIE
TUGWANA
14
th
RESPONDENT
THE
CHAIRPERSON OF THE PORTFOLIO
COMMITTEE
FOR COMMUNICATIONS OF THE
NATIONAL
ASSEMBLY
15
th
RESPONDENT
THE
SPEAKER OF THE NATIONAL ASSEMBLY
16
th
RESPONDENT
THE
MINISTER OF
COMMUNICATIONS
17
th
RESPONDENT
AZWIHANGWISI
FAITH
MUTHAMBI
18
th
RESPONDENT
THE
PRESIDENT OF THE REPUBLIC OF SOUTH
AFRICA
19
th
RESPONDENT
AFRICAN
NATIONAL
CONGRESS
20
th
RESPONDENT
THANDEKA
GQUBULE
21
st
RESPONDENT
FOETA
KRIGE
22
nd
RESPONDENT
SUNA
VENTER
23
rd
RESPONDENT
BUSISIWE
NTULI
24
th
RESPONDENT
KRIVANI
PILLAY
25
th
RESPONDENT
JACQUES
STEENKAMP
26
th
RESPONDENT
LUKHANYO
CALATA
27
th
RESPONDENT
VUYO
MVOKO
28
th
RESPONDENT
SOS
SUPPORT PUBLIC BROADCASTING COALITION
29
th
RESPONDENT
MEDIA
MONITORING
AFRICA
30
th
RESPONDENT
HELEN
SUZMAN
FOUNDATION
31
st
RESPONDENT
FREEDOM
OF EXPRESSION
INSTITUTE
32
nd
RESPONDENT
SOUTH
AFRICAN NATIONAL EDITORS FORUM
33
rd
RESPONDENT
RIGHT2KNOW
CAMPAIGN
34
th
RESPONDENT
BROADCASTING,
ELECTRONIC, MEDIA & ALLIED
WORKERS
UNION
35
th
RESPONDENT
Coram
:
LE GRANGE & ROGERS JJ
Heard
:
2 FEBRUARY 2017
Delivered
:
7 FEBRUARY 2017
JUDGMENT
ON APPLICATION FOR LEAVE TO APPEAL
LE GRANGE & ROGERS
JJ
Introduction
[1]
On 12 December 2016 we handed down judgment in this case
and in the related case 3104/16 (the CA application and DC
application
respectively). We shall use the same abbreviations as
before.
[2]
The SABC has applied for leave to appeal against paras
(c), (d), (g) and (i) of our order in the CA application. Aguma has
applied
for leave to appeal against para (i), in terms whereof he was
ordered to pay the costs of the CA application jointly and severally
with Motsoeneng.
[3]
The DA, which opposes the applications for leave, has
delivered an application in terms of
s 18(3)
of the
Superior
Courts Act 10 of 2013
for a direction that our orders in the CA
application shall be operative and be executed pending the outcome of
any appeal. Motsoeneng
and the Public Protector have not sought leave
to appeal. None of the parties seek leave to appeal against our
orders in the DC
application.
The
DA’s rule 7 challenge
[4]
In response to the SABC’s application for leave to
appeal, the DA issued a notice in terms of
rule 7
disputing the
authority of Ncube Incorporated Attorneys (‘NIA’), the
attorneys who signed the application purportedly
on behalf of the
SABC.
[5]
NIA responded by providing an affidavit by the SABC’s
company secretary who attached a resolution of the executive
committee
which authorised the legal department to oppose the DA’s
application to a final determination and which authorised Aguma to
sign all necessary documents in that regard. Although the affidavit
did not attach the document setting out the executive committee’s
delegated authority, Mr du Toit SC, who appeared with Mr Premhid on
behalf of the SABC, said that he had the delegation document
in court
and that it clearly covered the defending of legal proceedings
against the SABC. Mr Katz SC, who appeared with Mr Bishop
for the DA,
did not challenge this.
[6]
Although Mr Katz persisted in the
rule 7
challenge, he
was hard pressed to argue that the executive committee’s
resolution was an insufficient authority for Aguma
to act on behalf
of the SABC in applying for leave to appeal. It is true, as Mr Katz
pointed out, that the resolution did not specifically
authorise the
appointment of NIA. In terms of the resolution, Aguma would have had
authority to appoint NIA to represent the SABC.
NIA represented the
SABC in the main case and its authority was not challenged. It is
fanciful to suppose that Aguma has not instructed
NIA to represent
the SABC.
[7]
It appears that Mr Katz’s main complaint is that
the SABC has provided no information as to how the decision to apply
for
leave to appeal was made. He submitted that Aguma’s
thinking would be relevant in assessing an appropriate costs order.
However,
NIA was not obliged, in response to the
rule 7
challenge, to
justify its client’s decision to apply for leave to appeal; NIA
merely had to establish that it was duly authorised
to bring the
application on behalf of the SABC.
The
SABC’s application for leave
[8]
In summary, the SABC’s grounds for leave to appeal
are that another court might reasonably find (i) that there was no
‘decision’
to appoint Motsoeneng as the GECA; (ii) that
if there was a ‘decision’, it was not a decision in the
exercise
of public power and was thus not susceptible to review;
(iii) that we erred in having regard to the wording of Motsoeneng’
s
2011
service contract as GECA; (iv) that we erred in finding that
Aguma’s appointment of Motsoeneng as GECA violated his
constitutional
obligation to assist and protect the Public Protector.
[9]
Although Mr du Toit persisted with all the grounds of
appeal, the only one he developed in argument was that the ‘decision’
(if one was taken) was not made in the exercise of public power.
[10]
We have considered the grounds of appeal and the oral
and written submissions made on behalf of the SABC at the hearing of
the application
for leave to appeal. The various issues were fully
addressed in our judgment of 12 December 2016. We do not think there
is any
reasonable prospect of another court reaching different
conclusions on the issues raised in the application for leave to
appeal.
[11]
In regard to the question whether the decision to
appoint Motsoeneng as GECA involved the exercise of public power, our
analysis
in the main judgment drew support from the judgements of the
Constitutional Court in
Chirwa
and
Khumalo.
Mr du Toit’s
submissions did not explain why these judgements did not strongly
support the conclusion we reached.
[12]
In para 5 of their written submissions, the SABC’s
counsel referred to the judgment of Langa CJ in
Chirwa
.
However on this point Langa CJ was in the minority. The majority view
is reflected in para 158 of our main judgment.
[13]
Mr du Toit submitted that
Khumalo
,
which we dealt with in para 161 of our main judgment, was
distinguishable for two reasons, namely (i) that it concerned the
employment
of persons already in the employ of the State; (ii) that
the ultimate decision was based on the MEC’s delay in bringing
the application. We do not understand the first reason. As in
Khumalo
, the SABC
approached Motsoeneng’s appointment as GECA on the basis that
he was already (and was still) in the SABC’s
employ. We
approached the matter on the same basis (despite the possible
implications of the expiry of Motsoeneng’
s 2011
employment
contract). The second reason is misconceived. It is true that the
MEC’s case failed because of delay; but the
question of delay
was only relevant because the Constitutional Court found that it was
dealing with the review of an exercise of
public power, thus engaging
the delay rule.
[14]
Mr du Toit questioned the way we distinguished
Calibre
Clinical
in para 163 of the main judgment. He
submitted that, like Motsoeneng’s appointment in the present
case, the procurement of
services and goods in that case was an
internal organisational matter rather than a decision which was
‘governmental in nature’.
The submission cannot succeed.
The procurement of services and goods by public bodies undoubtedly
constitutes administrative action.
Such decisions are among the most
litigated review cases. The applicant failed in
Calibre
Clinical
not because the character of the
decision was purely internal but because the body which made the
decision was not a public body.
In the present case, by contrast, it
is common cause that the SABC is a public body which exists in the
public interest.
[15]
Mr du Toit persisted with his argument based on PAJA and
Gijima
. We dealt with
that matter fully in paras 164-166. We remain firmly of the view that
the SABC’s argument is misconceived.
Mr du Toit submitted that
PAJA’s significance was not only procedural (ie in respect of
time limits) – PAJA also had
substantive significance because
in order to constitute ‘administrative action’ a decision
had to have ‘direct,
external legal effect’. That is true
but irrelevant. Mr du Toit submitted that the SABC’s
appointment of Motsoeneng
as GECA did not have direct, external legal
effect. We need not decide whether or not that is so. It would only
be necessary to
do so if the DA were relying on a ground of review
which was available to it under PAJA but not on the constitutional
principle
of legality. The DA has squarely relied on the principle of
legality. The only question is whether the decision involved the
exercise
of public power. If the decision in fact amounted to
‘administrative action’ for purposes of PAJA, the DA’s
case
would be stronger, not weaker, because the grounds of review
under PAJA are more generous and because the DA complied with all
procedural time limits.
[16]
Mr du Toit argued that our decision would open the
floodgates for reviews by outsiders challenging staff appointments in
public
bodies. However, once a decision is found to involve the
exercise of public power, it is susceptible to legality review. The
Constitution
does not permit a court to hold otherwise. We are in any
event not much impressed by the floodgates argument. In practical
reality,
political parties, public-interest groups and other
outsiders pick their fights carefully. It will not often be the case
that a
staff appointment can be impeached as irrational or on one of
the other grounds permitted by a legality review. And unless the
appointment were to a post of some significance, a fight about it is
unlikely to be thought worth the candle. Every day public bodies
are
making procurement decisions which could theoretically be the subject
of review proceedings. Relatively few are contested.
The judgements
of the courts pursuant to those reviews have no doubt enhanced the
quality and transparency of procurement decisions.
The same would be
true of the occasional review of significant staff appointments.
[17]
We thus conclude that the SABC’s application for
leave to appeal must be refused.
Aguma’s
application for leave to appeal
[18]
Aguma appeals against the personal costs order against
him. The SABC has also applied for leave to appeal against this order
though
its legal interest in the order is not apparent.
[19]
As our main judgment shows, we were fully aware that a
personal costs order was a departure from the usual result. We fully
explained
our reasons for finding that Aguma should personally be
responsible for the costs.
[20]
An appellate court will only interfere with a trial
court’s decision on costs if the trial court acted on a wrong
principle
or arbitrarily or capriciously. Mr du Toit did not seek to
persuade us that the principles which we applied were not the correct
legal principles. He also refrained from suggesting that we made the
costs order arbitrarily or capriciously. Given the limited
grounds
for appellate interference, we do not think there are reasonable
prospects of success on appeal.
[21]
Aguma’s application for leave to appeal must thus
also be refused.
Costs
of applications for leave to appeal
[22]
We do not intend to order Aguma personally to pay the
costs occasioned by the SABC’s application for leave to appeal.
He must,
however, pay the costs occasioned by his own application for
leave to appeal.
The
section 18 application
[23]
Because the SABC has taken the attitude that the time
has not yet expired for it to file affidavits in opposition to the
s 18
application, we have not yet heard that application. At the
hearing of the applications for leave to appeal we nevertheless
invited
Mr Katz to explain why the s 18 application was still
necessary in the light of undertakings given by Motsoeneng, namely
that
he will not return to work until the occurrence of one or other
of the events identified in para (c) of our order (namely the setting
aside of the Public Protector’s remedial action or his
exoneration in the new disciplinary inquiry).
[24]
Mr Katz, as we understood him, accepted that the only
order which the DA required to be implemented pending any appeal is
para (c).
We hope that the parties will be able to reach an agreement
in this respect so that it will be unnecessary for us to hear the
s 18
application. We would obviously be willing to make an order
by agreement, if an order is required. (Of course, unless the SABC
intends to petition the Supreme Court of appeal for leave to appeal,
there will be no need to pursue the s 18 application since
there will
be no further appeal process suspending our previous order.)
[25]
If the parties cannot reach agreement and if the DA
requires the s 18 application to be determined, the parties are
at liberty
to approach us for directions. Again, though, we would
encourage them to reach agreement regarding the filing of further
affidavits.
Prima facie the SABC’s reliance on the time limits
contained in rule 6 is erroneous. Section 18(3) applications are
interlocutory
and usually attended by some urgency.
The
new disciplinary inquiry
[26]
In our DC judgment we foreshadowed the possibility of a
supplementary order appointing the chairperson and initiator of the
new
disciplinary inquiry. By letter dated 27 January 2017 we were
informed by NIA that the parties (excluding the DA) have now agreed
on the new initiator. Although the person previously agreed upon as
the new chairperson was unavailable to take up the appointment,
we
were given the name of another person as the new chairperson.
[27]
In the light of publicly available information regarding
the work of the ad hoc parliamentary committee, we are inclined at
this
stage to leave it to the new interim board, which will hopefully
be appointed shortly, to determine the new chairperson and initiator.
If the new interim board is not established within three months of
today’s date, the parties may approach us again.
Orders
[28]
As agreed by counsel at the hearing of the applications
for leave to appeal, this judgment will be handed down electronically
by
transmitting same to counsel as a pdf.
[29]
We make the following orders:
(a) The application
by the second respondent (the SABC) for leave to appeal is dismissed
with costs including those attendant
on the employment of two
counsel.
(b) The application
by the eighth respondent (Mr Aguma) for leave to appeal is dismissed
with costs including those attendant
on the employment of two
counsel.
______________________
LE
GRANGE J
______________________
ROGERS
J
APPEARANCES
For
Applicant (the DA)
Mr
Katz SC and Mr M Bishop
Instructed
by
Minde
Schapiro & Smith Inc
Tyger
Valley Office Park
Building
No 2
Cnr
Willie van Schoor & Old Oak Roads
Bellville
For
Second and Eighth Respondents (the SABC and Mr Aguma)
Mr
S du Toit SC and Mr K
Premhid
Instructed
by:
Ncube
Inc Attorneys
c/
o
Nongogo Nuku Inc
7
th
Floor, Spoornet Building
1
Adderley Street
Cape
Town