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[2017] ZAWCHC 107
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Steenkamp and Another v Central Energy Fund Soc Ltd and Others (13599/2017) [2017] ZAWCHC 107; 2018 (1) SA 311 (WCC) (22 September 2017)
THE
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
(WESTERN CAPE
DIVISION, CAPE TOWN)
Case
No: 13599/2017
Before the Hon. Mr
Justice Bozalek
Hearing: 30 and 31
August 2017
Judgment
Delivered: 22 September 2017
In
the matter between:
WILLIAM
SOLOMON
STEENKAMP
1
st
Applicant
OWEN
CEDRIC
TOBIAS
2
nd
Applicant
and
THE CENTRAL
ENERGY FUND SOC
LTD
1
st
Respondent
THE PETROLEUM
OIL & GAS CORPORATION SOC LTD
2
nd
Respondent
THE MINISTER
OF
ENERGY
3
rd
Respondent
JUDGMENT
BOZALEK J
[1]
The
applicants in this matter are two former directors of the Petroleum
Oil and Gas Corporation SOC Ltd (‘PetroSA’)
who
approached this Court on an urgent basis seeking the declaration as
unlawful and the setting aside of their removal as directors
of
PetroSA on 5 July 2017.
[2]
The
first respondent is the Central Energy Fund SOC Ltd (‘CEF’),
a state-owned enterprise in terms of the Public Finance
Management
Act, 1 of 1999 (‘the PFMA’) which is a national energy
utility and the holding company of PetroSA. PetroSA
is the second
respondent, also a state-owned company and a public entity as
contemplated in the PFMA and is described as the country’s
national oil and gas company.
[3]
The
third respondent is the Minister of Energy in her capacity as the
political head of the Department of Energy which is CEF’s
primary shareholder. No relief is sought against the Minister and she
abides the decision of the Court provided no costs order
was sought
against her. Similarly, PetroSA abides the decision of the Court on
condition that no costs order is sought against
it, which undertaking
was duly made by the applicants.
[4]
The
applicants contend that they were unlawfully removed as directors in
terms of the Companies Act, 71 of 2008 (‘the
Companies Act&rsquo
;).
They also contend that their removal was unlawful in terms of the
Promotion of Administrative Justice Act, 3 of 2000 (‘PAJA’)
and, in the alternative, in terms of the doctrine of legality. The
applicants’ urgent application sought in the first place
immediate relief and, failing that, interim relief pending the final
determination of review relief set out in Part B of their
notice of
motion. At the hearing of the matter the applicants advised that they
sought final relief and were not seeking any form
of deferred review
relief. In effect, however, they seek the review relief as an
alternative ground but without having obtained
any record of the
decision or having supplemented their papers.
Background
[5]
The
applicants were appointed to the PetroSA board with effect from 14
November 2014 at a time when PetroSA was experiencing considerable
financial difficulties which manifested in huge losses and declining
revenues. An important factor in this picture was the failure
of a
certain Project Ikhwezi, which entailed attempts to sink new oil
wells off Mossel Bay to replace existing wells which had
been largely
depleted over the years. In 2015 PetroSA suffered a larger than
anticipated loss mainly due to a R14.5 billion impairment
charge of
which R11.7 billion related to the refinery, arising mainly from the
failure of Project Ikhwezi.
[6]
During
2015 the Minister requested that CEF and PetroSA jointly prepare a
turnaround plan for PetroSA which became known as Project
Apollo.
Significant differences arose between the CEF board and the PetroSA
board regarding the form and implementation of the
turnaround plan.
The relationship between the two boards became extremely strained. In
January 2017 the Minister of Energy filled
vacancies on the CEF board
and appointed new directors. The two boards met on 1 March 2017 when
PetroSA submitted a ‘
Corporate
Plan’
to the CEF board which appears not to have been unconditionally
accepted.
[7]
The
PetroSA board appeared before the Parliamentary Portfolio Committee
on Energy (‘the PPCE’) on 14 March 2017 to account
for
the R14 billion impairment arising from the failure of Project
Ikhwezi and to address the range of challenges facing the company.
[8]
On
6 May 2017 PetroSA hosted the new Minister of Energy in Mossel Bay as
part of her induction to PetroSA and the refinery in Mossel
Bay. Some
two months after the arrival of the new CEF board members, the
PetroSA board received notices from CEF’s new chairperson,
Mr
Makasi, dated 28 March 2017, requesting a general meeting to be
convened for CEF as the shareholder i.e. a shareholders meeting,
which proposed to remove the PetroSA board. The notice also requested
the PetroSA board members to resign with immediate effect.
[9]
The
letter dated 28 March 2017 was headed
‘
Request
to convene a meeting of the shareholders of (PetroSA)’
.
It identified CEF as the sole shareholder of PetroSA and accordingly
entitled to request PetroSA’s board to convene a general
meeting in terms of
sec 71
of the
Companies Act. CEF
requested
PetroSA’s board to convene such a meeting not less than 15 days
later and to circulate to every PetroSA board member
a letter
addressed to them by CEF’s board requesting reasons why they
should not be removed as directors of PetroSA. In that
letter CEF
expressed its concern about the ‘
strategic
direction and the financial standing and management of PetroSA’
and outlined some of its main concerns.
[10]
Under
the heading
‘
Financial
Management’
it recorded that PetroSA had been reporting losses, had failed to
timeously communicate and appraise the CEF board of: its reasons
for
failing to meet agreed financial targets, for its losses and of its
plans to turn around PetroSA’s performance to stem
such losses.
Further details were cited.
[11]
Under
the heading
‘
Performance’
it was recorded that the PetroSA board had not met certain targets
that were agreed with CEF in the 2016/2017 corporate plan and
these
were detailed. It was further recorded that the aforementioned
targets were critical for the continued operational capacity
of
PetroSA.
[12]
Dealing
with the topic
‘
Filling
Key Management Vacancies’
,
the CEF board recorded that despite addressing several letters to the
PetroSA board requesting the commencement of the recruitment
of a
permanent CEO for PetroSA, it had not received any feedback from the
PetroSA board on the progress relating to this process.
Referring to
the ‘
Turnaround
Plan and Corporate Plan’
the CEF board recorded that the PetroSA board had prepared and
approved a corporate plan indicating that it would continue making
losses during the 2017/2018 to 2021/2022 corporate planning period
which, the CEF’s board alleged, indicated that the PetroSA
board was unable to provide a tangible plan to improve its precarious
financial position.
[13]
The
CEF board also complained that key elements and initiatives agreed in
the strategic turnaround plan had not been implemented
by PetroSA
thus far. The letter concluded:
‘
In
the light of the above the CEF board hereby requests that you tender
your resignation as a director of PetroSA with immediate
effect.
Should you wish to continue as a director … you are requested
to provided reasons in writing … and to make
yourself
available to make representations at the general meeting of PetroSA
to be held on date advised.’
[14]
CEF
also required PetroSA’s board, in the notice convening the
meeting of shareholders, to issue to its directors various
draft
resolutions proposing the removal of the various directors from
PetroSA’s board and appointing persons yet to be identified
as
new directors of the company.
[15]
The
preamble to the draft resolutions recorded that PetroSA was not
currently performing to the satisfaction of CEF which was of
the view
that a successful turnaround of PetroSA could only be achieved
through reconstituting the board of directors of PetroSA.
It recorded
further that each of the directors identified for possible removal
would be given a reasonable opportunity to make
a presentation, in
person or through a representative at the shareholders meeting,
before the resolution was put to a vote. Finally,
it noted that
depending on the outcome of the various directors’
representations there might be a deficiency in the number
of
directors on the PetroSA Board in which event CEF might wish to make
further appointments to the board.
[16]
In
response to the invitation to make representations PetroSA’s
board instructed legal representatives who duly prepared written
representations in the form of a 150 page presentation comprising of
78 pages of closely typed text plus annexures.
[17]
PetroSA’s
board originally scheduled a shareholders meeting for 2 June 2017,
being more than two months after receipt of the
original request from
CEF to hold a shareholders meeting. This was unacceptable to CEF’s
board and eventually a compromise
was reached whereby the meeting
commenced on 22 May 2017.
[18]
Prior
thereto the CEF board chairperson wrote to PetroSA’s board on 9
May 2017 seeking an undertaking that, prior to the shareholders
meeting, PetroSA’s board would take no steps to place it under
business rescue, appoint any person in a senior managerial
position
or dispose of any of PetroSA’s material assets. The
correspondence which passed between the respective chairpersons
of
the boards in this and other respects at the time clearly illustrated
a strained relationship between the respective boards.
[19]
At
the general shareholders meeting on 22 May 2017 and through its
counsel, the PetroSA board partly presented its oral representations
whereupon the meeting was postponed to 6 June 2017 but was not
completed on that date. In the interim all the directors save for
the
applicants resigned and by the latter date only the applicants
remained as directors. On 27 June 2017 the applicants were advised
that the shareholders meeting would be reconvened the following day
but it could not proceed due to the unavailability of the applicants
at such short notice. The applicants then received short notice
reconvening the shareholders meeting on 5 July 2017. The notice
contained a number of proposed resolutions two of which were to
remove the applicants from the board of directors of the company
with
effect from the date of passing the proposed resolution whilst a
further resolution proposed the appointment of unidentified
new
directors in their place.
[20]
In
the event, the applicants did not attend the reconvened meeting on 5
July 2017 but later that day received from the CEF board
letters of
removal as directors. In the letters it stated that the shareholder
(CEF) had reviewed and considered the directors’
representations as presented by their counsel as well as the written
representations circulated but had, however, resolved to reconstitute
the PetroSA board with immediate effect. Accordingly the applicants’
terms as directors of PetroSA would cease effective
from 5 July 2017.
I shall also refer to this as the ‘
impugned
decision’
.
[21]
It
was common cause that the usual term of a PetroSA director was three
years and therefore it was accepted by the applicants that
any
setting aside or declaration as unlawful of the termination of their
directorships would have the effect of reinstating them
in that
position only up until 14 November 2017.
[22]
As
mentioned earlier the primary relief sought by the applicants is the
reviewing, declaring unlawful and setting aside of their
notices of
removal and the decision by CEF’s board removing them as
directors of PetroSA. They also seek an order directing
CEF’s
board to reinstate them as directors of PetroSA.
The applicants’
case
[23]
On
behalf of the applicants it is contended that the basis of their
removal from the PetroSA board was the ‘
reasons’
recorded in the letter of 28 March 2017 from CEF’s board. It is
further contended that the complaints in that letter effectively
accuse PetroSA’s directors of incompetence, negligence and a
dereliction of their duties as directors.
[24]
The
applicants’ case is founded upon two bases. In the first place
the submission is that CEF failed to comply with the relevant
provisions of the
Companies Act, more
particularly in that the
directors should have been removed in terms of
sec 71(8)
and not
71(1), the subsection which is relied upon by CEF.
[25]
The
relevant provisions of
sec 71
of the
Companies Act read
as follows:
‘
Removal
of directors
(1)
Despite anything to the contrary in a company's Memorandum of
Incorporation or rules, or any agreement between a company
and a
director, or between any shareholders and a director, a director may
be removed by an ordinary resolution adopted at a shareholders
meeting by the persons entitled to exercise voting rights in an
election of that director, subject to subsection (2).
(2) Before
the shareholders of a company may consider a resolution contemplated
in subsection (1)-
(a)
the director concerned must be given notice of the meeting and the
resolution, at least equivalent to that which a shareholder
is
entitled to receive, irrespective of whether or not the director is a
shareholder of the company; and
(b)
the
director must be afforded a reasonable opportunity to make a
presentation, in person or through a representative, to the meeting,
before the resolution is put to a vote.
(3) If a company
has more than two directors, and a shareholder or director has
alleged that a director of the company-
(a)
has become-
(i) ineligible or
disqualified … ; or
(ii)
incapacitated ... ; or
(b)
has
neglected, or been derelict in the performance of, the functions of
director, the board, other than the director concerned,
must
determine the matter by resolution, and may remove a director whom it
has determined to be ineligible or disqualified, incapacitated,
or
negligent or derelict, as the case may be.
(4) Before the
board of a company may consider a resolution contemplated in
subsection (3), the director concerned must be given-
(a)
notice of the meeting, including a copy of the proposed resolution
and a statement setting out reasons for the resolution, with
sufficient specificity to reasonably permit the director to prepare
and present a response; and
(b)
a reasonable opportunity to make a presentation, in person or through
a representative, to the meeting before the resolution
is put to a
vote.
(5) …
(6) …
(7) …
(8) If a company
has fewer than three directors-
(a)
subsection
(3) does not apply to the company;
(b)
in any
circumstances contemplated in subsection (3), any director or
shareholder of the company may apply to the Companies Tribunal,
to
make a determination contemplated in that subsection; and
(c)
subsections
(4), (5) and (6), each read with the changes required by the context,
apply to the determination of the matter by the
Companies Tribunal.
(9) Nothing in
this section deprives a person removed from office as a director in
terms of this section of any right that person
may have at common law
or otherwise to apply to a court for damages or other compensation
for-
(a)
loss of office as a director; or
(b)
loss of any other office as a consequence of being removed as a
director.
(10)
…
’
[26]
Applicants’
counsel, Ms Golden, noted that various notices and proposed
resolutions received by the applicants referred merely
to
sec 71
of
the
Companies Act and
she submitted that the nature of the
allegations made against the applicants involved incompetence,
negligence and dereliction
of their duties as directors. Accordingly,
she contended, the applicants could not lawfully have been removed in
terms of
sec 71(1)
and (2) of the
Companies Act as
is alleged by CEF.
Instead, counsel submitted further, the nature of the allegations
triggered the procedural regime contemplated
in
sec 71(3)
read with
sec 71(8).
These submissions were made on the additional basis that
when the CEF board took the impugned decision at the shareholders
meeting
PetroSA only had two directors remaining i.e. the applicants.
The argument proceeds that in the light of this fact the CEF
shareholder
had no obligation but to apply to the Companies Tribunal
for any determination that the applicants had neglected or been
derelict
in the performance of their functions as directors.
[27]
There
is no merit in these arguments which are based upon a misreading of
sec 71.
A primary distinction is made in
sec 71
between meetings of
shareholders, where a resolution is considered for the removal of a
director, and meetings of the board of
a company which may also
consider a resolution for the removal of one or more of its
directors. Subsections 71(1) and (2) deal
only with shareholders
meetings whereas
sec 71(3)
to (8) deal primarily with meetings of a
company’s board of directors.
[28]
In
the present matter the only relevant meeting ever held was the
shareholder meeting called by CEF’s board as the sole
shareholder
of PetroSA and therefore the provisions of
sec 71(3)
-
(8) were of no direct application.
[29]
That
PetroSA at one point had only two directors is irrelevant. It is
indeed so that the provisions of
sec 71(3)
and
71
(8) clearly
contemplate that only a majority of directors can remove a fellow
director at a meeting of a company’s board of
directors. Where
there is only one or two directors the determination of whether there
is cause to remove a director cannot be
left to the board and must be
referred to the Companies Tribunal. But since no PetroSA board
meeting ever dealt with the removal
of directors, this was
irrelevant.
[30]
In
this regard I was initially puzzled by the words ‘
a
shareholder’
in
sec 71(3)
and ‘
or
shareholder’
in
sec 71(8)(b)
which could be seen as indicating that shareholders
dissatisfied with a director must exercise their right to seek his or
her removal
through 71(3) or (8), as the case may be. However, on
reflection, these provisions are clearly there to cater for the
situation
where a shareholder (presumably a minority shareholder)
seeks to persuade the company’s board to remove a director for
a
particular reason/s rather than seeking his/her removal through the
mechanism of a shareholders meeting.
[31]
It
would also appear that the shareholders of a company, acting through
a shareholders meeting, have a wider discretion or power
to remove
directors than does the company itself acting through its board of
directors. In the case of the board it would appear
to be a
requirement for the removal of a director that he or she has become
ineligible in terms of
sec 69
of the
Companies Act, or
disqualified
or incapacitated or has neglected or been derelict in the performance
of his or her functions as a director.
Section 71(3)
is not made
directly applicable to shareholders acting through a shareholders
meeting as provided by
sec 71(1)
and (2). Be that as it may, there
will obviously be cases where the shareholders are of the view, for
example, that a director
has neglected or been derelict in the
performance of his or her functions as a director and that this
provides grounds for his
or her removal.
[32]
I
am prepared to assume that the circumstances of the present matter
are such that the CEF board, as shareholder, was effectively
making a
case against the applicants (and their fellow directors before they
resigned) that they had neglected or been derelict
in the performance
of their functions as directors as described in
sec 71(3).
Although
these words are not used in the notices and letters directed by CEF
to PetroSA’s directors their contents are quite
capable of such
an interpretation.
[33]
However,
even if this assumption is made, as well as the further assumption
that the applicants were entitled to the procedural
rights referred
to in
sec 71(4)(a)
mutatis
mutandis
,
no case has been made out by them that they were not afforded all
these rights and protections. The applicants were given detailed
reasons why the shareholder was of the preliminary view that they
should be removed as directors. They had a more than reasonable
opportunity to make representations both in writing and an oral
presentation to the shareholders meeting, which they did through
legal representatives, before the resolution for their removal as
directors was put to the vote.
[34]
In
the circumstances any challenge to their removal based on
non-compliance with the provisions of
sec 71
of the
Companies Act
must
fail.
The
administrative law challenge
[35]
The
second leg to the applicants’ case is founded in administrative
law, based on the assertion that their removal as directors
amounted
to administrative action and was subject to PAJA, alternatively was
subject to the doctrine of legality. The applicants
contend that ‘
the
impugned decision’
constitutes administrative action and, when assessed against the
reasons which motivated it, reveals that it was predetermined
and a
fait
accompli
.
It is submitted further on behalf of the applicants that a decision
to remove PetroSA’s entire board, including the applicants,
was
unreasonable and disproportionate, arbitrary and irrational. As such,
it is contended, the decision falls to be reviewed and
set aside in
terms of PAJA, alternatively the doctrine of legality.
[36]
For
their
part CEF
contends that its decision was not administrative
action and thus not reviewable in terms of PAJA, nor for that matter
is it even
subject to the doctrine of legality as an exercise of
public power. In the alternative, CEF contends that should it be
found that
the impugned decision amounts to administrative action or
is subject to the doctrine of legality, the action taken by CEF meets
both the procedural and substantive requirements of PAJA and the
procedural and substantive tests for procedural fairness and
rationality required by the doctrine of legality.
Did the impugned
decision constitute an administrative action?
[37]
The
first question which thus arises is whether the impugned decision
amounted to administrative action. In
President
of the Republic of South Africa and Others v South African Rugby
Football Union and Others (SARFU)
[1]
the Constitutional Court held that a determination of whether action
is administrative action or not should be decided on a case
by case
basis. It held further that the source of the power, the nature of
the power, its subject-matter, whether it involves the
exercise of a
public duty, and how closely it is related to policy matters (which
are not administrative) or to the implementation
of legislation
(which is characteristic of administrative action), are all relevant
considerations to be considered in the analysis.
[2]
The court stated:
‘…
What
matters is not so much the functionary as the function. The question
is whether the task itself is administrative or not. …
The
focus of the enquiry as to whether conduct is “administrative
action” is not on the arm of government to which
the relevant
actor belongs, but on the nature of the power he or she is
exercising.’
[3]
[38]
In
Minister
of Defence and Military Veterans v Motau and Others (‘Motau’)
[4]
the Constitutional Court found that the Minister of Defence and
Military Veterans’ removal of the chairperson and deputy
chairperson from Armscor’s board of directors was executive,
rather than administrative action. The majority of the Court
considered the nature, source and constraints on the Minister’s
power to appoint and remove the directors and found that
it was an
adjunct of the power to formulate defence policy and derived from her
constitutional duty to exercise political responsibility
for defence
in South Africa. The Court was also of the view that the Minister was
afforded a broad discretion to appoint and remove
directors, which
bolstered the view that the power was executive in nature.
[5]
[39]
In
the present matter neither party contends that the decision taken by
CEF’s board was executive in nature. The question
is rather,
whether the decision was administrative in nature or
non-administrative. As in all matters of this nature regard must
first be had to the definition of administrative action in PAJA. To
the extent that it is relevant,
section 1
reads:
‘
1.
Definitions … “administrative action” means any
decision taken, or any failure to take a decision, by -
(a) an organ of
state …
(b) a natural or
juristic person, other than an organ of state, when exercising a
public power or performing a public function in
terms of an
empowering provision,
which adversely
affects the rights of any person and which has a direct, external
legal effect …’
[40]
The
applicants chose to locate their case under (b) namely the
decision-maker was a juristic person ‘
when
exercising a public power or performing a public function in terms of
an empowering provision’
.
There was no serious argument from CEF that the impugned decision did
not adversely affect the rights of the applicants or did
not have a
direct, external effect. The question then narrows down to whether,
in taking its decision, CEF exercised a public power
or performed a
public function in terms of an empowering provision and whether the
impugned decision falls within the definition
of a ‘
decision’
in PAJA. There it is defined as meaning ‘
any
decision of an administrative nature made, proposed to be made, or
required to be made, as the case may be, under an empowering
provision’
.
[41]
Notwithstanding
how the applicants chose to present their case it should be noted
that there is also room for the argument that
the impugned decision
constituted administrative action in terms of
sec 1(a)(ii)
of PAJA,
namely, a decision taken by an organ of state when ‘
exercising
a public power or performing a public function in terms of any
legislation’
.
I will however devote no further attention to this point since this
argument was not made on behalf of the applicants.
[42]
On
behalf of CEF it was contended that the appropriate test to apply was
the so-called seven point test enunciated in para 33 of
Motau’s
case and in this regard it was submitted that requirements (a) and
(c) had not been met i.e. (a) it was not a decision of an
administrative
nature, and (c) that it had not been an exercise of
public power or the performance of a public function. As to issue (a)
it was
further contended that, for the purposes of determining
whether the impugned decision constituted administrative action,
regard
should be had to the fact that the CEF board was not operating
in a ‘
law
free zone’
but within the constraints of
sec 71
of the
Companies Act. CEF
also
drew support from the fact that those provisions were not specific to
the relationship between CEF, as shareholder, and PetroSA.
[43]
Although
the primary question in
Motau
was whether the Minister’s removal of Armscor’s top
executives was an executive or administrative action, there were
similarities with the present matter amongst which was that Armscor
was a wholly state-owned entity regulated by the Armscor Act.
This
situation is mirrored in relation to CEF which is a Schedule 2
state-owned enterprise in terms of the PFMA and a national
energy
utility reporting to the Department of Energy as its primary
shareholder.
[44]
CEF
derives its mandate from the Central Energy Fund Act, 38 of 1977
(‘the CEF Act’). As a holding company the CEF group
oversees the governance of a group of subsidiaries, including
PetroSA. As stated earlier, PetroSA too is a state-owned company
in
terms of
sec 8(2)
of the
Companies Act and
a public entity as
contemplated in the PFMA.
[45]
The
preamble to the CEF Act states that it provides for the payment of
certain monies into the Central Energy Fund and for the utilisation
and investment thereof as well as for the imposition of a levy on
fuel and for the utilisation and investment thereof. Section
1(3)
provides that the affairs of CEF (Pty) Ltd shall be managed and
controlled by a board of directors which consists of
a chairman
appointed by the Minister of Mineral and Energy Affairs, two officers
in that department also appointed by the Minister,
and not more than
five other directors similarly appointed by the Minister.
[6]
Section 1D provides for the share capital of CEF (Pty) Ltd and
stipulates that shares therein shall be taken up by the state only.
[46]
CEF
(Pty) Ltd controls the Central Energy Fund into which is paid monies
accruing into it by virtue of the
Petroleum Products Act, 120 of
1977
, the levy on fuel provided for by sec 1A of the CEF Act and such
other monies as may accrue to the Fund from any other source.
[47]
Subsection
1(2) provides that these monies:
‘
(a)
… shall be utilized in accordance with directions of the
Minister … for the financing or promotion of -
(i) the
acquisition of coal, the exploitation of coal deposits, the
manufacture of liquid fuel, oil and other products from coal,
the
marketing of the said products and any matter connected with the said
acquisition, exploitation, manufacture and marketing;
(iA) the
acquisition, generation, manufacture, marketing or distribution of
any other form of energy, and research connected therewith;’
Presumably it is
under this latter provision that the affairs of PetroSA fall under
the supervision or control of CEF (Pty) Ltd.
[48]
In
Motau
the court went on to assess the nature of the power and stated that
the concept of ‘
administrative
action’
as defined in sec 1(i) of PAJA is the threshold for engaging
administrative law review. The rather unwieldy definition can be
distilled into the seven elements referred to earlier, namely that
there must be:
‘
(a)
a decision of an administrative nature;
(b) by an organ
of state or a natural or juristic person;
(c) exercising a
public power or performing a public function;
(d) in terms of
any legislation or an empowering provision;
(e) that
adversely effects rights;
(f) that has a
direct, external legal effect; and
(g)
that does not fall under any of the listed exclusions’.
[7]
[49]
As
mentioned, on behalf of CEF Mr Motau conceded that all the elements
in the above list were met save for (a) and (c). CEF’s
counsel’s concession that requirements (b) and (d) to (g) have
been met are, I consider, correctly made. What remains to
be decided
then is whether the impugned decision was one of an administrative
nature and whether it involved the exercise of a
public power or
performance of a public function. In discussing the requirement under
(a), the Court in
Motau
quoted with approval from
Sokhela
and Others v MEC for Agriculture and Environmental Affairs
(KwaZulu-Natal) and Others
[8]
where Wallis J (as he then was) observed that by asking whether a
particular decision is of an administrative nature has two important
functions: firstly, it obliges courts to make ‘
a
positive decision in each case whether a particular exercise of
public power … is of an administrative character’
and secondly, it makes clear that a decision is not administrative
action merely because it does not fall within one of the
listed
exclusions in sec 1(i) of PAJA.
[9]
As the Constitutional Court put it ‘
(i)n
other words, the requirement propels a reviewing court to undertake a
close analysis of the nature of the power under consideration’
.
[10]
[50]
The
Constitutional Court concluded:
‘
[44]
In summary, the important question in this context is whether the
power is more closely related to the formulation
of policy, which
would render it executive in nature, or the implementation of
legislation, which would make it administrative.
Underpinning this
enquiry is the question whether it is appropriate to subject the
power to the more rigorous, administrative-law
review standard. The
other pointers - the source of the power and the extent of the
discretion afforded to the functionary –
are ancillary in that
they are often symptoms of these bigger questions.’
[51]
Of
great relevance in the present matter is CEF’s statutory
position as the state-owned enterprise controlling the Central
Energy
Fund and, as shareholder, other energy utilities including PetroSA,
also a state-owned enterprise. The impugned decision
does not appear
to bear a close relationship to the formulation of policy and is much
closer to the implementation of legislation,
namely the CEF Act, in
particular sec 1(2)(iA) thereof which is concerned with the financing
and promotion of the acquisition,
generation, manufacture, marketing
or distribution of any other form of energy, in this case gas, in the
national interest.
[52]
In
my view the removal of directors serving on the board of a
state-owned entity concerned with national energy matters and which
entities, by their very nature, are wholly funded by taxes or levies
imposed upon the public, is a decision of an administrative
nature.
Insofar as the decision was taken by the CEF’s board which in
turn is directly answerable to the executive in the
person of the
Minister, I do not consider the power to be of an executive nature.
It does not follow, however, that since the power
is not executive it
must therefore be administrative in nature. One enquiry which must be
made in this regard is whether it is
appropriate to subject the power
to the more rigorous administrative law review standards. In my view
the answer must be in the
affirmative. The decision to remove the
PetroSA board’s directors was not, in my view, directly
connected to policy matters
in the field of energy. Furthermore, the
removal of a director or as in this case, a board of directors, can
have a profound influence
on the manner in which a state-owned
enterprise fulfils its functions in an area of vital national
interest, i.e. energy, and thus
for the public as a whole.
[53]
It
was contended on behalf of CEF that a contra-indication that the
impugned decision was of an administrative nature was the fact
that
it was taken in terms of
sec 71
of the
Companies Act which
contains
its own constraints on the exercise of such power. This alone does
not in my view detract from the administrative nature
of the decision
although it is undoubtedly a relevant factor. CEF’s power to
remove a director/s is exercised
through
sec 71(1)
and (2) but it does not follow that, because there are
certain constraints in exercising a power under these provisions, the
decision
is immune to administrative review as not being one of an
administrative nature. As was stated in a different context in Motau
‘
(t)he
fact that the power is sourced in legislation is, as noted above, not
in itself determinative, and thus does not dilute the
force of the
other considerations canvassed’
.
[11]
[54]
It
is also not without significance that the powers of a majority
shareholder, such as the state enjoys in the present instance
in
terms of
sec 71(1)
and (2), are wide and certainly less constrained
than those exercised by a board of directors in terms of the balance
of the provisions
of
sec 71.
To subject the CEF board’s power,
as shareholder, to remove the directors of PetroSA to the test of
rationality as well as
the procedural requirements provided for by
PAJA, does not appear to be in any way inappropriate.
[55]
A
further important consideration is that when the state acts as a
shareholder in removing directors it is not subject to the same
commercial restraints as a shareholder which has risked its own
capital in the company and from whose board it wishes to remove
directors. The state as shareholder is utilising public capital
derived from the fiscus and therefore, ultimately, the general
public.
[56]
The
remaining consideration is whether the impugned decision involved the
exercise of a public power or the performance of a public
function.
Most of the cases dealing with this issue have concerned either
powers exercised by public bodies in a private law setting
(mainly
contractual) or private bodies exercising public powers. It is the
second area which is more relevant to the present matter,
if at all.
Both CEF and PetroSA, as companies incorporated under the
Companies
Act, have
some characteristics of a private body. However, PAJA
explicitly contemplates the inclusion of such bodies where, in the
definition
of administrative action, reference is made to ‘
a
natural or juristic person, other than an organ of state’
.
But as Professor Hoexter
[12]
puts it, the courts are currently answering, in an incremental
fashion, what gives a power its ‘
public’
character. In this area the courts have found that a stock exchange,
a non-statutory body, was under a statutory duty to act in
the public
interest and that its decisions were open to administrative
review.
[13]
Similarly in
Coetzee
v Comitis and Others
[14]
,
the court found that a voluntary association, the national soccer
league, performed a public function and its activities were
of public
interest. This approach was upheld by the Constitutional Court in
AAA
Investments (Pty) Ltd v Micro Finance Regulatory Council and
Another
,
[15]
the following passage being particularly relevant:
‘
The
provisions of the memorandum and articles of association fade into
insignificance as an indicator of the nature of the Council
in light
of the overwhelming evidence of the true nature of the Council’s
functions. The fundamental difference between a
private company
registered in terms of the Companies Act and the Council is that the
private company, while it has to comply with
the law, is autonomous
in the sense that the company itself decides what its objectives and
functions are and how it fulfils them.
The Council’s
composition and mandate show that, although its legal form is that of
a private company, its functions are,
essentially, regulatory of an
industry. These functions are closely circumscribed by the
ministerial notice. I strain to find any
characteristic of autonomy
in the functions of the Council equivalent to that of an enterprise
of a private nature. The Council
regulates, in the public interest
and in the performance of a public duty’.
[57]
It
seems to me that by analogy this dictum and reasoning is applicable
to the present matter inasmuch as, although to a certain
extent CEF
and PetroSA function as companies in the private law sphere, they are
both owned and controlled by the state and perform
vital functions in
the state’s overall energy policy and programmes.
[58]
In
Sokhela
Wallis
J held that an MEC was ‘
clearly
exercising a public power’
when he suspended members of a statutory wildlife conservation board,
as the power was given in the interest of the proper conduct
of the
affairs of the board and of the province’s conservation service
more generally.
[16]
In the
present matter, CEF’s powers as shareholder exercised through
sec 71
of the
Companies Act, were
given in the interests of the
proper conduct of the affairs of PetroSA, an important component of
the state’s energy policy
and programmes, and a utility which
has absorbed and continues to absorb considerable state financial
resources. In these circumstances
it appears to me there can be
little doubt that in exercising its power, the board of CEF was
exercising a public power or performing
a public function.
[59]
For
these reasons I consider that the impugned decision constituted
administrative action and as such is subject to the provisions
of
PAJA.
Was the
applicants’ removal unlawful in terms of PAJA?
[60]
As
mentioned the basis of the applicants’ case in this regard was
that the removal of the directors was clearly a predetermined
decision. In terms of PAJA this would equate to the decision being
taken in bad faith or for an ulterior purpose or motive. In
support
of this argument the applicants’ counsel argued that the
representations presented to CEF’s board on behalf
of the
applicants in writing at the shareholders meeting ‘
firmly
refuted’
the accusations of incompetence, negligence and dereliction of duty.
Since the initial proclaimed basis for the applicants’
removal
thus fell away, CEF’s subsequent exercise of its discretion to
remove the applicants as directors was an abuse of
power motivated by
an ulterior purpose and motive and was the only way in which it could
rid itself of directors with whom it did
not see eye to eye. Finally,
it was argued that CEF’s decision to remove the entire board
was so unreasonable and disproportionate
as to be arbitrary and
irrational.
[61]
In
argument it was repeatedly contended on behalf of the
applicants that the ‘
reasons’
advanced on behalf of CEF in its initial letter to PetroSA’s
board of directors on 28 March 2017 constituted its reasons
for their
eventual removal. This is not accurate for a number of reasons.
Firstly, that letter, being CEF’s prior written
motivation as
to why it proposed to remove the board of directors, cannot
automatically be taken to constitute its reasons for
the decision
eventually taken. In the process of inviting representations from the
applicants and their fellow directors and considering
these, there
was at the very least the theoretical possibility of some of these
preliminary reasons falling away or others coming
to the fore. It was
after all, or should have been, a dynamic process of engagement.
Secondly, prior to the litigation being commenced,
CEF was neither
asked for, nor provided, reasons for the impugned decision. Its
reasons first appear in para 34 of its answering
affidavit which
reads as follows:
‘
Although
we seriously considered the applicants’ representations, we
were not persuaded the applicants should remain on the
PetroSA board,
for the following reasons:
34.1
As
PetroSA’s shareholder, the CEF is ultimately responsible for
PetroSA and its assets, and must account to the Minister.
The CEF has
been (and remains) deeply concerned about PetroSA’s ability to
recover financially. Over time, it appears that
PetroSA’s
financial position has continued to worsen. This has a direct impact
on the CEF Group’s balance sheet and
required urgent redress;
34.2
The
PetroSA Board and the CEF Board have quite clearly been at odds on
how best to attend to PetroSA’s problems. Indeed, the
PetroSA
Board (and, in particular, the applicants) appeared to have a
fundamentally different vision for PetroSA from that of the
CEF;
34.3
The
CEF Board thus had very real concerns about the PetroSA Board’s
reliability, and their ability to implement a successful
turnaround
strategy for PetroSA and to improve PetroSA’s parlous financial
and corporate governance state. It formed the
preliminary view that
board-level changes may be required at PetroSA to turn the situation
around. Hence the CEF’s invitation
to the PetroSA Board members
to make representations on why they should not be removed from their
positions;
34.4
Rather
than alleviating the CEF’s concerns, the representations (and
indeed this application) confirmed that the applicants
did not share
the CEF’s vision for PetroSA and had in fact actively sought to
undermine the CEF’s functions and decisions,
and to engage with
the Minister in the CEF’s absence. It became clear that the
relationship between the CEF and the applicants
had deteriorated
beyond repair, and that there was no realistic prospect of returning
to a functional trust relationship –
particularly given the
short time remaining of the applicants’ terms.
35. The CEF
accordingly resolved that it should remove the applicants from the
PetroSA Board and appoint a new Board to stabilize
and re-energise
PetroSA.’
[62]
These
reasons, although of a general nature, echo at least some of the
concerns and complaints expressed by the CEF board in its
letter of
20 March 2017. They are dealt with at some length in the applicants’
replying affidavits, but not in my view convincingly
so, an issue to
which I shall return.
[63]
However,
the first argument that must be dealt with is that the impugned
decision was predetermined as reflected in the form of
the CEF
board’s initial letter which required the directors to provide
reasons why they should continue as directors and
which demanded the
directors’ resignation with immediate effect.
[64]
I
do not consider that these factors justify the conclusion that the
impugned decision was predetermined. The CEF board had formed
at
least a preliminary view that the board was not performing
satisfactorily. If this were not the case they would not have taken
steps to convene a shareholder meeting, and to have failed to
communicate this preliminary view would have been disingenuous. For
similar reasons the fact that the initial letter called upon the
applicants to furnish reasons why they should continue as directors
does not in itself necessarily serve to taint the later decision of
the CEF board to remove the applicants, provided of course
that the
CEF board kept an open mind on the issue before it.
[65]
A
further reason cited by the applicants in support of their argument
was the fact that at the commencement of the shareholders
meeting the
CEF chairperson renewed the call for the directors to resign and was
unwilling to negotiate a compromise that they
should be allowed to
serve out their full term until November 2017, a period of some six
months. On the assumption that the CEF
board had good grounds for
being dissatisfied with the performance of PetroSA’s directors
I can see no basis why it was obliged
to enter into a compromise or
why renewing its call for their resignation necessarily tainted its
ultimate decision. A further
reason advanced by the applicants for
the impugned decision being predetermined was the CEF board’s
initial refusal to grant
the PetroSA board more time to prepare their
detailed representations. However the facts are that the applicants
were afforded
a more than adequate opportunity to present their
representations, and in fact more time than was initially envisaged
by the CEF
board.
[66]
Finally,
the applicants also sought to rely on the correspondence between the
CEF chairman and the PetroSA board chairman during
May 2017 when, as
previously mentioned, the latter was instructed not to take certain
steps in relation to PetroSA without first
notifying the CEF board.
In my view, however, in a situation where there was an impending
shareholders meeting to discuss the possible
removal of PetroSA’s
directors, the CEF board was within its rights to require of the
PetroSA board that they give an undertaking
that they would not, in
the meantime, dispose of any of PetroSA’s material assets or
apply for it to be placed in business
recovery etc.
[67]
The
main argument advanced on behalf of the applicants to the effect that
the impugned decision was arbitrary was that the PetroSA
board’s
written representations ‘
firmly
refuted’
the
accusations of director incompetence, negligence and dereliction of
duties. This was not substantiated in argument on behalf
of the
applicants, but merely stated as a conclusion. Similarly, the content
of these representations, which allegedly ‘
refuted’
the
complaints of the CEF’s board as contained in its letter dated
28 March 2017, together with its annexures, are not directly
dealt
with in the applicants’ papers. They are merely attached as an
annexure qualified by the sentence ‘
(t)o
avoid a prolix record, I do not repeat these detailed submissions in
the affidavit’
.
[68]
As
mentioned the representations are extremely lengthy and detailed,
totalling, without annexures, some 75 closely typed pages.
It is
simply not feasible for this, or any court to determine on paper
whether the complaints made by the CEF board were adequately
dealt,
let alone ‘
refuted’,
with by the applicants or not. There is, at one and the same time,
simply too much detail and not enough background. The present
proceedings are not an appeal and such a determination lies outside
the ambit of what are truncated review proceedings particularly
taking into account that no formal record of the decision exists as
well as the applicability of the Plascon Evans rule.
[69]
The
principal test in PAJA in relation to a review of the substantive
merits of an administrative action is whether the decision
(or
action) was rationally connected to the purpose for which it was
taken, the purpose of the empowering provision, the information
before the decision-maker or the reasons given for it by the
administrator. As mentioned earlier such reasons were first set out
in CEF’s opposing affidavit. The first reason related to
PetroSA’s continually deteriorating financial position. In
essence the applicants’ response to this allegation was not to
dispute that PetroSA’s financial position was dire but
to point
out that this was a long standing problem, related in the main to the
failure of Project Ikhwezi and that the decision
to implement that
project preceded their appointment to PetroSA’s board. Needless
to say it is by no means a complete answer
for an existing board to
point out that the difficulties which it may have failed to deal with
arose out of a decision taken by
a board prior to their appointment.
The real question is whether they and their fellow directors have
been able to effectively
deal with the problem during the currency of
their appointment.
[70]
Secondly
in this regard, the applicants state that PetroSA’s financial
difficulties appeared to concern CEF only to the extent
that it
directly impacted on its balance sheet. Inasmuch as PetroSA was in
effect its wholly-owned subsidiary, the CEF board, as
shareholder,
would appear to be well within its rights in being concerned about
the impact of PetroSA’s financial problems
on its (i.e. CEF’s)
financial statements or balance sheet.
[71]
The
applicants also complained that the reasons furnished by CEF differs
from those set out in its initial letter in March 2017.
This argument
is contradictory inasmuch as one of the main criticisms by the
applicants of the impugned decision is that the CEF
board formulated
its reasons for the termination of their directorships in advance
without first hearing their representations.
On the other hand, they
also argue that CEF’s reasons changed between CEF’s
initial letter and when it set out its
reasons in its opposing
affidavit. In my view there was no discrepancy in the reasons
furnished by CEF for the impugned decision.
The grounds for possible
termination initially set out by CEF in March 2017 were not reasons
for the impugned decision but merely
the grounds for their
preliminary view.
[72]
CEF’s
reasons for the impugned decision were those furnished in the
opposing affidavit and, to the extent that they differ
from those
informing its preliminary view, are not necessarily irregular nor
betray
mala
fides
or an improper motive. Between these two stages the CEF board sought
and considered detailed representations from the PetroSA’s
directors. There was also correspondence and interaction between the
CEF’s board and PetroSA’s board. In these circumstances
it is not surprising that CEF’s eventual reasons were, to a
certain extent, based upon somewhat different grounds to those
supporting their preliminary view. If anything this indicated that
the process of calling for and considering the directors’
representation involved a genuine dialogue between the parties.
[73]
The
second reason furnished by the CEF board for the impugned decision
was that the applicants appeared to have a fundamentally
different
vision for PetroSA from that of CEF. The applicants’ response
was that this was not one of the ‘
reasons’
initially provided by CEF’s board. As indicated this point has
no merit. The applicants’ further response is to delve
into the
background and history of the differences between the CEF board and
the PetroSA board and to rely, to a large extent,
on positions or
views held by the previous Minister of Energy in relation to the
proper roles of these two companies. In my view
these factors are
largely irrelevant and do nothing to detract from the fact that the
two boards were at loggerheads.
[74]
The
third and fourth reasons furnished by the CEF board were its concerns
about the PetroSA board’s reliability and in particular
their
ability to implement a successful turnaround strategy for PetroSA and
to improve the state of its financial and corporate
government. In
this regard the CEF board considered that the representations made on
behalf of PetroSA’s board confirmed
that the two camps did not
see eye to eye and that the relationship between CEF and the
applicants had deteriorated beyond repair.
Here again the applicants’
response to these two reasons was largely to ‘
confess
and avoid’
and to rely on what a previous Minister had envisaged as the proper
manner in which the two boards should work together. The applicants
maintain that a strategic turnaround plan, as proposed by the PetroSA
board would succeed. It is not this Court’s function,
in
considering a review challenge to the CEF board’s decision, nor
is it possible, to determine whether this view has merit
or not.
Similar considerations apply to the question of whether a functional
trust relationship still exists between the applicants
as PetroSA
directors and the CEF board and the related question of whether the
applicants were the cause of the deterioration inasmuch
as they had
reported to the previous Minister in regard to differences between
the two boards. Again this is not a matter which
is appropriate for
this Court to determine, even assuming this was possible on the
papers before the Court.
[75]
The
applicants devoted a good part of their founding and replying
affidavits to dealings they had with officials of the Department
and
CEF officials during the period between November 2016 and June 2017
regarding a particular plan emanating from CEF to sell
a 70% interest
in the rights to certain of PetroSA’s off-shore oilfield
holdings to a state-owned Russian company, JSC Rosgeologia
(‘Rosgeo’), for surveying and possible exploitation. They
allege that it was because of their resistance to this proposed
plan
and for reasons of political intrigue that the CEF board turned
against them and ultimately terminated their directorship.
These
allegations were specifically dealt with and the allegations of
impropriety were strenuously denied by CEF in its answering
affidavits. Disturbing as these allegations are, CEF’s denials
are not so far-fetched or lacking in detail that they can
be
dismissed out of hand on these papers. The issue as a whole, was in
the event, not relied upon or pursued by the applicants
in argument.
Once again, bearing in mind the strictures of the Plascon Evans rule
it is not possible for this Court to make any
findings based on this
aspect of the case.
[76]
In
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs and
Tourism and Others,
[17]
the Constitutional Court, per O’Regan J, stated that the proper
constitutional meaning which should be attached to
sec 6(2)(h)
of
PAJA was that it required a simple test, namely, that an
administrative decision will be reviewable if it is one that a
reasonable
decision-maker could not reach. The court went on to
state,
‘
[45]
What
will constitute a reasonable decision will depend on the
circumstances of each case, much as what will constitute a
fair procedure
will depend on the circumstances of each case.
Factors relevant to determining whether a decision is reasonable or
not will include
the nature of the decision, the identity and
expertise of the decision-maker, the range of factors relevant to the
decision, the
reasons given for the decision, the nature of the
competing interests involved and the impact of the decision on
the lives
and well-being of those affected. Although the review
functions of the Court now have a substantive as well as a procedural
ingredient,
the distinction between appeals and reviews continues to
be significant. The Court should take care not to usurp the functions
of administrative agencies. Its task is to ensure that the decisions
taken by administrative agencies fall within the bounds of
reasonableness as required by the Constitution.’
[77]
Applying
these principles I consider that the applicants have failed to
establish that the impugned decision is one which a reasonable
decision-maker could not have reached, particularly in the light of
the very substantial financial difficulties in which PetroSA
found
itself and what was, at best, the strained relationship between the
PetroSA board and the CEF board. I consider further that
the
applicants have failed to establish that it was not justifiable or
reasonable to replace them as directors, some five or six
months
short of the end of their term. Bearing in mind that the issues in
this matter must be determined on the basis of the principles
in
Plascon Evans, the reason for the impugned decision furnished by the
respondents in their answering affidavit cannot simply
be dismissed
out of hand as irrational or unreasonable or any such configuration.
[78]
To
the extent that the main thrust of the applicants’ case, at
least on the administrative law leg, was that it was a predetermined
decision, unreasonable and disproportionate, arbitrary and
irrational, the applicants have failed to make out such a case on the
papers.
[79]
In
the result for these reasons the applicants’ challenge to the
impugned decision based on administrative law grounds cannot
succeed.
Costs
[80]
CEF
seek its costs in the event of the applicants not prevailing in the
application. CEF’s counsel, Mr Motau, recognised that
private
litigants who bona fide seek to ventilate issues of public importance
are usually immunised from an adverse costs order
under the Biowatch
principle.
[18]
He contended,
however, that the applicants had acted purely in their own interests
to secure an additional period of their term
as directors of PetroSA
and had been unable to identify any public interest that justified
them bringing these proceedings, either
urgently or at all.
[81]
On
an overall reading of the papers I am not persuaded that the
applicants have brought this application merely to further their
own
interests. At stake here was no more than the applicants’
continuation as directors until the end of their term of office,
a
period of merely five or six months. There is nothing in the papers
regarding what this would have meant for the applicants by
way of
directors fees or other benefits and thus nothing to suggest that
they were motivated solely by financial or personal considerations.
In fact, the applicants appear to have been genuinely concerned that
their positions as directors were improperly threatened by
the CEF
board’s actions and what they saw as its misconceived view of
the relationship between the PetroSA board and the
CEF board.
[82]
Where
directors of a state-owned enterprise are removed at the instance of
another state-owned enterprise, acting in its capacity
as
shareholder, because the two boards do not see eye to eye, the
potential for the shareholder board to act irrationally or with
an
ulterior purpose, as opposed to the best interests of the state-owned
enterprise, is not something which can be discounted as
fanciful.
Events over the last few years, many of which have culminated in
judgments of our courts, have shown that the boards
of some
parastatals have been afflicted by internecine struggles, allegations
of corruption and abuses of power involving public
resources, often
on a grand scale. I consider that to make a costs order in the
present matter against the applicants could well
have a chilling
effect on directors who find themselves in a similar or more adverse
situation and could incline them to simply
accept the shareholder
decision no matter how irrational, poorly motivated or self-serving
it may be. This would not be in the
interest of the good governance
of state-owned enterprises.
[83]
Taking
these general factors into account as well as the particular
circumstances of this matter, I consider that it would be
inappropriate
to make a costs order against the applicants. I hasten
to add that this ruling should not be interpreted as meaning that no
costs
order will ever be made against directors who find themselves
in a situation similar to that of the applicants, no matter how
ill-advised,
lacking in merit or self-serving their decision to
challenge a decision to terminate their appointments may be.
Order
[84]
In
the result the following order is made:
(a)
The
application is dismissed;
(b)
The
applicants and the first respondent will bear their own costs.
____________________
BOZALEK J
APPEARANCES
For the
Applicants :
Adv T Golden (SC)
Adv
CA Daniels
As Instructed
by :Adriaans
Attorneys
Ref:
A Adriaans
For the 1st
Respondent
: Adv T Motau (SC)
Adv
I Goodman
Adv
R Tshetlo
As Instructed
by
: Bowman Gilfillan Inc
Ref:
C Mkiva
[1]
2000 (1) SA
1 (CC).
[2]
SARFU
n
1 paras 141-143.
[3]
SARFU
n
1
para
141.
[4]
2014 (5) SA
69 (CC).
[5]
Motau
n
4 paras 46-51.
[6]
Section
1(4).
[7]
Motau
n 4 para 33.
[8]
2010 (5) SA
574 (KZP).
[9]
Motau
n
4 para 34. See also
Sokhela
n 8 para 61.
[10]
Motau
n
4 para 34.
[11]
Motau
n
4 para 50.
[12]
C
Hoexter
Administrative
Law in South Africa
2
nd
ed (2012) Juta at p 189.
[13]
Dawnlaan
Beleggings (Edms) BPK v Johannesburg Stock Exchange and Others
1983
(3) SA 344
(W) at 364B-D.
[14]
2001
(1) SA 1254
(C) para 17.8.
[15]
[2006] ZACC 9
;
2007
(1) SA 343
(CC) para 45.
[16]
Sokhela
n
8 para 63.
[17]
2004 (4) SA
490 (CC).
[18]
Biowatch
Trust v Registrar, Genetic Resources, and Others
2009 (6) SA
232
(CC).