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[2023] ZAECMKHC 68
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Tonise and Others v Minister of Water and Sanitation and Others (1274/2022) [2023] ZAECMKHC 68 (24 May 2023)
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MAKHANDA)
Case No: 1274/2022
In the matter between:
BUHLE
TONISE
First
Applicant
ZAMA
XALISA
Second
Applicant
MXOLISI
JOE SIKHOSANA
Third
Applicant
TABISA
WANA
Fourth
Applicant
NKOSAZANA
NOMAXHOSA JONGILANGA
Fifth
Applicant
And
MINISTER
OF WATER AND SANITATION
First
Respondent
AMATOLA
WATER BOARD
Second
Respondent
MOSIDI
MAKGAE
Third
Respondent
LEBO
LETSOALO
Fourth
Respondent
MOKGOBI
RAMUSHU
Fifth
Respondent
GAATHIER
MAHED
Sixth
Respondent
ABRAHAM
LE ROUX
Seventh
Respondent
JUDGMENT
BESHE J:
[1] The
applicants in this matter are seeking the reviewal and setting aside
of first respondent’s
(henceforth referred to as the Minister)
decision to remove them as members of the second respondent on the
basis that the said
decision was unlawful. The abovementioned
decision is not the only decision taken by the Minister applicants
seek to have reviewed
and set aside. Applicants also seek the
reviewal of the following:
The decision to dissolve the
Amatola Water Board;
His decision to appoint an interim
Amatola Water Board;
Also sought is the re-instatement
of the applicants as members of second respondent with retrospective
effect;
As well as a cost order against the
first respondent and any other party who opposes the application.
The application is only opposed by the
Minister. Second respondent as is apparent from the heading, is the
Amatola Water Board,
henceforth to be referred to as the Board. Third
to seventh respondents are former members of the Board. Second
respondent filed
a notice of intention to abide by the decision of
this court in respect of the relief sought in the notice of motion.
[2] The
application is comprised of two parts, Part A and B. Part A of the
application was disposed of
by agreement between the parties on 31
May 2022 to an order in the following terms being issued:
1.
The
First Respondent be and is hereby interdicted against the appointment
of any permanent Board members to the Amatola Water Board
in terms of
Section 35(1)
of the
Water Services Act 108 of 1997
pending the final
resolution of Part B of this application.
2.
This
order does not prevent the Minister from taking such steps to
identify suitable candidates to be appointed as Board Members
should
the Review Application be unsuccessful.
3.
The
parties shall approach the Court for an expedited date for the
hearing of Part B of this application.
4.
In
order to facilitate the expedited resolution of Part B of this
application:
4.1 the First Respondent shall
dispatch to the Registrar the record of his decisions and any
documents relied on in reaching those
decisions by no later than 31
st
May 2022;
4.2 The Applicants shall deliver their
amended notice of motion and supplementary founding affidavit, if
any, by 14
th
June 2022;
4.3 The Respondents shall deliver
their answering affidavits, if any, by no later than 28
th
June 2022;
4.4 The Applicants shall delivery
their replying affidavit, if any, by no later than 5
th
July 2022;
4.5 The Applicants shall deliver their
heads of argument by 12
th
July 2022;
4.6 The Respondents shall deliver
their heads or argument by 19
th
July 2022.
5.
Costs
be and are hereby reserved.
”
For completeness, the following relief
was sought in PART B of the application:
“
1.
Reviewing and setting aside the following decisions taken by the
first respondent on or about 25 March 2022:
1.1
The
decisions to terminate the applicants’ appointment to the
Amatola Water Board in terms of
section 35(5)
of the
Water Services
Act 108 of 1997
;
1.2
The
decision to dissolve the Amatola Water Board; and
1.3
The
decision to appoint an interim Amatola Water Board;
2.
Reinstating
the applicants as members of the Amatola Water Board with
retrospective effect;
3.
Ordering
the first respondent, and any other party who opposes this
application, to pay the costs thereof;
4.
Further
and/or alternative relief.”
[3] The
following background facts appear to be common cause:
The applicants together with third to
seventh respondents were appointed to the Board as members thereof
during March 2021. With
third respondent being appointed the
chairperson of the Board. Second applicant was designated deputy
chairperson of the Board.
[4] They were
appointed by the erstwhile Minister of Water and Sanitation,
Ms L
N Sisulu
. The appointments were for a 4-year period.
[5] On 8
March 2022 members of the Board attended a meeting with the Minister.
During the said meeting
third respondent raised a series of
complaints regarding the governance of the Board. Following the
meeting, on the 15 March 2022,
the Minister issued a notice to each
of the applicants advising them of his intention to dissolve the
Board and terminate applicants’
appointments as members of the
Board. The Minister stated that the Board was facing “several
governance challenges”
which were leading to instability in the
entity and invited the applicants to furnish him with written reasons
as to why he should
not dissolve the Board and thus terminate their
appointments. Applicants’ representations having been duly
submitted, the
Minister none-the-less took the impugned decisions. In
his letter to the applicants the Minister stated that the governance
challenges
and alleged misconduct by some Board members has the
potential of subjecting the Board to disrepute.
[6] It also
appears to be common cause that the applicants and the third
respondent as chairperson of the
Board were not seeing eye-to-eye
regarding
inter alia
:
Third respondent allegedly taking
unilateral decisions on issues affecting the Board. Some which are
said to be in direct conflict
with decisions already taken by the
Board.
Convening of a special Board
meeting to discuss matters some of the Board members felt were
urgent.
Matters pertaining to the
appointment of a Chief Executive Officer for Amatola Water.
First applicant in her capacity as
Deputy Chairperson of the Board giving notice that she will be
calling a special Board meeting
to discuss inter alia appointment of
a Chief Executive Officer; the Special Investigation Unit report that
had recently been published;
and another to discuss demands by the
South African Municipal Workers Unions (SAMWU).
Chairpersons (third respondents)
allegations about governance challenges.
[7]
Applicants do not deny the existence of challenges facing the Board,
they none-the-less contend that
the Board was making progress in the
delivery of its mandate.
[8]
Applicants contend that the decisions taken by the Minister are
flawed for the following reasons:
“
1.
The course of action followed by the Minister is drastic. It was open
to the Minister to invoke
his powers in terms of the Act to
investigate any allegations against any Board members and/or to issue
directives to the Board.
There appears to be no justification for
those processes to be overlooked.
2.
None of the applicants has, to the best of our knowledge, been
accused of any misconduct
or otherwise unethical behaviour.
3.
In the event that any of us has been so accused, we have not been
informed of such accusations
and given an opportunity to respond.
5.
The
governance challenges appears to have arisen only in relation to a
small number of Board members. This does not justify adverse
decisions against all members of the Board.
6.
Despite
the Minister purporting to have given the applicants an opportunity
to make representations, it does not appear that these
representations have been considered. In this regard the applicants
submit that had our submissions been taken into account, the
Minister
would not have proceeded with the termination of our membership and
the dissolution of the Board.”
And so, applicants assert that the
Minister’s impugned decisions stand to be reviewed and set
aside on the following grounds:
They were
procedurally unfair as contemplated in
Section
6
(2) (c)
of
the
Promotion
of Administration of Justice Act
(
PAJA
).
[1]
They were taken because irrelevant
considerations were taken into account (
Section 6 (2) (e) (iii) of
PAJA
).
They were taken arbitrarily or
capriciously in terms of
Section 6 (2) (e) (vi) of PAJA
.
They were irrational (
Section 6 (2)
(f) of PAJA
).
They were unreasonable (
Section 6
(b) (h) of PAJA
).
Alternatively, and in the event that
PAJA
is found not to be applicable, the decisions stand to be
set aside on the common law ground of illegality and irrationality.
[9] In their
supplementary affidavit, following the receipt of the
Rule 53
record, applicants contend that the record confirms that the
Minister did not consider their submissions prior to taking the
impugned
decisions as it contains no evidence that he considered
other measures, short of dissolving the Board in its entirety. Such
measures,
so it is contended, include issuing directions in terms of
Section 45
of the
Water Services Act
>. Furthermore, that
the record consists of untested and unsubstantiated allegations of
misconduct which the applicants deny. Furthermore,
that the Minister
took the allegations at face value without applying his mind thereto
and without adequate engagement with the
parties.
[10] First
respondent resists the application on the following grounds:
(i)
Failure
to comply with
Section 53 (3)
of
the
Uniform Rules
of this Court. Namely, making copies of the portions of the record as
may be necessary for the purposes of the review. This in
my view is
not fatal to the application.
(ii)
The
decision(s) in question is / are concerned with the setting of policy
and not administrative in nature. That therefore the application
in
so far as it is based on
PAJA
is ill advised.
(iii)
The
court is impermissibly being asked to usurp the functions of the
Minister which are bestowed on him by
Section
35
(1)
of the
Water
Services Act
.
[11] The Minister
then proceeds to outline the background facts about the matter. This
exposition of background
facts is comprised mostly of allegations or
complaints received about first and second applicants, such as
unauthorised use of
a motor vehicle by second applicant. Allegations
of the Board being dysfunctional etc, as a result of disharmony
between the chairperson
and some members of the Board. Complaints
against the applicants dating back to the previous Minister’s
tenure. The commissioning
of investigations into the allegations by a
firm of attorneys which produced two reports. I do not propose to
deal with these allegations
in any length. This application is less
about whether there is merit in the allegations / complaints. It has
everything to do with
the manner in which the Minister took the
impugned decisions. It is also, in my view, less about the
correctness or the action
/ decision taken by the Minister, but more
about the manner in which the decisions were taken and reasons
thereof. It was in light
of
inter alia
these allegations that
he felt that the Board was unstable and made his intention to
dissolve same known to the applicants. Inviting
the applicants to
provide reasons why the Board should not be dissolved. We now know
that after receipt of the representations
made by the Board members,
the Board was dissolved. The Minister asserts that he considered the
Board members’ representations
before cutting their term of
office short. The Minister insists that he exercised his powers in
terms of
Section 35
(5)
of the
Water Services Act
in
this regard. That the said powers are of an executive nature as
opposed to being administrative in nature.
[12] The
significance of the difference between the exercise of executive as
opposed to administrative powers
lies in the fact that the provisions
of
PAJA
apply to the exercise of the latter power. Whereas the
exercise of executive powers is subject to the principles of legality
and
rationality.
[13] I have already
alluded to the fact that the applicants complain that there is no
evidence that the Minister
considered their representations prior to
dissolving the Board. They further assert that the
Rule 53
record
does not contain evidence of any meaningful engagement with the
applicants’ representations or responses to the allegations
against them. In response, the Minister is adamant that he had
consideration to applicants’ representations before he
dissolved
their Board. Adding that the applicants, although they deny
the allegations against them, they acknowledge problems within the
Board.
[14] A few
observations about the
Rule 53
record:
It contains notices addressed to
most of the Board members about the Minister’s intention to
dissolve the Board dated 15 March
2022. Also calling upon the Board
members to submit written reasons why the Board should not be
terminated and their appointment
to be terminated.
Letters of appointment as interim
Board members dated 25 March 2022.
Letters to former Board members
terminating their appointments dated 28 March 2022.
The written submissions from the
applicants do not form part of the record.
[15] The letter
addressed to the applicants advising them of the termination of their
appointments as members
of the Board, record that the Minister has
considered their responses (written submissions).
[16] First, third
and fourth applicants’ written submissions form part of their
founding papers. The submissions
are comprehensive. They also
encompass recommendations about alternative solution to the Minister
as opposed to the dissolution
of the Board. Applicants suggest that
these would be rational and fair. First applicant’s written
submissions span some 12
pages.
[17]
Before considering whether the impugned decisions are administrative
or executive in nature, I am of the
view that irrespective of the
categorisation of the decisions, the court scrutiny is appropriate in
both cases. In other words,
in both instances, be they executive
decisions or constitute administrative action, the court scrutiny
will find a place. The only
difference being whether such scrutiny
will be in terms of
Section
3
of
PAJA
or the common law principle of legality. The latter principle
requires the decision to be rationally connected to the purpose for
such it was taken and for fairness to be observed. It is trite that
administrative action is subject to a higher level of scrutiny
in
terms of the provisions of
PAJA
whereas for executive decisions is subject to less exacting scrutiny
as required or called for by the principle of legality.
[2]
[18] The Minister
contends that his decision to appoint and or terminate Board members
is an executive decision
and not an administrative action and
therefore can not be set aside in terms of
PAJA
.
[19] The Minister
acted in terms of
Section 35
(5)
of the
Water Services Act
108 of 1997
which provides that:
“
The
Minister may terminate the appointment of any or all the members of
the Water Board.”
Item 4 of
Schedule 1
to the Act
provides for termination of office of Board members and state that a
member of a Water Board ceases to hold office
̶
(a)
from
the effective date of his or her resignation;
(b)
if
he or she has been absent from more than two consecutive meetings
without leave of the chairperson;
(c)
if
he or she has become disqualified in terms of item 2 of this
Schedule;
(d)
if
he or she has been declared to be of unsound mind by a competent
authority; or
(e)
if
his or her appointment has been terminated in terms of
Section 35
(5)
of the Act.
It
is also contended that the Minister also acted also in terms of
Public
Finance Management Act 1 of 1999
(
PFMA
).
It was argued on the Minister’s behalf that he is not required
or obliged to conduct an investigation before exercising
his powers
in terms of
Section
35
of
108
of 1997
.
Further that the decision to appoint and terminate the Board is an
executive decision as opposed to an administrative action.
Reliance
for this submission is placed on the matter between
Phineas
Kgahliso Legodi v Minister of the Department of Human Settlement
Sanitation and Water and Others
.
[3]
I could not find any support for the submission. That application was
instead struck off the urgent roll for lack of urgency. Even
though
that matter was also concerned with
inter
alia
the appointment of an interim Board. The application for interim
relief in the other matter relied on in this regard,
David
Dikoko and Others v Minister of Human Settlement Water Sanitation and
Others
[4]
was also dismissed. Amongst other reasons for the dismissal of the
application was due to the reason given by the Minister to terminate
the Board, namely that he was correcting a breach of Cabinet policy.
The policy required that the Cabinet endorses the appointment
of the
Board members. In this matter the court felt it was being
impermissibly being invited to intrude into the terrain of the
Executive arm of the State.
[20]
This leads to the question of what the distinction
is between administrative action on the one hand and
executive action
on the other. The fact that it is the Minister who took the decision
does not help much in deciphering whether
the decision is of an
administrative or executive nature. In the matter of the
President
of the RSA v South African Rugby Union
[5]
the following was stated in this regard:
“
[141]
In
s
33 the adjective ‘administrative’ not ‘executive’
is used to qualify ‘action’. This suggests
that the test
for determining whether conduct constitutes ‘administrative
action’ is not the question whether the action
concerned is
performed by a member of the executive arm of government. What
matters is not so much the functionary as the function.
The question
is whether the task itself is administrative or not. It may well be,
as contemplated in
Fedsure
, that
some acts of a legislature may constitute ‘administrative
action’. Similarly, judicial officers may, from
time to time,
carry out administrative tasks. 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.
[142]
As we have seen, one of the constitutional responsibilities of the
President and Cabinet Members in the national sphere (and
premiers
and members of executive councils in the provincial sphere) is to
ensure the implementation of legislation. This responsibility
is an
administrative one, which is justiciable, and will ordinarily
constitute ‘administrative action’ within the meaning
of
s
33.
Cabinet Members have other constitutional responsibilities as well.
In particular, they have constitutional responsibilities to
develop
policy and to initiate legislation. Action taken in carrying out
these responsibilities cannot be construed as being administrative
action for the purposes of
s
33.
It follows that some acts of members of the executive, in both
the national and provincial spheres of government will constitute
‘administrative action’ as contemplated by
s
33
, but not all acts by such members will do so.
[143]
Determining whether an action should be characterised as the
implementation of legislation or the formulation of policy may
be
difficult. It will, as we have said above, depend primarily upon the
nature of the power. A series of considerations may be
relevant to
deciding on which side of the line a particular action falls. The
source of the power, though not necessarily decisive,
is a relevant
factor. So, too, is the nature of the power, its subject-matter,
whether it involves the exercise of a public
duty and how closely it
is related on the one hand to policy matters, which are not
administrative, and on the other to the implementation
of
legislation, which is. While the subject-matter of a power is
not relevant to determine whether constitutional review is
appropriate, it is relevant to determine whether the exercise of the
power constitutes administrative action for the purposes of
s
33. Difficult boundaries may have to be drawn in deciding what should
and what should not be characterised as administrative action
for the
purposes of
s
33.
These will need to be drawn carefully in the light of the
provisions of the Constitution and the overall constitutional purpose
of an efficient, equitable and ethical public administration. This
can best be done on a case by case basis.
”
In
Permanent
Secretary, Education & Welfare, EC v Ed-U-College (PE) (Sec
21)
.
[6]
The court referred to the dictum in the
SARFU
matter
above and went on to state:
“
It
should be noted that the distinction drawn in this passage is between
the implementation of legislation, on the one hand, and
the
formulation of policy on the other. Policy may be formulated by the
Executive outside of a legislative framework. For example,
the
executive may determine a policy on road and rail transportation, or
on tertiary education. The formulation of such policy
involves a
political decision and will generally not constitute administrative
action. However, policy may also be formulated in
a narrower sense
where a member of the Executive is implementing legislation. The
formulation of policy in the exercise of such
powers may often
constitute administrative action.
”
Later at paragraph 21 the court had
this to say:
“
The
principle of subsidy allocation to independent schools is determined
in the first instance by the legislature. Once it has allocated
money
for independent schools, the MEC is then empowered to determine the
manner of how it is to be spent. Although there are a
range of ways
in which this power can be exercised, it must always be exercised
within the constraints of the budget set by the
Legislature.
Furthermore, it is not a power which the Legislature would be suited
to exercise. The determination of which schools
should be afforded
subsidies and the allocation of such subsidies are primarily
administrative tasks. The determination of the
precise criteria or
formulae for the grant of subsidies does contain an aspect of policy
formulation but it is policy formulation
in a narrow rather than a
broad sense. The decision apparently constitutes a broad policy
decision because it purports to determine
how the allocated budget is
to be distributed and not the amount to be given to each school.
However on closer scrutiny it is in
fact not so broad because the MEC
determines not only the formula but also in effect the specific
allocations to each school. This
case may be close to the borderline.
However I am persuaded that the source of the power, being the
Legislature, the constraints
upon its exercise, and its scope point
to the conclusion that the exercise of the
s
48(2) power constitutes administrative action, not the formulation of
policy in the broad sense as suggested by the applicants.
”
Finally,
the Constitutional Court in
Albutt
v Centre for the Study of Violence and Reconciliation
[7]
held that on the issues before it, it was not required or it was not
necessary to answer the question whether the exercise of the
power to
grant pardon constitutes administrative action and whether
PAJA
applies to applications for pardon. They had this to say about the
exercise of public power:
“
[49]
It
is by now axiomatic that the exercise of all public power must comply
with the Constitution, which is the supreme law, and the
doctrine of
legality, which is part of the rule of law. More recently, and
in the context of
s
84(2) (
j
), we held that, although
there is no right to be pardoned, an applicant seeking pardon has a
right to have his application ‘considered
and decided upon
rationally, in good faith, [and] in accordance with the principle of
legality’. It follows therefore
that the exercise of the
power to grant pardon must be rationally related to the purpose
sought to be achieved by the exercise
of it.”
This
leads me to the Minister’s contention that the
Water
Services Act
bestows
him with unfettered discretion to terminate or dissolve the
Board. Reference to unfettered discretion is a misnomer as pointed
out by the authors
Hoexter
and
Penfold
in
their publication
Administrative
Law in South Africa, 3
rd
Edition
[8]
when they state:
“
Unlike
discretionary powers, mechanical (sometimes ‘ministerial’)
powers involve little or no choice on the part of
their holder. In
fact, ‘purely mechanical’ powers are more in the nature
of duties. This can be illustrated by comparing
the power to issue a
dog licence on payment of a fee and the power to grant it ‘in
deserving cases’. In the first case
the purely mechanical power
gives the licensing official no choice at all in the matter, and this
effectively means that the official
is under a duty to issue a
licence on payment of the fee. In the second, the power to identify
‘deserving cases’ entails
choice, and is therefore
discretionary.
Although the second power seems to
involve no duty at all, it is important to realise that the holder of
discretionary power never
has a completely free hand. First, to act
with discretion means to act wisely and after due reflection; and so
while discretion
can be very wide, it is never completely ‘free’,
‘unfettered’, ‘absolute’ or ‘arbitrary’,
notwithstanding the frequency with which these and similar adjectives
have been used by the courts. Baxter rightly describes an
‘unfettered
discretion’ as a contradiction in terms. Secondly, the idea of
uncontrolled or unguided discretion is hopelessly
at odds with
contemporary constitutionalism. In the South African context, our
Constitution requires that there be some constraints
on broad
discretionary powers. As the Constitutional Court has explained, this
is not only to minimise the danger of a violation
of rights but also
‘so that those who are affected by the exercise of the broad
discretionary powers will know what is relevant
to the exercise of
those powers or in what circumstances they are entitled to seek
relief from an adverse decision’.”
[21] So, there is
no merit in the submission that the Minister’s discretion in
this regard is unfettered
or unbridled.
[22] I am not
persuaded that the appointment and termination of a Board is an
executive decision. The respondent
does not say why the taking of the
impugned decisions amount to executive decisions / action. It
certainly cannot be said to amount
to a policy of formulation policy
decision/s. Therefore, must be an administrative action. Be that as
it may, there are prescribed
requirements for administrative action
to be procedurally fair as laid out in
PAJA
in particular
Section 3
. Applicants do not say in what way these
requirements were not met. Their qualm, as I understand their case is
that the Minister
took the allegations against them at face value and
acted in the manner he did based on incomplete and untested
allegations. Furthermore,
that he did not engage the applicants
especially those against whom allegations were made, treated the
allegations as established
facts, and did not apply his mind to the
said allegations. I am not persuaded that these are sufficient
reasons to review the decisions
taken by the Minister in terms of
PAJA
.
[23] Applicants
argued in the alternative that the decisions are reviewable on the
basis of the principle of
legality. This principle require that every
exercise of public power must be rational. The Minister justifies his
decision to dissolve
the Board on the basis that the Board was
dysfunctional and goes on to assert:
“
43. The
Board cannot continue to be dysfunctional at the expense of the
residents of the Eastern Cape Province. My decision to terminate
the
membership of the members of the Board was accordingly rational under
the circumstances. It is respectfully pointed out that
the Water
Board is responsible for the constitutional right of access to water
as guaranteed in terms of Section 27 of the
Constitution
of the Republic of South Africa,
1996.”
[9]
[24]
Whilst the applicants concede that there was
disharmony amongst members of the Board, especially with the
Chairperson, there was a conflict between the erstwhile members of
the Board. They deny that this at the expense of the residence
of the
Eastern Cape Province. They point out that all what the common cause
factors relating to disagreements between the Board
members in
particular about the need for a special Board meeting only point to
the existence of a disagreement amongst Board members.
Further that
the Minister’s conclusion that the dysfunctionality of the
Board is at the expense of the residence of the Eastern
Cape Province
is farfetched. On the contrary, so the applicants demonstrate, in
their written submissions and in the founding affidavit
that the
Board has risen above the conflict concerned and achieved progress in
the Board’s primary activity.
[10]
As indicated earlier in this judgment, applicants’ written
submissions do not form part of the
Rule
53
record.
They are annexed to the founding affidavit. Applicants also argue
that nowhere in the
Rule
53
record is there any suggestion of a negative impact on the water
services in the Eastern Cape Province. Applicants also assert
that
the Minister only noted their assertions about the strides they made
as a Board. That he does not deny that the applicants
have
contributed substantially to the reliable provision of water services
to the people of the Eastern Cape. It is their case
therefore that it
follows that the decisions taken by the Minister are entirely
irrational and fall to be reviewed and set aside.
It is apposite to
note that the reason given by the Minister when he advised the
applicants of his intention to dissolve the Board
and terminate their
membership was that the governance challenges have led to instability
within the entity. The conduct namely,
alleged misconduct by some
members has the potential of subjecting the Board to disrepute. There
is no mention of “instability”
being at the expense of
the residents of the Eastern Cape Province.
[25]
In the circumstances, can it be said that the
Minister’s decision in this regard is so unreasonable
that no
reasonable decision maker could have reached it? In the matter of
Pharmaceutical
MNFRS of SA: IN RE Ex Parte President of the RSA
[11]
the court had this to say about rationality of a decision:
“
[85]
It
is a requirement of the rule of law that the exercise of public power
by the Executive and other functionaries should not be
arbitrary.
Decisions must be rationally related to the purpose for which the
power was given, otherwise they are in effect arbitrary
and
inconsistent with this requirement. It follows that in order to pass
constitutional scrutiny the exercise of public power by
the Executive
and other functionaries must, at least, comply with this requirement.
If it does not, it falls short of the standards
demanded by our
Constitution for such action.
”
In
Minister
of Water and Sanitation v Sembcorp Size Water (Pty) Limited and
Another
[12]
the court held that in this regard the court must determine whether
there is a rational link between the decision and the purpose
sought
to be achieved.
[26]
Section 29
of the
Water Services Act
provides
that the primary
activity of a water Board is to provide water services to other
service institutions within its service area.
The duties of a water
Board are set out in
Section 38
of the Act. It is common cause
that water Board members are bound by a Board Charter. Common cause
is also the fact that Board members
are bound by a Code of Conduct
and Ethics for Board Members.
[27] There is no
evidence that the applicants breached any of these instruments.
Instead, they have demonstrated
as aforesaid that they have made
strides in achieving the objectives of the Water Board. The Minister
justifies the decision to
dissolve the Board by asserting that even
though the applicants acknowledge that the Board was dysfunctional,
they still expect
him to keep it in place at the expense of the
residence of the Eastern Cape and risk that the constitutional
obligation to provide
water would not be fulfilled. In my
understanding, applicants only acknowledge governance issues within
the Board not dysfunctionality.
[28] I am not
persuaded that the decision to dissolve the Board which gave rise to
the ancillary decisions is
rationally connected to the purpose sought
to be achieved. It accordingly falls to be reviewed and set aside as
being unlawful.
[29]
Section 172
(1) (b)
of the Constitution provides that in these circumstances,
a court may make any order that is just and equitable, including –
(i) an order limiting the
retrospective effect of the declaration of invalidity … …
….
I have been urged on behalf of he
Minister that it would be just and equitable not to order the
re-instatement of the Board even
if the decision of the Minister may
have been set aside.
[30] On the other
hand, first applicant in her written submissions to the Minister
makes the point that acceptance
of an appointment to the Board of a
State entity presents a risk to one’s personal brand and
professional image. In my view
therefore, it will not be just and
equitable not to order the re-instatement of the Board in these
circumstances. Even though applicants
seek an order to the effect
that they be re-instated retrospectively, no facts were brought to my
attention regarding the efficacy
of an order in those terms.
[31] In the result,
the following order will issue:
(a)
The
decision taken by the first respondent on or about the 25 March 2022
to terminate the applicants’ appointment to the Amatola
Water
Board in terms of
Section 35
(5) of the
Water Services Act 108 of
1997
is reviewed and set aside.
(b)
So
is the decision taken on or about the same date as mentioned in (a)
above to dissolve the Amatola Water Board.
(c)
The
applicants are to be re-instated as members of the Amatola Water
Board with immediate effect.
(d)
The
first respondent is ordered to pay the costs of the application.
N G BESHE
JUDGE OF THE HIGH COURT
APPEARANCES
For
the Applicants:
Adv:
N. Stein
Instructed
by:
B.B
NYANDA ATTORNEYS
C/o
MABECE TILANA INC.
39
New Street
MAKHANDA
Ref:
S Tilana
Tel.:
046 – 622 2432 / 084827 9268
For
the Respondent :
Adv:
M. C. Erasmus SC & Adv: M. Vimbi
Instructed
by:
STATE
ATTORNEY (GQEBERHA)
C/o
LULAMA PRINCE ATTORNEYS
22
Hill Street
MAKHANDA
Ref:
Ms L Prince
Tel.:
061416 4214
Date
Heard:
01/19/23
Date
Reserved:
01/19/23
Date
Delivered:
05/24/23
[1]
Act 3 of 2000.
[2]
Minister of Defence and Military Veterans v Motau and Others
[2014]
ZACC 18
[27].
[3]
Case number 25068/2020 Gauteng Division, Pretoria.
[4]
Case number 24279/2020, also a decision of the Gauteng (Pretoria)
High Court.
[5]
2000 (1) 1 CC at 67 [141] – [143].
[6]
2001 (2) SA 1
CC at 14 B-D.
[7]
2010 (3) SA 293
CC.
[8]
Page 65.
[9]
First respondent’s answering affidavit page 260 of the indexed
papers.
[10]
See for example paragraph 9 of founding affidavit page 4 of indexed
papers.
[11]
[2000] ZACC 1
;
2000 (2) SA 674
CC [84].
[12]
[2021] ZACC [21] paragraph 44.