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[2023] ZAECMKHC 98
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Minister of Water and Sanitation v Tonise and Others - Leave to Appeal (1274/2022) [2023] ZAECMKHC 98 (12 September 2023)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, MAKHANDA)
Case
No: 1274/2022
In
the matter between:
MINISTER
OF WATER AND SANITATION
Applicant
And
BUHLE
TONISE
First
Respondent
ZAMA
XALISA
Second
Respondent
MXOLISI
JOE SIKHOSANA
Third
Respondent
TABISA
WANA
Fourth
Respondent
NKOSAZANA
NOMAXHOSA JONGILANGA
Fifth
Respondent
JUDGMENT
– APPLICATION FOR LEAVE TO APPEAL
Beshe
J
[1]
On the 24 May 2023 I rendered a judgment
setting aside a decision by The Minister of Water and Sanitation
to
dissolve the Amatola Water Board and terminate the appointment of
applicants in the matter to the Amatola Water Board.
[2]
The Minister is now seeking to leave to
appeal against the said judgment.
[3]
Leave to appeal is sought on the basis that
I erred in law, based on what the Constitutional Court
found in
Minister of Defence and Military Veterans v Motau and Others,
[1]
by characterising the Minister’s decision to remove board
members as constituting an administrative decision. This, contrary
to
what was held in the Motau matter,
supra
,
that the decision to remove board members constitutes an executive
decision. Further that by ordering the re-instatement of the
board
members I did not have regard to the fact that the interim board was
still in place. It was submitted that ordering the re-instatement
of
the Amatola Board will result in there being two parallel board for
the same Water Board. My judgment is furthermore impugned
on the
basis that despite holding that the Minister’s impugned
decision amounted to an administrative action, but that no
case had
been made that it was reviewable under PAJA, I still went ahead and
reviewed it.
[4]
The Minister’s decision was reviewed
in terms of the Common Law, in particular the principle
of legality
which requires that every exercise of public power must be rational.
[5]
In my view, the complaint that I failed to
follow the decision in the Motau matter is misplaced. This
in view of
the fact that even in the Motau
[2]
matter the Constitutional Court, which was dealing with a specific
piece of legislation, the Armsco Act, held that the fact that
power
is sourced on legislation is not in itself determinative of whether
power exercised in respect of thereof is executive in
nature. Earlier
at paragraph [36] of the judgment, it was held that:
“
[36] It is the
function rather than the functionary that is important in assessing
the nature of the action in question. The mere
fact that a power is
exercised by a member of the executive is not in itself
determinative. It is also true that the distinction
between executive
and administrative action is often not easily made. The determination
needs to be made on a case-by-case basis;
there is no ready-made
panacea or solve-all formula.”
[6]
Be that as it may, I am unable to say that
there are no reasonable prospects of appellate court finding
that the
Minister’ decision is this regard constituted executive
action.
[3]
[7]
To the extent that I may have erred by not
setting aside the Minister’s decision to appoint an
Interim
Board thereby offending the principle enunciated in the matter of
Oudekraal Estates (Pty) Ltd v City of Cape Town and Others
[4]
,
there once again I am unable to say there are no reasonable prospects
of the Minister succeeding on this point. Even though I
was of the
view that such an order would have been superfluous in the light of
the order I made that applicants in the matter (now
respondents) be
re-instated as members of the Amatola Board. This also in view of the
fact that the term of the Interim Board was
for five months, which
period had already expired.
[8]
In the Oudekraal matter it was held that
until such time that an invalid administrative action is set
aside by
a court in proceedings for judicial review, it exists in fact and has
legal consequences.
[5]
[9]
For these reasons, the Minister is granted
leave to appeal to the Full Bench of this division.
Costs to be costs in
the appeal.
N G BESHE
JUDGE OF THE HIGH
COURT
APPEARANCES
For
the Applicant :
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.:
061 416 4214
For
the Respondents:
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 / 084 827 9268
Date
Heard:
18
July 2023
Date
Reserved:
18
July 2023
Date
Delivered:
12
September 2023
[1]
2014
(5) SA 69
CC.
[2]
Motau
supra
at paragraph [36].
[3]
Section
17 (1) (a) of the Superior Court Act 10 of 2013.
[4]
2004
(6) SA 222
SCA.
[5]
Oudekraal
supra
at 242 (a)-(c).