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[2021] ZAKZPHC 100
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Reddy and Others v Minister of Human Settlemens, Water and Sanitation and Others (5167/2020) [2021] ZAKZPHC 100 (21 October 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
No. 5167/2020
In
the matter between:
VISVIN
GOPAL REDDY
FIRST APPLICANT
SIBONISO
SHABALALA
SECOND
APPLICANT
WILLIAM
MAPENA
THIRD APPLICANT
TEBOHO
NKHAHLE
FOURTH
APPLICANT
NOMPUMELELO
CHAMANE
FIFTH APPLICANT
MBALI
THULILE BARBARA NDLOVU
SIXTH APPLICANT
SIMOSENKOSI
WISEMAN CHAMANE
SEVENTH
APPLICANT
SULEMAN
SADAT
EIGHTH
APPLICANT
THANDWA
ZIZWE MTHEMBU
NINTH APPLICANT
And
MINISTER
OF HUMAN SETTLEMENTS,
FIRST
RESPONDENT
WATER
AND SANITATION
MEMBERS
OF THE INTERIM BOARD
SECOND TO TWELFTH RESPONDENTS
LISTED
IN ANNEXURE "A"
UMGENI
WATER
THIRTEENTH
RESPONDENT
JUDGMENT
BEZUIDENHOUT,
J
1.
Applicants are seeking the relief in Part "B" of the Notice
of Motion
which is as follows:
I.
That First Respondent's decision communicated on 3 August 2020 to
disband
Umgeni Water Board (ie. to terminate the membership of Umgeni
water Board or those members appointed by the former Minister on 1
May 2019) be and is hereby declared unlawful and it is reviewed and
set aside.
II.
That the decision of First Respondent to appoint an interim Board
(ie. comprising
Second to Twelfth Respondents) be and is hereby
declared unlawful and it is reviewed and set aside.
Ill.
That the costs of the application be borne by First Respondent or any
such Respondent that is opposing the application, jointly
and
severally, such costs to include the costs of two counsel.
2.
Part "A" of the Notice of Motion consisted of relief sought
on an interim
basis.
This
issue has been dealt with and the interim relief was refused.
3.
The facts of the case are basically common cause. On 1 May 2019 the
then Minister
of Human Settlements, Water and Sanitation appointed
members of Umgeni Water Board ( the Board) with effect from 1 May
2019 for
a period of 4 years. This was 7 days prior to the General
Election. After the General Election a new Minister was appointed in
that portfolio. On 3 August 2020 members of the Board, including
Applicants, received a letter from First Respondent (the Minister)
dated 31 July 2020 informing them that their positions as members of
the Board were terminated with immediate effect from 31 July
2020.
The reason for the termination was that the previous Minister did not
obtain the approval of Cabinet for the appointment
of the said
members to the Board.
4.
This Board had functioned from May 2019 until 31 July 2020 when the
appointments
of the Board members of the Board were summarily
terminated. Why the reason for doing so only came to the Minister's
attention
at this stage is unknown. First Respondent then on 13
August 2020 appointed an interim Board which was inducted on 13
August 2020.
They are the Second to Twelfth Respondents in the
application papers. They are not opposing the relief claimed in Part
"B"
nor did they oppose the relief claimed in Part "A"
of the Notice of Motion. The relief claimed in Part "B" (ie
the review of the decision of the Minister) is only opposed by First
Respondent which is the relevant Minister.
5.
The then Minister, who appointed the Board in 2019, Mr Gugile
Nkwinti, in his
capacity as Minister of Water and Sanitation on 27
July 2018 called for nominations to serve as Board members for a
period from
1 October 2018 to 30 September 2022. He thereafter on 1
May 2019 appointed the various members of the Board.
6.
On 31 July 2020 the then Minister of Human Settlements, Water and
Sanitation,
Ms L. M. Sisulu, addressed a letter to Applicants
indicating that she apologised for the incorrect process that was
followed when
they were appointed as ordinary members of the Board as
their appointments to the Board had to be approved by Cabinet, which
did
not happen in this case. In order to regularise the process she
terminated their appointments and decided to appoint an interim
Board
to ensure that proper process are followed in appointing a permanent
Board. Therefore, it was decided to terminate their
membership of the
Board with effect from the date of the letter (31 July 2020). They
could reapply for appointment to the permanent
Board if they were
interested in doing so.
7.
As set out above, it is common cause that the Minister then appointed
an interim
Board and that this interim Board was also not approved by
Cabinet. It is also common cause that prior to the appointment of the
Board members being terminated, the Board members were not given any
notice thereof, nor were they granted an opportunity to submit
any
submissions as to why they should not be removed as members and that
the audi alteram partem rule was not applied at all. The
only reason
provided by the Minister for her decision was that the appointment of
Applicants by the previous Minister had not been
sanctioned by
Cabinet.
8.
It is submitted on behalf of Applicants that the decision of the
Minister to
disband the Board is either reviewable in terms of
PAJA
or that it is a legality review. It was submitted that as the
Minister's decision was unlawful it can also be set aside under the
principle of legality. It was further submitted that the Minister was
not entitled to self-help as she did by disbanding the Board.
The
principle of law remains that if there was such an illegality in the
appointment of Board members, it was a court that had
to rule
thereon.
9.
It was submitted that the question arises whether the conduct of the
Minister
was administrative action or executive action. If it was
administrative action then the
audi alteram partem
principle
was not applied and the application must succeed. It was submitted
that if it was not administrative action then the
issue of legality
would arise and the decision must then be examined under that
principle. It was submitted that in
Minister of Defence and
Military Veterans vs Motau and Others
2014 (5) SA 69
(CC)
it was
decided that the implementation of such a decision was administrative
action. I was also referred to paragraph 33 of
MEC Department of
Education Kwazulu-Natal v Khumalo and Another (0749/08) [2010) ZALC
79;
[2010] 11 BLLR 1174
(LC);
2011 (1) BCLR 94
(LC) (6 July 2010)
dealing with the conduct of administrative action. I was further
referred to paragraph 39 of the
Motau
judgment, where
guidelines are set out to establish whether the power flows from
administrative action or not. It was submitted
the source of power
being exercised has to be considered in determining whether it is
executive or administrative. If such power
is exercised in terms of
the Constitution it could indicate it is executive in nature and if
it is administrative power, it could
be sourced in Legislation. It
was submitted that in this case the source of power was the
Water
Services Act 108 of 1997 (Water Services Act)
and not the
Constitution and therefore that the power was exercised in terms of
Legislation and is therefore administrative action.
10.
It was submitted that the exercise of such power cannot merely be
done at the discretion
of the Minister. The Minister cannot appoint
and terminate the appointment of members to the Board at his/her
will. Although First
Respondent contends the decision is executive
action it does not set out why it is so. It is therefore reviewable
under
PAJA
. It was submitted in the alternative that even if
it was not administrative action reviewable under
PAJA
, it was
reviewable under the principle of legality. The decision was
irrational and an error of law. It was further submitted that
the
interim Board was also not approved by Cabinet and must be subject to
the same requirement. The required process was followed
when the
Board members were appointed and they can then not just merely be
removed from their positons. It was submitted that the
affidavit of
First Respondent did not establish any reason why the power was
exercised. It was submitted that First Respondent
merely wanted to
remove the Board which had been appointed by her predecessor. Further
it has to be considered that the Board members
were removed fourteen
months after they had been appointed with no explanation for such a
delay. It was therefore not just and
equitable.
11.
Applicants raised a point
in limine
that First Respondent (the
Minister) did not herself attest to any affidavit. However on the day
before the hearing a confirmatory
affidavit was provided by First
Respondent and this point was then no longer proceeded with.
12.
It was submitted on behalf of First Respondent that the issue is
whether it is administrative
or executive action. If it was
administrative then a higher level of scrutiny was required. If it
was executive then there is not
such a high level of scrutiny
required. It was submitted that the power to appoint the Board arose
out of
section 35
and
schedule 1
of the
Water
Services Act
>. It was also submitted that the Minister was
entitled to appoint an interim Board and that this was an executive
action. It was
in terms of the Ministerial Handbook that Cabinet had
to be consulted about appointments to the Board. It was submitted
that the
attack on the interim Board was misplaced as no Board was
permanent. It was an executive decision which the Minister took at
the
time. She derived the power for the appointment and dismissal
from her own appointment and was thus executive in nature. The power
was in terms of
section 85(2)(a)
of the
Constitution
,
which refers to the implementing of National legislation. If the
Legislature was prescriptive, it would be administrative action
but
if not it was executive.
Section 35
of the
Water Services
Act
grants
the Minister wide discretion and powers in performing
these duties.
Section 35(5)
allows the Minister to terminate
the membership of the Board members.
13.
There is no constraint on her power. I was also referred to
sections
28
,
29
and
35
of the
Water Services Act
>, which all relate to
Water Boards and its members. First Respondent had to rectify the
appointments of the Board members which
were made by the previous
Minister seven days before the election. It was submitted that it was
a legality issue and that the decision
in
Popo Molefi & Others
vs Minister of Transport and others 1774/17 Gauteng Division,
Pretoria
was not authority that it was executive action. It would
only have been necessary to take the decision of the previous
Minister,
Mr Nkwinti, on review if it could not be revisited. It was
submitted that it was a legality review to rectify what the previous
Minister did. There was no need to call on Applicants to be heard. It
would have served no purpose to call on the previous members,
Applicants, to make submissions before making that decision. It was
submitted that the costs should follow the result and that
there
should be no order made on the application, alternative that a
declaratory order be made that the decision was unfair but
nothing
further.
14.
Section 35
of the
Water Services Act
deals
with the governance
of the Water Board.
Section 35(2)
states as follows:
"Schedule
1 regulates the terms of office of Board members, the procedure for
the recommendation of persons for appointment
of chairperson or Board
members and determination of office of Board members."
Section
35(5)
states:
"The
Minister may terminate the appointment of any or all of the members
of a Water Board."
In
terms of
Schedule 1
of the
Water Services Act
the
procedure is set out for the nomination and appointments of Board
members and for a selection panel to be constituted for that
purpose.
Section 4
of schedule 1
deals with the termination of office
of Board members and sets out various reasons therefore and
paragraph
4(1)(e)
states that he or she will cease to hold office if his or
her appointment has been terminated in terms of
section 35(5)
of the
Water Services Act.
15.
The
power to appoint members and also to terminate the membership of
Board member is done in terms of the provisions of the
Water
Services Act
and
such power is granted to the Minister.
Section
85(2)(e) of the Constitution
states as follows:
"The
President exercises the executive authority, together with the other
members of the Cabinet, by E performing any other
executive function
provided for in the Constitution or the National Legislation."
16.
The Minister thus has the right in terms of the
Water Services Act
to
appoint members to the Board and to terminate their membership.
The question arises whether in doing so the Minister exercises an
administrative or executive function. What is the effect of the
decision made if it is done in terms of one of these two principles,
or is it immaterial which one of the said principles was exercised?
It further has to be considered whether the powers granted
to the
Minister in terms of the
Water Services Act
are
absolute in
the sense that the Minister can at whim appoint members of the Board
and terminate such appointments without consultation
with them or
requesting any input from them in that regard. Is it an absolute
power that the Minister can exercise at his or her
discretion when
they feel so, irrespective of whether there had been any misconduct
or any transgression by any member? Does it
extend so far that the
Minister can, if he/she feels so, merely terminate the appointment of
a Board member irrespective of a Board
member having been a member
for some time and certain expectations had been created that the
Board member would remain a member
of the Board for the period for
which he/she had been appointed?
17.
In
Minister of Defence vs Motau
2014 (5) SA 69
(CC)
the issue
was the reinstatement of General Motau after the Minister had
terminated his services and that of one Ms Mokoena. They
were members
of the ARMSCOR Board at the time and it was contended that the
procedure set out in the
Companies Act
was not followed.
ARMSCOR was managed and controlled by a Board comprising of non
executive members and two executive members.
The reason for the
termination of their positions as Board members was due to their
inactivity in those positions. Appointments
to the Board were made in
terms of the
Armaments Corporation of South Africa Limited Act 51
of 2003 (ARMSCOR Act).
One of the issues which arose in this case
was whether the Minister's decision constituted administrative or
executive action.
Paragraph 26 of the judgment deals with the
distinction between administrative and executive actions. It was
contended by the Minister
that her actions were executive actions as
contemplated in the Constitution in
section 85(2)(e)
and was
excluded from administrative scrutiny and
PAJA
. Respondents
however argued that the power of the Minister did not involve policy
consideration but implementation of the ARMSCOR
Act. They therefore
contended that it was administrative action and that it had to meet
the requirements of PAJA. Referring to
section 85 (2) of the
Constitution
it held in paragraph 28 that the section should not
be read as categorising all powers referred to in it as executive
action, as
opposed to administrative action, for the purpose of
determining the appropriate standard of judicial review. It was held
that
PAJA
excludes executive powers or functions of a national
executive from administrative law review.
Section 33 of the
Constitution
provides for lawful, reasonable and procedurally
fair administrative action.
18.
It held in paragraph 36 as follows:
"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 readymade panacea or solve all formula."
It
was held at 84E:
"Put
differently, the exercise of administrative powers is policy brought
into effect, rather than its creation.”
It
continued at 84F:
“
A power that is more
closely related to the formulation of policy is likely to be
executive in nature and conversely one closely
related to its
application is likely to be administrative."
It
was held at 85E:
"The
fact that the scope of a functionary's power is closely circumscribed
by legislation might be indicative of a fact that
a power is
administrative in nature.”
It
continued at 86B-C:
"Thus,
this court has found that administrative law review is appropriate
where the power under consideration: is legislative
in nature and
influenced by political considerations for which public officials are
accountable to the electorate; is based on
considerations of comity
for reciprocity between South Africa and foreign states, involving
policy considerations regarding foreign
affairs; is closely related
to a special relationship between the President and the
director-general of a security agency; or involves
the balancing of
complex factors and sensitive subject-matter relating to judicial
independence.”
19.
It was held in paragraph 51:
"For
these reasons, I am persuaded that the impugned decisions are not
subject to review under PAJA. Because section B(c) of
the Armscor Act
is an adjunct to the ministers power to make defence policy, and thus
more closely related to the formulation of
policy than its
application, the decision to terminate the services of Board members
amounts to the performance of an executive
function in terms of
section 85(2)(e) of the Constitution, rather than the implantation of
National Legislation in terms of section
85(2)(a)."
As
appears from paragraph 60 of the judgment, ARMSCOR was not
discharging its statutory prescribed mandate. The delays amounted
to
a failure to procure such needed equipment in accordance with the
department's needs.
20.
In the minority judgment by Jafta J, it held as follows in paragraph
106:
"By
leaving out the powers in section 84(2)(e) and U) from the list of
exclusion, PAJA suggests that appointments made by the
President in
terms of the Constitution, when not acting in his capacity as head of
the national executive, constitute administrative
decisions and so is
his or her decision to pardon offenders and remit penalties. The same
applies to decisions taken in terms of
section 85(2)(a) of the
Constitution, implementation of national legislation, like the
Armscor Act, amounts to administrative action
unless the Constitution
or an Act of parliament provides otherwise. Therefore, ordinarily,
the implementation of legislation constitutes
administrative action,
except where there is a clear indication that it does not."
21.
From the above quotations it is apparent that although the majority
judgment found it was
an executive function that was exercised, there
is no fixed rule which can be applied to determine whether a specific
function
is an administrative or executive action. Each case would
have to be dealt with on its own facts applying the necessary
principles
to determine whether what transpired was an executive or
administrative action.
22.
In President of the RSA vs South African Rugby Football Union and
Others
2001 SA 1
(CC)
it was held in paragraph 156:
"In
summary, section 84(2)(f) is a special constitutional power confirmed
on the President as the head of State. The exercise
of this power
does not constitute administrative action as contemplated in section
33 of the Constitution. The exercise of his
responsibility is
nevertheless constrained by the Constitution in a variety of ways.”
It
continues in paragraph 159:
"It
follows from our conclusion that the act of the President in
appointing a commission under section 84(2)(() of the Constitution
does not constitute administrative action, that the audi principle
has no application to such appointment, whatever the source
may be
from which the obligation to observe it might otherwise arise.”
23.
In
Popo Molefi & Others vs Minister of Transport and others
1774/17 Gauteng Division
, Pretoria it confirmed the appointments
to the Passenger Rail Agency of South Africa (PRASA). After
considering various decisions,
it was found that the removal of
Applicants from the Board was administrative action and that it was
therefore reviewable in terms
of
PAJA
. It concluded that the
power of the Minister was sourced from Legislation and not from the
Constitution. It was submitted in this
matter that whether it was
found to be administrative or executive action and was brought under
PAJA
or the principle of legality it could be set aside on the
same grounds.
24.
Dealing with the issue of whether a Minister after making certain
decisions is
functus officio
, it was held in
Retail Motor
Industry Organisation and Another vs Minister of Water and
Environmental affairs and Another
2014 (3) SA 251
(SCA)
at
paragraph 24 as follows:
"The
functus officio
principle is also intended to foster certainty
and fairness in the administrative process. It is not absolute, in a
sense that
it does not apply to every type of administrative action.
Certainty and fairness have to be balanced against the equally
important
practical consideration that requires the reassessment of
decisions from time to time in order to achieve efficient and
affective
public administration in the public interest."
In
paragraph 25 it held that the principle only applies firstly to final
decisions, secondly to where rights or benefits have been
granted and
where it would be unfair to deprive a person of an entitlement that
has already vested, thirdly an administrative decision-maker
may very
or revoke a decision if the empowering legislation authorises him or
her to do so but subject to procedural fairness,
and fourthly it does
not apply to the amendment or repeal of subordinate legistaltion.
25.
In
State Information Technology Agency SOC Ltd vs Gijima Holdings
(Pty) Ltd
2018 (2) SA 23
(CC)
it was held that if an organ of
State wanted to review its own decision it could not do so in terms
of
PAJA
but it was a legality review of its own decision. That
is however, not the position in the present matter as the application
for
review is not being brought by the Department itself but by the
individual members of the Board who has been affected by the decision
of the Minister. An organ of State must bring a legality review of
its own decision. It is applicable to the question whether if
the
decision of the previous Minister was to be changed whether First
Respondent could merely do so or whether a review application
had to
be brought to do so. In terms of
Gijima
if a review
application was to be brought by the Minister it would have to be a
legality review and not a review in terms of the
provisions of
PAJA
.
26.
Section 33 of the Constitution of 1996
deals with just
administrative action in that everyone has a right to just
administrative action that is lawful reasonable and
procedurally
fair.
Section 85 of the Constitution
deals with the executive
authority of the Republic, and states:
"1.
The executive authority of the Republic is vested in the President.
2.
The President exercises the executive authority, together with the
other members
of the Cabinet by-
(a)
implementing national legislation except where the Constitution or an
Act of
Parliament
provides otherwise;
(b)
developing and implementing national policy;
(c)
coordinating the functions of state departments and administration;
(d)
preparing and initiating legislation; and
(e)
performing any other executive function provided for in the
Constitution or in national
legislation."
27.
As set above each case has to be decided on its own facts. In the
present matter the power
to appoint the Board was granted to the
Minister in terms of the
Water Services Act 108 of 1997
.
Section
35
and Schedule 1 of the
Water Services Act
provides
that the
Minister may appoint and terminate the appointments to the Water
Board. In the present matter, when the Minister took
over the
portfolio, the Board members served in those positions appointed by
the previous Minister. Their appointments were terminated
over a year
after their appointments. The only reason provided to them why their
appointments as Board members were terminated
was that their
appointments had not been approved by Cabinet. There is also no
indication that the interim Board that the Minister
appointed was
approved by Cabinet. There is no requirement in the
Water Services
Act
that
the appointment of Board members has to be approved by
Cabinet. It is only referred to in the Ministerial Handbook.
28.
By merely writing to the Board members and informing them that their
appointments are due
to the said error terminated, First Respondent
performed an administrative action in terms of the
Water Services
Act
which
grants the Minister the authority to appoint Board
members and terminate such appointments. If the Minister was of the
view that
the appointments did not comply with the legal requirements
and was irregular a legality review should have been brought to have
the appointments set aside.
29.
Having considered the decisions referred to and the facts of the
present case it is common
cause that the Board members were not
informed or requested to provide any input before their positions
were summarily terminated
by First Respondent. It was submitted that
as it was an executive function the
audi alteram partem
rule
did not apply. In my view considering that the power to appoint
originates not in terms of the
Constitution
but in terms of
the
Water Services Act
that
it is a function that the Minister
performs which is granted to the Minister by the said legislation. In
my view it is therefore
administrative action that is reviewable in
terms of
PAJA
. It is not as pointed out above a review by the
Minister of the decisions of the previous Minister in which event in
terms of
Gijima
it would indeed have been a legality review.
30.
As there had been no consultation with the Board members but merely a
summarily termination
of their appointments, the actions of First
Respondent was unfair and not in terms of the Constitution nor
procedurally fair and
Applicants are entitled to have it reviewed.
Applicants were not given an opportunity to respond or address nor
given an opportunity
to be heard and the whole procedure was
therefore procedurally unfair.
31.
There is also no provision in the
Water Services Act
for
the
appointment of an interim Board. The appointment of the interim Board
was also not approved by Cabinet and such appointments
must therefore
be set aside.
32.
Even if I am incorrect in finding that it was an administrative
action in my view even if
it was a legality review Applicants would
still be entitled to have the decision of First Respondent reviewed
and set aside under
the principle of legality. If it was a legality
review the decision still had to be rational and fair. Considering
the facts as
to how the Board members were removed and the time that
lapsed before this was done, the termination of their appointments
was
unreasonable and irrational. Applicants were appointed for a 4
year term and it could never have been the intention of the
legislature,
nor could it be rational that the Minister can at any
time merely appoint or terminate the appointment of a Board member at
his/her
whim. Expectations are created when the Board members are
appointed for a period of 4 years. The Board member whose membership
is to be terminated can expect to be requested to present some
response or address to the Minister before such a decision is to
be
made. It would create the possibility of members being appointed and
dismissed at any time as the Minister wishes, even if they
did
nothing wrong, which would result in chaos and make it impossible for
a Board to function. The expectation of serving for 4
years remains
and accordingly in my view even if it was a legality review, as I
have stated, Applicants are entitled, due to the
procedural
unfairness, to have the decision reviewed and set aside.
33.
The right of the Minister to appoint Board members and terminate
their appointment cannot
be an absolute right without any recourse.
This could never have been the intention of the legislature. Such
decision must be made
applying the principles of natural justice.
ORDER:
An
order is therefore granted in terms of paragraphs 1, 2 and 3 of
Part
8
of the Notice of Motion.
BEZUIDENHOUT
J
Date
heard:
11 June 2021
Date
handed down: 21 October 2021
The
matter was heard virtually and it was agreed that it would be
provided to the respective parties by electronic means and that
the
original judgment would be placed in the court file. The judgment is
deemed to be handed on the
21st day of October 2021 at 10h00
.
APPEARANCES
On
behalf of the Applicants:
Mr T.
G. Madonsela SC
Mr NS
V Mfeka
Ms
Palmer
Instructed
by:
Strauss
Daly Incorporated
41
Richefond Circle, Ridgeside Office Park Umhlanga
Ref:
RED892.1/AKHOZA/dd/nmfTM2
Email:
ddeeplal@straussdaly.co.za
nmncube@strausdaly.co.za
On
behalf of the First Respondent:
Mr C
Erasmus SC
Mr N
Vimbi
Instructed
by:
The
State Attorney
KwaZulu-Natal
6th
Floor Metropolitan Life Building
391
Anton Lembede Street
Durban
Email:
nramlall@justice.gov.za
nishalramlall@gmail.com
mce7@loftusadv.co.za