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[2019] ZANCHC 26
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Goeieman v Northern Cape Gambling Board and Another (2356/2017) [2019] ZANCHC 26 (31 May 2019)
IN THE HIGH
COURT OF SOUTH AFRICA, NORTHERN CAPE DIVISION, KIMBERLEY.
Reportable
Case No:
2356/2017
In the matter
between:
John
Tlhobogang goeieman
APPLICANT
And
Northern
Cape Gambling
Board
FIRST RESPONDENT
MEC:
DEPARTMENT OF FINANCE, ECONOMIC
DEVELOPMENT
AND TOURISM
NORTHERN
CAPE
SECOND RESPONDENT
Heard:
18 February 2019
Delivered:
31 May 2019
Judgment
Phatshoane ADJP
The
background:
[1] This is an
application by Mr John Tlhobogang Goeieman, the applicant, to review
and set aside the decision
by the Northern Cape Gambling Board (“the
Board”), the first respondent, terminating his contract of
employment. He
entered into employment with the Board on 13 February
2012 as a licensing & investigation manager. He was appointed to
act
as the chief executive officer (CEO) of the Board with effect
from 01 June 2013 until 30 June 2014.
[2] On 10
December 2015 the applicant was suspended from the services of the
Board. Two months later, on
10 February 2016, he received a notice
calling upon him to attend a disciplinary hearing on various acts of
misconduct he allegedly
committed while he was the acting CEO. The
charges he faced included corruption; maladministration; gross
negligence in performing
his duties; soliciting funds for a third
party; and putting the name of the Board into disrepute.
[3] The
applicant explained that on the dates in respect of which his
disciplinary enquiry was scheduled
to be heard, 14 and 15 April 2016,
he received a telephone call from the MEC for the Department of
Finance, Economic Development
and Tourism, Northern Cape (“the
MEC for Finance”), the second respondent, requesting that “the
parties convene
a meeting in order to resolve the matter.” On
this basis, his union representative sought a postponement of the
disciplinary
hearing which was refused by the chairperson of the
tribunal. The hearing proceeded in his absence and on 07 June 2016
the chairperson
issued a ruling dismissing him from the services of
the Board. Three days later, on 10 June 2016, he received a letter
from the
CEO of the Board which communicated the decision of the
Board to terminate his services. This is the impugned decision.
[4] The Acting
CEO of the Board, Ms Lesego Seametso, attested to the answering
affidavit on behalf of the Board.
She disputed that the applicant and
his union requested a postponement of the disciplinary hearing. They
abandoned the enquiry
without the approval of the chairperson
following their unsuccessful bid to have the chairperson recuse
himself. In light of this,
she says, the disciplinary hearing
proceeded in the applicant’s absence.
[5] On 11 June
2016 the applicant lodged an internal appeal against the decision of
the Board. Save to acknowledge
receipt on 19 August 2016, the office
of the MEC for Finance did not revert to him with regard to his
appeal or its outcome. He
also lodged a complaint with the Office of
the Public Protector in June 2016 and requested that the Public
Protector investigate
whether the Board was properly constituted when
it dismissed him. In addition, during December 2016, he filed an
unfair dismissal
dispute with the Commission for Conciliation
Mediation and Arbitration (“the CCMA”).
[6] The Public
Protector found the applicant’s allegation, that the Board was
not properly constituted,
to have been substantiated. It reasoned
that the Department of Finance, Economic Development and Tourism,
Northern Cape, had flouted
the Northern Cape Gambling Act, 3 of 2008
(“the Gambling Act”) in appointing the Board.
[7] Based on
the findings by the Public Protector the applicant abandoned his
alleged unfair dismissal dispute
he lodged with the CCMA and
approached this Court for redress. He contended that the decision of
the Board is susceptible to being
reviewed and set aside in terms of
the Promotion of Administrative Justice Act, 3 of 2000 (“PAJA”).
[8] Ms
Seametso says that the Public Protector did not engage the Board
prior to settling its report. She
urged that the report not be
considered for purposes of this judgment as the Public Protector had
failed to observe the
audi
alteram partem
principle. In
any event, she contended, the report is vague, incomplete and
irregular because it does not set out how the conclusion
reached
therein was arrived at. For instance, she explained, the Public
Protector does not specify to what extent the Board members
were
disqualified to hold office.
The analysis:
[9] The Board
took a point
in limine,
contending as it were, that the review was lodged 12 months following
the impugned decision, and therefore, outside the 180 days
provided
for in PAJA. In explaining the delay the applicant states that he
received the Public Protector’s report on 07 April
2017 which
triggered the filing of the present review. On 10 May 2017 his
erstwhile attorneys, Phakedi Attorneys, directed a letter
to the
respondents which highlighted,
inter
alia
, that the Board was
improperly constituted when it took the impugned decision. The MEC
for Finance was requested to give audience
to the applicant with a
view to finding a solution to the apparent impasse. In view of the
fact that his attorneys did not provide
him with a progress report he
approached a new set of attorneys, Gqadushe Attorneys, during June
2017, who also let him down. He
consulted his current attorneys in
August 2017. In view of the prodigious record that had to be obtained
his attorneys were only
able to settle the application and file it on
06 October 2017.
[10] Section 7(1) of PAJA
does not provide that an application must be brought within 180
days after an applicant
became aware that the administrative action
was tainted by irregularity. The clock starts to run when the reasons
for the administrative
action becomes known (or ought reasonably to
have become known) to the applicant.
[1]
In this case, as I see it, the clock started ticking when the report
of the Public Protector came to the applicant’s attention.
He
filed the review approximately 182 days following receipt thereof,
only two days outside time allowed in PAJA. Regard being
had to the
insignificant delay and the plausible explanation proffered
condonation should be granted. To hold otherwise will manifestly
defy
the tenets of justice.
[11] The main thrust of Mr
Motloung’s argument, for the respondents, is that this review
raises a quintessential
right to fair labour practice which ought to
be resolved in terms of the dispute resolution mechanisms provided
for in the Labour
Relations Act, 66 of 1995 (“LRA”). He
argued that the applicant was found guilty, during his disciplinary
hearing,
on various acts of misconduct which are serious in nature.
The termination was fair and lawfully effected based on the outcome
of the disciplinary proceedings.
[12] Mr Motloung contended
that the jurisdiction of this Court to determine the application is
ousted because the Labour
Court has exclusive jurisdiction to
determine the review. He drew support for his argument from
Sidumo
& Another v Rustenburg Platinum Mines Ltd & Others.
[2]
Ms Stanton, for the applicant, in her countervailing argument
contended that this review is founded on s 6 of PAJA.
[13]
Sidumo
(supra) largely dealt with the review of arbitration awards issued by
CCMA and the review test applicable to those awards. In that
case it
was held,
inter alia,
that
a commissioner conducting a CCMA arbitration is performing an
administrative function and that PAJA did not apply to arbitration
awards issued in terms of the LRA. The case before us does not
concern the review of an arbitration award issued by the CCMA or
any
other related forum.
Sidumo
is thus distinguishable. The dictum relied upon by the respondents in
that case finds no application here.
[3]
[14] Jurisdiction is
determined on the basis of the pleadings and not the substantive
merits of the case. Where a challenge
is mounted against the Court's
jurisdiction the applicant's pleadings are the determining factor and
must be interpreted to establish
what the legal basis of the claim
is. Where the pleadings, properly interpreted, establish that
the applicant is asserting
a claim under the LRA, one that is to be
determined exclusively by the Labour Court, the High Court would lack
jurisdiction.
[4]
[15] As already alluded
to, the applicant abandoned the dispute he filed with the CCMA when
he became privy to the findings
of the Public Protector that the
Board was improperly constituted when it took the decision to
terminate his services. His grounds
of review draws its origin from
those findings. He contended that the Board acted unreasonably and
unlawfully in terminating his
services because it had no authority to
do so by reason of not being properly constituted in terms of s 3 of
the Gambling Act.
[16]
Section 1 of PAJA provides:
‘
(A)dministrative
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 . . . .'
[17] Although
not pertinently raised by the parties, it is important to consider
whether the impugned decision
was administrative in nature and
whether it involved exercising a public power or performing a public
function in terms of an empowering
provision. In
President
of the Republic of South Africa and Others v South African Rugby
Football Union and Others
[5]
the Constitutional Court held that the test for determining whether
conduct constitutes 'administrative action' is not dependent
on
whether the action concerned is performed by a member of the
executive arm of government. The question is whether the task itself
is administrative or not. The Constitutional Court further held that
the implementation of legislation is an administrative responsibility
which is justiciable, and will ordinarily constitute 'administrative
action' within the meaning of s 33 of the Constitution
[6]
.
Action taken in carrying out the responsibility to develop policy or
initiate legislation cannot be construed as being akin to
administrative action for the purposes of s 33. See also
Minister
of Defence and Military Veterans v Motau and Others
[7]
were the following was said:
‘
[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.’
[18] What is central to
the present review is the implementation of a provincial legislation,
Northern Cape Gambling
Act, 3 of 2008, by the MEC for Finance. On the
basis of what is enunciated in the above case law I am of the view
that the impugned
decision constitutes an administrative action which
is justiciable within the purview of PAJA.
[19] Section 3 of the
Gabling Act provides:
‘
3. Composition
of the Board.
—
(1)
The Board consists of no more than 8 members appointed by the
responsible
Member, with due regard to women and disabled persons, of
whom—
(
a
)
one member must be
admitted to practise as a legal practitioner in the Republic
and has,
for a cumulative period of at least five years after having so
qualified, practised as a legal practitioner or performed
services
related to the application or administration of the law;
(
b
)
one member must be qualified as an accountant or auditor in the
Republic
and has, for a cumulative period of at least five years
after having so qualified, practised as an accountant or auditor;
(
c
)
not more than three members must, with due regard to regional,
social, religious
and other community interest in the Province—
(i)
have proven business acumen or applicable knowledge or experience in
the field
of community and socio-economic development; and
(ii)
be fit and proper to represent the community at large; and
(
d
)
not more than three must be appointed by virtue of their proven
business acumen and
knowledge of the gambling industry.’
[20]
Section 7 provides:
“
(7)
Before being appointed a member of the Board the candidate must
submit to the responsible Member an affidavit
in which such candidate
declares that he or she—
(
a
)
is eligible for such appointment; and
(
b
)
is not disqualified in terms of this Act from such appointment.”
[21] In summarising its
findings as contained in its report the Public Protector partly
stated the following:
“
5.1.1.1
that the
Board consist of six members including the CEO.
5.1.1.2
that all members submitted affidavits as required by
the Act.
5.1.1.3
that all members submitted curriculum vitae.
5.1.1.4
that out of all the members only two did not submit
their
certificates to enable this office to confirm their alleged
qualifications. These are Ms Katz and Mr Andrews.
5.1.1.5
that with regard to specific qualifications required
by the act only
the chairperson of the Board has the required qualification and
experience to be a member of the Board, together
with Mr Thobeli and
Mr Hendricks.
5.1.1.6
that Mr Thobeli and Mr Hendricks both qualify for
the requirement of
community development and Mr Kgoabone (chairperson) qualifies for the
legal practitioner’s requirement.
5.1.1.7
that the rest of the members do not qualify to be members
of the
Board.
5.1.1.8
that Ms Katz worked as the PA to the CEO of the Free
State Gambling
and Racing Board. This does not qualify her for the requirement of
the person having proven business acumen and
knowledge of the
Gambling industry….
7.
The CEO has a total of five years and two months working experience,
of which only 3 years
and 2 months at management level.
8.
That makes the CEO’s appointment irregular and unfair as
according to the Act such
conduct constitutes improper conduct as
envisaged in section 182(1) of the Constitution and maladministration
as envisaged in section
6(4)(a)(i) of the Public Protector Act..
Our
preliminary findings in this matter was that the complaint was
founded because the constitution (the composition) of the NCGB
(Northern Cape Gambling Board) was done
ultra vires
the law as
envisaged in the Northern Cape Gambling Act. Further that the CEO of
the Board was improperly appointed as stated above.
However,
during the investigation it was also established that the MEC has
disbanded the Northern Cape Gambling Board and that the
CEO has
resigned from his position. This office will not continue with the
final report as the remedial action that was to be recommended
has
already been implemented.”
[22] As already
highlighted, the respondents took issue with the acceptance by this
Court of the Public Protector’s
report as evidence of its
non-compliance with the Gambling Act. It is important to state
that the findings of the Public
Protector are dealt with
perfunctorily by the respondents in their papers. They are
challenging the procedure that was followed
leading to the issuing of
that report as opposed to the substantive basis of the report. In
order words, nothing is averred by
the respondents to the effect that
the report was factually or legally incorrect or irrational.
[23] The Public Protector
is not cited as a party in this proceedings. The procedure it
followed leading to its report
is also not apparent from the papers.
However, it would appear from the excerpt referred to earlier, that
the Public Protector
sought some information, for instance, academic
certificates from the members of the Board.
[24] The function of the
Public Protector is to investigate, report on and remedy
maladministration. It is given broad
discretionary powers as to
what complaints to accept, what allegations of maladministration to
investigate, how to investigate
them and what remedial action to
order.
[8]
[25] The effect of the
Public Protector's power to order remedial action that has to
be taken by the defaulting
organs of state was determined in
South African Broadcasting
Corporation SOC Ltd and Others v Democratic Alliance and Others
[9]
,
and
Economic Freedom
Fighters v Speaker, National Assembly and Others
[10]
.
The
SCA
remarked as follows in
Minister
of Home Affairs and Another v Public Protector
:
[11]
‘
[5]….In
effect, the
SABC
(SCA)
held, and the
Economic
Freedom Fighters
case confirmed, that the
Oudekraal
principle [
Oudekraal
Estates (Pty) Ltd v City of Cape Town and Others
2004
(6) SA 222
(SCA)] applies to decisions of the Public
Protector: her decisions cannot be ignored (or trumped by parallel
processes)
and unless they are set aside on review, they must
be obeyed and given effect to. In this sense, they are binding
and not
mere recommendations.’
[26] The principles
established in the above cases apply squarely to the present matter.
It was not up to the respondent to
simply remain supine and argue
that the Public Protector’s report is vague, incomplete and
irregular without having challenged
and set it aside by means of a
review.
[27] The persons
identified as comprising the Board are intended to achieve a balanced
Board with the necessary skills
and expertise to meet the purpose.
The Board has a regulatory statutory architecture to which it owes
its existence and from which
its powers and obligations are
derived.
[12]
[28] The principle of
legality is an incidence of the rule of law. The legislature, the
executive and judiciary are
constrained by the principle that they
may exercise no power and perform no function beyond that conferred
on them by law.
[13]
Seen in this context, the decision of the Board does not
withstand scrutiny.
[29] The Board acted
irregularly in terminating the applicant’s services when its
own composition was fraught
with irregularities. An invalidly
constituted Board would not be in a position to take a valid
decision. As a consequence of this,
any decision taken by it will be
unlawful and invalid. To borrow from Innes CJ in
Schierhout
v Minister of Justice
[14]
what
is done contrary to the prohibition of the law is not only of no
effect, but must be regarded as never having been done.
The
ineluctable implication of this is that the decision ought to be
reviewed and set aside.
[30] If an application in
the normal course for the review of administrative action succeeds,
the default position is
that an applicant is entitled to no more than
the setting aside of the impugned decision and its remittal to the
decision maker
to apply his or her mind afresh. Only in exceptional
cases would the Court arrogate the decision to itself by substituting
the
administrative decision or correcting a defect resulting from the
administrative action.
[15]
This is not an exceptional case and neither is the decision capable
of being substituted and/or corrected. I make the
following
order.
Order:
1.
The
decision by the Northern Cape Gambling Board, the first respondent,
dated 10 June 2016, in terms of which Mr John Tlhobogang
Goeieman’s
(the applicant’s) contract of employment was terminated, is
reviewed and set aside.
2.
The first
respondent and MEC for the Department of Finance, Economic
Development and Tourism, Northern Cape, the second respondent,
are to
pay the costs of the application on party and party scale, jointly
and severally, the one paying the other to be absolved.
Phatshoane ADJP
Northern Cape Division, High Court.
O’Brien AJ concur in the
Judgment of Phatshoane ADJP
APPEARANCES
:
FOR
THE APPLICANT:
Adv A Stanton
Instructed
by Duncan & Rothman
FOR
THE FIRST AND
AND
SECOND RESPONDENTS: Adv SE
Motloung
Instructed
by Office of the State Attorney
[1]
Cape Town City v Aurecon SA (Pty) Ltd
2017 (4) SA 223
(CC) at
238 para 41
[2]
2008 (2) SA 24
(CC); (2007) 28
ILJ
2405 (CC).
[3]
The dictum in paras 88-102 of
Sidumo
judgment.
[4]
See
Gcaba v Minister for Safety and Security and Others
2010
(1) SA 238
(CC) 263D-G para 75
[5]
2000 (1) SA 1
(CC) at 67 paras 141-142
[6]
Section 33 of the Constitution of the Republic of South Africa Act,
108 of 1996 provides in part that everyone has the right
to
administrative action that is lawful, reasonable and procedurally
fair.
[7]
2014 (5) SA 69
(CC) at 86 para 44
[8]
See
Minister of Home Affairs and Another v Public Protector
2018
(3) SA 380
(SCA) at 390 para 37
[9]
2016 (2) SA 522
(SCA) ([2015] 4 All SA 719
[10]
2016 (3) SA 580 (CC) (2016 (5) BCLR 618
[11]
2018 (3) SA 380
(SCA) at 382G-383A para 5
[12]
Gauteng Gambling Board and Another v MEC for Economic
Development, Gauteng
2013 (5) SA 24
(SCA) at para 28 and para
34.
[13]
Gauteng Gambling Board and Another v MEC for Economic
Development, Gauteng
2013 (5) SA 24 (SCA)
[14]
1926 AD 99
at 109
[15]
See
Sidumo & another v Rustenburg Platinum Mines Ltd &
others
(fn2) at 2437 para 98.