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[2016] ZAKZPHC 109
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Makhanya v Minister of Water Affairs and Sanitation and Others (1578/2016P; 3861/2016P) [2016] ZAKZPHC 109 (28 November 2016)
IN
HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NO: 1578/2016P
and
3861/2016P
In
the matter between
:
ATWELL
SIBUSISO
MAKHANYA APPLICANT
and
THE MINISTER OF WATER AFFAIRS
AND
SANITATION FIRST
RESPONDENT
DUDUZILE MYENI
N.O. SECOND
RESPONDENT
MUSA XULU
N.O. THIRD
RESPONDENT
POPPY DLAMINI
N.O. FOURTH
RESPONDENT
FREDERICK BOSMAN
N.O. FIFTH
RESPONDENT
NONHLANHLA KHUMALO
N.O. SIXTH
RESPONDENT
AMIT BADUL
N.O. SEVENTH
RESPONDENT
BRIAN RAWLINS
N.O. EIGHTH
RESPONDENT
NICA GEVERS
N.O. NINTH
RESPONDENT
THEMBINKOSI MADIKANE
N.O. TENTH
RESPONDENT
BONGI MSHENGU
N.O. ELEVENTH
RESPONDENT
SIMO CHAMANE
N.O. TWELFTH
RESPONDENT
MHLATUZE
WATER THIRTEENTH
RESPONDENT
JUDGMENT
Date Delivered: 28
November 2016
MBATHA
J:
Introduction
[1]
On 15 April 2016 the applicant brought an urgent application for
relief against the respondents under case number 3861/2016P,
pending
relief sought in in the main application under case number
1578/2016P.
[2]
The two applications are to be determined jointly so that the court
can grant final relief on the urgent application and determine
the
orders sought in the main application. The relief sought in the main
action is as follows:
‘
1. That, pending
the relief sought in paragraphs 2 to 6 below, respondents be and are
hereby directed to permit applicant to continue
performing his
functions and responsibilities as thirteenth respondent’s Chief
Executive Officer.
2. That the first
respondent’s purported extension of second to twelfth
respondents terms of office as board members of Umhlatuze
Water (the
thirteenth respondent):
2.1 from 28 February 2015
to 30 June 2015; and
2.2 from 30 June 2015
until the appointment of a new board, are unlawful, invalid and are
set aside.
3. That the first
respondent’s purported action to extend second respondent’s
term of office as Chairperson of Umhlatuze
Board beyond 28 February
2015 is unlawful, invalid and is set aside.
4. Declaring that the
second to thirteenth respondent’s decision contained in their
resolution dated 7 November 2015 purporting
to suspend applicant as
the Chief Executive Officer of the thirteenth respondent is invalid,
unlawful and of no force and effect.
5. That second respondent
to thirteenth respondents’ decision referred to in paragraph 4
above be and is hereby reviewed and
set aside.
6. That second
respondent’s decision of 20 November 2015 purporting to suspend
applicant as thirteenth respondent’s
Chief Executive Officer is
declared to be unlawful, invalid and of no force and effect
alternatively,
is hereby reviewed and set aside.’
[3]
The applicant in the main action has raised the following issues for
consideration:
(a) Whether the water
board is lawfully constituted. The board’s term of office
expired on 28 February 2015 and the Minister
has extended its term of
office for an indefinite period. The question for consideration is
whether the Minister of Water Affairs
and Sanitation has powers to
extend the water board’s term of office.
(b) The second port of
call as stated by the applicant is the legality of the board’s
decision to suspend the applicant. This
involves the questions of
fact and law.
[4]
In this application the applicant submits as follows:
1. That the Minister has
no powers to extend the board members terms of office. Their terms
lapsed on 28 February 2015. She can
only reappoint board members,
which she has not done, but is precluded from extending their term of
office.
2. That the term of
office of the second respondent, the Chairperson of the board, has
expired and the Minister can neither extend
nor reappoint her. She
has served the maximum period of three terms as a board member (four
years each).
3. That the Minister’s
purported extension of the board’s term of office is
unconstitutional, as it
amounts to an unlawful usurpation of the legislative powers of the
executive.
4. That the applicant
seeks an order setting aside the board’s decision
purporting to suspend him
as the thirteenth respondent’s Chief Executive Officer. The
purported suspension is a nullity as
it was taken by a board which,
in law, does not exist as the decision was taken after the lapse and
/ or expiry of the board’s
term of office.
5. That the suspension is
unlawful as it offends the principle of legality as it was taken to
tarnish the applicant’s reputation
and standing within the
community and the decision was irrational in that it had no
connection with the purpose for which it was
taken.
Dispute
of Facts
[5]
Although there are factual disputes, I must consider whether they are
fundamental in nature,
bona
fide
and genuine. In
Buffalo
Freight Systems (Pty) Ltd v Crestleigh Trading (Pty) Ltd and
another
[1]
the
court endorsed the principle held in
Truth
Verification Testing Centre v PSE Truth Defection CC and Others
[2]
that ‘a common sense and robust approach’ in relation to
the resolution of disputed issues on paper where a respondent
contends himself with bold and hollow denials of factual matter
confronting him must be adopted. It went on further to state that
the
court should be prepared to undertake an objective analysis of such
dispute of facts when required to do so. In the event that
there are
disputes of fact, the court is not permitted to determine the balance
of probabilities on the affidavits but must apply
the
Plascon-Evans
rule. It is also trite that during application proceedings, if a
dispute of facts arises, the court must exercise a discretion
in
terms of Rule 6 of the Uniform Rules of Court, whether to refer the
disputes to oral evidence or dismiss the application. However
in
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[3]
Corbett JA stated:
‘
where in
proceedings on notice of motion disputes of fact have arisen on the
affidavits, a final order, whether it be an interdict
or some other
form of relief, may be granted if those facts averred in the
applicant's affidavits which have been admitted by the
respondent,
together with the facts alleged by the respondent, justify such an
order.’
In
the light thereof I have adopted the approach as envisaged in
Plascon-Evans
.
The
Application to Strike Out
[6]
An application to strike out vexatious, scandalous, irrelevant and
hearsay issues have been brought by Counsel for the second
respondent
and other respondents cited as third to thirteenth respondents. Mr
Gajoo SC
, counsel for the respondents, submitted that such
averments are personal in nature and had been made to side-track the
attention
of the court from the legal issues before the court. He
further stated that they are irrelevant, vexatious and scandalous
issues
which have impugned the dignity and integrity of the second
respondent as they have got nothing to do with the applications
before
me.
[7]
The application to strike out in terms of Rule 6 (15) of the Uniform
Rules of Court is directed at various specified paragraphs
of the
Applicant’s founding affidavit and replying affidavit to the
main action. Rule 6 (15) enjoins the court to strike
out from an
affidavit any matter which is scandalous, vexatious or irrelevant
with an appropriate order for costs. The meaning
attributed to such
terms has been described as follows by Van Loggerenberg et al
Erasmus
Superior Court Practice
vol 2 at D1-91:
‘
(a) Scandalous
matter – allegations which may or may not be relevant but which
are so worded as to be abusive or defamatory.
(a) Vexatious
matter – allegations which may or may not be relevant but are
so worded as to convey an intention to harass
or annoy.
(b) Irrelevant
matter – allegations which do not apply to the matter in hand
and do not contribute in one way or the
other to a decision of such
matter.’
[8]
The court in its interpretation of these aforementioned terms in
Vaatz
v Law Society of Namibia,
[4]
while
reaffirming the meaning ascribed to these terms, also added the
requirement of prejudice to the other party if the material
is
allowed to remain in the affidavits. I accept that these averments
have the effect of tarnishing the image of the second respondent
in
the eyes of the court and the community. The courts are not places
where people should raise unsolicited and scandalous matters
to get
its attention.
[9]
The averments pointed out by Mr
Gajoo SC
are in my view
irrelevant, scandalous and vexatious in nature. If these averments
are struck off, there will be no prejudice to
the applicant as the
matter at hand relates to the powers of the board, the suspension of
the applicant and the powers of the Minister
with regard to the
extension of the terms of the board.
[10]
In motion court proceedings affidavits serve to place the relevant
issues before the court, affidavits should not be used for
tarnishing
the image of any applicant or respondent or to sensationalise the
matter before the court. The allegations alluded to
are not placing
any historical facts before the court, but can assist only to sell
newspapers.
[11]
In this regard, I therefore strike off the following averments and
paragraphs as follows:
1. the second sentence in
paragraph 24.2 to 24.4 together with annexures “ASM1” on
the basis that it is hearsay evidence;
2. paragraphs 82 to 104
together with annexures “ASM16” on the basis that
they introduce irrelevant and scandalous
material which is defamatory
to the second respondent; and
3. paragraph 16, 26, 2.3,
26.3, 26.4 and 26.5 of the applicant’s replying affidavit as it
introduces new issues in reply.
This is prejudicial to the
respondents as they cannot respond thereto.
The
Facts
[12]
It is now proper that I should set out the facts of the dispute
between the Applicant, who is the Chief Executive Officer of
the
Mhlathuze Water Board and the Minister of Water Affairs and
Sanitation, the Chairperson and members of the Mhlathuze Board
and
Mhlathuze Water Board.
[13]
The applicant brought an urgent application seeking an order
directing the respondents to permit him to resume and perform
his
duties as Chief Executive Officer of the thirteenth respondent,
Mhlathuze Water Board. In the main application he seeks an
order
setting aside the Minister’s decision purporting to extend the
term of office of the members of the Mhlathuze Water
Board on the
basis that the Minister has no such statutory powers, the board’s
term has lapsed and the Minister has no power
to extend such terms of
office. He also seeks an order setting aside the board’s
decision purporting to suspend him as the
Chief Executive Officer of
the thirteenth respondent as the purported suspension is a nullity,
as it was given by a board which
in law does not exist. The applicant
contends that the board’s actions were unlawful, offend the
principle of legality, and
that the actions of the board members were
irrational.
[14]
It is common cause that the applicant on 3 September 2014 was
appointed as Chief Executive Officer of the thirteenth respondent
by
the board. He alleges that on 26 July 2015 he learnt that there were
serious allegations of impropriety made against him by
certain
unknown individuals. Subsequently the second respondent
informed him about allegations made against him, which necessitated
a
formal investigation. Messrs Edward Nathan, Sonnenbergs Africa
(ENS) were appointed by the board to investigate the said
allegations
of misconduct. Thereafter he was called upon to provide answers to
the allegations made against him, to which he responded
to by 31
August 2015.
[15]
According to the applicant on 7 November 2015, without his knowledge,
the board resolved to suspend him with immediate effect.
He was not
available during the period of 10 November to 17 November 2015 due to
illness, but resumed duties on 18 November 2015.
On that very same
day of his return to work the second respondent gave him a letter
notifying him of the board’s intention
to suspend him. At the
time of delivering the letter to him the second respondent informed
him that the board took a decision on
7 November 2015 to suspend him.
He refers to this as a facade, as he states that a decision had
already been taken by the board
to suspend him, more so as an acting
Chief Executive Officer had been appointed in his absence until 26
November 2015. The notification
stated that the acting Chief
Executive Officer was appointed due to his illness, and he does not
believe this.
[16]
He responded to the ENS allegations within a period of three days.
His response was emailed to the second respondent on 20
November 2015
at about 14h00. They met the very same day at about 18h00 in Richards
Bay whereupon the second respondent informed
him about a letter of
suspension that would be delivered to him over the weekend. On 21
November 2015 the letter of suspension
was emailed to him. His view
is that the board did not consider his responses, but he was
unilaterally suspended by the second
respondent acting alone without
the input of the board.
[17]
He then approached the Labour Court for urgent relief on or about 27
November 2015 against the first, second to thirteenth
respondents, an
application which failed due to lack of urgency, and that the
applicant had an alternative remedy as he had bypassed
the CCMA
process, which he had failed to approach and that the issues he had
raised were not for the Labour Court to adjudicate
upon.
[18]
On 16 February 2016 he brought an application under case no
1578/2016P, referred to as the main application, as well as an
urgent
application on 15 April 2016 under case no 3861/2016P, seeking relief
pending the determination of the main application,
in that an order
be granted interdicting the second to thirteenth respondents from
making any decisions purporting to suspend the
applicant; declaring
that the decision of the thirteenth respondent communicated to the
applicant on 14 April 2016 purporting to
commence disciplinary
proceedings is invalid, unlawful and of no force or effect and an
order for costs against the respondents
on an attorney and clients
scale.
[19]
The urgent application was precipitated by receipt of an email on 14
April 2016 from the second respondent, requesting the
applicant to
show cause why he should not be suspended pending the disciplinary
proceedings against him. This urgent application
was brought a day
after he had brought the main application challenging the authority
and power of the board to make a decision
suspending him. He contends
that the board is not properly constituted, its purported decision to
suspend him is a nullity, invalid
and of no force and effect, the
board’s members term of office has expired, they have not been
reappointed in terms of Schedule
1 (1) of the Act, and that the
decision of the Minister to extend their term of office was legally
invalid. Furthermore, the decision
of the board to suspend him was
actuated by ulterior motives, is irrational and invalid.
[20]
He states that the letter to show cause dated 14 April 2015 was to
render the pending main application nugatory, academic and
irrelevant. Therefore he finds this to be an interference with the
court processes and the courts authority to independently and
impartially determine the pending main action (Case no 1578/2016P)
set down for hearing on 18 April 2016.
[21]
The urgent application came before Koen J, where the court ruled that
it would be prudent that the urgent application be determined
together with the main application under case no 1578/2016P set down
for hearing on 18 April 2016. On 18 April 2016 it came before
Balton
J, but did not proceed, whereupon the rule
nisi
was extended
to the same date of the hearing of the main application and the
parties were put to terms with regard to the delivery
of answering
and replying affidavits.
[22]
The second respondent’s response is that in April 2016 Edward
Nathan, Sonnenbergs Africa (ENS) presented a memorandum
with serious
allegations against the applicant. This was a complete report to
their initial investigative report to the Chairperson
of the Audit
and Risk Committee of the thirteenth respondent. In the light thereof
the board resolved to take disciplinarily proceedings
against the
applicant and mandated Edward Nathan, Sonnenbergs Africa (ENS) to
conduct the disciplinarily proceedings on behalf
of the thirteenth
respondent. The applicant was called upon to show cause why he should
not be suspended pending the finalisation
of such disciplinary
proceedings. The applicant was furnished with a copy of a notice of
intention to suspend him as well as draft
charges arising from the
Edward Nathan, Sonnenbergs Africa (ENS) report. These were served
upon him on 14 April 2016.
[23]
The second respondent submits that although the applicant was already
on suspension, he was being offered a further opportunity
to make
representations whether his suspension should be extended pending the
finalisation of such disciplinary proceedings.
[24]
The board’s view is that it exists as a lawfully constituted
board until such time as the court makes a pronouncement
and a
determination on the validity of the extension of the terms of office
of the board members. It is still obligated to carry
its mandate in
relation to the proper functioning of the thirteenth respondent,
including the authority to proceed with disciplinary
issues relating
to the applicant fairly and as expeditiously as provided in the
Disciplinary Procedures. The second respondent
states that the mere
institution of the main application does not preclude it from
continuing with its functions as these are day
to day functions of
the board. The applicant’s belief that the letter of 14 April
2016 intended to undermine the relief sought
in the main application
is unfounded and devoid of substance, according to the respondents.
[25]
The second respondent’s contention is that in the absence of a
finding of any invalidity, the applicant has not shown
a clear right
to the relief that he sought and the interim relief should be
discharged with costs.
The
Law
[26]
It is important that I outline the relevant provisions of the Act
governing the water boards, as the facts of this case relate
thereto.
The water boards are governed by the Water Services Act
[5]
and the regulations thereto as follows:
(a) Water boards are
created and established under Chapter 6 of the Act. Section 35 of the
Act deals with the governance of water
boards and it states as
follows:
‘
35 Governance
of water boards
(1) A water board
consists of a chairperson and such other members as the Minister may
appoint from time to time.
(2) Schedule 1 regulates
the terms of office of board members, the procedure for the
recommendation of persons for appointment as
chairperson or board
members and the termination of office of board members . . .’
(b) Section 36 provides
for the appointment of a suitable person as Chief Executive of the
water board, for a renewable period.
(c) The general powers of
the Minister are set out in section 73 of the Act. Amongst others,
section 73 (1) (
l
) provides as follows:
’
73 General
powers of Minister
(1) The Minister may –
. . .
(l) on good cause, extend
any time period provided for in this Act.’
(d) The general powers of
the Minister are set out as follows in section 73(1):
‘
(1) The Minister
may-
(a)
acquire a
water services work and may transfer or dispose of any water services
work belonging to the National Government;
(b)
construct,
operate, alter or repair any water services work with the permission
of the relevant water services institution;
(c)
contract with
any person to perform any work which the Minister is authorised to
perform under this Act;
(d)
act as a water
services provider under contract or approval only if the relevant
water services authority is unable to provide the
water services;
(e)
provide water
services in emergency situations;
(f)
perform the
functions of a water services authority or water board;
(g)
levy tariffs
for water services provided by him or her;
(h)
issue
guidelines to water services institutions on performing their
functions in terms of this Act;
(i)
issue model
conditions for the provision of services for use by water boards and
water services committees;
(j)
prescribe
measures to be taken by water services institutions to conserve
water;
(k)
prescribe how
any matter arising out of the repeal of any law by this Act must be
dealt with, to the extent that this Act or any
other law does not
sufficiently provide for it; and
(l)
good cause,
extend any time period provided for in this Act.’
[27]
The Schedule to the Act provides as follows:
(a) Schedule 1 of the Act
provides for the terms of office of board members as follows:
‘
1
Terms of
office of board members.
(1) A member of a water
board is appointed for a period of office determined by the Minister,
which may not exceed four years.
(2) A member of a water
board may be reappointed. Reappointment
is limited to three
consecutive terms of office.’
(b) Item 4 of the
Schedule deals with the termination of office of board members:
‘
4.
Termination
of office of board members
(1) 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. Leave may be granted
retrospectively, if the absence of
a member was due to unforeseen circumstances;
(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.’
Application
of the Law
[28]
The term of office of the board members is regulated by Item 1 of
Schedule 1 which states as quoted above. The applicant submits
that
Item 1 (2) of Schedule 1 provides no room for the extension of the
terms of office for board members at all.
[29]
It is common cause that the four year term of the board expired on 28
February 2015. The second respondent was appointed as
a member of the
board in 2002. She was appointed as Chairperson of the board in
February 2006. Her reappointment in February 2006
as Chairperson and
as board member was her second term of office. On or about January
2010, a new board was appointed for the thirteenth
respondent and on
1 March 2011 the second respondent was reappointed as a board member
and Chairperson of the thirteenth respondent.
This was her third and
last term as a board member. The third to twelfth respondents terms
of office also expired on 28 February
2015.
[30]
On 11 February 2015, the Minister of Water Affairs and Sanitation,
the first respondent, being aware that their terms of office
were to
expire on 28 February 2015, decided to extend their terms of office
to 30 June 2015, in order to allow her office to finalise
the process
for the appointment of a new Board. On 1 June 2015 their terms of
office were purportedly further extended until the
new board was put
in place and for the first respondent’s department to be able
to finalise the process of appointing a new
board and a merger with
Umgeni Water Board.
[31]
In this regard the applicant submits that the first respondent, in
purporting to extend the term of office of the board members,
exercised powers that she did not have in terms of the Act. Therefore
such an extension is unlawful and invalid. The applicant
submits that
the second respondent has served three consecutive terms as board
member as she was appointed in 2002. In the light
of the extension of
the four year term for other board members, the board lacked the
requisite authority to perform any of their
functions assigned to its
members in terms of the Act, as the Act does not make such a
provision. Therefore it lacked statutory
power and authority to
perform the functions of a properly constituted board, when it
suspended the applicant on 7 and 8 November
2015.
[32]
The applicant submits that it is clear from the language of the Act
that the terms of the board members should not exceed four
years,
that the wording of sections 35 (1) and (2) of the Act and Item 1 of
Schedule 1 does not give any discretionary power to
the first
respondent to extend the said terms beyond the four years stipulated
therein, nor do the provisions of the Act, empower
the first
respondent, as an executive arm of government, to extend the terms of
office of board members beyond the four years or
at all, as this
would undermine the legislatively ordained term of office. In fact
this would be tantamount to the executive usurpation
of the
legislative power.
In
the light of the irregular extension of their terms of office they
lacked the requisite authority to suspend the applicant or
perform
any functions of the board.
[33]
The first respondent relies on section 73 (1) (
l
) of the Act
which states that the Minister may on good cause extend any time
period provided for in the Act. She acknowledges that
the term of
office for the board ended on 28 February 2015. However on 11
February 2015, the Minister realised that by the end
of 28 February
2015 the process of appointing the new Board would not have been
finalised, she then decided to act in terms
of section 73 (1)
(
l
) of the Act to extend the term of office of the board to 30
June 2015.
[34]
The process was started in February 2015 for nominations. Notices
were advertised in terms of the Act, with the closing date
of 23
March 2015. It is submitted that this was not the only the process at
hand, but there was a consideration of the merger and
amalgamation of
the two Water Boards, Umgeni and Mhlathuze, which was at quite an
advanced stage in mid-2015. With the process
of appointing a new
board not being finalised, and the consideration of the merger of the
two boards being in the pipeline, considerations
of public interest
and good governance dictated that it would not be in the interest of
the thirteenth respondent to appoint a
new board whilst the merger of
two boards was in consideration. The Minister then extended the term
of the board for an indefinite
period.
[35]
This court can accept that this process was known to the applicant as
well. The merger and amalgamation process has also been
alluded to by
the applicant in his founding affidavit where he states that the
first respondent on or about 29 October 2015 presented
to a
recognised trade union of the thirteenth respondent the road map to
such a merger at its premises. The process was envisaged
to have come
into fruition in January 2016. This proposed merger would see the end
of the two Water Boards, and a new KwaZulu-Natal
Water Board would
come into fruition. However, the applicant now sees the process in a
different light in that the proposed merger
is done to displace him
as the Chief Executive Officer of the Mhlathuze Board.
[36]
It is common cause that the governance of the board as regulated by
section 35 rests on the Chairperson and other such members
as
appointed by the Minister from time to time. Schedule 1 of the Act
regulates the terms of office of the board members. Item
3 of the
Schedule states the procedure that must be followed for nomination
and appointment of board members. It is quite an involved
process
whereupon the Minister may require a water board to constitute a
selection panel to recommend persons for appointment as
members of a
water board, a publication of notices by the Chief Executive Officer
of the board calling for nominations, copies
of such notice to be
published in two newspapers and sent to various organisations having
a substantial interest in the matter,
including representatives of
municipalities, then a selection panel is appointed from various
organisations and persons, the nominations
are considered, a
shortlist is prepared, shortlisted candidates are interviewed and
recommendations made to the Minister of suitable
candidates. The
selection panel will then consider candidates for the position of
Chairperson. The Minister does not merely rubber
stamp but must also
consider the recommendations made by the selection panel.
[37]
The applicant having submitted that the second respondent has served
three consecutive terms of office and that the extension
of her term
is unlawful and irregular, further argues that the Act does not make
any provision for the extension of the terms of
the board but only
for the appointment of the board. The applicant contends that this
extension amounts to a reappointment of a
Chairperson who has served
the three consecutive terms of office. This is unlawful and subverts
the object of the Act. However,
the first respondent submits that
this is not a reappointment, which would have violated the provisions
of the Act. The first respondent
submits that it relies on the
provisions of section 73 (1) (
l
) of the Act which empowers the
Minister to extend time limits provided for in the Act, including the
time limits prescribed in
the Schedule.
[38]
This boils down to the question of whether section 73 (1) (
l
)
is an empowering provision for the Minister to extend the terms of
office of the board members or not and whether the provisions
of
section 73 (1) (
l
) are applicable to Schedule 1 of the Act,
which provides for the terms of office of the board members.
[39]
The interpretation of the provisions of section 73 (1) (
l
)
and their relationship to the Schedule needs to be ascertained and
determined.
Counsel
for the first respondent,
Ms
Moroka
SC, has requested the court to take into account what the Supreme
Court of Appeal in
Natal
Joint Municipal Pension Fund v Endumeni Municipality
[6]
stated regarding the rules of interpretation:
‘
Interpretation
is the process of attributing meaning to the words used in a
document, be it legislation, some other statutory instrument,
or
contract, having regard to the context provided by reading the
particular provision or provisions in the light of the document
as a
whole and the circumstances attendant upon its coming into existence.
Whatever the nature of the document, consideration must
be given to
the language used in the light of the ordinary rules of grammar and
syntax; the context in which the provision appears;
the apparent
purpose to which it is directed and the material known to those
responsible for its production. Where more than one
meaning is
possible each possibility must be weighed in the light of all these
factors. The process is objective not subjective.
A sensible meaning
is to be preferred to one that leads to insensible or unbusinesslike
results or undermines the apparent purpose
of the document. Judges
must be alert to, and guard against, the temptation to substitute
what they regard as reasonable, sensible
or businesslike for the
words actually used. To do so in regard to a statute or statutory
instrument is to cross the divide between
interpretation and
legislation; . . .
’
[40]
The first respondent submits that the court should look at the
preamble to the Act, which should be read in line with the powers
in
section 35 of the Act. She argues that the Schedule should be read
with the Act, and that section 73 (1) (
l
) should therefore be
applicable to the Schedule.
[41]
As submitted by
Mr Madonsela
SC, counsel for the applicant, I
accept that the overall purpose of stipulating the period for each
term of office and the number
of terms that may be served by a board
member was to limit the time frame to strictly four and twelve years
respectively and not
beyond those periods. A restrictive
interpretation must be used to the Schedule to the Act. The reliance
upon section 73 (1) (
l
) of the Act by the Minister which
states that ‘the Minister may on good cause, extend any time
period provided for in this
Act’, should not apply to Schedule
1 (1) and (2) as it relates to a time period provided in the Act and
not the Schedule.
Furthermore, the words ‘which may not exceed
four years’ in the Schedule do not give the Minister any
discretion to
extend the period from four years for whatever reason.
[42]
Item 1 (2) of the Schedule further states that ‘reappointment
is limited to three consecutive terms of office.’
Any extension
of any term of appointment would defeat the specific periods stated
in the Schedule and the purpose for such an appointment.
[43]
The termination of office is regulated by the provisions of section
35 (5) of the Act, where it states that the Minister may
terminate
the appointment of any or all the members of a water board under
specified circumstances. Nowhere does the Act or the
Schedule state
that the term of office may be extended by the Minister. This can
only mean that the legislature did not envisage
that there may be a
need for an extension of the term of office of board members, but
envisaged that there may be circumstances
where the Minister may
terminate the term of office before the expiry of the four year
period.
[44]
If one looks at section 73 of the Act, it deals with general powers
of the Minister in the performance of the services relating
to the
general functions of the board. The provisions of section 73 (1)(a)
to (k) relate to the performance of duties in
relation to the
provision of water services. Section 73 (1) (
l
) states that
‘on good cause, extend any time period provided for in this
Act’. Section 73 (1) (
l
) has no bearing on the
appointment of board members. It is my view that this extension of
time applies only to the section 73 (1)(a)
to (k) of the Act and not
to the entire Act and the Schedule thereto.
[45]
The first respondent relies on this provision of the Act and a
definition section which does not include the Schedule to the
Act. It
is clear that the legislature did not want to be second guessed when
it came to the terms of office of the board members,
as they are
specifically and separately dealt with in the Schedule, which is
separate to the Act.
[46]
If the legislature had envisaged the extension of the terms of the
members of the board, this would have been expressly stated
in the
Schedule or in the Act, or the provisions of section 73 (1) (
l
)
would have stood alone, separate from the entire section, possibly
with a caveat that it includes its application to the Schedule
as
well.
[47]
I accept that the interpretation advanced by the respondents, in
particular the first respondent, will result in absurdity,
will
subvert the overall purpose of the Act, and will result in an
impermissible delegation of plenary legislative powers to an
executive arm of government, as submitted on behalf of the applicant.
This scenario is similar to the case of
Justice
Alliance of South Africa v President of Republic of South Africa and
Others
[7]
where the court dealt with the separation of powers between executive
and judiciary. The Constitutional Court in that case dealt
with a
term of office of a Constitutional Court justice who holds office for
a non-renewable term of twelve years or until he or
she reaches the
age of 70 years, whichever happens first, except where an Act of
Parliament extends the term of office of a Constitutional
Court
Judge.
[48]
The Constitutional court held that section 176 (1) of the
Constitution must be interpreted against the background of the
Constitutional
imperatives of the rule of law, separation of powers,
and the independence of the judiciary. A non-renewable period is an
important
feature of these Constitutional imperatives.
[49]
It held further that it vests such authority with independence of the
judiciary. However, section 8 (a) of the Judges’
Remuneration
Act
[8]
, which permits the
President to extend the term of office of the Constitutional Court
Judge, shifts all the power granted by section
176 (1) from
Parliament to the Executive, thereby surrendering and usurping the
exclusive power of Parliament to extend a Constitutional
Court
Judge’s term of office. Not only does this amount to an
unlawful delegation of a legislative power, but the conferral
of an
open-ended discretion to the Executive also violates the principle of
judicial independence, with the result that section
8 (a) was both
unconstitutional and invalid.
[50]
In the result I accept the submission made by the applicant’s
counsel that the construction urged by the Minister will
result in
absurdity, will subvert the overall purpose of the Act as well as the
legislative scheme and will result in an impermissible
delegation of
plenary legislative powers to an executive of government.
[51]
It is also accepted that in applying the provisions of any Act of
Parliament, it must be interpreted to give effect to its
primary
objects, purpose and such interpretation should be in line with the
Constitution. The Act has various headings to sections
thereof, which
in the past assisted to establish the purpose of the legislation only
when the rest of the provision was not clear.
[9]
Subsequently, in
Turffontein
Estates Ltd v Mining Commissioner Johannesburg,
[10]
the court pointed out that the value attached to headings will depend
on the circumstances of each case.
[52]
Schedules to an Act help to simplify the contents of the legislation.
Each schedule is considered
vis-à-vis
the relationship
it has with the Act, whether the Act refers to it and the language in
which the Act refers to it. Section 35 relates
to the Governance of
Water Boards. 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 as chairperson
or board
members and termination of office of board members.
’
I
have considered the language used in section 35 (2) of the Act. It
uses the word ‘regulate’. ‘Regulate’
as a
verb is defined in the Oxford Dictionary as ‘control or
maintain the rate or speed of (a machine or process) so that
it
operates properly:’ It is described as originating in late
Middle English (in the sense ‘control by rules’).
[53]
The language of the statute is clear and resolute in the use of this
robust language in stating that the terms of the board
members shall
be regulated by Schedule 1. It clearly ousts any provision in
the Act.
[54]
The court has taken cognisance that in the case of conflict between a
section of the Act and a schedule the section prevails.
[11]
Be that as it may, it is noteworthy that the entire Schedule 1 to the
Act specifically only deals with issues relating to the board
members, their terms of office, disqualification, procedure for
nomination and appointment of board members and termination of
office
of board members. There is absolutely no provision that enables the
Minister in the schedule to extend the term of office
to the board
members.
[55]
I therefore find that the Minister’s purported extension of the
term of office of the board members to be unlawful and
invalid in
law. I find that on ‘good cause shown’ would only be
applicable to the provisions of section 73. The legislature
could not
have given the Minister the best of both worlds, executive and
legislative powers. If the terms of office are extended,
in this case
indefinitely, this will result in the second respondent serving more
than the stipulated period envisaged by the legislature.
The maximum
period of twelve years caters for experience in holding office as a
board member at the same time ensuring that new
board members are
appointed. Similarly, the board members should not exceed the four
year term as this would result in them serving
for a longer period
than twelve years or four years depending on each case, if their
terms of office are extended.
[56]
In
Pharmaceutical
Manufacturers Association of South Africa and another:
In re Ex
parte President of the Republic of South Africa and Others
,
[12]
the court dealt with exercise of public powers. It held that the
exercise of all public powers had to comply with the Constitution,
which was the supreme law, and with doctrine of legality, which was
part of that law. The question whether the President had acted
ultra
vires
or
intra
vires
in bringing the an Act into force when he had done so was,
accordingly, a Constitutional matter and the finding that he had
acted
ultra
vires
was a finding that he had acted in a manner consistent with the
Constitution.
[57]
In the light of this decision I therefore find that the Minister’s
purported extension of the terms of office of the
board members to be
invalid and against the Constitution. Her decision should be reviewed
and set aside as it is inconsistent with
the Act and the
Constitution.
[58]
In the first respondent’s supplementary heads of argument, the
Minister has in the alternative sought a suspension of
the order of
invalidity. It is common cause that the order suspending a
declaration of invalidity is discretionary and where interests
of
third parties are affected.
[59]
I have been referred to
Bengwenyama
Minerals (Pty) Ltd and Others v Genorah Resources (Pty) Ltd and
Others
,
[13]
where the court stated:
‘
The discretionary
choice may not precede the finding of invalidity. The
discipline of this approach will enable courts to
consider whether
relief which does not give full effect to the finding of invalidity,
is justified in the particular circumstances
of the case before it.
Normally this would arise in the context of third parties having
altered their position on the basis
that the administrative action
was valid and would suffer prejudice if the administrative action is
set aside, but even then the
“desirability of certainty”
needs to be justified against the fundamental importance of the
principle of legality.’
[60]
It is clear to this court that it is quite an involved process for
the appointment of such boards, however, in this case, the
second
respondent had been the longest serving member of the board, was
Chairperson and should have timeously brought it to the
attention of
the Minister to appoint the board so as to prepare for a timeous
exit, irrespective of whether such a merger or amalgamation
were to
take place or not. Similarly, the Chief Executive Officer of the
thirteenth respondent, who is the applicant in these proceedings,
instead of vigilantly and vigorously supporting the extension of the
terms of office for the board members, should have assisted
in the
process of the appointment of a new board rather than entrenching the
old board in the institution. However, as soon as
he falls out with
the board, which he had so actively tried to entrench, he sees their
actions as unlawful and illegal. The applicant
had a hand in this
unlawful conduct to a certain extent.
[61]
The first respondent has requested that should this court declare the
actions of the Minister to have been unlawful and invalid,
the court
is in terms section 8 of the Promotion of Administrative Justice
Act
[14]
(‘PAJA’)
and section 172 of the Constitution mandated to consider what
is just and equitable in the circumstances
of the case.
[62]
In consideration of this, the court has been requested to take
judicial notice of the fact that the board is specifically and
legislatively created to run the affairs of the thirteenth
respondent. It has to take decisions with a view to advance the
business
interests of the thirteenth respondent and act in the public
interest. The court in the exercise of its judicial discretion must
ensure the continuity of the entity in the interests of the public.
[63]
This is a very persuasive argument in the light of the water
challenges that our country is facing at the moment. Extra-ordinary
and urgent measures need to be undertaken by the water boards, unlike
at other times. Having a headless institution at the time
of a water
crisis like the present moment would defeat the intention of the
legislature as envisaged in the preamble of the Act,
and it would be
against the interests of the public.
[64]
This would be in line with what the Constitutional Court stated in
Steenkamp
NO v Provincial Tender Board, Eastern Cape,
[15]
cited by the first respondent’s counsel, where the court held
that the ultimate purpose of a public law remedy is to afford
the
prejudiced party administrative justice, to advance efficient and
effective public administrative justice, to advance efficient
and
effective public administration compelled by constitutional
prescripts and at a broader level to entrench the rule of law and
that ultimately the remedy must be fair and just in the circumstances
of a particular case.
[65]
I have taken into account that the board has taken decisions which
for practical reasons may be prejudicial to ordinary members
of the
public if set aside, and which are
bona fide
decisions taken
in the interest of the public fairness and in furtherance of the
functions of the board. This would lead to prejudice
to members of
the public as the preamble of the Act provides for the entrenchment
of constitutional right to water as envisaged
in the Bill of Rights.
Section 27 (1) (b) of the Constitution also states that everyone has
the right to have access to sufficient
food and water. The preamble
to the Act recognises the rights of access to basic water supply and
basic sanitation necessary to
ensure sufficient water and an
environment not harmful to health or wellbeing. It also affirms the
National Government’s
role as custodian of the Nations water
resources.
[66]
I find myself bound to uphold the aforementioned principles.
Accordingly, I find that it will be just and equitable that the
board
continue with the performance of its duties, as the actions of the
board did not relate only to the decision regarding the
disciplinary
hearing of the applicant but to other spheres of operation of the
Water Board. On the other hand, it is imperative
that the first
respondent be directed to expedite and finalise the process of
appointing a new board, a board that will take over
from the current
board.
[67]
I must now deal with the applicant’s suspension. He seeks an
order setting aside his suspension and that all disciplinarily
proceedings preferred against him be declared a nullity. He asserts
that his suspension was procedurally flawed, he was not given
an
opportunity to make representations and that it was done for ulterior
motives.
[68]
According to the respondents, serious allegations have been raised
against the applicant. These findings were as a result of
an
independent investigative process carried out by Edward Nathan,
Sonnenbergs Africa (ENS). The applicant states that a decision
to
suspend him was taken without him being afforded an opportunity to
make representations. This could not have been the case as
he
returned to work after taking sick leave. He was called upon to show
cause why he should not be suspended, responded thereto
and a
decision was taken to suspend him pending the finalisation of the
investigation. He refers to that as a facade as the
decision
had been taken. This was after preliminary findings were made by
Edward Nathan, Sonnenbergs Africa (ENS).
[69]
Had he been suspended, as he alleges, on 7 November 2015 he would not
have executed his duties between 7 November 2015 to 22
November 2015.
It is clear to me that the ‘Board’s resolution’ was
not a resolution to suspend him with immediate
effect but was a
noting of the process that should be taken regarding the allegations
made against him. These were serious allegations
as they related to
nepotism and abuse of power by the applicant.
[70]
The second notice of intention to suspend him dated 14 April 2016
came only after the completion of the investigation by Edward
Nathan,
Sonnenbergs Africa (ENS). It was intended to enable the applicant to
prepare for a disciplinary hearing and give him access
to witnesses
and documents at the institution. The applicant has tried to
subscribe the disciplinary process to the ulterior motives,
on the
part of the second respondent and that this was also intended to
remove him in line with the proposed merger of the Mhlathuze
and
Umgeni Water Boards.
[71]
Having found that the decision by the Minister to extend the term of
office of the board to be invalid, this also impacts on
the decision
of the board to proceed with the disciplinary process against him.
Therefore that process cannot be valid in law.
[72]
Having come to the conclusion that the term of office of the board
members were unlawfully extended, the respondents submits
that the
operation of such an order should be suspended for these reasons:
(a) The second to the
twelve respondent (the members of the thirteenth respondent, the
board) had nothing whatsoever to do with
the extension of their terms
office. The decision in this regard were taken or made by the first
respondent.
(b) The applicant in fact
motivated the extension of the terms of office of the members of the
board. He gave a glowing report about
their competency as a board.
(c) It was not the second
respondent alone but the members of the board who resolved on 25 July
2015 to investigate the whistle-blower
allegations against the
applicant.
(d) The applicant
provided a preliminary response to the allegations against him on 31
August 2015.
(e) On 30 October 2015
ENS Africa released their interim report which provided preliminary
and
prima facie
evidence of misconduct on the part of the
applicant.
(f) The report was
provided by an independent outsider, Edward Nathan, Sonnenbergs
Africa (ENS) whose integrity has not been questioned.
(g) On 7 November 2015
the resolution was taken to pursue disciplinary action against the
applicant and to suspend him.
(h) It emerged that the
report had been leaked to the applicant who contacted employees of
the board and sought to garner their
support and to interfere with
the investigative process.
(i) The applicant booked
himself off sick from 10 November 2015 until 17 November 2015.
(j) He resumed his duties
on 18 November 2015 and was handed the notice of the intention to
suspend him pending the disciplinary
inquiry.
(k) On 27 November 2015
the applicant launched an application out of the Labour Court which
failed.
(l) The ENS Africa report
was finalised on 26 February 2016.
(m) On 29 February 2016
the board resolved to pursue disciplinary charges and to invite
representations from the applicant as to
why he should not be
suspended pending the outcome thereof.
[73]
I have been persuaded to suspend the order of invalidity for a period
of 180 days by Counsel for the respondents, on the basis
that the
actions of the Minister were
bona fide
and that the Minister’s
actions had nothing to do with the protection of any of the
respondents, in particular the second
respondent, having found that
the decision of the Minister to extend the terms of board members to
be invalid, should be reviewed
and set aside, as her decision is
inconsistent with the provisions of the Act and its Schedule and
Constitution.
[74]
In
Bengwenyama
the court held that a court has a discretion
under section 172 (1)(b) of the Constitution to suspend a declaration
of invalidity
where it is just and equitable to do so. Section 8 (1)
of PAJA states as follows:
‘
The court or
tribunal, in proceedings for judicial review in terms of section 6
(1), may grant any order that is just and equitable
. . .’
The
court in
Bengwenyama
went on further to state as follows:
‘
This “generous
jurisdiction” in terms of section 8 of PAJA provides for a wide
range of just and equitable remedies,
including declaratory orders,
orders setting aside the administrative action, orders directing the
administrator to act in an appropriate
manner and orders prohibiting
him or her from acting in a particular manner.’
[75]
The respondents advocated the approach followed in
McBride
v Minister of Police and Another
[16]
as the one I should follow in this matter in support of a just and
equitable remedy is sought by the respondents. The respondents
have
requested that I grant such an order, should I find in favour of the
applicant with regard to the Minister’s powers.
The main
submission is that the Minister acted in good faith and that she had
put the best interests of the thirteenth respondent
first. It is also
submitted that the disciplinary proceedings have already commenced
and that the process is handled by a reputable
and independent
consultant, whose actions have not been tarnished in any way. They
have filed an investigation report which is
before the board, which
indicates that
prima
facie
,
the applicant has a case to answer. Likewise the applicant has
strenuously argued for the setting aside of the disciplinary
proceedings
instituted against him, as these were as a result of an
invalid decision taken by an invalid board and that they were perused
for
ulterior motives.
[76]
I am persuaded that the setting aside of all the invalid decisions by
the board would bring disruption to the functions of
the thirteenth
respondent if all their decisions were to be set aside, including the
decision to suspend and proceed with a disciplinary
hearing against
the applicant. This will also give the applicant an opportunity to
deal with the allegations against him. This
is a different case to
the
McBride
case where Mr McBride was keen to proceed with the
disciplinary hearing and clear his name. The grant of the just and
equitable
remedy in terms of section 172 (2) (b) of the Constitution
does not go down well with the applicant, which is understandable in
the circumstances. However, the integrity of the institution is also
at stake.
In
the light that the final investigations and recommendations to
proceed with disciplinary proceedings against the applicant were
made
by an independent body Edward Nathan, Sonnenbergs Africa (ENS) and
not by the board, that process should proceed and be carried
out by
Edward Nathan, Sonnenbergs Africa (ENS)
Conclusion
[77]
Accordingly, I make the following order:
1. The decision by the
Minister to extend the terms of the office of the board is declared
invalid and set aside;
2. The decision by the
board to pursue disciplinary proceedings against the applicant and
suspend him is declared invalid and set
aside;
3. The orders in
paragraph 1 and 2 above are suspended from the date of this order for
a period of 180 days for the Minister to
appoint a new board;
4. The disciplinary
proceedings against the applicant are to be conducted by Edward
Nathan, Sonnenbergs Africa (ENS) and should
be finalised by not later
than 31 January 2017. Edward Nathan, Sonnenbergs Africa (ENS) will
then make its recommendations to the
newly appointed board as stated
in paragraph 3 above, as soon as it is constituted;
5. The rule
nisi
in case number 3861/2016P is discharged; and
6. The applicant is
awarded costs in respect of both matters (1578/2016P and 3861/2016P)
including the costs consequent on the employment
of senior and junior
counsel where applicable.
__________________
MBATHA
J
Date
of hearing
:
20 September 2016
Date
delivered
:
28 November 2016
Appearances
:
For
the Applicant
:
Adv TG Madonsela SC/ Adv N Mfeka
Instructed
by
:
STRAUSS DALY ATTORNEYS
9
th
Floor Daly
Place
41 Richefond Circle
Ridgeside Office Park
Umhlanga
C/O DIEDRICKS ATTORNEYS
90 Roberts Road
Claredon
Pietermaritzburg
For
the First Respondent :
Adv K Moroka SC / Adv ZZ Matebese
Instructed
by
:
DLAMINI ATTORNEYS
The Forum Building, 12
th
Floor
2 Maude Street
Sandton
C/O MH ATTORNEYS &
ASSOCIATES
51 Pietermaritz Street
Pietermaritzburg
For
the Second to Thirteenth Respondents:
Adv VI Gajoo SC / Adv LR Naidoo
EDWARD
NATHAN SONNENBERGS
1 Richefond Circle
Ridgeside Office Park
Umhlanga
C/O VENN NEMETH &
HART ATTORNEYS
281 Pietermaritz Street
Pietermaritzburg
[1]
2011
(1) SA 8 (SCA)
[2]
1998
(2) SA 689 (W)
[3]
[1984] ZASCA 51
;
1984
(3) SA 623
(A) at 634H-I
[4]
1991(3)
SA 563 (Nm)
[5]
108
of 1997
[6]
2012
(4) SA 593
(SCA) para 18
[7]
Justice
Alliance of South Africa v President of Republic of South Africa and
others, Freedom Under Law v President of Republic
of South Africa
and others, Centre for Legal Studies and another v President of
Republic of South Africa and others
[2011]
ZACC 23; 2011 (5) SA 388 (CC).
[8]
Judges’ Remuneration and Conditions of Employment Act 97 of
2001
[9]
Chotabhai
v Union Government (Minister of Justice) and Registrar of Asiatics
1911
AD 24
[10]
1917
AD 419
[11]
African
and European Investment Co. Ltd v Warren and others
1924
AD 308
[12]
[2000]
ZACC 1; 2000 (2) SA 674 (CC)
[13]
[2010]
ZACC 26
;
2011 (4) SA 113
(CC) para 84
[14]
Act 3 of 2000
[15]
2007
(3) SA 121
(CC ) para 29
[16]
[2016]
ZACC 30
;
2016 (2) SACR 585
(CC)