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[2009] ZAGPJHC 75
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Gama v Transnet Limited and Others (09/38956) [2009] ZAGPJHC 75 (7 October 2009)

IN
THE SOUth GAUTENG HIGH COURT, JOHANNESBURG
(REPUBLIC
OF SOUTH AFRICA)
CASE
NO: 09/38956
In
the matter between:
gama,
siyabonga
A
pplicant
and
TRANSNET
LIMITED
AND
12 OTHERS
First to Thirteenth Respondents
_______________________________________________________________
JUDGMENT
_______________________________________________________________
SPILG
J.
THE
ALLEGATIONS
Mr
Gama is the Chief Executive Officer of Transnet Freight Rail (
TFR
),
previously known as Spoornet. TFR is one of apparently four
operating divisions of Transnet Limited.
On
1 September 2009 Mr Maharaj, who is the Group Executive: Human
Resources of Transnet Limited (
Transnet
)
took the decision to institute disciplinary proceedings against Mr
Gama and to suspend him on full pay until either the disciplinary

process was finalised or until the suspension was lifted.
Mr
Maharaj's decisions are challenged in proceedings brought by way of
application before this Court. They are challenged on the
grounds
that the current Acting Group Chief Executive of Transnet, Mr Wells,
could not delegate his admitted authority in such
matters to Mr
Maharaj. The applicant contends that only the
full
Board of Transnet could take the decisions to bring disciplinary
proceedings against him or to authorise his suspension.
THE
ISSUES
At
the outset, I admit to sharing the difficulties expressed by the
respondents in appreciating the basis of the challenge. The
heads
of argument presented on behalf of the applicant contend that the
process followed of bringing disciplinary proceedings
and of
suspending Mr Gama were not lawful or fair in that Mr Wells could
not delegate his powers to Mr Maharaj. The reason advanced
is that
Mr Wells was tainted by accusations levelled against him by Mr Gama
in relation to an aspect of one of the transactions
in issue in the
disciplinary proceedings. The applicant, however, disavows any
reliance on an unfair labour practice under
the Labour Relations
Act, No. 66 of 1995 (
the
LRA
)
for reasons that ought to be clear when dealing with jurisdiction.
What they do concern, according to what is set out in the

applicant's heads of argument, are "
...
issues of public law, administrative justice, corporate governance
and legality, as well as fairness in corporate actions."
During argument
Mr
Kennedy
on behalf of the applicant explained that all these issues are
confined to the legality of the delegation of authority to Mr

Maharaj by Mr Wells. Nonetheless they also appear to enter the
realm of fairness of corporation decision-making functions and
their
impact on the applicant's constitutional rights.
The
factual basis underpinning the legal challenge is that Mr Wells was
precluded from delegating the decision-making power to
bring
disciplinary proceedings against Mr Gama or to suspend him by reason
of Mr Gama's own accusations against Mr Wells, and
that Mr Wells'
alleged involvement in the process continued to have an influence
over the Board and did assert itself over one
of the Board's
appointed sub-committees. In short Mr Wells' involvement in the
process, however tangential, rendered the entire
process tainted.
The
nub of the complaint is the perceived bias of Mr Wells. This is
evident from the following extract of Mr Gama's replying
affidavit:
"It
was specifically in relation to the authority of Mr Maharaj to take a
decision to institute disciplinary action (or suspension),
what was
stated by my attorney, Mr Langa, was that if the Board had delegated
authority directly to Mr Maharaj, there might not
have been an
objection. However, the objection arose because Mr Maharaj was
purportedly sub-delegated this authority by Mr Wells.
Mr Wells
should have had no involvement at all in the matter and he should not
have sub-delegated such authority to Mr Maharaj
in circumstances
where Mr Wells was not objective or independent. Clearly Mr Maharaj
has acted on the instructions and at the
behest of Mr Wells."
Moreover
there are allegations of Mr Wells' continued involvement in
furnishing reports to the full Board after Mr Gama had accused
Mr
Wells of shifting the blame onto him in respect of a locomotive
contract (to which one of the disciplinary charges against
Mr Gama
related). It is apparent that the thrust of the applicant's
complaint against the decisions taken by Mr Maharaj, and
their
support by a sub-committee appointed by the Transnet Board as well
as the subsequent endorsement or ratification by the
full Board
itself, concerns the influence that Mr Wells is said to have exerted
over Mr Maharaj and the Board. It is also contended
that Mr
Maharaj was too junior to take the decisions. Although this
position appeared to have been abandoned in the cited extract
from
Mr Gama's replying affidavit, I shall nonetheless deal with it.
In
order to put in perspective the issue of perceived bias on the part
of Mr Wells’, its alleged impact on the legality
of the
decisions taken by Mr Maharaj, and their endorsement or ratification
both by the Board's sub-committee and subsequently
the full Board
of Mr Maharaj’s decision, it is necessary to set out the basic
complaints that are the subject matter of
the disciplinary enquiry
against Mr Gama. It is also necessary to set out Mr Gama's
allegations as to why Mr Wells is biased
against him and why this
has tainted the entire disciplinary process launched against him.
The
sequence of events from initial investigation to an internal
forensic audit conducted by Ernst & Young as well as subsequent

investigations prior to Mr Maharaj taking the challenged decisions
concern, if proven, serious allegations regarding maladministration

in respect of two separate contract awards. The first relates to
the impropriety of a tender process regarding what has been
termed
the "50 like-new locomotives" and which I will refer to as
"
the
locomotive contract"
.
The second disciplinary charge relates to the procurement of
security services from General Nyanda Security Risk Advisory

Services (Pty) Limited (
GNS
).
The
disciplinary charge in respect of the locomotive contract is that Mr
Gama concluded the agreement in disregard of an express
condition
laid down by Transnet's Board that Transnet Rail Engineering should
carry out all engineering on the assembly and maintenance
of the
locomotives. It is alleged that the failure to adhere to this
Board stipulation resulted in serious financial consequences
for
Transnet.
Among
the averments in relation to the GNS contract is that Mr Gama
concluded this agreement without following an open tender
process
and without having authority to do so. The applicant's authority
regarding a contract of this nature is said to be
limited to a value
of R10 million, whereas the total estimated value of the GNS
contract was just under R19 million and that
to date some R55
million has been spent.
In
his formal response of 20 July 2009 Mr Gama for the first time
contended that Mr Wells was attempting to shift the blame for
the
overspend on the locomotive contract and that in fact it was Mr
Wells who had adversely affected Transnet financially by
intervening
in the locomotive contract and "
unwinding
the transaction
".
It is this complaint against Mr Wells together with averments
that Mr Wells and certain others are conspiring to destroy
Mr Gama's
chances of becoming Group Chief Executive (
GCE
)
of Transnet that form the foundation of perceived bias. The
applicant alleges that this bias has tainted the process and

explains why disciplinary steps are being taken against him only at
a stage when the appointment of a new GCE by Government is
imminent.
Mr
Gama originally relied on Mr Wells being a co-contender for the
Transnet GCE position. However, the facts reveal that Mr Wells

withdrew his candidature at an early stage. Nonetheless, Mr Gama
persisted with the allegations that Mr Wells' involvement
directly
taints the process and that Mr Wells is also involved in a
conspiracy to prevent Mr Gama from becoming the next GCE
of
Transnet.
In
regard to the legal consequences raised by Mr Gama's allegations of
taint and bias in the delegation process and why only the
full Board
could consider the issues, the applicant has relied on a failure of
administrative justice, a breach of his constitutionally
protected
rights and an entitlement to challenge the legality of the process
adopted by reference to what can best be described
as either a
common law power of review arising from the contractual relationship
between the parties or arising out of fair corporate
governance
principles.
The
application was brought as one of urgency. It was contended that
Cabinet was about to consider appointing the new GCE for
Transnet.
It was also contended that the very act of taking disciplinary
proceedings against him and particularly of suspending
him is
seriously damaging to Mr Gama's reputation. When it was revealed
that Cabinet was not due to meet during the week when
the
application was set down for hearing, the applicant sought to
contend that the matter was no longer urgent.
However,
the respondent's position was that a delay in the resolution of the
issues raised was prejudicial to the entire disciplinary
process. A
delay would frustrate an expeditious resolution of the disciplinary
proceedings and the suspension issue. A delay
would also have a
debilitating effect on Transnet and possibly the appointment of a new
GCE. I also believe that important public
interest matters arise
concerning accountability and their expeditious resolution having
regard to the circumstances of this case
and its impact on possibly
the largest State-owned and taxpayer funded enterprise.
I
was satisfied that the matter was sufficiently urgent to be dealt
with on an accelerated basis. At that stage all that remained

outstanding was the applicant's replying affidavit which he had
undertaken but failed to file prior to the set down date. The

replying affidavit was subsequently filed and the matter was heard
on Friday, 25 September 2009.
A
further issue that was raised, by me, concerns Mr Gama's contract
of employment. On analysis it appeared that the applicant
still
relied on a common law review based on fairness which was to be
implied from the contractual relationship. On Wednesday,
30
September, I heard argument on whether or not the contract should be
furnished. My concern was that a further application
might be
brought to the High Court based on the terms of the contract and
that it might be contended that issues relating to
the actual terms
of the contract, or those to be inferred from it, were not before
me. I was concerned that a process of launching
one High Court
proceeding after another, whether by the one party or the other,
would effectively undermine the proper administration
of justice and
frustrate the desirability of finality in litigation.
I
was assured by the applicant that there would be no further
proceedings before the High Court in relation to the issues raised

before me or in relation to any challenge or claim arising out of
the employment contract itself. I was assured by all the parties

that the contract was not relevant to a determination of any of the
matters that had been identified, including the possibility
of a
common law review to be discerned from the contractual relationship.
I am, in any event, bound by the SCA and constitutional

authorities that require a court to confine itself to the record of
evidence placed before it (e.g.
Director
of Hospital Services v Mistry
1979
(1) SA 626
(A)).
A
subsidiary issue raised was whether or not the joining of all the
remaining members of the Transnet Board was competent.
This
left one other issue of concern to me. Although all the parties
agreed that I enjoyed jurisdiction for one or other reason,
it
remained necessary to be satisfied that the High Court exercised
jurisdiction outside the consent of the parties.
jurisdiction
All
the parties have effectively consented to the jurisdiction of this
court. However, parties cannot clothe the High Court
with
jurisdiction if it is excluded by statute.
I
must therefore consider whether the provisions of section 157(1) of
the LRA precludes the High Court from dealing with the matter
on the
ground that the issues before me can only be determined under the
exclusive jurisdiction accorded to the Labour Court.
See
Chirwa
v Transnet Ltd and Others
[2007] ZACC 23
;
2008
(4) SA 367
(CC) at para 113.
Fortunately
it is unnecessary in the present case to deal with the tension
between section 157(1) on the one hand and the concurrent

jurisdiction of the High Court as dealt with in section 157(2) of
the LRA and the inherent original jurisdiction of a High Court
as
entrenched in the Constitution on the other. Accordingly, the case
of
Makhanya
v University of Zululand
[2008] 8 BLLR 721
(SCA) which binds me on what portion of the
Chirwa
judgment (which also binds me) constitutes its decision need not be
considered in any detail.
I
am satisfied that the way in which the applicant has pleaded his
claim (see
Makhanya
at paras [30] and [34]) and the substance of the claim (see
Chirwa
at paras [124] and [125]) fall squarely within the concurrent
jurisdiction of the High Court. This is because they both are

concerned with a constitutional challenge based on rights of
administrative review (see
Chirwa,
para [54]; Transman (Pty) Ltd v Dick and Another
2009 (4) SA 22
(SCA) at para [16]
and
Makhanya at paras [18] and [26]
)
and also with the enforcement of common law contractual rights or
rights under corporate law in relation to the exercise of
delegated
powers. ( Compare
Kriel
v Legal Aid Board
[2009] 9 BLLR 854
(SCA) at para [16]
which appears distinguishable because reliance was still placed on
the unreasonableness of the dismissal). The question of whether
the
applicant has embarked on 'forum shopping' and therefore may be
precluded as a matter of policy from pursuing his claim in
the High
Court does not arise since he has not approached another Court to
enforce the claims that arise in this matter. (See
Makhanya
at para [61
])
Furthermore,
the resolution of the issues in this matter are also concerned with
the legality of steps taken to initiate disciplinary
proceedings
against a person whom it is alleged is guilty of maladministration
and that Transnet considers itself obliged to
pursue disciplinary
proceedings since the investigations allegedly reveal a breach of
the Public Finance Management Act, No.
1 of 1999 (the
PFMA
),
a concern supported by independent legal advice from two different
law firms.
It
is pre-eminently the concern of a High Court exercising original
jurisdiction to consider issues of this nature if the underlying

substance of the issues play a role as indicated in
Chirwa
.
The present case involves rights issues, which it is apparent from
the stance taken by Transnet, ought not to be the subject
matter of
conciliation and negotiation by reason of the obligations they were
advised they have to initiate disciplinary proceedings
by reason of
an alleged transgression of the PFMA.
It
should be sufficient for present purposes to refer to
South
African Association of Personal Injury Lawyers v Heath and others
[2000] ZACC 22
;
2001 (1) BCLR 77
(CC) at para
[4]
where the Court said the following;
"...
and maladministration are inconsistent with the rule of law and the
fundamental values of our Constitution. They undermine
the
constitutional commitment to human dignity, the achievement of
equality and the advancement of human rights and freedoms.
They are
the antithesis of the open, accountable, democratic government
required by the Constitution. If allowed to go unchecked
and
unpunished they will pose a serious threat to our democratic State."
Although
this was said in the context of the Special Investigating Units and
Special Tribunals Act, it is clear that the purpose
of the PFMA Act
is similarly to hold accountable both the Board and officers (such
as Executive Management) of State-owned corporations
and other
government controlled entities. I also refer to sections 195(1) and
(2)(b) of the Constitution which require public
administration to be
accountable and to meet high standards of professional ethics. If
the application of these constitutional
provisions and statutes such
as the PFMA are to develop and be applied with reference to public
accountability within State-owned
corporations then it is
pre-eminently the domain of the original jurisdiction exercised by
the High Court (with the added advantage
of its diverse composition)
and ought not to be confined to a specialised court concerned
exclusively with labour relations matters.
Accordingly,
I am satisfied that this court enjoys jurisdiction under any of the
authorities by which I am bound and which I understand
are likely to
be considered further in the matter of
Gcaba
v Minister of Safety and Security
and
others
(CCT 64/08), a case argued before the Constitutional Court on 7 May
2009.
STATUS
OF TRANSNET
It
is necessary to establish the status of Transnet in order to
determine whether it’s Board and management function
principally
within a commercial corporate environment subject to
principles applicable to those areas of law or whether their actions
are
to be treated as simply the exercise of a state or
administrative power.
Transnet
Limited was incorporated as a public company pursuant to the
provisions of the Legal Succession to the South African
Transport
Services Act, Act 9 of 1989 (the Legal Succession Act).
In
terms of this Act, Transnet became the successor to the South
African Transport Services and took transfer of all its assets
(save
those relating to certain rail commuter services). See section 3.
In
terms of the Legal Succession Act, and despite the provisions of
section 32 of the Companies Act 61 of 1973, the Registrar
of
Companies incorporated Transnet Limited as a public company with the
State as its only member and shareholder. Moreover,
the provisions
of section 2(6) of the Legal Succession Act excluded only sections
66, 190 and 344(d) of the Companies Act from
applying- and then
only while the State remains the sole beneficial member and
shareholder.
Accordingly,
Transnet is essentially subject to all the provisions of the
Companies Act.
It
is clear that Transnet is intended to operate as a commercial
enterprise under the ordinary provisions of the Companies Act
and is
subject to the common law principles governing corporations,
including those relating to corporate governance which renders
its
Board and management subject to fiduciary obligations. Its
formation as a public company was directed at transforming it
from a
government agency (see section 3 of the Legal Succession Act) and
at allowing it to operate on profitable commercial
lines with the
potential of attracting investor shareholders (see the wording in
section 2(6) and 20 of the Legal Succession
Act). This is apparent
from the following further considerations.
The
State's interest in Transnet is exercised through the Minister of
Public Enterprise. The Minister may direct Transnet to
discontinue
any activity that is contrary to the strategic or economic interests
of the country (see section 17). In principle
this is no different
from the actions of a majority shareholder who dictates the course a
company is to take. It does not affect
the Board's or management
duties to have regard to the best interests of the company and to
comply with all the common law rules
relating to corporate
governance.
Transnet
was not burdened with an unprofitable operating division. Hence the
separation of those rail commuter operations that
required
subsidisation. These were hived off to a separate entity, namely
the SA Rail Commuter Corporation Limited under the
responsibility of
a different Minister. See Chapter V of the Legal Succession Act.
The
composition of the Transnet Board was not circumscribed by the Legal
Succession Act. This was not an oversight since the
same Act
carefully structured (in section 24) the makeup of the SA Rail
Commuter Corporation Board, uniquely termed a Board of
Control.
Transnet is incorporated with a Memorandum and Articles of
Association under the Companies Act. Hence the Transnet
Board and
its executive officers are clearly intended to be subject to the
provisions of the Companies Act and the common law,
such as those
relating to corporate governance, which have developed in relation
to corporations. See Coetzee DJP’s explanation
in the Full
Bench decision of
ex
Parte NBSA Centre Ltd
1987
(2) SA 783
(T).
The
fact that the Transnet Board and its officers are subject to the
express provisions of sections 50 and 51 of the PFMA in regard
to
their fiduciary duties and their accountability does not denigrate
from their actions remaining subject to corporate laws.
The PFMA
amplifies these duties and obligations, which are of special
application to all State-owned entitles, whatever from
they take.
Although
initially an employee of Transnet was deemed to be an employee of
the State, there was a specific sunset clause that
terminated the
situation three years after the Legal Succession Act became
operative (see Section 9(3) read with section 9(2)).
In
short, whilst Transnet is a State-owned enterprise its structure and
objectives are those of a public listed company and its
board and
officers execute their functions within the laws relating to
corporations with, where applicable, the heightened duties
and
responsibilities imposed by the PFMA.
WHETHER
THE DECISIONS TO INSTITUTE DISCIPLINARY PROCEEDINGS OR TO SUSPEND THE
APPLICANT CONSTITUTED ADMINISTRATIVE ACTION SUBJECT
TO THE PROMOTION
OF ADMINISTRATIVE JUSTICE ACT, 3 OF 2000 ("PAJA")
Transnet
is specifically identified as a major public entity under Schedule 2
of the Legal Succession Act. It is also a statutory
body,
fulfilling a public function and is obliged to act in a manner
consistent with the strategic and economic interests of
the country.
See Section 17 of the Legal Succession Act.
Nonetheless,
this alone does not render every action taken by Transnet, whether
through its Board or executive management, subject
to the provisions
of PAJA. See
Chirwa
per
Ngcobo
J (as he then was) at paras 139-150 and the minority decision of
Langa CJ at paras 181-194.
Chirwa,
Transman
and
Makhanya
have confirmed that a Transnet employee or a person in a similar
position, even though a public servant of an organ of State,
is
precluded from challenging his dismissal by relying on the rights of
review provided for under PAJA. This is because the
decision does
not constitute "
administrative
action
"
for the purposes of triggering the application of that Act but is
based on the exercise of a contractual power (
Chirwa
at
paras 142, 143 and 148;
Kriel
v Legal Aid Board
[2009]
9 BLR 854
(SCA) at paras 13 and 14 and cases cited at para 15)
.
It
is therefore evident that the decision to delegate the authority to
decide whether or not to discipline Mr Gama is not justiciable
under
PAJA. In any event, the decision in my view is similar to a
decision taken to prosecute which does not necessitate
administrative action and is not subject to review (see
National
Director of Public Prosecutions v Zuma
[2009] ZASCA 1
;
2009
(2) SA 277
(SCA) 290 at para [35
]
).
I
am also satisfied on balance that the decision to suspend Mr Gama
similarly does not constitute "
administrative
action
".
Although it may be contended that the suspension of one of the
highest-ranking executives within Transnet, responsible
for one of
its most important operating divisions, impacts on the operations
of an organ of State, it nonetheless constitutes
the exercise of a
power conferred under corporate law in discharge of a corporate
function involving both corporate and commercial
considerations.
COMMON
LAW
and constitutional
RIGHTS TO CHALLENGE
A
company can only perform acts through its duly authorised directors,
managers and employees. This requires the appropriate
delegation
of powers, generally with suitable limitations. The source of these
powers generally reside in the Board which in
turn delegates to
individual directors or executive management, with further powers of
sub-delegation conferred by appropriate
Board resolutions.
The
respondents argued that the Board has the power to delegate
management functions in general and disciplinary powers in
particular
under section 24(5) of the Legal Succession Act. In my
view this is incorrect. Section 24(5) falls within the provisions

of Chapter V which deals with a different legal entity, namely the
South African Rail Commuter Corporation. I have already commented
on
their separate legal existence from Transnet, how that arose and why
the governance of Transnet is founded on corporate law
principles.
Mr
Pretorius, on behalf of the first to third respondents, also relied
on Article 81 of the Articles of Association of Transnet
which
provides that, subject to certain limitations that are not relevant,
the management of the business and the control of
Transnet vests in
the directors who
"...
in addition to and without limitation of the powers expressly
conferred upon them by the Companies Act or these Articles
may
exercise or delegate to any one or more persons (including without
limitation a committee) all such powers and delegate to
anyone or
more persons (including a committee) the doing of all such acts
(including the right to sub-delegate) as may be exercised
or done by
the Company and are not in terms of the Companies Act or by these
Articles expressly directed or required to be exercised
or done by a
general meeting, subject, nevertheless, to that management not being
inconsistent with any resolution passed by
a General Meeting."
Furthermore,
under Article 82, the directors are accorded the power to appoint
such sub-committees with such functions and powers
as the Board may
consider necessary for the effective exercise of their functions.
The
applicant does not challenge resolution 2004/P4 of 2004 which
delegated functions, including disciplinary powers, to the GCE
of
Transnet. The applicant also accepts that in terms of that
resolution the GCE was entitled to sub-delegate his or her powers.

Although the legality of the sub--delegation by Mr Wells in his
capacity as Acting GCE is challenged, the applicant accepts
that Mr
Wells sub-delegated his disciplinary powers to Mr Maharaj. Indeed,
Mr Gama had previously been brought before a disciplinary
body
pursuant to the exercise of these delegated powers.
For
reasons that appear in the previous section, there can be no
administrative justice challenge under PAJA to the delegation
and
sub-delegation of the powers conferred on Mr Maharaj to consider
whether or not to bring disciplinary charges against Mr
Gama.
The
question of whether the delegation of the authority to consider
bringing disciplinary charges against Mr Gama or to suspend
him
involved a breach of a constitutional requirement or of a common law
right under either contract or principles of corporate
governance
needs to be considered both by reference to the facts and the
existence of the legal right contended for in the circumstances
of
the case. It is accordingly necessary to set out the facts in
some detail.
THE
FACTS
The
key facts are not in dispute. Accordingly it is unnecessary to
invoke
Plascon
Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A)
,
bearing in mind that the applicant effectively seeks final relief.
On
31 January 2008 the then Minister of Public Enterprises addressed a
letter to Transnet's then chairperson, Mr Fred Phaswana.
Mr
Phaswana was informed that the Department of Public Enterprises had
received information concerning allegations of
"...
corruption and procurement irregularities in Transnet, relating in
particular, to the awarding of the locomotive tender."
The Minister conveyed the Department's concern that it was
necessary to investigate and assess the alleged irregularities.
The
irregularities related to what has been previously referred to also
as the "50 Like-New Contract".
Investigations
then commenced during the first half of March 2008 and focussed
principally on irregularities in the tender process.
During May
2008, disciplinary action was instituted against the then General
Manager: Engineering of TFR who was considered
at the time to have
been primarily responsible for the procurement process.
During
the course of the investigation, it appeared that Mr Gama had
concluded the locomotive agreement on the strength of a
specific
Board resolution but that he had not complied with the condition to
which Board approval was subject, namely
"…
that Transwerk would carry out all engineering on assembly and
maintenance"
.
During
September 2008, Transnet's then GCE, Maria Ramos, received an
anonymous letter alleging irregularities in TFR's Security

Department. This included the award of a security contract to GNS.
In
both October and November 2008 a number of further anonymous
communications were received, including by the GCE, all relating
to
alleged misconduct and irregularities in the TFR Security
Department.
At
a meeting held with Transnet's group forensic manager and Mr Oates
of Ernst & Young, who are Transnet's internal auditors,
Mr Gama
was informed of the anonymous communications. He was advised that
the internal audit department would be conducting
investigations.
On
12 February 2009 Mr Oates forwarded a draft status report to Ms
Ramos, at her request, relating to both investigations, i.e.
in
respect of the locomotive acquisitions and the GNS contract.
On
13 February 2009 Ms Ramos, at her last Transnet board meeting as
GCE, briefed it on the status of both investigations. Ernst
&
Young's draft status report identified concerns about Mr Gama's role
and conduct in relation to each of the investigations.
Ms Ramos
then handed over the issues raised in the investigations to the
Board.
Earlier
on the same day, the Board, during the course of a closed session
which excluded the executive directors, debated its
preferred
candidate to replace Ms Ramos' as GCE. Prior to the meeting, the
Corporate Governance and Nominations Committee
(GCM Committee) of
the Transnet Board had decided on a short-list of five candidates
pursuant to a process that had commenced
in the last quarter of
2008, after Ms Ramos' intended resignation became known. Although
Mr Wells had made himself available
on 9 December 2008, he withdrew
his candidacy three days later. This occurred before the first
meeting of the CGM Committee
was convened to consider candidates and
before interviews were conducted (on 9 and 10 February).
The
shortlist of five candidates included Mr Gama. During its closed
session the Board recommended Mr Pravin Gordhan as its
preferred
candidate to the Minister. The other candidates were not ranked.
However, the Board's recommendation that was conveyed
on 13 February
2009 through its then Chair, Mr Phaswana, was that Mr Gama was not
suitable for appointment as GCE. The Minister
was advised that "
Mr
Siyabonga Gama, was thoroughly considered but there are important
gaps, relative to the requirements for this position. He
currently
requires greater cognitive development to handle the complexity of
this position."
After
Mr Pravin Gordhan had withdrawn as a candidate, the Minister
requested a detailed report containing profiles on all the
other
candidates. On 9 March 2009 Mr Phaswana responded. Mr Phaswana's
letter again indicated concerns regarding Mr Gama and
added that,
since the previous letter of 13 February 2009 to the Minister, the
Board had received documentation and reports including
the internal
auditors' report, that contained serious allegations of misconduct
on the part of Mr Gama, and which required the
company to conduct
investigations. Mr Phaswana indicated that it was necessary to
commence a new appointment process
"...
as none of the other shortlisted candidates are at the level
required
."
After
the Board meeting Mr Phaswana then dealt with the report together
with the chairpersons of the Board Committees, namely
the Risk
Committee, the Remuneration Committee and the Audit Committee. At
that time Mr Everingham was the chairperson of the
Audit Committee.
They then discussed the Ernst & Young report on 19 February
2009. Subsequently a meeting was held with
attorneys appointed by
the Board for the purpose of apprising them of the report and to
obtain advice. On 26 March 2009 the
attorneys advised that the PFMA
"
...
obliges Transnet's Board to take disciplinary steps against the TFR
CE [Mr Gama]"
.
On
23 April 2009 Transnet's head of internal audit, together with the
attorney who provided the advice, reported on the forensic

investigation to a closed session of the Board Committee
Chairpersons. The Board decided to hand the investigation regarding

both contracts over to the Executive. It was also decided that Mr
Wells would review the advice given and, in his capacity as
acting
GCE, would take appropriate steps on behalf of Transnet.
Mr
Wells then also sought legal advice from a different firm of
attorneys. Its purpose was to establish Transnet's legal
obligations
in dealing with a matter of this nature and to advise on
the appropriate process that should be followed.
On
11 May 2009 Mr Wells held a meeting with Mr Gama and informed him of
the legal opinion that Wells was considering following
with regard
to certain allegations made against Mr Gama. This is confirmed in
a letter addressed by Mr Gama to Mr Wells on
18 May 2009.
In
the letter of 18 May 2009 Mr Gama confirmed that during their
discussion on 11 May 2009, he had referred to enquiries previously

directed to him by Ernst & Young and contended that Ernst &
Young's investigation was still on-going. Mr Gama expressed
concern
that his reputation could be prejudiced as a result of untested
allegations. The letter concluded with Mr Gama urging
that
appropriate safeguards be taken to ensure that there would be no
damage to his career or reputation as a result of any possible

perceptions created or leaks as a result of Mr Wells'
investigations.
At
a special meeting of the Board held on 2 June 2009 Mr Wells updated
the Board on the investigations. At a subsequent Board
meeting on 18
June 2009 Mr Phaswana informed the Board that the forensic
investigation had been handed over to Mr Wells for execution
and
finalisation. The Board was also advised that a report would be
furnished once the investigations had been finalised.
On
18 June 2009 Mr Wells addressed a letter to Mr Gama which confirmed
the receipt of legal advice that had been obtained by the
Board
relating to the seriousness of the issues. This required that the
matter be dealt with at an executive level and the letter
informed
Mr Gama that the Board had appointed Mr Wells to deal with it.
The
letter of 18 June 2009 afforded Mr Gama an opportunity to respond
formally to the issues raised regarding both the locomotive
contract
and the GNS issue. The letter was comprehensive and set out details
of the complaints. In regard to GNS, one of the
issues was that the
contract approved by Mr Gama was for an estimated total value of
R18,9 million whereas he only had authority
to conclude a contract
up to R10 million, the letter also indicated that the process of
appointing GNS "
was
flawed and there is a strong indication that it was manipulated
".
On
19 June 2009 Mr Gama requested time to address the issues raised.
He also requested the legal opinion obtained by the Board
and access
to documentation at Transnet Rail Engineering (TRE) and Ernst &
Young.
On
13 July 2009, Mr Gama then addressed a letter to the Chairperson, Mr
Phaswana, referring to Mr Wells' refusal to provide a
copy of the
legal opinion. Mr Gama contended that this
"... vitiates the process of administrative justice and
fairness"
.
The letter concluded with Mr Gama expressing concern that the
tenure of the Board was nearing an end and it should not determine

such an important or major decision
"...
days or hours before the end of its tenure,
"
as it would infringe the duty of care required at a time when they
would have, what Mr Gama termed, "
a
diminished responsibility towards the company
".
On
17 July 2009 Mr Phaswana replied to Mr Gama. He stated that Mr
Gama had no right to a copy of the legal opinion, nor was
it
necessary for Mr Gama to have the document in order to respond. Mr
Phaswana also recorded that the initial investigations
into both the
locomotive contract and the security services contract had been
conducted by the Transnet internal auditors before
the Board took
legal advice. He also rejected the suggestion that the outgoing
directors of the Board had diminished responsibility
and asserted
that they remained subject to their fiduciary duties until their
tenure on the Board ended.
On
20 July 2009 Mr Gama addressed a comprehensive response to Mr Wells,
who was now the Acting GCE , to the allegations regarding
both the
locomotive contract and the security services contract. Mr Gama
contended that when Mr Wells proceeded to unwind
the locomotive
transaction he had in fact incurred significant and unwarranted
expenses for Transnet and that Mr Wells was now
attempting to shift
the blame onto Mr Gama. Mr Gama contended that this was
disingenuous and that in fact Mr Wells was now
attempting to
reinstate the original contract. Mr Gama claimed that Mr Wells'
had adversely affected Transnet by wrongly
intervening as he had
done. Mr Wells was not implicated whether directly or indirectly
in the security services contract.
A
special meeting of the Board was held on 28 July 2009 at which Mr
Wells updated the Board on the investigation. He did not advise
the
Board of Mr Gama's accusations against him. After Mr Wells left the
meeting, a concern was raised about a perception that
the Board had
conflated the succession process with the forensic investigations.
The Board emphasised that the February 2009
decision not to
recommend Mr Gama for appointment as GCE, on the grounds of
unsuitability for the position, had been raised before
the Board
became aware of the forensic investigations. However, in view of
the sensitivity surrounding the forensic investigations,
and alive
to a media report that there was a succession battle between Mr
Wells and Mr Gama, the Board decided to appoint a sub-committee
to
assist Mr Wells in finalising the investigation and to notify the
Board of its recommendations.
A
sub-committee of the Board was then appointed. It consisted of the
Chairperson of the Board, Mr Peter Joubert and Mr Everingham
(who
since 11 August has been serving as Acting Chairperson of the
Board). This is recorded in the minute of the closed session

meeting of 28 July 2009.
The
sub-committee met and came to the view that Mr Wells in his capacity
as acting CGE should proceed with disciplinary proceedings
against
Mr Gama. The sub-committee considered further legal advice from
Transnet's attorneys on 13 August 2009 that
"...
there were grounds for concluding that Mr Gama had breached the
provisions of the PFMA and that Transnet was obliged
to take such
disciplinary steps against him
".
Accordingly,
both the then chairperson and his successor (Acting) as well as Mr
Joubert had considered Mr Gama's letter of 20
July 2009, including
the allegations made regarding Mr Wells and the conclusion sought to
be drawn that the investigation had
been motivated by Mr Wells'
attempt to cover up his own mistakes.
The
sub-committee then reported to the full Board at a special meeting
held on 24 August 2009. At that stage Mr Gama's response
of 20 July
2009 had still not been circulated to the full Board. Based on the
sub-committee's recommendations, which considered
Mr Gama's
response, the full Board noted that the sub-committee had discharged
its obligations in assisting Mr Wells to finalise
the forensic
investigation and in the circumstances (including a consideration of
the legal advice obtained) the full Board"
"
resolved
unanimously that the acting Group Chief Executive should give
effect to necessary disciplinary action."
Subsequent
to the meeting, and on 24 August 2009, Mr Maharaj in his capacity as
Group Executive : Human Resources addressed a
notice to Mr Gama
which was received by Mr Gama on the same day.
The
document is headed "
Notice
to attend a disciplinary hearing
".
It informed Mr Gama that a pre-dismissal arbitration would be
held into allegations of misconduct or incapacity on
the grounds set
out in the body of the notice. The grounds related both to the
locomotive contract and the security services
contract. It
further informed Mr Gama that a pre-hearing meeting would be held at
the offices of Bowman Gilfillan Attorneys
on 27 August 2009 for the
purpose of dealing with the conduct of the hearing, to resolve any
preliminary issues that were capable
of resolution and to ensure
that the hearing would run smoothly.
The
notice to attend a disciplinary hearing recorded that investigations
into the security services contract had not been finalised
and that
Transnet reserved the right to deal with further matters that may be
revealed.
The
notice then dealt with the issue of suspension. I quote the
relevant paragraph in full:
"Because
of the seriousness of these allegations and the fact that, if proven,
they may demonstrate that you cannot be trusted
to execute your
responsibilities in your present position and may result in your
dismissal, and since, in these circumstances,
your continued presence
in the workplace may be prejudicial to the conduct of the enquiry
itself Transnet is contemplating suspending
you from your employment
pending completion of the disciplinary process. You are invited to
make written representations on the
question whether it would be
appropriate to suspend you pending completion of the disciplinary
process and what other measures,
if any, Transnet should consider to
protect its interests during that period. You should address any
such representations to Pradeep
Maharaj by 12h00 on Wednesday, 26
August 2009."
On
26 August 2009 Mr Gama's attorneys addressed a letter to Mr Maharaj.
The letter was copied to Prof. Everingham (now Acting
Chairperson
of Transnet), to Mr Wells as Acting GCE, the Minister of Public
Enterprise and to the Deputy Minister of Public Enterprise.
The
letter recorded that Mr Gama objected to the validity and fairness
of the steps being taken against him both in relation
to the
proposed disciplinary hearing and the proposed suspension. It was
contended that these steps were taken and timed with
a view to
prejudice Mr Gama's prospects of filling the vacancy for the Group
CEO position of Transnet
"...
for which our client is deemed to be a favourite / front-runner to
be appointed in this position"
.
This was in view of the fact that Cabinet was due to take a
decision on the suitable candidate on or shortly after 26 August.
The
letter of 26 August also stated that the actions were deliberate,
devoid of good faith and motivated by an ulterior purpose.
The
letter then proceeded to challenge Mr Maharaj's authority to issue
the notice of 24 August. Furthermore, it was also contended
that
Mr Wells and Mr Maharaj had already predetermined to suspend Mr Gama
before allowing him an opportunity to make representations.
The
letter of 26 August 2009 contended that the process was not bona
fide and had been manoeuvred to create unnecessary urgency
with the
intention of prejudicing Mr Gama. The letter required proof of the
authority upon which Mr Maharaj was entitled to
issue the notice of
24 August , required additional time to submit representations in
respect of his proposed suspension and
required notification of the
person responsible for considering whether or not to suspend Mr
Gama, and the basis of such authority.
In
this regard, Mr Gama's contended that only the full Board of
directors should fairly and legally decide on his possible
suspension.
This was by reason of Mr Gama's seniority in Transnet
and the allegations made against Wells which precluded him from
taking
such a decision. In the letter, confirmation was sought
that the Board would take the decision regarding suspension. Mr
Gama
also requested an opportunity to personally address the Board
"...
in order to share other or further information that would indicate a
conspiracy against him so as to place the Board
in a better position
to determine whether to suspend him or not.
"
Mr
Gama was afforded an opportunity until noon on 28 August 2009 to
make representations in regard to his possible suspension.
The
letter expanded on the concerns that gave rise to considering Mr
Gama's suspension and included a statement that the allegations,
if
proven, may result in a finding that Mr Gama is unfit to hold office
which would result in serious risks to the business if
he continued
to hold office.
Furthermore,
in the letter it was contended that the disciplinary process itself
may have a very serious impact on Mr Gama's ability
to run his
division and to work effectively within the executive team under the
leadership of the current Acting GCE. It was
claimed that the
situation was exacerbated by reasons of Mr Gama's allegations of a
conspiracy in relation to both the substance
of the complaints and
the timing of the process. The letter also indicated that
management of the TFR executive team was likely
to become very
difficult during the period of the disciplinary process and that
there was a real possibility that Mr Gama would
not be able to
devote the necessary time and attention to TFR business while
dealing with the serious allegations. Mr Maharaj
indicated that he
would be taking the decision on suspension in his capacity as Group
Executive: Human Resources "
under
authority delegated to me by the acting group CE (and in
consultation where necessary with the acting group CE)
".
The letter claimed that all steps had been taken with the full
knowledge and support of the Board.
On
27 August 2009 Mr Gama's response of 20 July 2009 was circulated to
the full Board. Accordingly the full Board became aware
of the
allegations that Mr Gama had made against Mr Wells and of his
alleged motives.
On
31 August 2009 Mr Gama's attorneys addressed another comprehensive
letter to Mr Maharaj dealing with the issue of Mr Gama's
proposed
suspension. Prior to that, Mr Gama's attorneys had also indicated
that the disciplinary hearing could only be chaired
by an
independent, senior and suitably experienced legal practitioner who
has no connection with either of the parties.
On
31 August Prof Everingham's attorneys responded to the letter of 26
August. The letter dealt with matters covered elsewhere
in this
judgment.
On
1 September 2009 Mr Maharaj addressed a letter to Mr Gama stating
that he had given careful consideration to the representations
made
in relation to the question of his possible suspension. Mr Maharaj
advised Mr Gama that, on the basis of a legal opinion
provided to
him, he was satisfied that he had the necessary authority to take
the decision in relation to the question of suspension.
Mr Maharaj
stated that after balancing the representations made against the
interests of Transnet
"...
during this difficult period"
he had decided to suspend Mr Gama from his duties with immediate
effect and that the suspension would continue until the disciplinary

process was finalised or until the suspension was lifted. Mr Gama
was requested to advise whether he required written reasons
for the
decision.
On
2 September 2009 Mr Wells issued a statement advising of Mr Gama's
suspension and that the disciplinary process enjoyed the
Board's
unanimous support. It also confirmed that the disciplinary hearing
would be adjudicated by an independent and external
arbitrator.
At
a subsequent meeting on 10 September 2009, the full Board
unanimously confirmed its resolutions of 24 August 2009 and of 28

July 2009.
In
my view the undisputed facts reveal the following:
The
allegations of misconduct are serious and there is no objective
indication that they have been trumped up. The reason is
that they
have been the subject matter of on-going investigations initiated
well before any suggestion of Mr Wells' involvement
in attempting to
influence the outcome. The investigations and the decisions to
institute disciplinary proceedings, including
those against Mr Gama,
have been subject to independent professional scrutiny by Ernst &
Young, who are Transnet's internal
auditor, (i.e. an independent
auditor engaged as one of two independent auditors in order to
satisfy good corporate governance
principles) and also two sets of
reputable firms of attorneys.
The
advice given by the independent firms of attorneys was that the
investigations revealed a breach of the fiduciary duties and

responsibilities owed under the PFMA. The attorneys advised that
Transnet had an obligation to take disciplinary steps against
those
who were considered, on the evidence then available, to be held
accountable.
Both
the Transnet Board and its Executive had been concerned about their
obligations to properly investigate the issues. There
is no
evidence to suggest that the investigations were ever put to bed and
only resurrected because of Mr Wells' attempt to discredit
Mr Gama,
or because of an attempt to prevent Mr Gama from being appointed as
GCE of Transnet. On the contrary, the investigations
were
expressly passed on by Ms. Ramos in her capacity as out-going GCE of
Transnet to the Board and the Board then proceeded
to place the
responsibility for further investigations in the hands of its
Executive.
There
can be no quarrel with the Board's delegation of its authority to
investigate, consider initiating disciplinary proceedings
or
consider the possible suspension of Mr Gama to Mr Wells prior to 20
July 2009, when Mr Gama for the first time claimed that
Mr Wells had
an ulterior motive for proceeding against him. This is because the
Board and Mr Wells had been acting in terms
of a long existing
delegation of authority contained in a 2004 Board resolution.
Moreover, the authority of Mr Wells to sub-delegate
these powers to
another was, on the face of it, pursuant to the same 2004 Board
resolution.
Both
a sub- committee of the Board as well as the full Board have
supported the decisions taken to proceed with disciplinary charges

and to suspend the applicant.
I
proceed to consider whether the facts support the applicant's
challenge to the delegation of authority to Mr Maharaj on
constitutional
or common law grounds (arising either out of
principles of corporate governance or contract).
Constitutional
challenge
Mr
Kennedy on behalf of the applicant contends that the delegation of
authority by a person who is tainted itself taints any steps
taken
by the delegated functionary. As I understand it, the
constitutional challenge goes to a perception of bias based on
an
interpretation of the constitutional principles governing public
administration set out in sections 195(1) and (2)(b) of the

Constitution. The contention that Mr Wells has exerted undue
influence over the Board itself or a sub-committee of the Board

extends the perception of bias to the decisions hitherto made by
them as well. It however does not extend to the point that
the full
Board cannot now disabuse its mind and reconsider the entire matter,
since this is effectively the order sought by the
applicant.
The
SCA in
Zuma
supra
at paras [36] – [38] confirmed three principles. Firstly,
that a failure to comply with a constitutional or statutory

requirement remains justiciable under the principle of legality,
irrespective of whether or not PAJA applies. Secondly, actions
in
the form of initiating charges against a person are not wrongful
merely because they are brought for an improper purpose.
Finally,
in order to offend the requirement of legality there must, in
addition to an improper purpose, be a lack of reasonable
and
probable grounds to support the decision taken.
I
have set out the facts in considerable detail. In my view
reasonable and probable grounds exist for supporting the decision
to
institute disciplinary proceedings and to suspend Mr Gama.
It
should also be borne in mind that the disciplinary proceedings are
to be conducted before an independent, professional, and
suitable
skilled person.
I
wish to make it clear that my decision does not in any way suggest
that Mr Gama may be found to have been properly charged.
He is
clearly innocent until proven guilty and he has set out
comprehensive reasons as to why the charges are without merit.

Nonetheless, as with any competent decision to initiate charges, it
remains based on reasonable grounds. The requirements
of
accountable governance require a proper and expeditious ventilation
of the issues.
It
was also contended that the decisions taken breached Mr Gama's
constitutional right to dignity under section 10 of the
Constitution.
In my view, the fact that a person faces
disciplinary charges of misconduct inevitably affects his or her
dignity. The applicant
accepts that such an infringement is the
inevitable consequence of any competently brought charge. It
however appears that the
applicant's contention goes to the timing
of the decisions taken, bearing in mind that he is a contender for
the most senior
position in possibly the largest State-owned
corporation. Again, provided the requirements of legality in the
process of bringing
disciplinary charges and in suspending Mr Gama
are met, the invasion of dignity is a necessary, reasonable and
accepted consequence-
and a constitutionally sound limitation- under
section 36 of the Constitution. Moreover, the constitutional value
of accountability
addressed in the
SA
Association of Personal Injury Lawyers
case
supra,
should not be overlooked in balancing competing constitutional
interests.
There
is also no case made out of perceived bias that can affect the
legality of the process. Much less that of institutional
bias. See
President
of the Republic of South Africa v South African Football Union
[1999] ZACC 9
;
1999
(4) SA 147
(CC) at paras [45] and [48];
Sager
v Smith
2001
(3) SA 1004
(SCA) at paras [16] and [17]
;
Council of Review, South African Defence Force and others v
Mönnig
and others
1992 (3) SA 482
(A);
Swartz
NO and Others v Wallach and Another
(WLD
unrep. Case no. 15422/97, Judgment on 4 February 2002).
I
also refer to this aspect later.
Accordingly,
a case has not been made out for a valid constitutional challenge to
the legality of the decision to delegate or
any other element of the
process upon which the applicant has sought to rely, even
tangentially.
CORPORATE
GOVERNANCE AND OTHER COMMON LAW GROUNDS
In
my view Mr Gauntlett and Mr Pretorius, on behalf of the various
respondents, are correct in their respective submissions that
such a
case has not been properly made out in the founding papers. There
is no evidence of an implied term nor has a case been
made out of
some infraction of a corporate governance principle either in
relation to delegation of power or in the competence
of the person
who has been delegated.
The
furthest the applicant has gone is to contend that Mr Maharaj is
under the influence of Mr Wells, that there is a perception
of bias
that taints the entire process (i.e. a form of institutional bias)
or that Mr Maharaj is too junior to take the decisions.
For
the same reasons expressed earlier, I am satisfied that Mr Maharaj
had the necessary authority. Furthermore, the mere fact
that Mr
Wells delegated his powers to Mr Maharaj cannot, without more, taint
the decision taken by Mr Maharaj. There is no evidence
placed
before me to suggest that Mr Maharaj exercised anything other than
an independent decision-making power notwithstanding
the
allegations, that are really conclusions without adequate
foundation, made to the contrary and which I mentioned earlier.
I
am fortified by the decision relied upon by Mr Pretorius of
Bulla
v Akhawarray: MEC Finance, Northern Cape Government
[2004] 3 All SA
693
(NC)
at paras 4,5 and 23. I respectfully adopt and apply the position
stated by Olivier J in that case.
I
have had some difficulty insofar as Mr Maharaj took the decision to
suspend Mr Gama. Although Mr Maharaj and Mr Gama are at
the same
level of seniority (according to the respondents) the question of Mr
Maharaj's competence to take a decision that is
intrinsically
concerned with the operational requirements of Transnet and its
continued ability to function properly may have
raised concerns.
However, the applicant did not suggest that Mr Maharaj lacked the
ability to make an informed decision and
accordingly no factual
basis has been laid that would support such a position. Moreover,
both a sub-committee of the Board and
the Board itself had endorsed
Mr Maharaj's decision to suspend Mr Gama. In the case of the full
Board, this was by way of a
recorded Board resolution. The terms
of the suspension make it clear that if the Board is so resolved it
may at any stage reconsider
the suspension.
I
have assumed that there are competent grounds for challenging under
common law review or by an application of corporate governance

considerations or contractual considerations the issues raised by
the applicant. I would not wish this decision to be taken
as an
acceptance of any of the legal rights contended for.
In
view of the facts presented in this case, it is unnecessary to
consider the legal arguments raised. I would, however, respectfully

refer to the decision of Hodes AJ in
Pennington
v Friedgood and Others 2002(1) SA 251 (C
)
which rejected much of the argument now raised by Mr Kennedy on
behalf of the applicant.
MISJOINDER
In
my view the applicant improperly joined the fifth to thirteenth
respondents. The tenth and eleventh respondents did not oppose
the
application. All the other members of the Board in their capacity
as Board members did so. The costs will form part of
the main
costs order.
In
my view it would be setting an undesirable precedent if a Board
decision was challenged by requiring each and every member
of the
Board to either admit or deny allegations concerning decisions taken
by the Board. A Board operates on principles of
majority rule. In
many cases these decisions are taken in closed session. Whilst
there may exist exceptional circumstances
where such a course ought
to be left open to a litigant, I am satisfied that in the present
case no such grounds have been disclosed.
CONCLUSION
The
applicant has not made out a case for challenging the legality of
the delegation of authority whether from the Board or by
Mr Wells to
Mr Maharaj nor can the decisions taken by Mr Maharaj be considered
to be either tainted or raise adequate grounds
for a perception of
bias.
I
also find that there has been an impermissible joinder of the fifth
to thirteenth respondents. Since the tenth and eleventh

respondents have not opposed the application, it is unnecessary to
deal with any cost issue in relation to them.
The
decision I make clearly has no impact on any challenges that are
open to the applicant under the LRA. In my view, there are
no valid
challenges to the decisions taken that arise within the jurisdiction
of the High Court and which have been raised.
I
accordingly make the following order:
The
application is dismissed with costs, including the costs of the first
to third respondents and of the fourth to thirteenth respondents

(excluding the tenth and eleventh respondents), such costs to include
the costs of two counsel.
_________________________
Spilg J
HEARINGS:
22,
25 and 30 September 2009
JUDGMENT:
7
October 2009
Applic; Adv
P Kennedy SC
LANGA
ATTORNEYS
1
st
-3
rd
Resp; Adv PJ Pretorius SC , Adv H Shozi
BOWMAN
GILFILLAN ATTORNEYS
4
th
-9
th
& 12-13; Adv JJ Gauntlett SC,
Adv
L Nokosi-Thomas, Adv H Maenetje, Adv M Blumberg
EVERSHEDS