Sokhela and Others v MEC for Agriculture and Environmental Affairs (Kwazulu-Natal) and Others (12266/08) [2009] ZAKZPHC 30; 2010 (5) SA 574 (KZP) 2010 (5) SA 574 (KZP) (19 June 2009)

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[2009] ZAKZPHC 30
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Sokhela and Others v MEC for Agriculture and Environmental Affairs (Kwazulu-Natal) and Others (12266/08) [2009] ZAKZPHC 30; 2010 (5) SA 574 (KZP) 2010 (5) SA 574 (KZP) (19 June 2009)

REPORTABLE
CASE
NO.12266/08
IN THE HIGH COURT
OF SOUTH AFRICA
THE KWAZULU-NATAL
HIGH COURT,
PIETERMARITZBURG
In the matter
between
MBUYISELWA
PATRICK SOKHELA
First
Applicant
APPOLONARIS
PHILANI SHANGASE
Second
Applicant
THULANI
GOODLORD NKOSI
Third
Applicant
ALAN
LAX
Fourth
Applicant
OBED
SHABANGU
Fifth Applicant
and
THE MEC FOR
AGRICULTURE AND
ENVIRONMENTAL
AFFAIRS
(KWAZULU-NATAL)
First
Respondent
THE MEC FOR
FINANCE
(KWAZULU-NATAL)
Second
Respondent
MS
BUSI MNGANGA
Third
Respondent
ROSHAN
MORAR
Fourth
Respondent
COMFORT
NGIDI
Fifth
Respondent
J U D G M E N T
D
elivered:
19 June 2009
WALLIS J.
[1] Conservation
is of great importance in the Province of KwaZulu-Natal. The
day-to-day responsibility for conservation matters
lies with the
KwaZulu-Natal Nature Conservation Service established in terms of s
20(1) of the KwaZulu-Natal Nature Conservation
Management Act 9 of
1997 (KZN). The Conservation Service is now called Ezemvelo
KwaZulu-Natal Wildlife (“Ezemvelo”). According
to the founding
affidavit of Dr Sokhela, which is not in this respect disputed by the
first respondent (“the MEC”), this is
apparently the trading name
of the conservation service although it appears to have assumed a
more official role as it is the name
referred to in Schedule 3 to the
Public Finance Management Act 1 of 1999 (“the PFMA”). Ezemvelo
is in turn accountable to
the KwaZulu-Natal Conservation Board for
the execution of its functions, powers and duties.
1
[2] The
KwaZulu-Natal Conservation Board (“the board”) is established in
terms of s 4 of the Act and is the successor to the
Natal Parks
Board. It is a requirement
2
that it consist of no less than nine and no more than fourteen
members appointed by the MEC having responsibility for protection
and
conservation of the environment and nature conservation. At all
times relevant to these proceedings that was the MEC for Agriculture

and Environmental Affairs.
[3] The
applicants were all duly appointed by the MEC as members of the
board, with Dr Sokhela being appointed as its Chair.
3
They were the only members and so the board was not fully and
properly constituted in terms of the Act. However, as we are
concerned
with the position of the applicants as members of the board
and not with any question of the validity of their actions when
acting
as a board whilst it was not properly constituted, this does
not appear to be material and counsel were agreed that it can be
disregarded.
In fairness to the parties it should perhaps be
recorded that the applicants had raised with the MEC the need to make
further
appointments and bring the board up to strength and Mr
Mthimkulu, who was at the material time the incumbent of the office
of MEC,
gave evidence that he was much concerned over the need to
make further appointments to the board.
[4] The
relevant primary functions of the board are to direct the management
of nature conservation in KwaZulu-Natal and to ensure
the proper,
efficient and effective management of Ezemvelo.
4
It is afforded substantial powers for these purposes. It is not
itself listed as a Provincial Public Entity for the purposes
of the
PFMA, although Ezemvelo is, but the MEC contends that the board is by
virtue of s 49(2)(a) of the PFMA the accounting authority
for
Ezemvelo. The applicants dispute this and contend that the Chief
Executive Officer of Ezemvelo, a post held at the time in
an acting
capacity, is the accounting authority by virtue of s 49(2(b) of the
PFMA. Although foreshadowed in the affidavits no
argument was
addressed to me on this topic nor was any evidence led on who in
practice performed the functions of the accounting
authority for
Ezemvelo. In my view it is not necessary to resolve this issue,
which poses some difficulty in determining what
kind of board is
referred to in s 49(2)(a) of the PFMA, and I refrain from doing so.
[5] The
issue in the present case arises out of the MEC suspending all the
members of the board from their duties on the 18 September
2008. It
is not disputed that he had the power to do this in terms of s 12 of
the Act, but the members of the board contend that
in two respects he
did not exercise that power lawfully. Firstly they contend that
properly construed s 12 imposes certain constraints
on the MEC’s
powers of suspension by defining the circumstances in which a
suspension can occur and the purposes of such suspension.
Invoking
the constitutional principle of legality
5
they contend that those circumstances were not present and the
purpose of the suspension was not a permissible purpose. Secondly

they contend that before they could be lawfully suspended the MEC was
obliged to afford them an opportunity to make representations
to him
as to why they should not be suspended and he failed to do so. On
both grounds they claim that their suspension was invalid.
[6] I
interpose at this point to say that apart from suspending the
applicants from their position as members of the board the MEC

simultaneously and purporting to act in terms of the provisions of s
49(3) of the PFMA appointed the third, fourth and fifth respondents

as an interim accounting authority of Ezemvelo. He did so on the
basis of his contention that the board was the accounting authority

for Ezemvelo and as the members of the board had been suspended it
was necessary to put an interim accounting authority in place
to
discharge that function. Like the suspensions of the applicants this
decision was challenged. The basis of the challenge was
two-fold,
namely that the suspension of the board members was unlawful and
hence the basis for the appointment of an interim accounting

authority was lacking, and, in any event, that the Acting Chief
Executive Officer of Ezemvelo is in fact the accounting authority
for
the purposes of the PFMA and cannot be replaced by an interim
accounting authority. Nothing, however, turns on this issue.
It was
common cause between counsel that if the suspension of the applicants
falls to be set aside then the appointment of the
interim accounting
authority must likewise be set aside. (I should mention that the
third, fourth and fifth respondents who were
the appointees have
played no part in these proceedings choosing instead to abide the
decision of the court.) If, however, the
suspension of the
applicants is not set aside the applicants have no further interest
and no
locus
standi
to pursue their challenge to the appointment of the interim
accounting authority. It was also accepted in argument by Mr
Pammenter
SC, who appeared for the applicants, that if the suspension
of the board members was not set aside it would be undesirable to
leave
a vacuum in place in overseeing the affairs of Ezemvelo. In
the result the outcome of the claim to this relief depends upon the

outcome of the claim to have the suspension of the members of the
board set aside.
[7] The
applicants initially instituted these proceedings as an urgent
application on the 23 September 2008, five days after their

suspension, seeking the issue of a rule
nisi
and interim relief. The application was opposed and after answering
and replying affidavits had been filed came before McLaren
J, who
referred certain issues for the hearing of oral evidence. These
issues revolved around a meeting held between the MEC and
four
members of the board
6
on 11 September 2008. The MEC contends that this meeting constituted
a hearing at which the members of the board were afforded
the
opportunity to make representations to him as to why they should not
be suspended. He accordingly contended that any obligations
owed by
him to the members of the board under the
audi
alteram partem
rule were discharged. As the events at the meeting were not common
cause and certain issues were not fully explored on the papers

McLaren J referred the following questions for the hearing of oral
evidence, namely:-
‘
(a) Who arranged for the
meeting to be held on 11 September 2008?
(b) Were the applicants advised
what the purpose of the meeting would be?
(c) What was the purpose of the
meeting?
(d) Was the issue of the
applicants’ suspension discussed at the meeting?
(e) Whether the applicants made
any oral or written representations to the first respondent in regard
to their envisaged suspension?’
[8] In the result I
heard evidence from Mr Shangase, Mr Nkosi and Dr Sokhela,
respectively the second, third and first applicants,
on behalf of the
applicants and on behalf of the first respondent from Mr Nene, who is
the head of ministry in the Department of
Agriculture and
Environmental Affairs (KwaZulu-Natal), and Mr Mthimkulu, who at the
relevant time held the office of MEC for Agriculture
and
Environmental Affairs in KwaZulu-Natal. I will deal with this
evidence at a later stage.
[9] The statutory
framework within which the decision to suspend the board members fell
to be taken is provided by s 12 of the Act,
which in turn must be
read with section 11 dealing with the circumstances in which the MEC
may terminate a person’s appointment
as a member of the board.
These sections read as follows:-
‘
11. Termination
of Employment
(1) The Minister may terminate a
person’s appointment as a member on one or more of the following
grounds:
(a) Infirmity of mind or body
which prevents him or her from the proper discharge of the duties of
his or her office;
(b) Conduct which brings or could
bring the activities of the Board into disrepute;
(c) Failure, refusal or neglect
to carry out the duties and functions of a member to the best of his
or her ability; or
(d) Failure to attend three
consecutive meetings of the Board without the consent of the
chairperson.
(2) Whenever the Minister
terminates the appointment of a member in terms of sub-section (1),
such termination and the grounds therefore
must be reported within
fourteen days to Parliament or, if Parliament is not sitting, to the
Speaker and the chairperson of the
Portfolio Committee.
12. Suspension of a Member
The
Minister may suspend a member from the execution of his or her duties
whilst the Minister is investigating and considering allegations

which, if proved to be correct or substantially correct, could result
in the member’s appointment being terminated in terms of
section
11.’
7
[10] Before
dealing with the legal contentions of the parties it is desirable to
set out the background leading up to the suspension
of the members of
the board. A convenient starting point is the audit of the board for
2006-2007. That audit was conducted by
the auditor-general
8
and resulted in a qualified report. On grounds set out in the report
it concluded that the financial statements did not in all
material
respects fairly present the financial position of the board as at 31
March 2007 or its financial performance and cash
flows for the year
then ended. This qualified audit led the MEC initially to appoint a
consultancy to provide a report on the
situation and thereafter to
appoint a firm of auditors to conduct a forensic investigation into
the affairs of Ezemvelo.
[11] The forensic
investigation resulted in a report being finalised in May 2008. It
identified the following matters as being
the subject of its
investigation:
(a) Identify any
irregular credit card transactions and the persons responsible for
these transactions.
(b) Investigate,
using an appropriate sample, procurement transactions inclusive of
the tender, quotation and urgent and emergency
procurement processes.
This also relates to the projects section of Ezemvelo.
Investigate the
appointment of professional consultants, contractors and statutory
compliance in respect of the building industry
and verify the
contract deliverables.
(d) Verify the
qualifications of senior management and a sample of other personnel.
(e) Investigate a
sample of recent appointments and confirm compliance with recruitment
and employment policies including the failure
to disclose close
family and other relationships.
(f) Investigate the
payroll expenditure, in particular the verification of employee
attendance and other records.
(g) Investigate the
validity of payments to alleged temporary staff and contract labour.
(h) Investigate the
allocation and occupation of company-owned and leased properties and
confirm compliance with income tax legislation
relating to fringe
benefits.
(i) Investigate
corporate governance within Ezemvelo, including compliance with
relevant legislation, relationships with other organisations,

management structure and systems and other governance issues as
directed by the Superintendent-General.
(j) Investigate the
completeness of revenue generated and banked and identify the reasons
for existing weaknesses in controls of
revenue management.
Other than the
general issue of corporate governance none of these matters outwardly
appears to relate to the activities of board
members.
[12] The forensic
report made a number of recommendations including that certain
employees be prosecuted and that others should
be subjected to
disciplinary action. Many recommendations dealt with internal
administrative matters and the improvement of systems
and control and
oversight procedures. All of these were matters that would fall to
be implemented through the managerial staff
of Ezemvelo from the CEO
down. The only recommendations that had any direct bearing on the
members of the board were the following
in paragraph 7.4 of the
executive summary under the general heading of ‘Supply Chain
Management’:-
‘We
recommended that EKZNW consider the following, which would enhance
the control environment:
The Board Members that failed to
disclose their business interests as required be given the
opportunity to submit their written
explanations for the
non-disclosure. These submissions should be addressed to the MEC
stating the reason/s why the businesses
were not declared as
required;
The MEC for KZNDAE should
consider whether he wants to retain those individuals who did not
comply with critical business processes
that are fundamental to the
Corporate Governance at EKZNW as members of the Board;
…
Ensure that the EKZNW records
relating to the declaration of interests by employees and Board
members is updated to reflect all
interests held;
…
In those instances where payment
has been made to the businesses of the Board Members and the
procurement regulations have not
been complied with, the expenditure
is deemed irregular and should thus be reported and addressed at the
appropriate level.’
[13] These broad
recommendations were fleshed out in a little more detail in the
relevant chapter of the report. In regard to Dr
Sokhela it was said
that he failed to declare his interests in other organisations. A
similar complaint was made in relation to
the fifth applicant. In
regard to the second, third and fourth applicants it was alleged, in
addition to a failure to declare
other interests, that they or
entities in which they had an interest had done work for the board or
Ezemvelo without following
proper procurement procedures. In
addition there was also some criticism of the level of their charges.
Other than a single comment
that as “custodians responsible for
enforcing Corporate Governance” they should ensure that they lead
by example and that their
actions should be beyond reproach, the
report does not appear to attribute any of the many other problems it
identified to any
failings on the part of the board members.
[14] The production
of the forensic report prompted the MEC to write to the board on 4
July 2008 enclosing a copy of the executive
summary to the report and
saying the following:
‘
1. As you are aware, I caused
a forensic investigation to be undertaken by Deloitte and Touche
during the latter part of 2007 and
2008 into possible non-compliance
and possible irregularities within the various functionalities of the
KwaZulu-Natal Nature Conservation
Service in consultation with the
KwaZulu-Natal Provincial Treasury.
2. I enclose under cover of this
letter a copy of the Executive Summary of the finding and
recommendations contained in the individual
reports relating to the
investigations performed in respect of the various functionalities
within the Department. Although the
Executive Summary should be read
in conjunction with the findings and the resultant recommendations,
the reports are not at this
stage included under cover of this
letter.
Should you require a copy of the
complete reports such will be made available to you.
4. The Executive Summary deals
with the findings and the resultant recommendations in relation to
the following areas of concern:-
4.1 The misappropriation of funds
through the fraudulent usage of corporate cards and the failure to
comply with policies and procedures
relating to payments for labour;
failure to adhere to EKZNW’s corporate card policies and procedure;
the inappropriate use of
corporate cards and the circumvention of
controls;
4.2 The failure to comply with
the Supply Chain Management Procedures and Policies including cover
quoting; failure to ensure proper
sourcing of suppliers; failure to
supervise activities of staff members within the Supply Chain
Management; failure to ensure proper
disclosure of interests in the
operations of bidders; the irregular payment to entities which were
irregularly awarded work; failure
to properly supervise the opening
and recording of tenders;
4.3 The commission of criminal
conduct and disciplinary misconduct in respect of the technical
services;
4.4 The failure to comply with
the Recruitment and Selection Policy within the human resources
component;
4.5 The occupation of company
owned and leased accommodation contrary to policy;
4.6 Disciplinary infractions in
respect of revenue collection;
4.7 Disciplinary infractions at
the project section;
4.8 Criminal conduct as well as
disciplinary infractions with regard to the procurement from the NRB
supplier group.
5. The report also details
instances where Board members failed to disclose their business
interests and in other instances where
Board members performed
services for the Ezemvelo KwaZulu-Natal Wildlife without complying
with the Supply Chain Management Procedures
and Policies.
6. In terms of
Section 49
of the
Public Finance Management Act 1 of 1999
the Board is the accounting
authority for the Ezemvelo KwaZulu-Natal Wildlife.
7. My
prima facie
view is that the accounting authority has failed to exercise the duty
of utmost care to ensure reasonable protection of the assets
and
records of the Ezemvelo KwaZulu-Natal Wildlife; has failed to act
with fidelity, integrity and in the best interest of the
Ezemvelo
KwaZulu-Natal Wildlife in managing the financial affairs thereof and
has acted in a way that is inconsistent with the
responsibilities
assigned to an accounting authority in terms of the Act.
8. It is my intention to exercise
ownership control over the Ezemvelo KwaZulu-Natal Wildlife as
envisaged by the
Public Finance Management Act and
in that regard it
is my intention to request the entire Board to tender their
resignations.
9. In order to ensure that you
are heard before I make any firm decision you are requested to peruse
the forensic review and make
such submissions as you are entitled to
make to me.
10. I intend calling a meeting of
the Board members and to invite Deloitte and Touche to present the
report at such a meeting.
My office will contact you in
due course to advise you of the date, the time and the venue for the
meeting which I have proposed
herein.’
[15] On 6 July 2008
the MEC met with the board’s chair, Dr Sokhela, and presented the
report to him. No details of that presentation
appear from the
papers before me and it was not the subject of any of the oral
evidence. It appears from the correspondence that
two further
letters were sent by the MEC to the board on 18 July 2008 and 25 July
2008 respectively. However copies of these letters
do not form part
of the papers. On 28 July 2008 Dr Sokhela responded to the MEC in
general terms dealing with what he described
as the operational
issues raised by the forensic report and specifically in regard to
the situation in respect of board members’
outside business
interests, explaining that in terms of the relevant legislation the
only disclosure required was in respect of
relationships and
transactions between board members and Ezemvelo and where entities in
which board members had interests were
involved in actual or
potential dealings with Ezemvelo or the board or were engaged in
matters being investigated, considered or
voted on by the board or
any matter before the accounting authority.
[16] This letter by
the chair was accompanied by detailed letters from each member of the
board dealing with their interests in
other entities and where
applicable their commercial dealings with the board and Ezemvelo. An
examination of these letters is
instructive. The third applicant
refers to nine companies or close corporations in which he has an
interest or is a director.
According to him none do business with
the board or Ezemvelo, with one possible exception where he is the
nominee of the board
as a director of a
section 21
company. Two of
the companies are
section 21
companies and two are said to be
dormant. The second applicant’s response is to similar effect. He
is engaged in two entities
– a consultancy and a legal firm –
that have done work for Ezemvelo and he says that his interest in
those entities has been
disclosed and that he played no role in
allocating work to these entities. He is a director together with
the third applicant
of a
section 21
company where the board nominated
him to that position and was presumably well-aware of it.
[17] The first and
fifth applicants’ response was that their involvement in external
entities related to entities that do not
do business with the board
or Ezemvelo and involved no conflict of interest. The fourth
applicant said likewise, pointing out
that in two instances
identified in the report he had been deployed by the board to the
entities in question and in one that the
close corporation in
question owned private immovable property that manifestly had nothing
to do with the activities of the board
or Ezemvelo. He says that he
received agreed remuneration for being the board’s representative
on the boards of three retirement
funds of Ezemvelo. He also
explained the basis on which he and the two other attorneys on the
board (the second and fifth applicants)
performed legal work
involving a review of the Act on instructions from the then head of
department of the Department of Agriculture
and Environmental Affairs
and the then CEO of Ezemvelo. This work was undertaken in terms of a
project proposal and budget submitted
to those officials.
[18] It is not
necessary to assess the adequacy of these responses although on their
face they go at least some way towards providing
a substantial answer
to the specific criticisms levelled at the board members in the
report. What is more important is that at
no stage prior to 18
September 2008 did the MEC or his staff respond to them in any way,
whether by seeking further information
or explanation or by refuting
any of their contents, including the legal contentions made by the
board members as to the scope
of the duty of disclosure resting on
them. Their contention was that the auditors who had prepared the
forensic report had adopted
a fundamentally erroneous legal view of
the scope and extent of the duty of disclosure.
[19] On 11 August
2008 Dr Sokhela wrote to the MEC referring to the board’s response
and asking permission to release the report
to the members of the
audit committee and the members of the executive of Ezemvelo. The
letter also sought the MEC’s input on
certain matters and invited
him to attend the board meeting on 29 August 2008 and a meeting of
the audit committee on 8 September
2008. At this stage there was
apparently no portent of what was to come and the documents and
evidence suggest that the board
was going about its business and
trying to address the issues raised by the forensic report.
[20] A conversation
between Dr Sokhela and the MEC is reflected in a letter from the
former to the latter on 25 August 2008. Apparently
the MEC had
raised certain issues in a letter of 19 August 2008, which like some
other correspondence at this time is not part
of the papers. The
board’s response was to urge the MEC to attend an urgent meeting
with the board if possible on 25 August
itself. The board proposed
eight issues for discussion including supplementing its own
membership; a strategy to deal with the
allegations in the forensic
report; plans relating to privatisation of Ezemvelo and issues
relating to an investigation into certain
actions of the CEO and an
evaluation of the executive director’s performance. There is
nothing to suggest in this that the position
of the board members
themselves was in any way being reviewed or was regarded by them as
being under threat.
[21] The key event
that brought about a change in the situation was that the board
members were urgently summoned to a meeting of
the Finance and
Economic Development Portfolio Committee of the Provincial
Legislature, which meeting was attended also by the
members of the
Public Accounts Standing Committee and the Agriculture and
Environmental Affairs Portfolio Committee. This meeting
took place
on 9 September 2008. The board members were present during some of
the discussions regarding Ezemvelo but when the
discussion turned to
that portion of the forensic report dealing with their position they
were asked to leave the room. They waited
for a while in the
corridor and were then taken to a room where they could continue to
wait. Somewhere between an hour and an
hour and a half later the MEC
emerged from the meeting and told them it was unnecessary for them to
wait any longer and that they
could go.
[22] That afternoon
the MEC sent a letter to Dr Sokhela. It read as follows:
‘
RECOMMENDATIONS
FROM THE MEETING OF THE JOINT FINANCE AND ECONOMIC DEVELOPMENT
PORTFOLIO COMMITTEE
This letter serves to inform you
of the recommendations made by the above-mentioned portfolio
committees at the meeting held on
09 September 2008.
Following a briefing by the Head
of Provincial Treasury on the review of the forensic audit report on
Ezemvelo KZN Wildlife the
committee recommends:
1. That the MEC for Agriculture
and Environmental Affairs implements the approval by Provincial
Treasury to appoint another functionary
as the Accounting Authority
for the Board of Ezemvelo in terms of
Section 49(3)
of the
Public
Finance Management Act.
2. That
the current board members
be suspended pending further investigations being done in terms of
the forensic report.
3. That the MEC reports to the
Finance Portfolio Committee on progress with regard to these matters
by 09 October 2008.
I therefore, as MEC responsible
for Ezemvelo KZN Wildlife, need to apply my mind on this
recommendation and revert to you as soon
as possible on my decision.”
[23] Receipt of that
letter caused Dr Sokhela to convene an urgent meeting of the members
of the board on 10 September 2008. In
the course of that meeting a
letter was drafted to the MEC and I will set out the terms of that
letter in due course. At present
I simply note that in paragraph 4
of the letter Dr Sokhela said:
‘…
I urge the Honourable MEC
to urgently meet with the Members of the Board and myself to address
all of these matters, prior to the
Honourable MEC applying his mind
to the matters referred to in his letter under reply.’
Both Mr Nene and
the MEC suggested in their evidence that on the evening of 9
September 2008 a meeting had been arranged for 11
September 2008
between the MEC and the members of the board at the request of Dr
Sokhela. Had that been the case I cannot think
that a letter drafted
by the members of the board (including three attorneys) in the early
evening of the following day would have
contained a request in the
terms quoted above as opposed to recording that the MEC had agreed to
hold a meeting with the board
members on 11 September 2009. It seems
to me more probable therefore that the meeting was organised in the
course of telephone
discussions between Dr Sokhela and Mr Nene on the
one hand and Mr Nene and Mr Mthimkulu on the other, in the course of
the evening
of 10 September 2008 after this letter had been prepared.
[24] It is
overwhelmingly probable that the impetus for the meeting was the
receipt by the board of the MEC’s letter of 9 September
2008
embodying the recommendation by the joint portfolio committees.
Clearly this had come as something of a bolt from the blue
and it
aroused the ire of the members of the board who felt very strongly
that the decision had been reached by the joint portfolio
committees
without their having been given any opportunity to address the
concerns leading to that recommendation or even being
aware in any
detail of what they were. The portfolio committees had not told them
of their concerns and, whilst the board members
would probably have
thought that they had their roots in the forensic report, they had
been given no opportunity of clarifying
the issues raised by that
report or even of putting before the committees the material that
they had placed before the MEC by way
of the letters of 25 July 2008.
This lead to a muted suggestion in the evidence of the second
applicant that the purpose of convening
the meeting on 11 September
2008 was unclear to the members of the board, in part, as he said,
because he was not aware of the
circumstances in which the meeting
had been arranged. However, against the background outlined above I
accept that the reason why
the meeting of 11 September 2008 was
arranged was that the board asked for such a meeting after the
receipt by its chair of the
MEC’s letter of 9 September 2008
containing the recommendations by the joint portfolio committees. The
meeting was called to
deal with the recommendations of the portfolio
committees.
[25] It will be
necessary to return to deal in some detail with what transpired at
this meeting. For present purposes it suffices
to say that all those
who gave evidence were at one in saying that the MEC made it clear
that he had not reached a decision on
the question of suspending the
board members. However, a week later on 18 September 2008, he wrote
to Dr Sokhela in the following
terms:
‘
Re:
SUSPENSION OF EZEMVELO
KZNWILDLIFE BOARD MEMBERS
Following
our meeting of the 11
th
September 2008 where we discussed recommendation of the Portfolio
Committee.
Provincial Treasury have since
approved that we invoke
section 49(3)
and
18
(2(g) of the PMFA
(attached is a copy of the letter from Treasury). I have therefore
applied my mind and taken a decision to give
the Board an opportunity
to clear itself on the allegations.
I have decided to appoint a 3
member team to be an interim Accounting Authority during this process
while these matters are dealt
with.
I want to emphasize that the
stepping aside of the Board does in no way mean the guiltiness of the
Board Members.
Please attached the statement
that I will be presenting to the media this afternoon.”
[26] The media
statement was headed ‘Suspension of the KZN Nature Conservation
Board’ It briefly dealt with the background to
the commissioning of
the forensic report and said:
‘
The forensic report findings
were released and are damning. Unfortunately the report also
fingered the Board Members.”
It goes on to
recite the resolution taken by the Portfolio Committees on 9
September 2008 and continued:
‘
I
therefore on the same day wrote a letter to Board Chairman apprising
him of this recommendation by the Legislature to which I
am
accountable. On the 11
th
of September 2008 I met the Members of the Board and had a lengthy
discussion on the forensic findings which also implicate the
Board.
I fully agreed with the Board Members that they must be given the
opportunity to state their side of the story. I undertook
to apply
my mind on the recommendation of the Legislature.
I have since seen it prudent to
afford the Board Members the opportunity to respond to the findings
of the Forensic Report. Surely
it will be difficult for these
Members to do this while at the same time they are performing the
task of being an Accounting Authority
of EKZNW. I have therefore
acceded to the recommendation of the Legislature by allowing the
Board Members to step aside while
the findings of the forensic are
further dealt with.
I
must however emphasize that this
does
not
mean that the
Members of the Board are guilty, but this suspension affords them the
opportunity to clear themselves in line with
the principle of
audi
alteram partem
(to hear their side of
the story).”
[27] These
proceedings to set aside the suspension of the board members were
instituted five days later.
These proceedings
were launched five days later challenging the suspension of the Board
members.
[28] The first
ground of the challenge to the suspensions is based on the
proposition that the MEC’s power to suspend a board
member is
circumscribed by the Act and that the purpose of affording the MEC
the power to suspend board members is to facilitate
an investigation
into allegations made against them. On that basis it is contended
that before there can be a lawful suspension
there must be
allegations made against the board member or members concerned that
if proved to be at least substantially true would
entitle the MEC to
dismiss that member in terms of s 11 of the Act. It is then
contended that in order for the suspension to be
valid the MEC must
wish to investigate those allegations and the suspension of the
member concerned must serve to facilitate that
investigation.
[29] On the basis of
that approach to the interpretation of ss 11 and 12 of the Act the
applicants argue that it was clear from
the letter of suspension and
the media statement quoted above:
‘…
that the reason for the
first respondent deciding to suspend us, was to give us the
opportunity of clearing ourselves of the allegations
made against us
in the forensic report.’
It is said that
this is not a ground upon which the first respondent can suspend
board members.
[30] In my view this
contention involves an unduly restrictive construction of s 12 of the
Act. The power there vested in the MEC
is a power to suspend a
member while the MEC is investigating and considering allegations
against that member. Suspension is permissible
whilst the MEC is
investigating allegations made against a board member and also when
he is considering those allegations in the
light of any
investigations that he has undertaken or caused to be undertaken.
The power of suspension exists throughout this
process. It is not
confined to a situation where there is an investigation underway
because it expressly includes the period of
consideration by the MEC
of the implications if the allegations prove to be correct. In my
view suspension is permissible not only
in cases where there is a
need for investigation and consideration but also in a case where
consideration only is called for.
Cases may well arise where there
is nothing to investigate because the facts of the matter are
perfectly clear, but the MEC may
still wish to take time to consider
those facts but thinks it appropriate in the meantime for the member
to be suspended. Take
a situation where a board member is offered
and publicly accepts an award from a commercial entity known to
aspire to conduct commercial
mining activities in a conservation
area. Those activities are strongly opposed by conservationists and
environmentalists and the
award raises a storm of protest. The fact
of the award and its presentation to the board member concerned are
in the public domain
and require no investigation. However, rather
than act in haste the MEC may well wish to consider whether the
acceptance of the
award was indeed something that could bring the
activities of the board into disrepute, as contemplated in s 11(1)(b)
of the Act.
To take some time to consider the issue would not be
inappropriate but one can easily see that the MEC could think it
appropriate
to suspend the member concerned from the execution of his
or her duties in the meantime.
[31] It follows that
I am also unable to accept the contention that a suspension is only
permissible if it would facilitate the
process of investigation. As
I have pointed out the power to suspend is not dependent upon the MEC
needing to conduct an investigation.
Where there is an investigation
there is no need to tie the suspension to the fact of investigation
and to require that it have
as its purpose the facilitation of the
investigation. An investigation may be underway but could be
undertaken irrespective of
whether the board member remained in
office or had been suspended. Nonetheless there might well be
circumstances in which the MEC
regarded suspension of the member
concerned as being in the interests of the operations of the board
and Ezemvelo and in the public
interest. For example, it might be
perfectly feasible for a forensic audit team to investigate very
serious allegations of financial
irregularity involving a Board
member without any let or hindrance from the fact that the board
member was still attending to his
or her duties. After all the
members of the board are not working on a daily basis at the offices
of Ezemvelo nor are they involved
in the day-to-day operations of
Ezemvelo. Their function is to direct the management of nature
conservation in KwaZulu-Natal and
to ensure the proper, efficient and
effective management of Ezemvelo. It is however the officials of
Ezemvelo who are responsible
for the conduct of its affairs not the
board members. Nonetheless if allegations of financial impropriety
against a board member
are the subject of an investigation it is
obviously desirable that the MEC should consider whether that member
should be suspended
from his or her duties whilst the investigation
is underway.
[32] A
suspension in those circumstances is commonplace both in the public
arena and in private and commercial organisations both
in South
Africa and overseas
9
.
As I write this judgment two members of the ruling Labour Party in
the United Kingdom have been suspended from membership of
that party
in consequence of allegations that they claimed as expenses payments
in respect of mortgages that had already been discharged
10
.
Manifestly the substantive purpose of that suspension is not to
enable the Labour Party to investigate the situation nor is it

necessary to facilitate the internal workings of party disciplinary
processes. The purpose of the suspensions is to proclaim to
the
electorate that the party will not tolerate such conduct even if it
was inadvertent, fell within the applicable rules and did
not involve
any criminal offence. No good reason has been advanced to me why the
power of suspension in section 12 of the Act
cannot be exercised for
similar public interest purposes, provided the allegations being
investigated or considered are such that
they may lead to the
termination of the member’s appointment as a member of the board
under section 11 of the Act.
[33] The applicants’
contention based upon a narrow and restrictive interpretation of s 12
of the Act cannot succeed. It was
not contended that on a broader
interpretation of the section the suspension of the board members in
this instance was impermissible.
Nor in my view could it have been.
The MEC had commissioned a comprehensive investigation of the affairs
of Ezemvelo by a well-known
firm of forensic auditors. Whilst their
report had largely been directed at activities by officials of
Ezemvelo they had also
been critical of members of the board in
regard to the matters described above. The Board members had
furnished explanations in
respect of those matters and the MEC was
entitled to consider them. He was also entitled to consider the
overall implications
of the deficiencies identified initially by the
auditor-general and subsequently by the consultancy report and the
forensic report,
in relation to the operations of Ezemvelo. These
were matters of concern to him as evidenced by paragraph 7 of his
letter to the
board of 4 July 2008 and these matters had not yet been
addressed by the board members. It cannot be said, nor was it said,
that
a consideration of those matters could not have led him to
believe that the board member should be removed for reasons set out
in section 11(1) of the Act. In his affidavit he claims that he was
considering all these issues. The MEC does say, albeit somewhat

elliptically, that he considered a wider range of matters than merely
the issue of non-disclosure of other commercial interests
including
the board’s oversight of the operations of Ezemvelo. He
specifically refers in his affidavit to the fact that the
forensic
report:
‘…
confirmed that the
Ezemvelo KwaZulu-Natal Wildlife and the Board were riddled with
numerous cases of mismanagement, fraud, theft
and corrupt practices.
Many of these are currently the subject of police action and/or
disciplinary action. In many other instances
civil recovery
processes have been recommended. The report concluded without a
shred of doubt that the Board was not managing
its affairs in
accordance with acceptable standards’.
Again it is
unnecessary to decide whether these strongly held views by the MEC
were justified by the terms of the report. What
they illustrate is
that he claims that he took into account a broad range of factors in
deciding that the suspension of the Board
members was justified
whilst matters were further investigated and resolved and that claim
has not been challenged. On the broader
interpretation of section 12
of the Act that approach cannot be faulted and, as I have already
noted, the applicants did not seek
to do so.
[34] That conclusion
required the court to focus upon the second basis for the applicants’
attack on the decision to suspend them,
namely that they were not
properly apprised of the charges against them and not afforded an
opportunity to make representations
to the MEC why he should not
suspend them. The response by the MEC is that by way of the meeting
held on 11 September 2008 and
a letter handed to him at that meeting
the applicants’ entitlement to make representations was fully
satisfied. He does, however,
contend that there was in law no
obligation on him to afford to the applicants such rights of
procedural fairness. It is appropriate
to deal first with the
factual contention that a proper opportunity to make representations
was given to the applicants as an affirmative
answer to that would
obviate the need to undertake the second enquiry.
[35] In
the course of argument the events at the meeting of the 11 September
crystallised and became common cause between counsel.
11
That limits the need for me to engage in a lengthy analysis of the
evidence of all of the witnesses. It is, however, appropriate
for me
to make some comment in regard to general issues of credibility. In
my view all of the witnesses were striving as best
they could to
recall the events at that meeting. They were hampered by the fact
that the proceedings were not recorded and no
one saw fit to take a
minute or note of what transpired. There was an understandable
tendency in those circumstances for the witnesses
to try to emphasize
those matters that they perceived to be favourable to their side of
the case. Thus the three applicants who
gave evidence all stressed
the fact that the MEC assured them that he had not taken a decision
on their suspension but was applying
his mind to the recommendation
of the joint portfolio committees and would revert. In amplifying
upon that statement they tended
to favour a construction that the
purpose of the MEC reverting to them was to give them an opportunity
to be heard on the question
of suspension. On the other hand, Mr
Nene and Mr Mthimkulu sought to stress the fact that in the course of
discussion the question
of suspension was to some extent at least
dealt with and to build upon this in order to convey that this
meeting was the occasion
for the Board members to make such
representations as they wished on the question of their suspension.
In my view there is an
element of understandable reconstruction and
perhaps exaggeration in both stances. To that extent the witnesses
tended to cast
their evidence in terms that favoured their own case.
Beyond that, however, I do not think that any witness sought actively
to
mislead me or was deliberately not telling the truth. I stress in
this regard that by the end of the evidence and the argument
there
was a large measure of agreement between counsel as to what had
transpired.
[36] The factual
matters on which counsel were agreed and which are plainly supported
by the evidence were the following. The starting
point for these
events was the joint meeting of the portfolio committees to which the
board members were summoned. They were however
excluded from that
meeting when their situation was discussed and were given no
opportunity to have any input in the recommendations
of the portfolio
committees. When they received the MEC’s letter dated 9 September
2008 Dr Sokhela spoke to Mr Nene telephonically
and arranged the
meeting that took place on 11 September. For the reasons I have
given I think it probable that these arrangements
were only made on
the evening of 10 September after the board members had met and
formulated a written response to the MEC’s
letter.
[37] The meeting on
11 September was attended by the MEC, Mr Nene and Mr Ngidi, from the
side of the Department, and four of the
five board members, the fifth
applicant being unable to attend. The meeting lasted for between one
and one and a half hours.
The board members specifically asked the
MEC whether he had decided to suspend them and were told that he had
not but that he was
applying his mind to the recommendation by the
portfolio committees and would revert to them. He does not say that
he told them
expressly that he was considering suspending them,
merely that he was considering the recommendation by the portfolio
committees.
Nor did he at any stage during the meeting tell them
that this was their opportunity to make representations to him
concerning
a possible suspension or that he was considering
suspending them in order to enable them to clear their names. They
were not asked
about the effect that such a suspension would have on
them and they did not during the meeting point out that such a
suspension
might have the effect of blackening their names in the
public eye by condemning them in the court of public opinion. In the
course
of the meeting the board members voiced very strong objections
to the way in which the portfolio committees had treated them. They

felt that they had been unfairly excluded when matters concerning
them were discussed. They had not had the opportunity to find
out on
what grounds the portfolio committees recommended their suspension or
to justify their actions, correct misapprehensions
and
misunderstandings on the part of the portfolio committees and
generally to demonstrate why they should not be suspended. They
said
that it would be unfair to suspend them on the basis of this
recommendation.
[38] During the
course of the meeting the board members handed to the MEC the letter
they had prepared the previous evening. The
terms of that letter,
which is relied on by the MEC, are of some importance and are set out
below:
‘Dear
Honourable MEC
RECOMMENDATIONS FROM THE
MEETING OF THE JOINT FINANCE AND ECONOMIC DEVELOPMENT PORTFOLIO
COMMITTEE HELD ON 9 SEPTEMBER 2008.
I
acknowledge the receipt of your letter dated 9 September 2008, and
note the contents thereof.
Following
consultation with the Board Members, I wish to comment as follows:
The
recommendations made by the Joint Committee are with respect
improper and unprocedural for
inter
alia
, the following
reasons:
(a) The Board had been invited to
attend an in camera meeting to discuss the Forensic Report of
Ezemvelo KZNWildlife. At the meeting,
notwithstanding that prior
notification that one Board Member would be late and despite
acceptance of this by the Chairperson of
the Finance and Economic
Development Portfolio Committee, the said Board Member was not
permitted to enter the meeting on his arrival.
(b) The
Board Members present were requested to excuse themselves from the
meeting during the discussions on items in the Forensic
Report
involving Board Members. Board Members were informed that they would
be called back at a later stage to participate in
the further
discussions. Board Members believed that on their return they would
be afforded an opportunity to respond to any matters
arising out of
the discussion in their absence.
(c) At a
later stage, the Board Members attending the meeting stood outside in
the passage for approximately 30 minutes and were
later shown to a
room to await being called back to the meeting. After approximately
one hour, the Honourable MEC requested the
Board Members to leave
and informed them that he would communicate the outcome of the
meeting to them at a later stage.
(d) At
17.00, I received the Honourable MEC’s faxed letter under reply,
and I was shocked by the recommendations made by the Joint
Committee,
and the Honourable MEC’s intention to apply his mind to the said
recommendations.
(e) I wish
to emphasise that at no stage was the Board informed or made aware
that the purpose of the meeting was to arrive at recommendations
of
this nature.
(f) The
Board has had no opportunity to raise its concerns or to put its
views forward on the forensic report as well as the first
and second
recommendations.
(g) With
regard to the first recommendation, which provides that the MEC for
Agriculture and Environmental Affairs implements the
approval by
Provincial Treasury to appoint another functionary as the Accounting
Authority for the Board of Ezemvelo in terms of
Section 49(3)
of the
Public Finance Management Act, I
remind the Honourable MEC that
Treasury has never consulted the Board with regard to this proposed
action. I refer the Honourable
MEC to my letter dated 20 November
2007, to which the Board has received no reply to date. I also
remind the Honourable MEC of
his statement made to the Joint SCOPA
and Finance Committee meeting in Parliament on 19 August 2008 that
Section 49(3)
of the PFMA had never been invoked, contrary to popular
perception at that time. The Board contends that prior to any resort
to
the application of this section, both Provincial Treasury and the
Honourable MEC’s office are required to afford the Board a
reasonable opportunity to make representations in response to the
stated grounds upon which such action might be based i.e. what
are
the ‘exceptional circumstances’ that might justify such an
action? No such opportunity has been afforded to the Board
nor have
substantive grounds been given to justify such action.
(h) With
regard to the second recommendation, which provides that the current
Board Members be suspended pending further investigations
being done
in terms of the forensic report, I remind the Honourable MEC that the
individual Board Members provided a detailed explanation
in the
allegations made in respect in the Forensic Audit Report. I also
confirm that the Honourable MEC has not responded to these
detailed
explanations of Board Members. The Honourable MEC has not responded
to the preliminary response of the Board to the Forensic
Audit Report
and suggested actions dated 28 July 2008. I request the Honourable
MEC to provide grounds upon which he intends to
investigate and
suspend individual Board Members, as provided for in the KZN Nature
Conservation Management Act, 9 of 1997.
(i) With regard to the Forensic
Report, I would like to advise the Honourable MEC that the Board
Members are concerned that the
Forensic Report was not released to
the Board until 9 July 2008, and the Board was given very short
notice to respond to the Honourable
MEC. To date, the Honourable MEC
has not responded to the Board’s response to the Forensic Report,
and also has not obtained
permission to release the Forensic Report
to the KZN Nature Conservation Service, established in terms of
Section 20 of the KZN
Nature Conservation Management Act, 1997, as
amended, to enable them to respond to the operational issues raised
in the report.
2. The Board has repeatedly
requested an opportunity to meet with the Honourable MEC in order to
discuss these and other important
matters in a spirit of co-operative
governance as required of organs of state, as per my correspondence
dated 25 August 2008 and
other previous correspondence. I note with
extreme disappointment that to date, except in those cases where you
wished to meet
with the Board to discuss specific aspects of the
Board’s activities, no other opportunities have been afforded the
Board to
address such matters and to discharge its legislative
mandate.
3. I find
it disappointing that a Committee of Parliament and the Honourable
MEC can proceed to arrive at recommendations without
following the
basic rules of natural and administrative justice as provided for in
our Constitution and other legislation.
4. In the light of the above, and
the potential prejudice and injustice to the Board, the Board Members
in their individual capacities,
the KwaZulu-Natal Nature Conservation
Service, and the people of KwaZulu-Natal, I urge the Honourable MEC
to urgently meet with
the Members of the Board and myself to address
all of these matters, prior to the Honourable MEC applying his mind
to the matters
referred to in his letter under reply.
5. Should
the Honourable MEC fail to meet with the Board Members and myself and
proceed to apply his mind as indicated without having
done so, the
Board will have no alternative but to regretfully seek legal recourse
and the Board reserves its rights accordingly.
I look forward to the Honourable
MEC’s response.’
[39] The
MEC did not read this letter or give any consideration to its
contents at the meeting. One significant aspect of the letter
is
that in paragraph l(h) the MEC was specifically requested to provide
grounds upon which he intended to investigate and suspend
individual
board members. There is no suggestion that during the course of the
meeting he linked any specific grounds of concern
on his part to a
possible suspension of the board members.
12
He also did not tell the board members that this was their
opportunity to make representations in regard to a possible
suspension
and it is difficult to see how he could have done so
without formulating the grounds upon which he was contemplating
acting. Nor
were they told in advance of the meeting that this was
their opportunity to make representations about their possible
suspension.
13
[40] What then was
said at the meeting that was pertinent to the question of suspension?
Mr Mbenenge formulated six factual propositions
in this regard which
Mr Pammenter accepted. They were that the board members complained
that the procedure adopted by the portfolio
committees was unfair.
They said that the portfolio committees had no power to recommend
their suspension because they did not
report to any of the portfolio
committees but to the MEC. The MEC explained that he was nonetheless
obliged to report to the portfolio
committees to whom he owed
political accountability. Specifically on the matter of suspension
the board members said that they
should not be suspended because the
matters raised by the forensic report fell within the purview of
management rather than within
their area of responsibility. They
told the MEC that they had commenced with the implementation of the
report and would collaborate
with him on all matters pertaining to
the report. They denied that they had committed any misconduct
warranting their suspension.
[41] I do not think
that any additional factual findings can properly be distilled from
the evidence. The meeting does not appear
to have followed any fixed
agenda and a range of issues appears to have been discussed in no
particular sequence. The board members
were plainly upset about
their treatment by the portfolio committees and expressed the view
that such treatment had been both unfair
and unlawful. There was
undoubtedly some discussion on the topic of their possible suspension
but it was not a focussed discussion
in which the MEC identified the
matters that were of particular concern to him and asked the board
members for their response to
those matters or to explain why they
would not justify him in suspending them. It is unclear to what
extent the issues of non-disclosure
of other business interests were
considered and there is no suggestion that the MEC identified any
aspects of the responses already
furnished to him by the board
members in that regard on 26 July 2008 that he found inadequate,
unsatisfactory or unacceptable.
[42] In
conducting this meeting in this fashion the seeds of confusion
between the parties were liberally sown. The members of
the board
were clearly of the view that before any steps could be taken against
them they were entitled to a hearing. Indeed the
letter of 10
September 2008 appears to claim a right to a hearing both before the
portfolio committees and by the MEC. They were
reassured by the
MEC’s statement that he had not yet taken a decision to suspend
them and that he would revert to them.
14
It is I think understandable that they may have left the meeting
under the belief that if the MEC came to the conclusion that
he
should implement the recommendation of the portfolio committees he
would advise them of that fact, furnish them with the reasons
why he
had come to that conclusion and afford them an opportunity to deal
with those reasons. At worst and taking the MEC’s words
at face
value they would have left knowing that he was deciding what to do
about the portfolio committees’ recommendation and
would revert to
them on that. That left matters up in the air. I find as a fact that
they did not know and could not in all the
circumstances have known
that they were being afforded the opportunity to make such
representations as they wished to the MEC to
persuade him not to
suspend them.
[43] That finding is
reinforced by the further factual finding accepted by both counsel
that prior to this meeting the MEC had taken
no legal advice as to
his obligations towards the board members in the event that he was
contemplating their suspension. In other
words he did not come to
the meeting having been advised that if he wished to suspend the
board members he was obliged to give
them a hearing and afford them
an opportunity to make representations in regard to the matters
underlying such proposed suspension.
His own approach to the meeting
cannot therefore have been that this was the occasion on which
representations should be made
to him. That appears to be a later
construct after the decision had been taken and was challenged on the
grounds that no opportunity
to make representations had been afforded
to the board members.
[44] Assuming
for the present that the board members were entitled to an
opportunity to make representations to the MEC before the
decision to
suspend them was taken, can it be said, as claimed by the MEC in his
answering affidavit that such an opportunity was
afforded them by way
of the meeting on 11 September 2008 and by way of the contents of the
letter from the board dated 10 September
2008 that was handed to the
MEC at the meeting? In his affidavit the MEC submits that these
constitute “a complete answer to
the
audi
argument”.
[45] It emerges from
the evidence summarised above that both at the meeting on 11
September 2008 and in their letter of 10 September
2008, which
incorporated their earlier responses to the forensic report dated 26
July 2008, the members of the board drew to the
attention of the MEC
matters that were pertinent to the question whether they should be
suspended from their duties. In that sense
they undoubtedly did make
some representations to the MEC concerning their suspension. However
to a considerable extent they did
so in a vacuum. They had been
apprised of the contents of the forensic report, which identified as
the potential grounds for their
suspension the non-disclosure of
their interests in various entities. They had responded to that in
some detail on 26 July 2008
and incorporated that response in their
further letter of 10 September 2008. No one had suggested to them
that these responses
were inadequate or insufficient and if so in
what respects. It is noteworthy that in the letter of 10 September
2008 they pointed
out that they had given a detailed explanation in
regard to the allegations made in the forensic report and this had
not attracted
any response from the MEC. Anything they said at the
meeting of 10 September on this topic cannot therefore have taken the
matter
further inasmuch as they were not aware of the true nature of
the MEC’s concerns. Nor did the MEC in his evidence seek to
explain
precisely what those concerns were in relation to the
non-disclosure issue so that the court is left with the situation
where questions
had been raised about the board members’ conduct by
the authors of the forensic report and they had each given an
explanation
before the meeting. Their explanations had not been
challenged and they could not have known that they were regarded as
inadequate,
assuming that to have been the MEC’s view.
[46] Apart from the
non-disclosure issues the forensic report had identified a
substantial array of problems in the operations of
Ezemvelo. None of
these were laid directly at the door of members of the board.
Insofar as the existence of those problems underlay
the decision by
the MEC the board members were largely in the dark over that fact.
They had been asked in the letter of 4 July
2008 to respond generally
to the forensic report and had done so in their own response to the
MEC dated 28 July 2008. They had
asked the MEC for input before
finalising that response but none had been forthcoming. The board
members had drawn a distinction
between the questions raised
specifically in relation to them and the other aspects of the report
that involved the CEO, the executive
management of Ezemvelo and
various staff members. There is no evidence that in the course of
the meeting on 11 September 2008
they were told that the MEC had a
substantial concern about their performance of their oversight
function and that this was a
factor he would take into account in
considering the issue of suspension.
[47] A
major difficulty in dealing with this portion of the case is that
nowhere in his affidavit or in his evidence, did the MEC
state with
any clarity the reasons for his decision to suspend the board
members. He said that the audit report for 2006/2007
was a damning
report and amongst the worst of the annual reports to be given
against an entity.
15
He incorrectly stated that the auditor-general had expressed the
opinion that a sum of R24 million of revenue to the board could
not
be properly accounted for.
16
What the auditor-general in fact said was that the procedures were
insufficient to satisfy him that all cash sales relating to

admissions to Ezemvelo’s reserves were properly recorded. That is
a far cry from saying that the R24 million actually reflected
as cash
sales was not properly accounted for. The point being made by the
auditor-general was that the figure could be higher
not that R24
million had gone astray.
[48] In his
answering affidavit the MEC then turned to deal with the forensic
report. He says that:
‘
The
report concluded without a shred of doubt that the Board was not
managing its affairs in accordance with acceptable standards.’
17
It is not clear
whether this is an inference that the MEC drew from the forensic
report. What is clear is that in the portions
of the report that
have been annexed to the affidavits no such statement by the forensic
auditors is to be found. I mention this
because in both the letter
of suspension and the accompanying media statement the MEC said that
he was affording the members of
the board an opportunity to clear
themselves of the allegations against them, without specifying what
those allegations were. If
they were those in this or the previous
paragraph and they had been squarely presented to the members of the
board they could have
addressed whatever misconceptions underpinned
them. However, as these issues were not identified to the members of
the board and
they were not asked to respond to them it is hardly
surprising that they did not deal with them prior to their suspension
or at
the meeting on 11 September.
[49] In
his answering affidavit the MEC then turned to deal with the chapter
of the forensic report dealing with supply chain management

irregularities. I have already described these and quoted the
relevant portions dealing with the applicants. They relate to the

issues of non-disclosure and doing work for the board and Ezemvelo.
The MEC says that this chapter of the report ‘condemned all
of the
applicants of serious irregularities’. He then annexes a portion
of the report as annexure G and refers to the non-disclosure
of
business interests, the performance of work for the board and
Ezemvelo and the payment of remuneration. The document that is

annexed as constituting this chapter of the forensic report is
extremely cryptic as it merely identifies a number of people
including
the board members, their functions and lists some
forty-five annexures. Whilst the table of contents indicates that it
is at least
fifty-eight pages long, only six pages are annexed to the
application papers. However the MEC does summarise the gist of the
allegations
against the applicants in his affidavit. This summary
deals only with the non-disclosure issue and not any issue concerning
the
quality of their performance of the oversight function. The
individual responses to the non-disclosure allegations were annexed

to the letter of 10 September 2008, having first been sent to the MEC
on about 28 July 2008. That was in accordance with the
recommendations in the forensic report that the board members be
given an opportunity to submit their written explanations for the

non-disclosure of other business interests.
18
The MEC had not responded to these explanations nor does the
evidence show that they were dealt with at the meeting on 11
September
2008 or that it was suggested to the applications that the
explanations were in some way inadequate. The MEC mentions these
responses
in his affidavit
19
but does not otherwise deal with them.
[50] In dealing with
the issue of suspension the MEC’s affidavit concludes as follows:
’
75.
It
is thus clear that I can confirm that I indeed applied my mind to the
question of whether or not to suspend the applicants in
view of the
allegations which have been made against them by the forensic report,
including though not limited to, the issue of
the conflict of
interest – about which they had made representations to me.
76.
As is manifest, the allegations
relating to the provision of services to the Board and/or Ezemvelo
without following procurement
procedures, has nothing to do with the
conflict of interest. To my mind it has everything to do with abuse
or failure to follow
regular procedures in procurement.
77.
I make mention of these matters
simply to demonstrate that I gave consideration to a number of issues
which have a bearing on the
decision I had to make in terms of
Section 12 to the Act. Failure to declare interest was certainly not
the only consideration.
78.
As I have indicated it was
against this background that I had the meeting with the applicants.
79.
At that meeting:-
(a) I advised the applicants
that I was seriously considering suspending them in line with the
Portfolio Committees’ recommendations;
(b) I afforded applicants with
an opportunity to make representations in that particular regard.
Accordingly such representations
were made to me by the applicants;
(c) Annexure “J”, a lengthy
letter dated 10 September 2008 (with annexures), was handed over to
me.
80.
As is plain from annexure “J”
the applicants’ major complaint tended to address concerns around
the validity, propriety or
otherwise of the Portfolio Committees’
recommendations to me.
81.
It did not address the broader
issues of improprieties, irregularities and various other broad
issues of mismanagement of the Board’s
affairs which allegations
were subject of my investigation and concern.
82.
Notwithstanding the
representations made to me by and on behalf of the applicants:-
(a) I decided that the
allegations which had been made against the applicants in the
Deloitte & Touche forensic report were
serious and warranted an
intervention such as was recommended to me by the Portfolio
Committees;
(b) I decided to suspend the
entire Board with the view to further investigate the matter. I
deemed it prudent and in the public
interest to conduct such
investigations while the applicants are on suspension.’
[51] One
qualification to these paragraphs emerged from the oral evidence. It
is that the MEC merely conveyed at the meeting that
he was
considering the portfolio committees’ recommendations, which
carried with it the implication that the question of suspension
was
under consideration. He did not, however, say that he specifically
told the applicants that he was seriously considering suspending

them. Had he done so I have little doubt that the board members
would have insisted on being told on what grounds he was considering

their suspension consistent with the stance they had adopted in the
letter of 10 September 2008 that was handed to the MEC at the

meeting. The overall picture that emerges from these paragraphs of
the MEC’s affidavit and the evidence concerning what transpired
at
the meeting on 11 September 2008, is that the MEC had not identified
with any clarity the matters in the forensic report, other
than the
alleged non-disclosure of interests, that perturbed him insofar as
the members of the board were concerned nor had he
identified with
any clarity the grounds upon which he might consider suspending the
members of the board. In the result these
were not pertinently put
to the members of the board as grounds upon which their suspension
might be justified nor were they asked
specifically to respond to the
matters relevant to that decision. As a result of this lack of
clarity from the side of the MEC
the meeting on 11 September 2008
became an unstructured discussion of issues of concern to the board
members, during the course
of which they undoubtedly touched upon
some of the matters of concern to the MEC, but without any focus on
the critical issue of
what the board members had to say about their
possible suspension and the reasons therefor.
[52] Whilst
there was some discussion at the meeting on 11 September 2008 of some
issues relevant to the decision to suspend the
board members it was
not in my view a hearing on that issue or a reasonable opportunity
for the board members to make representations
as contemplated in
s3(2)(b)(ii) of the Promotion of Administrative Justice Act, 3 of
2000 (PAJA). As s 3(2)(a) of PAJA makes clear
what will constitute a
fair administrative procedure depends upon the circumstances of each
case. However in general in order
to give effect to the right to
procedurally fair administrative action the person affected must be
given adequate notice of the
nature and purpose of the proposed
administrative action; a reasonable opportunity to make
representations and a clear statement
of the administrative action.
Ordinarily the entitlement to make representations will involve an
entitlement to present and dispute
information so as to ensure that
the person making the decision is properly and correctly informed
before doing so. That is hardly
surprising bearing in mind that one
of the grounds upon which the decision of an administrator may be set
aside is because irrelevant
considerations were taken into account or
relevant considerations were not considered.
20
[53] Where
a person has a right to be heard before a decision is taken it is
important that whatever the form of the hearing, the
subject matter
of the hearing or opportunity to make representations is made clear
to the affected parties in order that the right
to make
representations may be effective. The point is illustrated by
Zondi
and Others v Administrator Natal and Others.
21
There
striking workers had been given an ultimatum to return to work by a
fixed date and invited to make representations to an official
stating
why they should not be dismissed for participating in an illegal
strike. The date given in the ultimatum for the return
to work was
thereafter extended as was the date upon which they were to make
representations. When the workers did not respond
to either the
ultimatum or the invitation to make representations letters of
termination were issued to them but in an attempt
to persuade them to
return to work a public statement was made by the respondent employer
that, provided they returned to work
by a particular date, they ‘may
have their letters terminating their employment withdrawn and in
doing so retain their pension
and leave benefits’. That deadline
was then extended from the Friday to the Monday morning and then
again to close of business
on the Monday. As a matter of fact all
workers who reported for duty before this extended deadline had their
letters of dismissal
withdrawn. The appellants, however, only
received the message about the extension when it was too late to
report for work on the
Monday and instead reported for duty when work
started on the Tuesday. The employer refused to withdraw the notices
of termination
already served upon them.
[54] The employer,
the provincial administration, accepted that it was obliged to give
the workers a hearing before dismissing them.
It contended that it
had discharged this obligation by inviting them to make
representations when the original ultimatum was given.
However the
appeal court held that the termination of their employment did not
flow solely from their participation in the original
illegal strike
and non-compliance with the original ultimatum, but from that
together with their failure to return to work before
the extended
deadline at close of business on the Monday. It accordingly held
that the dismissed workers lost their employment
partly because of
their initial participation in the strike and partly because they
failed to return to work by the stipulated
deadline. As far as the
latter factor was concerned the workers adversely affected by it did
not have an opportunity of explaining
why they failed to comply with
the deadline. The failure by the employer to give them an
opportunity to explain why they had not
returned to work before the
deadline, when conceivably they could have advanced reasons that
would have exonerated them from any
blame in not doing so,
invalidated the dismissals.
[55] That case
illustrates the point that in order for a hearing or an opportunity
to make representations to be effective it is
necessary that the
hearing must concern the matters giving rise to the decision and the
opportunity to make representations must
relate to those matters. If
the occasion identified as the opportunity to make representations is
a meeting, but the participants
are unaware that it is intended to
serve the purpose of enabling representations to be made and the
ultimate decision-maker does
not disclose the concerns that might
lead him or her to take an adverse decision, it seems to me that no
opportunity to make representations
has been given.
[56] In
reaching that conclusion I am mindful of the judgment in
Administrator
Transvaal and Others v Theletsane and Others
22
,
which
also involved the dismissal of striking employees in the public
sector and a complaint that they were not afforded any hearing
before
dismissal.
In
that case, the majority of the court held that as the only issue
raised in the application papers was the failure to give workers
any
hearing at all, it was not permissible to decide the case on the
basis that the hearing was not a proper hearing concerning
the matter
of their dismissal. However
a careful
perusal
of
the judgment shows that the reason for the majority taking this view
was that the respondent had been brought to court to meet
a case that
no hearing at all had been held and, in view of the ambiguity in the
affidavits filed on his behalf, it would not be
safe or proper to
consider the case on the basis that a hearing was held but it was
insufficient or related to the wrong issue.
In the present instance
the MEC specifically responded to the case that no opportunity to
make representations had been given
about the suspension of the board
members by identifying the meeting of 11 September 2008 as the
occasion upon which such representations
could be made and the events
at that meeting have been fully canvassed in the course of oral
evidence. In those circumstances
there can be no reason for the
court not to consider whether that meeting, as explained in the
evidence of the witnesses, indeed
constituted an opportunity for the
board members to make representations to the MEC concerning their
possible suspension and the
reasons for it.
[57] I
have also had regard in relation to this aspect of the matter to the
decision of the Constitutional Court in
Masetlha
v President of the Republic of South Africa and Another.
23
There
the majority of the court held that the applicant’s dismissal did
not attract procedural justice but concluded that even
had it done so
he had had ample occasion to respond to the allegations made against
him, because he had at least two meetings with
the minister concerned
at which he was called upon to provide an explanation for the
particular events and his role in it. He
had submitted a written
report and participated in and made submissions regarding an
investigation process set up by the minister.
Thereafter he had been
furnished with a copy of the report and had been advised of the
adverse recommendations made against him.
24
In my view, however, the opportunity afforded to the board members
was considerably less than that afforded to Mr Masetlha. Accordingly

I think the approach by Ngcobo J is applicable in this situation,
where he said:
‘
[203]
Compliance with a duty to act fairly required the President to
convey to the applicant that he was of the view that the relationship

of trust between him and the applicant had broken down irreparably
and that for that reason he was contemplating altering the
applicant’s term of office so as to terminate the appointment
earlier. The applicant should have been given an opportunity to

comment on these matters…
[204]
The applicant should have been consulted not only on the question
whether the relationship of trust had broken down but
also on the
terms and conditions that would apply to the termination of the
contract. The fact that the applicant may have had
little or nothing
to urge in his own defence is a factor alien to the enquiry whether
he is entitled to a prior hearing. It cannot
be an answer therefore
to suggest that a fair hearing could not have made a difference to
the result’.
25
[58] To
sum up therefore, in my view, the meeting of 11 September 2008 did
not constitute a sufficient opportunity for the board
members to make
representations to the MEC concerning their possible suspension and
the reasons therefor, so as to satisfy any
requirement that they be
given a hearing before their suspension was effected. There was no
notice that this was the purpose of
the meeting and such notice is
necessary in order for the persons affected to appreciate the
significance of the meeting.
26
Whilst issues relevant to the question of suspension were
undoubtedly discussed at the meeting the MEC did not identify the
grounds
upon which he was contemplating suspending the members and
accordingly the members of the board were not aware of the gist or
substance
of the case they had to meet.
27
Insofar as the MEC did not find the explanations already furnished
to him by the board members in regard to issues of conflict
of
interest or the forensic report generally satisfactory he should have
identified the nature of his dissatisfaction to enable
them to try
and dispel his concerns. If the MEC was minded to reject their
explanations he should at least have informed them
of why he was so
minded and afforded them the opportunity to overcome his doubts.
28
The consequence of these deficiencies is that the applicants were
not afforded an opportunity before the decision to suspend them
was
made to make representations to the MEC why they should not be
suspended. The MEC pinned his colours to the mast of the proposition

that the meeting of 11 September 2008 served that purpose, but in my
view it did not. The mere fact that some things were said
at that
meeting that had a bearing on the question of suspension does not
convert it into a proper opportunity to make representations
on that
issue. Provided therefore the applicants were entitled to have a
hearing and an opportunity to makes such representations
before they
were suspended they are entitled to relief. It is to that issue that
I now turn.
[59] The applicants
contend that they were entitled to make representations to the MEC
prior to their suspension on the basis that
the suspension
constitutes administrative action as defined in s 1 of PAJA and
therefore attracted the constitutionally guaranteed
right to
procedural fairness that included a reasonable opportunity to make
representations to the decision-maker prior to the
decision being
made and implemented. The respondents contend that neither the
appointment of members to a statutory board such
as this, nor the
suspension or termination of those appointments, constitute
administrative action in terms of PAJA and hence there
was no
entitlement on the part of the applicants to claim a right to make
representations. They were entitled to a decision constrained
by the
constitutional principles of rationality and legality, but no more.
[60] The
lineaments of the enquiry that must now be undertaken are fairly
clearly established. The question whether action taken
by a public
official or authority is administrative is central to the enquiry.
29
The focus of the enquiry is primarily upon the nature of the power
being exercised rather than the identity of the person or body

exercising the power.
30
With the enactment of PAJA the grounds of judicial review of
administrative action have been codified and the cause of action
for
judicial review of administrative action now ordinarily arises from
PAJA.
31
That requires a consideration of the action in question against the
requirements of the definition of ‘administrative action’
in
PAJA. There are seven requirements namely that there must be (i) a
decision, (ii) by an organ of State, (iii) exercising a
public power
or performing a public function, (iv) in terms of any legislation,
(v) that adversely affects someone’s rights,
(vi) which has a
direct, external, legal effect, and (vii) that does not fall under
any of the exclusions listed in s 1 of PAJA.
32
As the judgment in
Grey’s
Marine
makes clear it is a requirement flowing from the definition of
‘decision’ in PAJA that the decision be one of an administrative

nature. In deciding whether a decision is one of an administrative
nature the appropriate starting point
33
is to
determine whether it would constitute administrative action within
the meaning of s 33 of the Constitution.
34
The boundaries between administrative action and other forms of
conduct by organs of state will often be difficult to draw and
this
must be done carefully on a case by case basis having regard to the
provisions of the Constitution and the need for an efficient,

equitable and ethical public administration.
[61] The
requirement that the decision should be of an administrative nature
has been described as ‘something of a puzzle’.
35
In my view it serves two important purposes. Firstly it focuses
attention on the need for the court to determine whether the

particular exercise of public power or performance of a public
function under consideration is properly to be classified as
administrative
action. As the Constitutional Court recognised in
Fedsure,
that task of classification is mandated by the provisions of the
Constitution itself. That does not mean that the former
classification
of administrative powers and functions
36
that was largely discredited and abandoned in our administrative law
even before the advent of the Interim Constitution
37
has now been revived. The present situation is that the Constitution
draws an ostensibly simple distinction between acts that constitute

administrative action and acts that do not and the courts must draw
that distinction or essay that process of constitutional
classification.
The court is required to make a positive decision in
each case whether a particular exercise of public power or
performance of
a public function is of an administrative character.
Thus the determination of what constitutes administrative action does
not
occur by default on the basis that if it does not fit some other
juristic pigeonhole it is administrative action. There needs to
be a
positive finding that particular conduct is administrative action in
order for the power of judicial review under PAJA to
be engaged. That
approach ties in closely with the second purpose which is to make it
clear that the mere fact that an exercise
of public power or the
performance of a public function does not fall within one of the
exclusions in sub-paragraphs (aa) to (ii)
of the definition of
‘administrative action’ does not necessarily mean that the
exercise of public power or performance of
a public function in
question constitutes administrative action. It precludes the
determination of what constitutes administrative
action from becoming
a mechanical exercise in which the court merely asks itself whether a
public power is being exercised or a
public function is being
performed and then considers whether it falls within one or other of
the exceptions. The inclusion of
the requirement that the decision
be of an administrative nature demands that a detailed analysis be
undertaken of the nature of
the public power or public function in
question to determine its true character. This serves in turn to
demonstrate that the exceptions
contained in the definition of
administrative action are not a closed list nor are cases falling
outside those exceptions to be
looked at on the basis that if they
are not
eiusdem
generis
with the exceptions they are automatically to be treated as
constituting administrative action. There is accordingly no
mechanical
process by which to determine whether a particular
exercise of public power or performance of a public function will
constitute
administrative action. That will have to be determined in
each instance by a close analysis of the nature of the power or
function
and its source or purpose.
[62] Before engaging
in that analysis it is best to clear away those elements that are not
in dispute. It is not disputed that
in suspending the members of the
board the MEC was acting in terms of legislation. It is also not
suggested that the suspension
falls within any of the exceptions
enumerated in the definition of administrative action. That left
four matters namely whether
the decision to suspend constituted
administrative action in the sense dealt with above; whether it
involved the exercise of a
public power or the performance of a
public function; whether it adversely affected the rights of the
board members and whether
it had a direct, external legal effect. In
the heads of argument submitted on behalf of the MEC it was accepted
that he was an
organ of State, but that acceptance is inconsistent
with the denial that he exercised a public power or performed a
public function
in the light of the definition of an ‘organ of
State’ in s 239 of the Constitution. That definition provides that
any functionary
exercising a public power or performing a public
function in terms of any legislation is an organ of State.
Accordingly a finding
that a public power is being exercised or a
public function performed is central to the identification of a
functionary as an organ
of State. As a concession of law this is not
binding on the first respondent and it is preferable to decide the
matter unencumbered
by that concession.
[63] In my view the
MEC was clearly exercising a public power in terms of an empowering
provision when he suspended the board members.
The purpose for which
such a suspension is permissible under s 12 of the Act is to enable
the MEC to investigate or consider conduct
that may lead to the
termination of the board member’s appointment in terms of s 11 of
the Act. If one examines the different
sub-sections of s 11 they
reveal that the circumstances in which a member of the board can be
removed from office can be broadly
summarised as being circumstances
where the person concerned is either unable to perform their duties
(sub-sect (a)); is guilty
of conduct that hampers the proper
performance by the board of its functions (sub-sect (b)); or has been
indolent and neglectful
in the performance of his or her duties
(sub-sects (c) and (d)). The MEC is given the power to terminate a
board member’s appointment
in any of those circumstances because
the MEC is the person who bears political responsibility for the
functioning of the board
and Ezemvelo. Such political responsibility
is not simply a responsibility to those who sit in the Provincial
Legislature, but
is a broader responsibility to the public in the
province of KwaZulu-Natal to ensure the proper functioning of the
board in terms
of the Act. There is nothing private or personal
about the exercise of the power of termination in terms of s 11 and
there is
likewise nothing private or personal about the exercise of
the power of suspension under s 12. Both powers are given to the MEC

in the interests of the proper conduct of the affairs of the board
and Ezemvelo. In my view therefore their exercise is plainly
the
exercise of a public power and in exercising those powers the MEC is
an organ of State as defined in s 239 of the Constitution.
[64] The
next question is whether the suspension of the board members
adversely affects their rights. The contention on behalf
of the MEC
is that the only right of which the board members are deprived as a
result of their suspension is their right to receive
a negligible
honorarium consequent upon their attendance at meetings of the board.
In my view that is too narrow a construction
of the concept of
rights that may be adversely affected by the exercise of the public
powers of suspension. Of far greater importance
is that when the
power is exercised the public perception will inevitably be that the
members of the board have been or may have
been guilty of some or
other form of misconduct that renders them no longer fit to serve in
that capacity. The detrimental effect
of such a suspension on the
standing, reputation and dignity of the members of the board is
apparent. In the present case that
is made evident by the terms of
the media release published by the MEC at the time of the suspension.
In it he said that the forensic
report was damning and that it
pointed a finger at the members of the board. Their suspension was
explained on the basis that
it would afford them the opportunity to
‘clear their names’. The protestation that this did not mean
that they were guilty
of any misconduct can hardly have ameliorated
the adverse impact of the suspension on the standing, reputation and
dignity of the
board members. As Mr Nkosi
38
said the impact of the suspension was that people would ask him
whether he had yet accounted for the R24 million.
[65] Under
our Constitution the right to human dignity is one that is inherent
in each person and each person has the right to have
their dignity
respected and protected.
39
In my view the impact that the suspension has on that particular
right is such that one must conclude that the decision to suspend
a
person from their office as a member of the board under the Act
adversely affects that right. There is also an adverse effect
in the
loss of such benefits as accrue to a board member, which consists not
only of the honoraria for attending meetings, which
I accept are
relatively nominal, but also the enjoyment of other benefits, such as
the use of Ezemvelo’s facilities, that would
be valued by board
members in return for the public service they perform as such. Their
suspension as board members not only impacts
upon their reputation,
standing and dignity but it also deprives them of these benefits.
That is sufficient in my view to say
that the decision to suspend
them adversely affects their rights.
[66] The
next requirement for the suspension to constitute administrative
action is that it should have direct, external, legal
effect. That
is an expression that has given some difficulty as appears from the
discussion in
Grey’s
Marine
40
and the academic writers.
41
Whatever difficulties may arise in a different context, in my view
they do not arise in the present case. The suspension directly

affects the board members. It is external to the MEC, who is the
decision-maker, and its legal effect is to impact upon the rights
of
the board members in the manner already discussed as well as
preventing them from performing their lawful functions as board

members in the future. The effect on the board members of the
decision is in my view direct, external and legal in nature. That

makes it a clearer case than
Grey’s
Marine
where a decision was held to have direct, external legal effect where
it affected the rights of a person who benefitted from the

administrative action rather than those challenging the
administrative action. Whilst, speaking for myself, I would have
thought
that the concept of ‘direct, external, legal effect’
related to the impact of the decision on the person seeking to
challenge
it by way of judicial review, that is neither here nor
there in this case where it is plain that the decision impacted on
the rights
of the board members themselves. I therefore hold that
this requirement is satisfied.
[67] That
leaves only the question whether the decision by the MEC is a
decision of an administrative nature. There is little in
the
existing case law to act as a guide in the consideration of this
issue. Decisions that the setting of a rate by a local authority;
42
the establishment of a commission of enquiry;
43
a summary sentencing procedure;
44
the proclamation of a date of commencement for an Act of Parliament;
45
the issue of a search warrant;
46
the cancellation of a commercial contract
47
or the endorsement of an agreement between mini-bus taxi associations
that added nothing to the terms of the agreement
48
do not constitute administrative action are relatively unhelpful
because their contextual setting is so different from the present

case. At most they provide examples of the type of analysis that our
highest courts have undertaken in endeavouring to address
this issue.
What emerges from the cases is that decisions falling in the realm
of the formulation of policy or those described
under the
Constitution as the executive functions of government
49
,
whether at the national or provincial level
50
,
fall outside this sphere of administrative action. However the
implementation of policy, even though it involves the relevant

functionary in making decisions of substantial importance, such as
the determination of the formula under which subsidies provided
for
in the budget are to be paid
51
or possibly the making of regulations that enable the policy to be
put into effect
52
may constitute administrative action despite the policy component
involved.
[68] There
are two cases that at first sight deal with situations that are
analogous to the present one. The one involves the suspension
and
termination of the employment of the head of the National
Intelligence Agency.
53
The other dealt with the question whether the dismissal of an
employee by an organ of State constitutes administrative action.
54
Both cases involved the termination of the services of a person
functioning within either the public administration or an organ
of
State. In both cases the claimant contended that the termination of
their services constituted administrative action and challenged
the
termination on that basis. In both cases the Constitutional Court
held that the termination did not constitute administrative
action.
On the face of it there is therefore a potential parallel between the
termination of the services of Mr Masetlha and Ms
Chirwa and the
suspension, with a possible termination looming, of the appointment
of the board members. It is therefore necessary
to examine the
reasoning of the Constitutional Court in each of those cases.
[69] In
Chirwa
all
the members of the Constitutional Court held that the termination of
the applicant’s employment contract did not constitute

administrative action but for different reasons. The majority
concurred in a judgment by Ngcobo J in which he said the following:
‘[142] The
subject matter of the power involved here is the termination of a
contract of employment for poor work performance.
The source of the
power is the employment contract between the applicant and Transnet.
The nature of the power involved here
is therefore contractual. The
fact that Transnet is a creature of statute does not detract from the
fact that in terminating the
applicant’s contract of employment, it
was exercising its contractual power. It does not involve the
implementation of legislation
which constitutes administrative
action. The conduct of Transnet in terminating the employment
contract does not in my view constitute
administration. It is more
concerned with labour and employment relations. The mere fact that
Transnet is an organ of State which
exercises public power does not
transform its conduct in terminating the applicant’s employment
contract into administrative
action. Section 33 is not concerned
with every act of administration performed by an organ of State. It
follows therefore that
the conduct of Transnet did not constitute
administrative action under s 33.’
Ngcobo
J found support for this conclusion in the fact that under the
Constitution administrative action and labour and employment

relations are subjected to different forms of regulation, review and
enforcement. Furthermore he held that there is nothing in
the
language of s 23 of the Constitution that guarantees to everyone the
right to fair labour practices to indicate that public
sector
employees are to be regulated differently from employees in the
private sector. Whilst in the pre-Constitutional dispensation
our
courts had held
55
that the dismissal of public sector employees is subject to
administrative law, in view of the advent of the Constitution and the

revision of our labour laws to give effect to the fundamental right
to fair labour practices conferred by s 23(1) of the Constitution

Ngcobo J said that it is no longer necessary to treat public sector
employees differently and to confer upon them the additional

protection of administrative law.
56
[70] That
brief synopsis of the reasoning in the majority judgment in
Chirwa
demonstrates in my view that its superficial similarity to the
present case goes no further than skin deep. There are two
substantial
points of difference between that case and the present
situation. The first and obvious one is that we are not dealing with
an
employment relationship. The second, which follows closely upon
it, is that, unlike Ms Chirwa, the board members cannot have resort

to any other constitutionally protected rights in order to protect
their interests and ensure that they are fairly treated. In
the
absence of either the contractual component or the protection
afforded by the Labour Relations Act
57
their situation is different and the reasoning of the Constitutional
Court cannot be applied to them.
[71] Turning
to
Masetlha
,
the applicant was the head of the National Intelligence Agency (the
NIA). In order to secure the termination of his appointment
the
President unilaterally amended the term thereof so that it expired
almost immediately a little more than twenty-one months
before it was
originally due to expire. That decision was challenged on various
grounds including that it constituted unfair administrative
action.
The majority judgment by Moseneke DCJ held that, notwithstanding the
existence of a statutory framework for appointments
to the NIA, the
appointment of the head of the NIA was effected under s 209(2) of the
Constitution. It held that the power of
appointment necessarily
implied a power of dismissal and when acting under s 209(2) the
President was exercising the executive
authority vested in him by s
85(1) of the Constitution as he was performing an executive function
provided for in the Constitution
itself.
58
As such his actions fell within the exclusion contained in
sub-section (aa) of the definition of administration action in PAJA.

That makes the case clearly distinguishable from the present one, as
neither the appointment nor the suspension or termination
of the
appointment of the members of the board constitutes an exercise of
the executive authority of a province in terms of s 125(2)(g)
of the
Constitution. Again, whilst there is a superficial similarity
between the circumstances in
Masetlha’s
case and the situation I am considering there are fundamental
differences that distinguish the two. Accordingly the reasoning that

led the Constitutional Court in
Chirwa
and
Masetlha
to hold that the termination of the applicants’ positions did not
involve administrative action cannot be translated directly
to the
present situation.
[72] In
SARFU
the Constitutional Court drew a distinction between the role of
government, and particularly the executive, in formulating policy
and
its role in the implementation of legislation. The latter it
regarded as an administrative responsibility that will ‘ordinarily’

constitute administrative action. However, that general proposition
must be subjected to close scrutiny in a practical situation.
Much
will depend upon the nature of the legislation. Thus, for example,
the provisions of the Criminal Procedure Act
59
are in daily operation in our criminal courts, but there is little in
that Act that could be said to be administrative action,
whether by
officials of the Department of Justice or by those who staff the
criminal courts. The principal responsibility of government
in
regard to that Act was to bring it into force in the first place –
which was not administrative action
60
- and to consider the need from time to time for the Act to be
amended and updated to meet new circumstances.
[73] Similarly
there are statutes such as the Labour Relations Act and the Companies
Act
61
that merely require the executive to put in place the structures of
the Act such as the Registrar of Companies, the Registrar of
Labour
Relations or the CCMA. It is those functionaries and institutions
that then take responsibility for the implementation
of the
legislation and in doing so their actions may well constitute
administrative action. Thus the conduct of CCMA arbitrations

constitutes administrative action
62
,
but its establishment and the appointment of commissioners may not.
Other legislation involves the establishment of advisory
and
regulatory bodies such as the Financial Services Board
63
or ICASA.
64
The function of the executive in relation to bodies such as these
involves putting in place the structures provided for in the

legislation, but beyond exercising political oversight over such
bodies, which may include the receipt of reports from those bodies,

it has little to do with the day-to-day implementation of the
legislation. The bodies established under the statutes, rather than

the executive, undertake the day-to-day administrative activity under
statutes of that type.
[74] These examples
suggest that the implementation of legislation may take different
forms only some of which will constitute administrative
action and be
subject to judicial review under PAJA. Where one is concerned with
the establishment of statutory bodies and the
function of ensuring
that they can perform their statutory obligations it seems to me that
generally speaking one is not in the
realm of administrative action
as contemplated in PAJA. The steps taken by government to appoint
appropriate persons to undertake
the various functions required by
legislation stand at one remove from and are logically prior to the
ordinary activities involved
in the application and implementation of
that legislation.
[75] I realise that
in some, but not all, of the examples mentioned above the appointment
of functionaries and members of boards
may well result in or take the
form of the conclusion of contracts of employment and that this
introduces both contractual and
labour-related considerations into
the equation. However I mention them as illustrative of a broader
proposition that merely because
something falls under the general
rubric of implementing legislation does not mean that it constitutes
administrative action.
My particular focus is on the question of the
appointment of people, whether under contracts of employment, or as
members of boards
such as the board in the present case, to perform
the functions for which the relevant legislation provides. The
appointment of
the board under the Act in the present case involves a
process of nomination and public consideration of nominees with
statutorily
prescribed qualifications in regard to the board’s
composition. There are many other such boards established under
legislation
in this country. In general terms their purpose is to
involve members of the community, especially those having special
expertise,
in performing supervisory or oversight functions in regard
to certain public activities. The activities in point in the present

case are those of Ezemvelo relating to the promotion of conservation
in KwaZulu-Natal, which include the important public functions
of
managing reserves and resorts dedicated to conservation activities
and the environment. The provincial legislature has deemed
it
appropriate that members of the public selected in terms of s 4 of
the Act and bringing to bear a broad range of expertise in
the area
of conservation and the environment will exercise oversight over the
activities of Ezemvelo. In accepting such appointments
board members
are performing a public service, the point having been well-made that
the small honoraria paid to them and other
benefits that accrue from
their membership of the board, are not commercially related to the
earning powers of the individuals
concerned.
[76] The role of
this process and the part the MEC plays in it is to ensure that the
membership of the board is appropriately qualified
to perform its
functions. The broad policy direction of conservation activities in
KwaZulu-Natal must be determined by the Provincial
Legislature and
the MEC. No doubt in selecting the members of the board the MEC will
bear in mind those policy aims and seek to
choose people who share
that vision and are capable of implementing that broad policy. In
that sense, whilst the appointment of
members of the board does not
have the same constitutional significance as did the appointment of
the head of NIA, it shares some
of the characteristics of that
appointment. The persons appointed must be such that the MEC, who
ultimately bears political and
therefore public responsibility for
their activities, accepts that they are appropriate people to perform
their function and capable
of implementing the policies of his
department in relation to conservation matters. There is much to be
said for the contention
by Mr Mbenenge that the appointment of people
who will oversee the implementation of policy is closely linked to
the determination
of the policy itself and as such the function of
appointing them is not administrative in character, but is closely
linked to the
policy function of government. Bearing in mind that
such boards are commonplace in modern society I am hesitant to accept
that
the process of appointment is administrative action and subject
to judicial review.
[77] The
question is whether the same holds true for suspension and dismissal.
Mr Mbenenge’s submission was that the two go hand-in-hand.
He
pointed out that in
Masetlha
the Constitutional Court held that the power of appointment
necessarily encompassed a power of dismissal, without the need for

that power to be conferred expressly. Accordingly, he submitted, the
fact that the questions of suspension and dismissal are specifically

dealt with in the Act is neither here nor there. They simply serve
to regulate and define a power that would otherwise necessarily
have
vested in the MEC.
[78] There
is force in these submissions but one cannot escape the fact that the
provincial legislature has seen fit in the Act
to circumscribe the
powers of suspension and dismissal of the MEC. This is not a case
such as
Masetlha
where one is dealing with a person heading up an organisation
fundamental to the security of the State and filling a post
recognised
by the Constitution. In those circumstances it is
understandable that the President’s power to terminate the
appointment of
the incumbent may be relatively unfettered, save by
the principle of legality and the requirement of rationality, so that
where
there is a loss of confidence in the incumbent their
appointment can be terminated. Important though conservation and the
environment
are it cannot be suggested that the members of the board
stand on the same footing and this has been recognised by the
legislature
in setting out the basis upon which board members can
have their appointments terminated. They are, broadly speaking,
incapacity,
misconduct or neglect of their duties. A loss of faith
in the members of the board by the MEC is not a ground for
terminating
their appointment unless it arises from one of those
three. As a suspension serves the purpose of enabling the MEC to
investigate
and consider whether to terminate the appointment of a
board member it is likewise not open to the MEC to suspend a board
member
because of a loss of faith in their abilities or even a
breakdown in the relationship between the MEC and the board, unless
the
MEC can point to one or other of the matters set out in s 11 of
the Act.
[79] If
one examines the power of dismissal and the constraints imposed upon
it by s 11 it deals with questions of capacity and
conduct on the
part of the board members. The decision to terminate a board
member’s appointment is taken where they are no
longer able to
perform their function or where they have neglected to perform their
function or where they have performed their
functions or acted in a
way that may be prejudicial to the board and Ezemvelo. In other words
the legislation provides that they
may only be dismissed for cause.
This is quintessentially a matter that requires investigation and
consideration where the individual
concerned may be expected to have
their own perspective and be able to bring facts to the attention of
the decision-maker and arguments
under consideration that may
materially influence a decision under s 11. A consideration of these
issues is similar to the enquiry
that an employer makes into the
conduct, performance or capacity of an employee. It is also similar
to the type of enquiry that
under our common law private bodies, such
as the Jockey Club
65
and churches
66
have long been held obliged to conduct in relation to the discipline
of those subject to their control. It has been held that
under our
common law even prior to our present constitutional dispensation
proceedings of a disciplinary character were required
to be
procedurally fair, whether or not they amounted to administrative
action and whether or not an organ of State was involved.
67
[80] The
type of power being exercised under s 11 is therefore one that in a
variety of fields attracts the ordinary obligations
of administrative
justice and in particular the duty to observe the
audi
alteram partem
maxim. The context in which the power may be exercised is that it
arises in consequence of the MEC’s responsibility for the
affairs
of Ezemvelo. Unlike the decision to appoint board members in the
first instance it has no policy overtones. It is directed
solely at
the ongoing proper functioning of the board. As that is part of the
public administration its character is primarily
administrative and
directed at ensuring that the board and Ezemvelo function properly in
the public interest. Accordingly the
power is to be exercised in the
context of the administration of the board and Ezemvelo. That context
and the nature of the power
itself point in the direction of its
exercise constituting administrative action subject to judicial
scrutiny under PAJA.
[81] In
considering the nature of the power it is also legitimate to consider
the impact of its exercise. That impact falls directly
and
personally on the individual board members. It affects their rights
in the manner already discussed in this judgment and operates
to
their detriment. The classic pre-constitutional statement of the
ambit of the power of judicial review was that of Corbett
CJ in
Traub’s
case
68
where he said:
‘The
maxim [
audi alteram
partem
]
expresses a principle of natural justice which is part of our law.
The classic formulations of the principle state that, when
a statute
empowers a public official or body to give a decision prejudicially
affecting an individual in his liberty or property
or existing
rights, the latter has a right to be heard before the decision is
taken (or in some instances thereafter …), unless
the statute
expressly or by implication indicates the contrary.’
In
giving the majority judgment in
Masetlha
Moseneke DCJ described this as a ‘seminal passage’ and went on to
say that:
‘[75] It
is so that the
audi
principle, or the
right to be heard, which is derived from tenets of natural justice,
is part of the common law. It is inspired
by the notion that people
should be afforded a chance to participate in the decision that will
affect them and more importantly
an opportunity to influence the
result of the decision. It was recognised in
Zenzile
that the power to dismiss must ordinarily be constrained by the
requirement of procedural fairness, which incorporates the right
to
be heard ahead of an adverse decision.’
The
situation confronting the court in this case is different from those
in
Traub
and
Zenzile
in that it does not involve an employment relationship and is also
different from that in
Masetlha
in that it does not involve an appointment in the performance of an
executive function derived from the Constitution to an office

recognised by the Constitution. The position of the applicants falls
somewhere between those two poles. In my view, however,
it is closer
to the employment situation than to the rather special circumstances
of
Masetlha
.
[82] In
our pre-constitutional jurisprudence Milne JA built upon the
foundation laid in
Traub’s
case to draw a distinction between statutory powers which, when
exercised, affect equally members of the community at large and
those
which, whilst possibly also having a general impact, are calculated
to cause particular prejudice to an individual or particular
group of
individuals.
69
In the latter case a right to be heard would ordinarily arise. This
line of approach also favours the contentions of the applicants.

Whilst I am not aware of any case decided prior to 1994 and dealing
with a situation such as the present I think that an application
of
the law as it had then developed would have resulted in the
applicants being entitled to a hearing before their appointments
as
board members could be terminated. Can it be said that in giving a
constitutional right to just administrative action that
would no
longer be the case? I am aware of concerns in the academic writing
that the effect of the definition of administrative
action in PAJA
has been to narrow the scope for judicial review of exercises of
public power. In my view, however, such a construction
of the
concept of administrative action would be inconsistent with the
constitutional purpose of entrenching a right to just administrative

action. It would also be inconsistent with the principles of
transparency and accountability that underlie our public
administration.
70
The Constitutional Court has said that the concept of administrative
action in PAJA must be construed in accordance with the
constitutional guarantee in s 33 of the Constitution and that the
principles of our common law have been ‘subsumed’ under that

provision of the Constitution and ‘inform the content’ of our
administrative law
71
.
Before the Constitution our administrative law tended to be
fragmented and to some degree dependent upon a process of
classification
that was increasingly seen to be artificial and
outmoded. Some progress had been made in decisions of the then
Appellate Division
towards a more coherent framework for
administrative law generally and the exercise of the power of
judicial review in particular.
72
In my view the intention of the Constitution was to draw together
the disparate threads of our administrative law and the circumstances

in which the power of judicial review was available under the
umbrella of a single broad concept of administrative action. In

accordance with the generous construction to be afforded
constitutionally guaranteed rights
73
,
conduct that attracted the power of judicial review under our
previous dispensation will ordinarily be regarded as constituting

administrative action under the present constitutional dispensation.
There will of course be exceptions arising from differences
in the
structure of government and the status of differing levels of
government, as highlighted by the
Fedsure
decision, but in general it seems to me that where the power of
judicial review was available under our previous dispensation the

courts will be slow to construe that conduct as falling outside the
ambit of administrative action under the Constitution and PAJA.
[83] For
those reasons it seems to me that the exercise of the power to
terminate the appointment of a board member under s 11 of
the Act
will constitute administrative action. Is the position any different
in regard to the suspension of a board member under
s 12 of the Act?
In my view the answer is that it is not. The question whether
suspension, as opposed to dismissal attracted
the requirements of
natural justice and an obligation to comply with the
audi
alteram partem
principle was comprehensively considered by Howie J in
Muller
& Others v Chairman, Ministers’ Council, House of
Representatives & Others
74
where
the
learned judge held, for reasons that I find entirely persuasive, that
there is no reason in principle to distinguish between
a suspension
and a dismissal. The correctness of that decision has not
subsequently been challenged and it appears to reflect
current
received wisdom in the field of employment
75
.
It follows that in my view the suspension of the applicants by the
MEC did constitute administrative action in terms of PAJA
and
attracted the obligations of procedural fairness laid down in PAJA.
As set out above in my judgment the MEC did not comply
with those
obligations before suspending the applicants. Accordingly their
suspension was invalid and the applicants are entitled
to the relief
that they claim in these proceedings.
[84] I accordingly
make an order in the following terms:-
(a) That the
decision of the first respondent to suspend the first, second, third
and fifth applicants as members of the KwaZulu-
Natal Nature
Conservation Board is reviewed and set aside.
(b) The appointment
of the third, fourth and fifth respondents as an ‘Interim
Accounting Authority’ of Ezemvelo KZN Wildlife
is hereby reviewed
and set aside.
(c) The first
respondent is to pay the applicants’ costs of this application.
DATES OF HEARING 15, 16, 17
APRIL 2009, 4, 5 MAY 2009
DATE OF JUDGMENT 19 JUNE 2009
APPLICANTS’ COUNSEL MR C.J.
PAMMENTER S C
APPLICANTS’ ATTORNEYS LLEWELLYN
CAIN ATTORNEYS
1
ST
RESPONDENT’S COUNSEL MR S.M. MBENENGE S C with him
MR T.G. MADONSELA
1
ST
RESPONDENT’S
ATTORNEYS STRAUSS DALY INC.
1
S 20(2) of the Act.
2
S 4(6) of the Act.
3
When these proceedings commenced there were five applicants, who
were also the only five people who had been appointed as members
of
the Board. One of them (the fourth applicant) subsequently resolved
his differences with the MEC and is no longer participating
in these
proceedings. However he was a participant along with the other
applicants in all the relevant events and for convenience
I will
continue to refer to the board and its members as including him and
to the applicants also as including him, save where
in the context
of these proceedings it is apparent that he is no longer a
participant.
4
Ss 5(1)(a)(i) and (b) of the Act.
5
Fedsure Life
Assurance Ltd and Others v Greater Johannesburg Transitional
Metropolitan Council and Others
[1998] ZACC 17
;
1999
(1) SA 374
(CC), para 58.
6
The fifth respondent was unable to attend the meeting.
7
The reference in the sections to “the Minister” is a reference
to the MEC and in this judgment I will use the constitutionally

correct description, which is MEC. In addition the reference to
“Parliament” is a reference to the Provincial Legislature
of the
Province of KwaZulu-Natal. Again I will use the constitutionally
correct description.
8
The report by the board
in the financial
statements is signed by Dr Sokhela and says that “the organisation
is a Schedule 3(c) Entity in terms of the
PFMA” and that the board
is the accounting authority. This, along with other references in
the documents to the board being
the accounting authority is
inconsistent with the applicants’ contentions and illustrates why
it is undesirable for the court
to enter upon these issues when it
is unnecessary to do so.
9
Lord Denning MR in
Lewis
v Heffer &others
[1978]
3 All ER 354
(CA) said that: ‘The suspension in such a case is
merely done by way of good administration.’
10
Both have announced that they will stand down at the next election.
11
I put eleven factual propositions to Mr Pammenter in the course of
his address and he accepted all of them and added four more.
Mr
Mbenenge accepted all fifteen and added nine of his own, which were
in turn accepted as correct by Mr Pammenter in reply.
Those
propositions form the basis for the summary of the facts in the
judgment.
12
He was asked in cross-examination: “So would it be correct to say
then that you couldn’t tell them the grounds on which
you were
considering suspending them, because you hadn’t even had the
opportunity to apply your mind to the matter at that
stage?” and
answered “Correct”. (Transcript 212, line 25 to 213, line 3.)
13
Transcript 207, line 13-19.
14
Mr Mthimkulu’s evidence in chief was that whenever one of the
board members spoke of the decision by the portfolio committees
to
suspend them, he corrected them and said that no decision to suspend
them had been taken.
15
Answering affidavit, para 47
.
16
Para 48.
17
Answering affidavit, para 52.
18
These recommendations are set out in paragraph 12 of this judgment.
19
Paragraphs 65 and 66.
20
S 6(2)(c)(iii) of PJA. This was a ground of review recognised by
the common law.
Jacobs
en ʼn Ander v Wacks en Andere
[1991] ZASCA 152
;
1992
(1) SA 521
(A) at 550 E-551 C.
21
1991 (3) SA) 583
(A).
22
[1990] ZASCA 156
;
1991 (2) SA 192
(A).
23
[2007] ZACC 20
;
2008 (1) SA 566
(CC).
24
See para 83 in the judgment of Moseneke DCJ.
25
At p 629 F-I.
26
Zondi v MEC for
Traditional and Local Government Affairs and Others
2005 (3) 589 (CC), para 112.
27
Du Preez and Another
v Truth and Reconciliation Commission
[1997] ZASCA 2
;
1997 (3) SA 204
(A) at 232 C-D;
Chairman,
Board on Tariffs and Trade v Brenco Inc
2001 (4) SA 511
(SCA), para 42;
Tetra
Mobile Radio (Pty) Ltd v MEC, Department of Works and Others
2008 (1) SA 438
(SCA), para 12.
28
The position is similar to that of a board or functionary that
rejects evidence on the basis of its own knowledge or the views
of
other parties of which an applicant is not aware.
Loxton
v Kenhardt Liquor Licensing Board
1942
AD 275
at 289, 295 and 313.
29
Fedsure Life
Assurance Ltd & Others v Greater Johannesburg Transitional
Metropolitan Council & Others
[1998] ZACC 17
;
1999 (1) SA 374
(CC), para 26.
30
President of the
Republic of South Africa & Others v South African Rugby Football
Union & Others
2000 (1) SA 1
(CC), (“SARFU”), paras 141 and 143.
31
Bato Star Fishing
(Pty) Ltd v Minister of Environmental Affairs & Others
[2004] ZACC 15
;
2004 (4) SA 490
(CC), para 25.
32
Grey’s Marine Hout
Bay (Pty) Ltd & Others v Minister of Public Works & Others
[2005] ZASCA 43
;
2005 (6) SA 313
(SCA), para 21 cited with approval in
Chirwa
v Transnet Ltd & Others
[2007] ZACC 23
;
2008
(4) SA 367
(CC), para 181.
33
SARFU,
para 143.
34
Chirwa v Transnet
Ltd,
para 139 quoting
Sidumo & Another v
Rustenburg
Platinum
Mines Ltd & Others
2008 (2) SA 24
(CC) para 202 and
Minister
of Health & Another NO v New Clicks SA (Pty) Ltd & Others
(Treatment Action Campaign & Another as Amici Curiae)
2006
(2) SA 311
(CC).
35
Hoexter,
Administrative
Law in South Africa
,
190. See also de Ville,
Judicial
Review of Administrative Action in South Africa
,
40 and Currie and de Waal,
The
Bill of Rights Handbook
,
5
th
Ed 654-656.
36
As to which see Baxter,
Administrative
Law
, 344 -348
37
Largely as a result of the judgments in
Administrator,
Transvaal & Others v Traub & Others
[1989] ZASCA 90
;
1989
(4) SA 731
(A) and
South
African Roads Board v Johannesburg City Council
1991 (4) SA 1
(A) at 10J-11A.
38
Transcript, p 142.
39
S 10 of the Constitution.
40
Para 23
41
Hoexter, pp 207-209; de Ville, 54-58; Currie & de Waal,
662-663.
42
Fedsure, supra.
43
SARFU, supra.
44
Nel v le Roux NO &
Others
[1996] ZACC 6
;
1996 (3) SA
562
(CC).
45
Pharmaceutical
Manufacturers’ Association of SA and another :In re Ex parte
President of the Republic of South Africa and others
[2000] ZACC 1
;
2000
(2) SA 674
(CC).
46
Thint (Pty) Ltd v
National Director of Public Prosecutions & Others; Zuma &
Ano v National Director of Public Prosecutions
& Others
2009
(1) SA 1
(CC) paras [89] and [90].
47
Cape Metropolitan
Council v Metro Inspection Services (Western Cape) CC & Others
2001 (3) SA 1013
(SCA).
48
Mzamba Taxi Owners’
Association v Bizana Taxi Association & Others
2006 (2) SA 154
(SCA).
49
I use this expression compendiously to include not only the
executive functions specified in the Constitution itself but the

actions of high political office-bearers in the upper tier of
decision-making in government..
50
Ss 85 and 125 of the Constitution.
51
Permanent Secretary,
Department of Education and Welfare, Eastern Cape, & Another v
Ed-U-College (PE)(Section 21) Inc
2001 (2) SA 1
(CC) para 21.
52
Minister of Health v
New Clicks SA (Pty) Ltd
2006
(2) SA 311
(CC) paras 128 and 467.
53
Masetlha v President
of the Republic of South Africa & Another
[2007] ZACC 20
;
2008
(1) SA 566
(CC).
54
Chirwa v Transnet
[2007] ZACC 23
;
2008 (4) SA 367
(CC).
55
In a line of cases leading up to and following upon
Administrator,
Transvaal & Others v Zenzile & Others
1991 (1) SA 21
(A).
56
Paras 143 to 148.
57
Act 66 of 1995.
58
S 85(2)(e) of the Constitution.
59
51 of 1977
.
60
Pharmaceutical
Manufacturers Association of SA & Another: In re Ex Parte
President of the Republic of South Africa & Others
[2000] ZACC 1
;
2000
(2) SA 674
(CC) para 79.
61
61 of 1973 as amended and about to be replaced by the Companies Act
2009.
62
Sidumo & Another
v Rustenburg Platinum Mines Ltd & Others
2008
(2) SA 24
(CC).
63
Financial Services Board Act 97 of 1990.
64
Independent Communications Authority of South Africa Act 13 of
2000
.
65
Marlin v Durban Turf
Club & others
1942
AD 122
; Turner v
Jockey Club of South Africa
1974
(3) SA 633
(A)
66
Theron en andere v
Ring van Wellington van die N G Sendingkerk in Suid-Afrika en andere
1976 (2) SA 1
(A)
67
Hamata v Chairperson,
Peninsula Technikon Internal Disciplinary Committee & others
2002 (5) SA 449
(SCA)
at 462A-B.
68
At 748 G.
69
South African Roads
Board v Johannesburg City Council
1991 (4) SA 1
(A) at 12E-G.
70
S 195(1)(f) and (g) of the Constitution.
71
Pharmaceutical
Manufacturers Association of SA & Another: In re Ex Parte
President of the Republic of South Africa & Others
[2000] ZACC 1
;
2000
(2) SA 674
(CC), paras 33 and 45.
72
This flowed particularly from the judgments in
Traub,
South African Roads Board v Johannesburg City Council
and
Hira v Booysen
1992 (4) SA 69
(A).
73
S v Zuma & Others
[1995] ZACC 1
;
1995 (2) SA 642
(CC),
paras 14 and 15.
74
1992 (2) SA 508
(C).
75
Mogothle v Premier of
the North West Province and another
(2009)
4 BLLR 331
(LC), paras 31-39. It also accords with the views in
relation to office bearers preferred in H W R Wade and C F Forsyth
Administrative Law
,
9 ed, 542-544, concluding at the latter point with the following
statement: ‘In the case of offices, membership, status, and
so
forth … it would seem right to protect the officer or member
against wrongful deprivation of every kind and to accord him
the
procedural rights without which deprivation is not fair and lawful.
Whether he is removable for cause or at pleasure should
make no
difference.”