About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2024
>>
[2024] ZAFSHC 180
|
|
Dichabe v Free State Gambling, Liquor and Tourism Authority and Others (2752/2024) [2024] ZAFSHC 180 (4 June 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable: YES/NO
Of Interest to other
Judges: YES/NO
Circulate to
Magistrates: YES/NO
Case
No.:
2752/2024
In
the matter between:
KENNILWORTH
ITUMELENG
DICHABE
Applicant
And
FREE
STATE GAMBLING,
LIQUOR
First
Respondent
AND
TOURISM AUTHORITY
FREE
STATE GAMBLING,
LIQUOR
Second
Respondent
AND
TOURISM AUTHORITY
THE
CHAIRPERSON OF FREE STATE GAMBLING,
Third
Respondent
LIQUOR
AND TOURISM AUTHORITY
MEC:
ECONOMIC
AND
SMALL BUISNESS
DEVELOPMENT,
Fourth
Respondent
TOURISM
AND ENVIRONMENTAL AFFAIRS,
FREE
STATE PROVINCE
JUDGMENT
BY
:
I
VAN
RHYN, J
HEARD
ON:
31
MAY
2024
DELIVERED
ON:
4 JUNE
2024
[1]
Applicant
approached
this Court on an urgent basis
on Friday,
31 May 2024,
for an order in the following terms:
"1.
That the applicant's non-compliance with the Rules and directives
relating to time periods for filing and service of documents
and form
be condoned and that this application be enrolled and heard on an
urgent application.
2.
That the
first, Second and Third respondents are interdicted from proceeding
with the disciplinary hearing against the applicant,
scheduled
for
5 June 2024,
pending the finalization of the relief sought in Part B hereof.
3
That the relief sought in Part B hereby is postponed
sine die.
4.
That the costs associated with Part A be reserved for determination
in Part B."
[2]
The
applicant is Kennilworth ltumeleng Dichabe, employed as the Chief
Executive Officer ("CEO") of the first respondent,
the Free
State Gambling, Liquor and Tourism Authority (the "Authority"),
a juristic person and a public entity in terms
of schedule 3C of the
Public Finance Management Act
[1]
("PFMA"), established in terms of Section 4 of the Free
State Gambling and Liquor Act
[2]
(the
"Gambling
Act")
.
[3]
The second
respondent
is
the Free State
Gambling, Liquor and Tourism Board (the
"Board"),
a board
appointed in terms of section 4(3) of the Gambling Act to manage and
control the powers and functions of the Authority.
(It appears as if
a typographical error occurred
in the heading
of the papers in that the first and second respondents are cited
exactly the same). The third respondent is the chairperson
of the Board
(the "Chairperson"), cited in his official capacity. No
specific relief is sought against the chairperson.
The fourth
respondent is the Member of the Executive Council for the Department
of Economic and Small Business Development. Tourism
and Environmental
Affairs, Free State Province (the "MEC")
.
The applicant
indicated that the MEC is cited herein as his employer
and no
specific relief is sought from the MEC (save for costs in the event
of opposition of the relief claimed).
[4]
The
application was issued on 17 May 2024 and served upon the
respondents. The Authority, the Chairperson and the Board (referred
to collectively as the "Respondents") filed their notice to
oppose as well as their answering affidavit on 27 May
2024.
The
MEC
filed
a
notice
to
abi
d
e
by
the
decision
of
the
court.
The
respondents disputed the urgency of the matter and prayed that the
applicant's application be struck from the roll for lack
of urgency
with an appropriate cost order. The Respondents
argued that
the urgency in the matter is self- created on the basis that the
applicant was placed on precautionary
suspension on
17 April 2024 pending the finalization of the investigation into
allegations of misconduct against him and any disciplinary
process
that might be taken against him.
The result is
that the applicant became aware of the suspension one full month
prior to issuing the urgent application.
[5]
Mr Mphela, counsel on behalf of the
applicant, indicated that it is not the suspension of the applicant
per se, more specifically
in Part A of this urgent application, that
forms the subject of the relief sought by the applicant. It is not in
dispute that the
applicant was placed on suspension on the 17th of
April 2024. The applicant's primary contention in Part B of the
application is
that the Board's decision to
suspend
him and subject him
to
a disciplinary hearing
are unlawful
because the Board lacks the authority to discipline the CEO, as this
power is exclusively vested in the MEG. (My
underling).
In part A, which is the relief sought
on an urgent basis, the applicant does not seek any relief in respect
of his suspension.
[6]
However,
the suspension of the applicant was followed by the Board's notice on
the 16th
of
May 2024 to attend a disciplinary hearing on 5 June 2024.
On
the 17
th
of May 2024, the following day, the applicant issued the urgent
application. Regarding urgency, the applicant seeks an urgent interim
interdict, interdicting the Board from proceeding with a disciplinary
hearing scheduled to commence on Wednesday, 5 June 2024,
pending
final determination of the relief sought in Part B. The purpose of
the interdict is to protect the applicant from participating
and
submitting
to
a process that is argued to be
prima
facie
unlawful
for want of proper authority. The relief sought in Part B seeks to
vindicate a Rule of Law, which the applicant contends,
is inherently
urgent.
[3]
[7]
To consider
the urgency of this matter, the factual background circumstances
pertaining to the date when the application was issued,
the letter
informing the applicant of the date for the disciplinary
hearing and
the fact that the application was issued the following
day as well as
the
arguments
on behalf
of the parties
were duly considered. After hearing argument in respect of urgency
during the morning of Friday, 31 May 2024, I gave
my ruling that the
matter is urgent where after arguments in respect of the merits of
the application were heard. This is my judgment
on the merits in
respect of the relief sought by the applicant in Part A of the
application.
[8]
On behalf of
the applicant it is contended that he has been appointed by the MEC
as the CEO of the Authority in terms of section
12(1) of the Gambling
Act. The CEO is a member of the Board in terms of section 6 of the
Gambling Act. In terms of the provisions
of section 10 of the
Gambling Act the term of office of a board member may only be
terminated by the MEC. Section 10 furthermore
provides that the MEC
is required to afford a board member an opportunity to state his or
her case before a decision to dismiss
a board member can be made
.
[9]
Mr Mphela
contends that the Board does not feature anywhere in this process and
the section implies that the MEC, and not the board,
has the power to
discipline not only a board member but also the CEO. The disciplinary
process is the first step that may ultimately
lead to dismissal.
Therefore, so the argument goes, the power to discipline should be
exercised by the person who has the power
to dismiss.
[10]
The respondents argued that the
suspension and the subsequent disciplinary proceedings initiated by
the Board are lawful on the
grounds that the Board is acting within
its powers to institute disciplinary proceedings against the
applicant in line with the
following legislative provisions:
10.1
The provisions
of section 51(e) of the PFMA which provides that an accounting
authority for a public entity must take effective
and approporiate
disciplinary steps against any employees of the public entity who-
(i)
Contravenes or
fails to comply with a provision of the PFMA;
(ii)
Commits an act
which undermines the financial management and internal control system
of the public entity; or
(iii)
Makes or
permits an irregular expenditure or a fruitless and wasteful
expenditure.
10.2
Clause 33.1.3
of the Treasury Regulations 2001 provides that if an accounting
authority
or
any
of
its
members
is
alleged
to
have
committed
financial
misconduct, the relevant executive authority must ensure that
appropriate disciplinary proceedings are initiated immediately.
The
said Treasury Regulations 2001 define
"executive
authority"
as meaning a chairperson of a constitutional
institution.
10.3
Section
12(4)(c) of the Gambling Act provides that the responsibility of the
CEO include the day to day operations of the Authority,
which include
reporting on the performance of the Authority, accounting to the
board on operational and financial matters and any
matter referred to
the CEO by the Board.
10.4
On behalf of the
respondents it was furthermore argued that the Board held urgent
board meetings during January 2024 regarding the
reputational damage
to the Board as a result of news circulating on social media. A
report was compiled which incorporated issues
of fraud and
corruption. The report then gave rise to certain decisions, the
charge sheet against the applicant and notice of the
disciplinary
hearing to be held on 5 June 2024. According to the respondents the
applicant clearly accepted that the Board has
a duty of care to
exercise and investigate any wrongdoing by any member of the
Authority, including himself as the CEO.
[11]
For purposes
of the interdictory relief in Part A, the applicant is required to
establish the following grounds before the court
can exercise its
discretion in his favour:
11.1
Urgency, which
was already found to be in
the
applicant's favour.
11.2
The prospects
of success in Part B; and
11.3
The
requirements for an interim
interdict.
[12]
In
Masetlha
v President of the Republic of South Africa and Another
[4]
the
Constitutional Court held that the power to appoint implies the power
to dismiss. The applicant argued that the contention that
the Board
has the power to discipline the CEO in terms of section 12(4)(c) of
the Gambling Act is misplaced.
Section
12(4)(c) of the Gambling Act is not an empowering provision. It
records the CEO's responsibility to account to the Board.
The CEO is
a member of the Board.
Where
a Board member is alleged to have committed financial misconduct
envisaged by the PFMA, section 84 of the PFMA prescribes
a legal
regime and procedure to be followed in disciplining a board member.
The relevant executive authority must initiate an investigation
into
the charges and if the allegations are confirmed, the appropriate
disciplinary proceedings ought to be initiated immediately.
However,
according to the applicant, the board is not the executive authority
of the CEO.
[13]
The applicant
brought a two-part urgent application. In Part A, the applicant seeks
an interim interdict pending the finalization
of Part B of the
application.
Having regard
to the arguments
raised on
behalf of the parties, I am of the view that the applicant has a
reasonable prospect of success in Part B of the application.
[14]
An
interim interdict is a court order preserving or restoring the
status
quo
pending
the determination of the rights of the parties.
[5]
The
dispute in an application for an interim interdict is not the same as
that in the main application, in other words, Part B of
the
application, to which the interim interdict relates. The requirements
for an interim interdict are –
14.1
a
prima
facie
right,
though open to doubt;
14.2
a reasonable
apprehension of imminent harm;
14.3
an
absence of of a suitable alternative remedy.
[6]
14.4
that the
balance of convenience favours the granting of an interim interdict.
[15]
There
is a dispute about whether the Board or, on the other hand, the MEC
has the authority to disicpline the applicant. It therefore
cannot be
said that the applicant has established a clear right. The approach
to be followed in establishing whether an applicant
has established
the requirements were set out in
Spur
Steak Ranches Ltd and
Others
v
Saddles
Steak
Ranch,
Claremont
and
Another:
[7]
"In
determining
whether
or
not
the
applicants
crossed
the
threshold,
the right
relied
upon
for
a
temporary
interdict
need
not
be shown
by
a
balance
of
probabilities,
it
is
enough
if
it
is
prima
facie
established
though
open to some
doubt.
[16]
Even though the
respondents argued that the HR policy and the applicant's employment
contract
empowers
the
Board
to
discipline
the
CEO,
no
specific
paragraphs and/or clauses were referred to by the respondents. The
argument that the Board possess the necessary authority
to discipline
and eventually, if needs be, dismiss the applicant, does not throw
serious doubt upon the case of the applicant.
I do not have to decide
the rights of the parties at this stage. I leave that for
determination in Part B of the application. I
am thus satisfied that
the balance of convenience favours the granting of the interim
interdict.
[17]
In
respect of the requirement that the applicant had to show that he has
no alternative remedy, it should be kept in mind that the
alternative
remedy should be found
to
be
adequate in the circumstances, should be ordinary and reasonable and
should grant similar protection.
[8]
This
requirement should also not be viewed in isolation, but in
conjunction with the other requirements when exercising my discretion
whether or not to grant the interim interdict.
The
interim interdict is in my view the most reasonable and effective
procedure in the circumstances of this matter. The respondents
will
not suffer any prejudice in waiting for the outcome of Part B. I am
of the view that the applicant will be severely prejudiced
if he is
forced to undergo a disciplinary hearing and the disciplinary
proceedings are later declared to be unlawful.
[18]
Having taken
into consideration all the evidence placed before me, I am satisfied
that the respondents are to be interdicted from
proceeding with the
disciplinary hearing scheduled to commence on 5 June 2024 against the
applicant pending the finalization of
the relief sought in Part B.
[19]
The applicant
moves for an order that Part B of the application be posponed
sine
die.
I am
not inclined to postpone the matter
sine die.
The
application is postponed to the unopposed roll to afford the parties
an opportunity to come to an agreement pertaining to the
date for the
hearing of Part B of the application, on the filling of supplementary
affidavits, if any, and heads of arguments by
the parties
.
[20]
In the result
the following order is granted:
1.
The First,
Second and Third respondents are interdicted from proceeding with the
diciplinary hearing against the applicant, scheduled
for 5 June 2024,
pending the finalization of the relief sought in Part B of this
application
.
2.
Part B of the
application is postponed to the unopposed roll of 20 June 2024.
3.
The costs
associated with Part A are reserved for determination in Part 8.
I
VAN RHYN
JUDGE
OF THE HIGH COURT,
FREE
STATE DIVISION, BLOEMFONTEIN
On
behalf of the Applicant:
ADV R B MPHELA
Instructed
by:
RAMPAI ATTORNEYS
BLOEMFONTEIN
On
behalf of the First, Second and Third
Respondents:
ADV K SHOLE
Instructed
by:
STATE ATTORNEYS
BLOEMFONTEIN
[1]
Act
1 of 1999.
[2]
Act
6 of 2010.
[3]
Apleni
v the President of the Republic of south Africa and Another [2017]
ZAGPPHC 656
[2018] 1 All SA 728
(GP) (25 October 2017) at para10.
[4]
2008(1)
SA
566
(CC)
at para 68.
[5]
National
Gambling Board v Premier, Kwa-Zulu Natal and Others 2002 (2) SA 715
(CC).
[6]
Setlogelo
v Setlogelo 1914 AD 221.
[7]
1996(3)
SA 706 (C) at 714E-G
[8]
Chapman's
Peak Hotel v O'Hagans
[2001] 4 All SA 415
(C) at 420.