THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case no: 783/2023


In the matter between:

MEMBER OF THE EXECUTIVE COUNCIL
FOR ECONOMIC DEVELOPMENT, GAUTENG FIRST APPELLANT
GAUTENG GROWTH AND DEVELOPMENT AGENCY
SOC LTD SECOND APPELLANT
and
SIBONGILE VILAKAZI FIRST RESPONDENT
THANDIWE GODONGWANA SECOND RESPONDENT
LENTSWE MOKGATLE THIRD RESPONDENT
DAVID MAIMELA FOURTH RESPONDENT
THEMBISA FAKUDE FIFTH RESPONDENT

Neutral citation: MEC for Economic Development, Gauteng and Another v
Sibongile Vilakazi and Others (783/2023) [2024] ZASCA 126 (17
September 2024)
Coram: DAMBUZA, MOCUMIE, KGOELE and SMITH JJA, and DOLAMO AJA
Heard: 23 August 2024
Delivered: 17 September 2024
Summary: Civil procedure – whether requirements for interim interdict satisfied –
appealability of interim order – order has final effect and disposed substantial portion
of disputes – mootness – whether judgment will have practical effect.

2



___________________________________________________________________

ORDER
___________________________________________________________________

On appeal from : Gauteng Division of the High Court, Pretoria (Nyathi J, sitting as
court of first instance):
1 The appeal is upheld with costs including the costs of two counsel, where so
employed.
2 The order of the high court is set aside and replaced with the following order:
‘(a) The application is dismissed.
(b) Costs shall follow the result of the relief sought in Part B of the notice of motion.’
___________________________________________________________________

JUDGMENT
___________________________________________________________________

Smith JA (Dambuza, Mocumie and Kgoele JJA, and Dolamo AJA concurring):


Introduction
[1] This is an appeal against the judgment of the Gauteng Division of the High
Court, Pretoria (the high court), delivered on 18 May 2023 and granting the
respondents interim relief pending the finalisation of a review application. The first
appellant is the Member of the Executive Council for Economic Development,
Gauteng, (the MEC). The second appellant is the Gauteng Growth and Development
Agency (Proprietary) Limited (the Agency), a company established in terms of the
Gauteng Growth and Development Agency Act (Proprietary) Limited Act 5 of 2003 (the
Act). It s objects are , inter alia, to promote economic growth, enable private sector
investment and to create sustainable employment opportunities in the Province.1 The
respondents were members of the Agency’s board of directors until 24 March 2023,
when the MEC, being of the view that the relationship between her and board
members had irretrievably broken down, terminated their directorships and dissolved
the board.

[2] Aggrieved by the MEC’s decision, the respondents brought an application, inter
alia, for an order reviewing and setting aside the decision. Their notice of motion was

alia, for an order reviewing and setting aside the decision. Their notice of motion was

1 Section 3 of the Gauteng Growth and Development Agency (Proprietary) Act 5 of 2003.

3



structured in two parts, with Part A, inter alia, seeking the suspension of the MEC’s
decision pending the finali sation of the relief sought in Part B, which is the review
application.

[3] The high court (per Nyathi J) found for the respondents and ordered that : (a)
the MEC’s decision to terminate the directorships of the respondents was suspended
with effect from 24 March 2023; (b) the respondents were reinstated as board
members with effect from the same date; and (c) the MEC was interdicted from
appointing any board members in substitution of the respondents. The high court also
ordered the appellants, jointly and severally, to pay the respondents’ costs on the
attorney and client scale. T he punitive costs order was based on a finding that, in
dissolving the board, the MEC was motivated by ulterior purposes.

[4] The appellants contend that the high court failed to consider properly whether
the respondents had established the legal requirements for interim relief and has
impermissibly purported to pronounce finally on issues which fell for decision in the
review application. They appeal against the order with the leave of the high court.

The factual background
[5] The following material facts are common cause. On 1 October 2021, the MEC’s
predecessor, Mr Parks Tau (Mr Tau) appointed the respondents as members of the
Agency’s board of directors for a period of three years in terms of s 8 of the Act. That
section provides that the MEC must appoint a board of directors, consisting of not less
than nine and no more than 12 members. A board member’s term of office is three
years, and he or she is eligible to be reappointed for another term. In terms of s 8 of
the Act, a board member may, however, not serve more than two consecutive terms.
The MEC also appointed the first respondent as the Chairperson of the board. In terms
of s 8(2) of the Act, the MEC also has the power to appoint the Agency’s Group Chief
Executive Officer (the GCEO).

Executive Officer (the GCEO).

[6] By the time that the MEC had replaced Mr Tau as the responsible member of
the executive council, the board had already commenced the recruitment process for
the appointment of a GCEO. That process was purportedly undertaken in terms of the
department’s ‘Transversal Policy on Recruitment and Secondment’ and overseen by

4



the Head of the Department of Economic Development. Upon completion of the
recruitment process , the board submitted a report to Mr Tau recommending the
appointment of the acting GCEO, Mr Simphiwe Hamilton (Mr Hamilton), on a five-year
fixed term contract.

[7] Mr Tau concurred with the board’s recommendation and , on
27 September 2022, he prepared a memorandum to the executive council
recommending that Mr Hamilton be appointment as GCEO. However, before he could
present the memorandum to the executive council, the Premier announced a
reshuffling of the executive council. Mr Tau was removed as MEC of Economic
Development and replaced by the current MEC.

[8] On 10 November 2022, the first respondent, in h er capacity as Chairperson of
the board, met with the MEC to introduce herself, and to brief her regarding
organisational strategy and the profile of the preferred candidate for appointment as
the new GCEO. At that meeting , the MEC informed the first respondent that she
already had a person in mind for the position of GCEO. According to the MEC, that
person would assist her in areas where she considered herself challenged, such as
interacting with investors. The MEC’s preferred candidate was not amongst those who
had been interviewed and shortlisted by the board.

[9] The MEC thereafter sent the profile of her preferred candidate to the first
respondent by WhatsApp. The latter, being of the view that the candidate did not have
the requisite skills and experience, informed the MEC that her preferred candidate did
not meet the minimum requirements for the position. The MEC then undertook to
arrange for her and the first respondent to meet with her preferred candidate,
whereafter they would agree on the way forward. The MEC, however, never arranged
the meeting but inste ad met separately with Mr Hamilton. She told Mr Hamilton that
even though he had been recommended by the board, she preferred the recruitment

even though he had been recommended by the board, she preferred the recruitment
process to start afresh and that he was welcome to apply for the position.

[10] Being of the view that the recruitment process was a matter jointly for the board
and the MEC, the board took offence at the MEC’s intervention and , on
18 January 2023, wrote to her seeking her concurrence in Mr Hamilton’s appointment.

5



The MEC responded on 3 February 2023, expressing the view that the board’s
submission was incomplete since it did not address the risk posed by the former
GCEO’s legal challenge to his dismissal. The board replied that in its view there was
no such risk since the position was vacant and had to be filled to ensure organisational
stability.

[11] The letter that appeared to have precipitated the breakdown in the relationship
between the board and the MEC was penned by the latter on 22 February 202 3. In
that letter the MEC, inter alia, asserted her statutory powers, reminding the board that
the power to appoint the GCEO vested in her , both in terms of the Act and the
Memorandum of Incorporation. The MEC also took the board to task for its attempts
to enlist the concurrence of the Provincial Government (as shareholder) and stated
that in terms of the enabling legislation, she alone exercised the powers of the
shareholder.

[12] She also stated that she would ‘be restarting the process to appoint a GCEO in
line with s 8 of the GCDA Act’. She requested the board to nominate a person to serve
on the recruitment panel which will be responsible for shortlisting, interviewing and
recommending a person to be appointed as the GCEO.

[13] The board replied to that letter on 25 February 2023, apologi sing if the tone of
its letter ‘came across as disrespectful, undermining or an act of defiance ’. It also
stated that the board members had deliberated about the matter and resolved to meet
with her to discuss the differences regarding ‘interpretation and implications’ of her
instruction.

[14] The MEC’s response, on 24 February 2023, was firm and categorical. She was
of the view that there was nothing to discuss since the relevant statutory provisions
are unambiguous regarding her powers to appoint the GCEO. She insisted that her
instructions were therefore lawful. She accordingly ref used the request for a meeting

instructions were therefore lawful. She accordingly ref used the request for a meeting
and asked the board members to provide written reasons, on or before 6 March 2023,
why her lawful instructions could not be executed by the board.

6



[15] After writing to the MEC to explain that the board members’ conduct should not
be construed as an act of defiance against the MEC but merely an attempt to clear
misunderstandings between them, the board again wrote to her on 13 March 2013,
invoking the dispute resolution process provided for in the Shareholders Compact.
While the MEC initially indicated her willingness to engage in the process, she wrote
to the board members, on 22 March 2023, informing them that after having obtained
legal advice, she decided to withdraw the letter wherein she indicated her willingness
to submit to the dispute resolution process. She further informed them that they were
required to submit written reasons, by 17h00 on 23 March 2023, why they should not
be removed as board members.

[16] Only the first, fourth and fifth respondents submitted representations before the
deadline. On 24 March 2023, the MEC wrote to them informing them that she was of
the view that there had been a breakdown of trust, the relationship between her and
the board was no longer functional and she ha d therefore decided to terminate their
directorships. She also wrote to the second and third respondents on the same day
confirming that they had failed to submit representations and informing them of the
termination of their directorships.

[17] It is against the backdrop of the foregoing factual matrix that this Court must
consider the following issues:
(a) Is the order of the high court a ‘decision’ as contemplated in terms of s 16(1)(a) of
the Superior Courts Act 10 of 2013 (the Superior Court s Act), in other words, is the
order appealable?
(b) Has the appeal been rendered moot because the respondents’ terms of office as
board members will expire on 31 September 2024?
(c) And, depending on the findings in respect of (a) and (b), whether the respondents
satisfied the requirements for an interim interdict.

Appealability of the high court’s order

Appealability of the high court’s order
[18] The first issue that I must consider regarding the appealability of the high court’s
order, is the relevance, if any, of a judgment of that court (per Van de Schyff J; case

7



number 2023-032601, delivered on 14 August 2023),2 in an application brought by the
MEC for relief in terms of s 18(2) of the Superior Courts Act for the suspension of the
order pending the finalisation of the appeal. The high court, in addition to dismissing
the application, also declared that ‘[t]he order handed down by Nyathi J on 18 May
2023 is an interim order that does not have the effect of a final judgment’.

[19] While the respondents initially contended that the judgment was dispositive of
the issue of appealability, they understandably did not really pursue that point with any
vigour in argument before us. There is a fundamental reason why that order cannot
bind this Court. It is trite that once leave to appeal to this Court against an order of the
high court has been granted, this Court becomes seized of, not only the appeal but of
all other ancillary issues, including that of the appealability of the order. The order,
having been granted by the high court in the context of s 18 proceedings, is therefore
inconsequential as to the question whether the jurisdiction of this Court has been
engaged. That remains an issue to be determined by this Court in the exerc ise of its
appellate jurisdiction.

[20] The respondents also contend that the high court’s order is ‘classically
interlocutory’ and therefore not appealable. In support of this submission, counsel for
the respondents placed particular emphasis on the fact that the high court’s order was
explicitly stated to be ‘[p]ending the finalization of the review envisaged in Part B of
the notice of motion’ and submitted that the MEC’s decision was merely ‘suspended’
as opposed to ‘set aside. ’ Properly construed in terms of the accepted canons of
construction, the order is manifestly temporary in nature and effect, or so counsel
argued.3

[21] In Zweni v Minister of Law and Order (Zweni), this Court laid down the following
requirements for appealability of an order: (a) the decision must be final in effect and

requirements for appealability of an order: (a) the decision must be final in effect and
not open to alteration by the court of first instance; (b) it must be definitive of the rights

2 MEC responsible for Economic Development, Gauteng v Vilakazi and Others [2023] ZAGPPHC 686.
3 Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] ZASCA 13; [2012] 2 All SA 262
(SCA); 2012 (4) SA 593 (SCA) at para 18.

8



of the parties; (c) and it must have the effect of disposing of at least a substantial
portion of the relief claimed in the main proceedings.4

[22] It is, however, now established law that even if an order does not meet the
Zweni test, a matter may be appealable if it is in the interests of justice that it should
be regarded as such. In United Democratic Movement and Another v Lebashe
Investment Group (Pty) Ltd and Others (Lebashe), the Constitutional Court made it
clear that the ‘interests of justice approach’ is not limited to the Constitutional Court
but applies equally to this Court.5

[23] In Government of the Republic of South Africa and Others v Von Abo, this Court
summarised the present approach to appealability of orders in our law as follows:
‘It is fair to say that there is no checklist of requirements. Several considerations need to be
weighed up, including whether the relief granted was final in its effect, definitive of the rights
of the parties, disposed of a substantial portion of the relief claimed, aspects of convenience,
the time at which the issue is considered, delay, expedience, prejudice, the avoidance of
piecemeal appeals and the attainment of justice.’6

[24] The fact that the interim order was interlocutory to the review application is not
decisive as to appealability.7 In Lebashe, the Constitutional Court explained that:
‘In deciding whether an order is appealable, not only the form of the order must be considered,
but also, and predominantly, its effect. Thus, an order which appears in form to be purely
interlocutory will be appealable if its effect is such that it is final and definitive of any issue or
portion thereof in the main action. By the same token, an order which might appear, according
to its form, to be finally definitive in the above sense may, nevertheless, be purely interlocutory
in effect.’8

[25] Applying these legal principles to the facts of this matter, there can, in my view,

[25] Applying these legal principles to the facts of this matter, there can, in my view,
be little doubt that the order is appealable. First, as I said earlier, the judgment purports

4 Zweni v Minister of Law and Order [1992] ZASCA 197; [1993] 1 All SA 365 (A); 1993 (1) SA 523 (A)
at 532J–533.
5 United Democratic Movement and Another v Lebashe Investment Group (Pty) Ltd and Others [2022]
ZACC 34; 2023 (1) SA 353 (CC); 2022 (12) BCLR 1521 (CC) para 45.
6 Government of the Republic of South Africa v Von Abo [2011] ZASCA 65; 2011 (5) SA 262 (SCA);
[2011] 3 All SA 261 (SCA) para 17.
7 Cyril and Another v The Commissioner for the South African Revenue Service [2024] ZASCA 32.
8 Lebashe para 41.

9



to make final pronouncements regarding virtually all the issues that will fall for decision
in the review application. These relate not only to the rationality of the MEC’s decision
but also her bona fides. Moreover, a punitive costs order was made against her based
on those findings. The judgment thus has the effect of disposing of a substantial
portion of the relief sought in Part B of the notice of motion.

[26] Second, the suspension of the MEC’s decision to dissolve the board and the
reinstatement of the respondents as board members have immediate and substantial
consequences for the second appellant. Apart from the fact that her decision to
terminate the respondents’ memberships of the board has been suspended, she is
also interdicted from appointing other board members in their stead. This undesirable
situation has now endured for more than 18 months. I am accordingly satisfied that
the high court’s order meets all the requisites for appealability enunciated in Zweni and
that, in any event, it is in the interest of justi ce that the appeal be heard. I am
accordingly satisfied that the order of the high court is a ‘decision’ contemplated in
s 16(1)(a) of the Superior Courts Act.

Is the appeal moot?
[27] This appeal was heard on 23 August 2023. It is common cause that the
respondents’ term of office will expire on 31 September 2024. They contend that for
this reason the appeal has become moot and will serve no practical purpose. Any
pronouncement that this Court will make regarding the disputes between the parties
will therefore amount to ‘advisory opinions and abstract propositions of law’.

[28] Mootness is when a matter ‘no longer presents an existing or live controversy’.
The doctrine is based on the notion that judicial resources ought to be used efficiently
and should not be dedicated to advisory opinions or abstract propositions of law, and
that courts should avoid deciding matters that are ‘abstract, academic or
hypothetical’.9

that courts should avoid deciding matters that are ‘abstract, academic or
hypothetical’.9


9 National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs [1999] ZACC
17; 2000 (2) SA 1; 2000 (1) BCLR 39 para 21.

10



[29] The Constitutional Court, in Normandien Farms (Pty) Limited v South African
Agency for Promotion of Petroleum Exportation and Exploitation SOC Limited and
Others,10 held that ‘mootness is not an absolute bar to the justiciability of an issue [and
that this] Court may entertain an appeal, even if moot, where the interests of justice
so require. ’ The Court ‘has discretionary power to entertain even admittedly moot
issues.’11

[30] Factors which guide the exercise of the court’s discretion include:
‘(a) whether any order which it may make will have some practical effect either on the parties
or on others;
(b) the nature and extent of the practical effect that any possible order might have;
(c) the importance of the issue;
(d) the complexity of the issue;
(e) the fullness or otherwise of the arguments advanced; and
(f) resolving the disputes between different courts.’12

[31] In my view , there are various compelling factors in this matter that militate
against a finding of mootness. First, as I explain below, even though the high court’s
order is framed as an interlocutory order, it is final in effect. The high court has finally
pronounced on all the issues that will fall for decision in the review application. Instead
of limiting its enquiry to the issue of whether the respondents have established
reasonable prospects of succe ss in the review, it has effectively and impermissibly
pronounced on the review application. The high court has, inter alia, finally pronounced
on the nature and extent of the MEC’s statutory powers and how such powers should
be exercised by the MEC. That finding has far-reaching implications for the MEC and
her future interactions with the Agency’s board.

[32] Second, and as the appellants’ counsel pointed out, the respondents will, upon
the expiry of their terms of office, become eligible for re-appointment for another term.

10 Normandien Farms (Pty) Limited v South African Agency for Promotion of Petroleum Exportation and

Exploitation SOC Limited and Others [2020] ZACC 5; 2020 (6) BCLR 748 (CC); 2020 (4) SA 409 (CC)
(Normandien Farms) para 48.
11 POPCRU v SACOSWU [2018] ZACC 24; 2019 (1) SA 73 (CC); 2018 (11) BCLR 1411 (CC) para 44;
see also President of the Republic of South Africa v Democratic Alliance [2019] ZACC 35; 2020 (1) SA
428 (CC); 2019 (11) BCLR 1403 (CC) para 17.
12 Normandien Farms para 50.

11



The reasons for the termination of their directorships will no doubt be relevant when
the MEC considers whether to reappoint them.

[33] Finally, the high court found that , in terminating the respondents’ membership
of the board, the MEC has acted maliciously and for ulterior reasons. That finding was
the basis for imposing the punitive costs order. This is also a final decision which will
prejudice the MEC in her defence in respect of the review application. For these
reasons, I am of the view that the judgment of this Court will have a practical effect
and that the matter is consequently not moot.

Discussion
[34] The respondents challenged the MEC’s decision to dissolve the Agency’s board
of directors (communicated to them on 24 March 2023), on the following grounds:
(a) The MEC’s decision was ‘capricious’ and she acted with ulterior motives, namely
that she wanted to impose a candidate of her choice , even though he had not been
shortlisted and interviewed for the position. Her decision was therefore influenced by
bias and is consequently unlawful;
(b) The MEC’s instruction to the board to commence the recruitment process afresh
constituted an abuse of her powers;
(c) The decision was procedurally unfair since they were only given 24 hours to make
representations – that period was unreasonably short in the circumstances;
(d) The MEC interfered in the recruitment process in ‘a corrupt, unethical,
unprofessional manner against governance rules and the law’;
(e) The power to recruit and select the GCEO had been delegated to the Agency in
terms of the Transversal Recruitment Policy. The policy does not usurp the statutory
powers of the MEC but allows the exercise of those powers within a corporate
governance framework that promotes efficiency, transparency and fairness. The
MEC’s unwarranted interference in the recruitment process thus constituted an abuse
of her powers and was consequently unlawful; and

of her powers and was consequently unlawful; and
(f) The decision offends the principle of legality because it was irrational and
unreasonable.

[35] As mentioned, the high court, although being mindful of the fact that it was only
seized with Part A of the notice of motion, nevertheless made substantive and final

12



findings regarding matters which fell for decision in Part B of the notice of motion.
Although it correctly summarised the legal requirements for interim relief, it identified
the ‘central issue to be decided’ as being ‘whether the MEC has the powers to appoint
directors and the CEO ’. It then found that the conduct of the MEC was ‘left wanting’
because she did not obtain the shareholder’s resolution to dissolve the board, thereby
lending credence to the respondents’ assertions that she had ulterior motives;
impermissibly cancelled the dispute resolution process; ignored the involvement of her
predecessor in the matter; and refused to meet with the board on more than three
occasions, thus failing to comply with the shareholder compact.

[36] The high court then found that ‘the inescapable conclusion is that the board has
unbeknown to it, through asserting its independence and by being diligent invited the
wrath of the first respondent, resulting in its demise ’. And, based on its earlier finding
that the MEC was motivated by ulterior motives , and she has behaved in an
‘inordinately harsh and heavy -handed’ manner, the high court expressed its
‘displeasure by way of a punitive costs order’.

[37] There is no indication in the judgment that the high court has given any
consideration to whether the respondents have established the legal requirements for
interim relief. For this reason , it falls to this Court to decide whether, on the facts put
up by the respondents, they were entitled to the interim interdict.

[38] The respondents’ application for interim relief was based on the following
contentions:
(a) They have been affected by the allegations made by the MEC in ‘their various
professional, full -time, and non -executive director roles’ ; they continue to suffer
‘reputational damage’ ; and the termination of their directorships will impact their
economic prospects and opportunities for future appointments in the public or private

economic prospects and opportunities for future appointments in the public or private
sector. They will therefore not be able to obtain substantial redress in due course;
(b) The constitutional rights of the directors have been violated and they had no
alternative but to seek legal protection of those rights;
(c) It is in the public interests that the Agency should be stable and subject to proper
corporate governance and the MEC’s decision has had the effect of destabilizing the
Agency;

13



(d) There was a reasonable apprehension that the MEC would swiftly appoint a new
board. Such an appointment would be invalid and would lead to fruitless and wasteful
expenditure;
(e) The unlawful dissolution of the board has had serious consequences for the second
appellant’s four subsidiaries. As a result of the dissolution , meetings of their risk and
auditing committees had to be cancelled before their risk plans could be finalised in
accordance with the Public Finance Management Act 1 of 1999 , thus creating a
governance crisis; and

(f) The MEC’s decision to terminate Mr Hamilton’s acting appointment before the
expiry of his acting period has had a negative effect on the Agency’s stability.

[39] The requirements for an interim interdict are: (a) a prima facie right, even if it is
open to some doubt; (b) injury actually committed or reasonably apprehended; (c) the
balance of convenience; and (d) the absence of similar protection by any other
remedy.13

[40] An applicant is not required to establish his or her right on a balance of
probabilities. It is sufficient if the right is prima facie established, though open to some
doubt. The proper approach is to take the facts averred by the applicant together with
any facts averred by the respondent and which the applicant cannot dispute. The court
must then consider whether, on the probabilities, the applicant could on those facts
obtain final relief in due course. In other words, an applicant must establish that he or
she has reasonable prospects of success in the main proceedings.14

[41] As explained above, i t is trite that t he approach that a court hearing an
application for interim relief will adopt in considering whether a proper case has been
made out for the relief sought is radically different from that applicable to final relief. In
respect of the latter, the principles enunciated in Plascon Evans Paints (TVL) Ltd v
Van Riebeeck Paints (Pty) Ltd 15 are applicable, meaning that the application is

Van Riebeeck Paints (Pty) Ltd 15 are applicable, meaning that the application is

13 Setlogelo v Setlogelo 1914 AD 221 at 227; Webster v Mitchell 1948 (1) SA 1186 (W) (Webster v
Mitchell) at 1187.
14 Webster v Mitchell at 1189.
15 Plascon-Evans Paints (TVL) Ltd v Van Riebeeck Paints (Pty) Ltd [1984] ZASCA 51; [1984] 2 All SA
366 (A); 1984 (3) SA 623; 1984 (3) SA 620 (AD).

14



effectively decided on the respondent’s version. T he court hearing an application for
interim relief must therefore be cautious not to make any final findings in respect of
issues that will fall for consideration in the main proceedings.

[42] Furthermore, the Constitutional Court , in National Treasury and Others v
Opposition to Urban Tolling Alliance and Others (Urban Trolling Alliance), held that the
prima facie right that an applicant is required to establish is not merely the right to
approach a court in order to review an administrative decision , ‘[i]t is a right to which,
if not protected by an interdict, irreparable harm would ensue. An interdict is meant to
prevent future conduct and not decisions already made.’16

[43] While it was not immediately apparent from the respondents’ founding affidavit
exactly what prime facie rights they sought to assert in the application for interim relief,
during argument, their counsel nailed their colours firmly to the mast of a constitutional
entitlement to a fair procedure. In this regard, their counsel submitted that the 24 hours
allowed for them to provide reasons why their directorships should not be terminated,
was wholly inadequate and unfair.

[44] Section 3(1) of the Promotion of Administrative Justice Act 3 of 2000 (PAJA),
provides that administrative action that materially and adversely affects the rights and
legitimate expectations of any person must be procedurally fair. However, s 3(2)(a) of
PAJA provides that ‘fair administrative procedure depends on the circumstances of
each case ’. In Zondi v MEC for Traditional and Local Government Affairs , the
Constitutional Court held that the overriding consideration will always be what fairness
demands in the circumstances of a particular case.17

[45] Section 3(3) of PAJA provides that , in order to give effect to the right to fair
administrative action, an administrator must give the affected person adequate notice

administrative action, an administrator must give the affected person adequate notice
of the nature and purpose of the proposed administrative action; a reasonable
opportunity to make representations; a clear statement of the administrative action;

16 National Treasury and Others v Opposition to Urban Tolling Alliance and Others [2012] ZACC 18;
2012 (6) SA 223 (CC); 2012 (11) BCLR 1148 (CC) (Urban Trolling Alliance) para 50.
17 Zondi v MEC for Traditional and Local Government Affairs [2004] ZACC 19; 2005 (3) SA 589 (CC);
2005 (4) BCLR 347 (CC) para 114; see also s 3(2) (a) of PAJA and Joseph and Others v City of
Johannesburg and Others [2009] ZACC 30; 2010 (3) BCLR 212 (CC); 2010 (4) SA 55 (CC).

15



adequate notice of any right of review or internal appeal; and adequate notice of the
right to request reasons in terms of s 5.

[46] The respondents’ main complaint regarding the procedure adopted by the MEC
was that the period of 24 hours allowed for representations was unreasonably short in
the circumstances. Although 24 hours may , on the face of it , appear to be a rather
short period for written representations, the abovementioned authorities confirm that
procedural fairness is contextual. Thus, what may be an unreasonably short period in
the context of a particular factual matrix, may well be regard ed as reasonable in
another.

[47] There are various factors that rendered the period of 24 hours eminently
reasonable in the circumstances. First, there had been extensive correspondence
between the parties regarding the very issue in respect of which the MEC required
representations, namely the board’s refusal to comply with her instructions regarding
the recruitment process. The MEC had, in several letters addressed to the board,
expressed her views regarding the applicable statutory provisions and what she
expected from the board. Board members could , therefore, hardly have been under
any illusion regarding the cause of her dissatisfaction. Moreover, it is evident from the
correspondence between the board and the MEC that the former had , on various
occasions, comprehensively addressed the MEC’s assertions regarding their
respective roles in the recruitment process. The board members could, thus, hardly
have reasonably complai ned that they required more time to formulate their
representations.

[48] Second, the first, fourth and fifth respondent did , in fact, submit their written
representations by the stated deadline and it appears from the founding affidavit that
they were able to do so relatively comprehensively. Furthermore, not one of them has
indicated that they would have said more if they had more time . I am accordingly not

indicated that they would have said more if they had more time . I am accordingly not
persuaded that they have been able to prove prima facie rights.

[49] Furthermore, on the common cause facts , the scales had been tipped
comprehensively in favour of the appellants in respect of the other requisites for interim
relief. It is common cause that four directors had resigned and four did not bother to

16



make representations. The directorships of the latter group were also terminated and
they did not challenge the MEC’s decision. Since the Act provides that the board must
have at least nine members at any time, the interim re-instatement of the respondents
was legally inconsequential and had no practical effect.

[50] The high court also failed to consider that the respondents had made serious
allegations of misconduct against the MEC, inter alia, accusing her of corruption. Apart
from the fact they had failed to provide any factual basis for these serious allegations,
it undoubtedly had the effect of further souring the relationship between the parties
and removing any possibility of the level of cooperation which good corporate
governance would demand. The balance of convenience was therefore manifestly in
favour of the appellants.

[51] The respondents also failed to establish that they would suffer irreparable harm
if the interim were not granted. Their claims that they would suffer reputational harm
and that their prospects of future appointments would be prejudiced if they were not
vindicated through reinstatement were exaggerated , if not farfetched . It is common
cause that their directorships were terminated because of the breakdown of the
relationship between them and the MEC and not because of any alleged misconduct
on their part. The only harm that they could possibly have suffered would have be en
financial in nature . There was therefore no reason why they could not obtain
substantial redress in respect of any financial losses that they may be able to prove in
due course.

[52] Finally, the respondents also failed to show that there are reasonable prospects
that they would succeed in the review application. They have conceded that s 8 of the
Act unambiguously vests the power to appoint the Agency’s GCEO and board of
directors in the MEC (and by implication also the power to terminate their

directors in the MEC (and by implication also the power to terminate their
memberships). There is no requirement in the Act that she must enlist the concurrence
of the Provincial Government when exercising those powers. Furthermore, the
respondents’ assertions regarding bias and ulterior motives on the part of the MEC are
bald allegations without any factual bases. The correspondence annexed to their
founding affidavit evince that the MEC terminate d the respondents’ directorships
because they were unable to see eye to eye regarding the recruitment process for a

17



new GCEO; the board refused to acknowledge her statutory powers; and, in her view,
the relationship between her and the board members had broken down irretrievably.
There is no indication in the judgment that the high court considered the respondents’
prospects of success in the review application in the light of these factors . For the
purposes of this appeal, I need not put it any higher than this.

[53] There is another reason why the high court should have refused the interim
relief and it is the following. In Urban Tolling Alliance, the Constitutional Court held that
in deciding whether to interdict the exercise of executive or legislative powers a court
must carefully consider how the interdict will disrupt those functions and thus ‘whether
its restraining order will implicate the tenet of the division of powers ’.18 The Court
further cautioned that:
‘While a court has the power to grant a restraining order of that kind , it does not readily do so,
except when a proper and strong case has been made for the relief and, even so, only in the
clearest of cases.’19

[54] For the reasons set out above , I am of the view that this is not one of those
cases where judicial limitation of exec utive powers can be justified. The high court
should thus have refused the interim relief for this reason also. I am consequently of
the view that the respondents failed to establish the requisites for interim relief and the
appeal must therefore succeed.

Order
[55] In the result I make the following order:
1 The appeal is upheld with costs including the costs of two counsel, where so
employed.
2 The order of the high court is set aside and replaced with the following order:
‘(a) The application is dismissed.
(b) Costs shall follow the result of the relief sought in Part B of the notice of motion.’




18 Urban Trolling Alliance para 65.
19 Ibid.

18




________________
J E SMITH
JUDGE OF APPEAL

19



Appearances

For the appellants: M Sello SC with M E Manala
Instructed by Mncedisi Ndlovu & Sedumedi Attorneys
Johannesburg
Honey Attorneys, Bloemfontein.

For the respondents: M Majozi
Instructed by: Mgeno Mteto Inc., Johannesburg
Kramer Weihmann Attorneys, Bloemfontein.