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[2018] ZALCJHB 186
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Takalani v Sedibeng Water Board (J1361/18) [2018] ZALCJHB 186 (23 May 2018)
Not Reportable
Case No: J 1361/18
In the matter between:
REMBULUWANI TRADEWIN
TAKALANI
Applicant
and
SEDIBENG WATER
BOARD
Respondent
Heard:
8 May 2018
Delivered:
23 May 2018
JUDGMENT
TLHOTLHALEMAJE,
J
Introduction:
[1] The
applicant, Mr Takalani is the current Chief Executive Officer of the
respondent (the Sedibeng Water Board). He was placed
under
suspension, and disciplinary proceedings have since been instituted
against him, which are scheduled to commence on 1 June 2018.
[2]
Takalani approached this Court
on an urgent basis to seek an interim interdict to stay the
disciplinary proceedings pending the
determination of a review
application launched by him on 5 January 2018 in the North
Gauteng High Court (Case number
170/2018). The basis of Takalani’s
review application before the High Court is that the erstwhile
Minister of Water and Sanitation
(The Honourable Mrs NP Mokonyane)
had acted
ultra vires
the Water Services Act
[1]
(‘The WSA) when she appointed or re-appointed members of the
current Board of the respondent. For the purposes of this urgent
application, he contends that the Board’s decisions to suspend
and subject him to a disciplinary enquiry are unlawful and
unconstitutional and ought therefore to be set aside under the
PAJA
[2]
,
or alternatively under section 1(c) of the Constitution of the
Republic.
[3] These
urgent proceeding were launched on 20 April 2018. Prior to
doing so, Takalani had requested a postponement of
the disciplinary
hearing. The application was refused in terms of a ruling issued on
12 April 2018. The respondent had
filed its answering
papers and Takalani has also since filed his replying papers. The
respondent does not take issue with the urgency
of the application,
and it will thus be treated as urgent.
Background:
[4]
The respondent is a state-owned
entity established under section 28 of ‘The WSA’. Section
35
[3]
of that Act provides that the water boards will be governed by a
board consisting of Chairperson and such members as the Minister
may
appoint or re-appoint from time to time. Those appointments are made
in accordance with the provisions of section 3(1) of Schedule
1 of
‘The WSA’, which sets out the procedure for the
recommendation and appointments.
[5] The
respondent is a national government business enterprise as listed in
Schedule 3B of the PFMA and is also the accounting
authority in terms
of section 49(2)(a) of the PFMA. The responsibility of the
respondent as prescribed in the Constitution
and ‘The WSA’
entail acting as an agent of the Department of Water and Sanitation
in the implementation of small and
large-scale projects related to
the provision of water to communities throughout the Republic. It
receives commission from the
Department for work done in terms of its
statutory obligations.
[6]
Section 36 of ‘The WSA’ makes provision for the
appointment of chief executive officers. Takalani was appointed
on
20 May 2014 as the CEO of the respondent in terms of a
fixed term contract of five years. Clause 2 of that contract
accords
Takalani an option of an automatic renewal for a further five years.
Section 51(1)(e) of the PFMA obliges the board as
the accounting
authority to take appropriate disciplinary steps against its
employees where there are allegations of contraventions
or failures
to comply with the provisions of that Act; or where employees commit
acts which undermine the financial management
and internal control
systems of the board; or where they make or permit irregular
expenditures or fruitless and wasteful expenditures.
[7] In
August 2017, the Chairperson of the respondent and deponent to
the answering affidavit (Matshedisho David Dikoko), received
an
anonymous letter in which allegations of misconduct/irregularities
were made against Takalani. The allegations of misconduct
were tabled
at a board meeting convened by Dikoko where Takalani was invited on
18 August 2017. Following deliberations
by the board
members, a decision was taken to place Takalani on indefinite special
leave with immediate effect pending investigations
into the
allegations.
[8] On
11 October 2017, and following requests by Takalani’s
attorneys of record, correspondence was sent to his
attorneys
detailing the nature of the allegations against him. These were based
on the findings and reports of two independent
forensic investigating
entities (Open Water Advanced Risk Solutions (Pty) Ltd and Entsika
Consulting Services (Pty) Ltd) made available
in October and
November 2017. Takalani was issued with a notice of intention to
suspend him and was requested to make representations.
He was
thereafter placed on official suspension with effect from
12 December 2017.
[9] The
respondent thereafter decided to institute disciplinary proceedings
against Takalani and another employee, Lebitso, with
whom it was
alleged he had conspired in the acts of misconduct alleged. Those
proceedings were driven by its attorneys of record,
Waks Silent Inc.
Retired Supreme Court of Appeal Judge Nugent JA was appointed as
chairperson of the disciplinary enquiry. A formal
‘charge
sheet’ was issued setting out the nature of allegations against
Takalani and Lebitso. The allegations of irregularities
related to
fraud, nepotism, corruption, bribery and abuse of power, and involved
amounts between R275 million and R292 million.
[10]
Flowing from a pre-arbitration meeting held on 9 April 2018
before Nugent JA, Takalani as represented by counsel
had made it
clear that he was willing to face the disciplinary enquiry and did
not object to the presiding officer. His main contention
however was
that the disciplinary action had to be constitutional and lawful. In
his view, the board was not entitled to institute
those proceedings
against him and he therefore sought a postponement of the
disciplinary proceedings (A notice in that regard had
been issued on
6 April 2018). The application was opposed. Arguments and
written heads of argument were presented, and
Nugent JA refused the
application in a ruling issued on 12 April 2018 with full
reasons.
The
legal framework:
[11]
It being common cause that the
disciplinary proceedings had commenced but for the fact that an
application for a postponement was
made and refused, it is accepted
that this Court as confirmed by the Labour Appeal Court in
Booysen
[4]
has jurisdiction to intervene in uncompleted disciplinary
proceedings.
[12]
The jurisdiction of the Court
is nonetheless not open ended, as the intervention in uncompleted
proceedings is dependent upon whether
‘exceptional
circumstances’ exists, in the sense that a grave injustice
would result if the Court refused to intervene
[5]
.
[13]
It was submitted on behalf of
Takalani that in circumstances where there is a pending challenge to
the legality and/or the constitutionality
of disciplinary proceedings
and the requirements of an interim interdict had been met, this court
had on numerous occasions confirmed
the existence of exceptional
circumstances
[6]
.
Central however to such interventions is the Court’s discretion
in determining whether the uncompleted disciplinary hearings
should
be stayed, considering whether it would be in the interests of
justice to grant such an order.
[14]
The requirements for interim
relief and principles applicable in that regard were succinctly set
out by Landman J in
Gross
Border Development Consultants (Pty) Ltd v MEC: North West Provincial
Government: Department of Local Government and Human
Settlements and
Others
[7]
.
To do justice to Landman J’s exposition, it would be sensible
to quote paragraph 20 of the judgment at length, where
the following
was stated;
‘
[20]
I have distilled from the
OUTA
[8]
judgment
the following elements and consideration regarding the test for
interim interdicts where a temporary restraint or
interdict is sought
against the exercise of statutory power well ahead of the final
adjudication of a claimant’s case and
I have added some of the
rules regarding a court’s discretion in this context:
(a)
The test is the
well-known test set out in
Setlogelo
v Setlogelo
1914
AD 221
,
Webster
v Mitchell
1948
(1) SA 1186
(WLD)
and
Gool v
Minister of Justice and Another
1955
(2) SA 682
(CPD). See
also
Molteno Brothers
and Others v South African Railways and Others
1936 AD 321
at 329 and 331;
(b)
The test requires that an
applicant that claims an interim interdict must establish (a) a prima
facie right even if it is open to
some doubt; (b) a reasonable
apprehension of irreparable and imminent harm to the right if an
interdict is not granted; (c) the
balance of convenience must favour
the grant of the interdict and (d) the applicant must have no other
remedy;
(c)
‘
Courts grant
temporary restraining orders against the exercise of statutory power
only in exceptional cases and when a strong case
for that relief has
been made out.’ Beyond the common law, separation of powers is
an even more vital tenet of our constitutional
democracy. This means
that the Constitution requires courts to ensure that all branches of
Government act within the law. However,
courts in turn must refrain
from entering the exclusive terrain of the Executive and the
Legislative branches of Government unless
the intrusion is mandated
by the Constitution itself;
(d)
The test must be applied
cognizant of the normative scheme and democratic principles that
underpin our Constitution. This means
that when a court considers
whether to grant an interim interdict it must do so in a way that
promotes the objects, spirit and
purport of the Constitution;
(e)
If the right asserted in
a claim for an interim interdict is sourced from the Constitution it
would be redundant to enquire whether
that right exists;
(f)
When a court weighs
up where the balance of convenience rests, it must consider the
probable impact of the restraining order on
the constitutional and
statutory powers and duties of the state functionary or organ of
state against which the interim order is
sought;
(g)
The balance of
convenience enquiry must now carefully probe whether and to which
extent the restraining order will probably intrude
into the exclusive
terrain of another branch of Government. The enquiry must, alongside
other relevant harm, have proper regard
to what may be called
separation of powers harm;
(h)
A court must keep in mind
that a temporary restraint against the exercise of statutory power
well ahead of the final adjudication
of a claimant’s case may
be granted only in the
clearest
of cases
and after a
careful consideration of separation of powers harm. It is neither
prudent nor necessary to define ‘clearest of
cases’.
However, one important consideration would be whether the harm
apprehended by the claimant amounts to a breach of
one or more
fundamental rights warranted by the Bill of Rights.
(i)
Under the
Setlogelo
test, the prima facie right a claimant must establish is not merely
the right to approach a court in order to review an administrative
decision;
(j)
The prima facie right is
thus a right to which, if not protected by an interdict, irreparable
harm would ensue;
(k)
An interdict is meant to
prevent future conduct and not decisions already made;
(l)
Apart from the right to
review and to set aside impugned decisions, the applicant must
demonstrate that the prima facie right that
is threatened by an
impending or imminent irreparable harm. The right to review the
impugned decisions does not require any preservation
pendente
lite
;
(m)
There must be an
alignment between the decisions the applicant seeks to review, and
the source of the harm feared;
(n)
A court must be satisfied
that the balance of convenience favours the granting of a temporary
interdict. It must first weigh the
harm to be endured by an applicant
if interim relief is not granted as against the harm a respondent
will bear, if the interdict
is granted. Thus, a court must assess all
relevant factors carefully in order to decide where the balance of
convenience rests;
(o)
A court must respect the
separation of powers and thus as set out in the
International
Trade Administration Commission v SCAW South Africa (Pty) Ltd
[2010]
ZACC 6
’
2012
(4) SA 618
(CC)
;
2010 (5) BCLR 457
(CC)
and
Doctors for Life
International v Speaker of the National Assembly and Others
[2006] ZACC 11
;
2006 (6) SA 416
(CC)
;
2006 (12) BCLR 1399
(CC):
‘Where
the Constitution or valid legislation has entrusted specific powers
and functions to a particular branch of government,
courts may not
usurp that power or function by making a decision of their
preference. That would frustrate the balance of power
implied in the
principle of separation of powers. The primary responsibility of a
court is not to make decisions reserved for or
within the domain of
other branches of government, but rather to ensure that the concerned
branches of government exercise their
authority within the bounds of
the Constitution. This would especially be so where the decision in
issue is policy-laden as well
as polycentric.’
(p)
Organs of state are
not immunised from judicial review only on account of separation of
powers;
(q)
The exercise of all
public power is subject to constitutional control. In an appropriate
case an interdict may be granted against
it if the review court in
due course were to find that the organ of state acted outside the law
then it is entitled to grant effective
interdictory relief if the
decisions are contrary to the law and thus void;
(r)
In evaluating where the
balance of convenience rests, a court must recognise that it is
invited to restrain the exercise of statutory
power within the
exclusive terrain of the Executive or Legislative branches of
Government. It must assess carefully how and to
what extent its
interdict will disrupt executive or legislative functions conferred
by the law and thus whether its restraining
order will implicate the
tenet of division of powers. Whilst 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 out for the relief and, even
so, only in the clearest
of cases;
(s)
A court must carefully
consider whether the grant of the temporary restraining order pending
a review will cut across or prevent
the proper exercise of a power or
duty that the law has vested in the authority to be interdicted.
Thus, courts are obliged to
recognise and assess the impact of
temporary restraining orders when dealing with those matters
pertaining to the best application,
operation and dissemination of
public resources. What this means is that a court is obliged to ask
itself not whether an interim
interdict against an authorised state
functionary is competent but rather whether it is constitutionally
appropriate to grant the
interdict; and
(t)
When the requirements for
an interim interdict are met the court has a discretion to refuse to
grant an interim interdict even should
the requirements be met where
the interests of justice require that an interdict be refused. See
Knox D’Arcy Ltd
v Jamieson
[1996]
ZASCA 58
;
1996
(4) SA 348
(A)
at 361-362.
Evaluation:
[15]
Takalani has indeed instituted
review proceedings before the High Court, to
inter
alia
, challenge the
legality and constitutionality of the decision to suspend and
institute disciplinary proceedings against him. The
issue nonetheless
remains whether he has satisfied the requirements of the relief he
seeks, and whether the facts of his case establish
‘exceptional
circumstances’. It should nonetheless be borne in mind that
even if all the requirements of the relief
sought may have been
established, the court may within its discretion still refuse to
grant the relief, on the grounds that “…
the
Court is entitled to have regard to a number of disparate and
incommensurable features in coming to a decision”.
[9]
Have
the requirements of interim relief been established?
[16]
Contrary to Takalani’s
reliance on the proposition in
Golding
that that he had demonstrated a
prima
facie
right simply on the
basis that he had instituted an application to challenge the legality
of the disciplinary proceedings against
him and that such an
application was pending, the legal position however as clarified in
South African Informal
Traders Forum and Others v City of Johannesburg and Others
[10]
and
further confirmed in
OUTA
is that a pending review does not in itself establish a
prima
facie
right, but that
such a right may be established by showing prospects of success in
the review application.
[17]
In any event, my reading of the
Golding
judgment
does not indicate that the Court in that case concluded that a mere
pending review invariably demonstrated a
prima
facie
right. At most, the
Court in
Golding
appreciated that in the light of the denials by the respondent in
that case, there were material dispute of facts which were not
for
that court to determine. Paragraphs [4] and [14] of that
judgment as relied upon in Takalani’s heads of argument
do not
support his contentions
[11]
.
One cannot quarrel with the orbiter and final decisions relied upon
by Takalani in the two
IMATU
cases referred to. These
decisions as correctly pointed out by the respondent’s counsel
are distinguishable on the facts.
Furthermore, on the strength of the
decision in
South African
Informal Traders Forum and Others v City of Johannesburg and
Others
[12]
,
these decisions do not
support the contention that a mere application for a review is
sufficient, particularly in the light of other
considerations to be
taken into account as shall be illustrated in this judgment.
[18] To
the extent that Takalani contended that he had reasonable prospects
of success with his review application before the High
Court, his
further contentions that he had established a
prima facie
right are grounded on the following;
18.1
On 14 December 2014, the then Minister issued a memorandum
titled
‘
Administrative Procedure for Appointing Members of
Water Boards’.
In the memorandum, the Minister adopted a
procedure for the appointment of boards which was to be used instead
of the statutory
procedures outlined in section 3 of Schedule 1 of
the Water Services Act.
18.2
Takalani’s contentions are that as is apparent from the
memorandum, the
Minister sought a different administrative procedure
for the appointment of boards as the one in Schedule 1 appeared to be
time
consuming, costly and susceptible to manipulation to influence a
particular income. To that end, the Minister had re-appointed the
board without following procedures, and further based on a memorandum
sent to her on 6 April 2017 by the Director-General
of the
department.
18.3
In the latter memorandum, the Director-General recommended that since
a full
complement of the board required 10 people, there was a
vacancy as a result of the death of one member, and that the Minister
should
reappoint six of the then ten non-executive directors who were
currently serving in the board for a further period of four years
in
terms of section 35(2) and sections 1 and 2 of Schedule 1 of the
Water Services Act. Of the four remaining vacancies, the
Director-General
had further recommended that they be obtained from a
reserve list of the Department. It was then recommended that the
Minister
should sign the letters attached to the memorandum to inform
members of their reappointment and non-reappointment.
18.4
On 6 April 2017, and on the same day of receipt of the
Director-General
recommendations, the Minister addressed letters to
old and new members informing them of their reappointment and
non-appointment.
This was notwithstanding the fact that the Minister
had only approved the Director-General’s recommendations on
6 July 2017,
some two months after the letters were issued.
[19]
It is trite that that the
exercise of public power which is at variance with the principle of
legality is inconsistent with the
Constitution itself and is thus
invalid
[13]
.
In summary, Takalani contends that in appointing and reappointing
members of the board in the manner that she did, the then Minister
failed to follow peremptory procedures. He contended that on a
contextual and constitutional interpretation of the provisions of
section 3(1) of Schedule 1, the Minister still failed to follow the
required procedures, and that the procedure followed by her
was
irrational, arbitrary and thus unlawful.
[20] The
respondent nonetheless refutes Takalani’s contentions, and
submitted that by virtue of his position as CEO, he was
obliged to
ensure that proper administrative and legal processes were followed
in relation to the appointment of board members.
It was argued that
in any event, his review application was premised on or arose out of
his own failure to comply with his obligations
as CEO under section
3(3) of the Water Services Board Act.
[21] It
was further submitted on behalf of the respondent that for Takalani
to have demonstrated a
prima facie
right, he would have to
further demonstrate that the Minister’s appointment of the
board would be held to have been invalid
(which he had not); that the
appointment of the board would accordingly be set aside; that the
decision to institute disciplinary
proceedings against him would be
set aside; and that on a balance of probabilities, the continuation
of the disciplinary proceedings
would result in a serious injustice
to him.
[22]
It was also submitted that even
if this Court were to find that there are
prima
facie
grounds for finding
that the Minister’s appointment of the board was invalid, that
was not the end of the matter, as that
finding would not in any event
axiomatically and immediately set aside all decisions made by the
board, including the decision
to subject him to discipline. In this
regard, it was argued that the setting aside of the Minister’s
decision would not result
in the appointments being set aside or a
declaration that all its decisions be found to be null and void. It
was argued that on
the contrary, once a declaration of invalidity was
to be made, the court would be enjoined by common law principles
relating to
legality and in terms of section 8 of PAJA, to consider
what would be a just and equitable order to be made under the
circumstances
[14]
.
[23]
Takalani is required to
establish a right
prima
facie
,
albeit
open to some doubt. That
prima
facie
right need not
however be clear
[15]
.
This is linked to whether Takalani has prospects of success with the
review application before the High Court. In determining
whether
Takalani has prospects of success with his review application, and to
the extent that the appointment/re-appointment of
the current board
may be found to have flouted every statutory and constitutional
imperatives, a few observations need to be made;
23.1
The respondent’s defence
to the legality of the appointments of the board can at best be
described as half-hearted and at
worst, muted. This is unsurprising
in the light of the current Minister and the Director-General having
withdrawn their opposition
to Takalani’s review application
that is pending before the High Court. Any challenge in that regard
is further dampened
by the concessions made before Nugent JA by the
respondent’s counsel when the application for a postponement
was argued,
to the effect that
prima
facie
, the appointments
made by the erstwhile Minister were irregular and thus invalid
[16]
,
albeit
it was argued that the enquiry nonetheless did not end at that point.
23.2
The
prima facie
view that the appointments were irregular and
thus invalid did not however dispose of the matter before Nugent JA,
and correctly
so. Takalani in his written heads of argument and the
submissions made by his counsel at these proceedings nonetheless take
the
view that Nugent JA’s approach that the review court may as
a matter of course, preserve the validity of the board’s
decisions is incorrect as a matter of law.
23.3
It was argued that Nugent JA’s approach in refusing a
postponement was
‘manifestly incorrect’ as it in effect,
required Takalani to establish that his review application would be
entirely
successful, thus requiring of him to demonstrate 100%
prospects of success, which is a far more stringent approach, which
by definition
is open to doubt.
23.4
The contentions made on behalf of Takalani are nonetheless misplaced
and unsustainable
both in law and fact. For the moment, I will
discount the fact that Nugent JA’s ruling is not the subject of
the application
before the Court. It has already been pointed out
elsewhere in this judgment that authorities referred to do not
support the proposition
that all that an applicant has to show is
that the disciplinary proceedings are unlawful for interim relief to
be granted. The
matter does not end with that finding or declaration
of unlawfulness.
23.5
An ultimate finding that the
disciplinary proceedings were unlawfully constituted can only come
from a similar finding that the
appointment of the board was
irregular, unconstitutional and invalid. One cannot separate the two
findings as they are intertwined,
particularly when one has regard to
Takalani’s Notice of Motion before the High Court and the
prayers sought. If Takalani’s
approach was to be sustained,
this would imply that upon a declaration of invalidity of the
appointment of the board in the High
Court, he can go back to work
and continue with his duties as if nothing happened. This however is
legally untenable in the light
of the authorities referred to and
further in the light of the serious allegations against him, and the
nature of the disciplinary
proceedings scheduled. Nugent JA made that
observation in his ruling by stating that the orders of invalidity
sought by Takalani
in the review proceedings were sought without
qualification, the effect of which would be to nullify the
disciplinary instituted,
if it were to occur
[17]
.
23.6
The setting aside of the appointments made by the erstwhile Minister
has far-reaching
consequence, and it does not simply imply that the
disciplinary charges would fade away. Equally so, it would not
necessarily imply
that all other decisions taken by the impugned
board would automatically be set aside. That approach is
unsustainable based on
the provisions of section 172(1)(i) and (ii)
of the Constitution of the Republic, as correctly referred to by
Nugent JA in his
postponement ruling.
23.7
Nugent JA in the postponement
ruling had also referred to the apex court’s decision in
Democratic Alliance v
President of South Africa
[18]
for the proposition that in applying the provisions of section
172(1)(b) of the Constitution, the courts, despite declaring any
law
or conduct as inconsistent with the Constitution and thus invalid,
may nonetheless ameliorate the consequences by making an
order that
is just and equitable. Such an order may include limiting the
retrospective effect of the declaration of invalidity
and/or, making
an order suspending the declaration of invalidity for any period and
or any condition, to allow the competent authority
to correct the
defect.
23.8
That approach as contended for
by the respondent was further followed in
Atwell
Sibusiso Makhanya v The Minister of Water Affairs and Sanitation &
others
[19]
and in
Bengwenyama Minerals
(Pty) Ltd and Others v Genorah Resources (Pty) Ltd and Others
[20]
.
It is also in line with the principles established in
OUTA
as explained by Landman J in
Gross
Border Development Consultants (Pty) Ltd,
that the test where interim relief is sought must be applied
cognizant of the normative scheme and democratic principles that
underpin our Constitution, meaning that when a court considers
whether to grant an interim interdict, it must do so in a way that
promotes the objects, spirit and purport of the Constitution.
23.9
A preservation of the
invalidity type of order is therefore one of the various options
available to the High Court when considering
the review application,
in the light of the impact of any declaration of invalidity of the
appointment of board, the impact on
decisions already taken, and
other considerations as listed in the respondent’s heads of
argument
[21]
,
and as further highlighted by Nugent JA in his ruling
[22]
.
23.10
The seriousness of the
allegations that Takalani has to answer to cannot equally be ignored.
These possibilities are outlined bearing
in mind what was stated in
OUTA
[23]
,
that where an interim
interdict is sought pending the institution and finalization of a
review application, the court hearing
the application for an interim
‘need not determine the cogency of the review grounds’,
and that it would not be appropriate
to usurp the pending function of
the review court and thereby anticipate its function.
23.11 I
therefore fail to appreciate the circumstances under which the review
Court, once it had made
a finding of invalidity, may on the facts of
this case be influenced to take a different view from that of the
apex court in respect
of its remedial powers.
23.12
There is therefore no merit in the submissions made on behalf of
Takalani that the issue of
the manner in which the review court may
or may not ultimately exercise its remedial powers is irrelevant to
the issue of whether
the applicant had established
prima facie
right.
23.13
Inasmuch as Takalani acknowledged and appreciated that the review
court may indeed suspend the
declaration of invalidity for a
reasonable period to allow the Minister to appoint a board lawfully,
in the same vein, he holds
the view that the circumstances of his
case give him immunity from that declaration. This however cannot be
correct as ultimately,
what he contends is for the ultimate setting
aside of the disciplinary process against him despite his contentions
that he wants
his day at the disciplinary enquiry. It gives little
comfort to the respondent for Takalani to go back to work as if
nothing has
happened and for him to continue in his position until a
new board is appointed.
23.14 It
is further apparent from the pleadings that Takalani in more ways
than others as correctly
argued on behalf of the respondent appears
to seek to benefit from his own dereliction of duties as CEO. In his
pleadings and heads
of argument, he had at length, referred to the
provisions of section 3 of Schedule 1 of the Water Services Board
Act. Significant
with those provisions is that in terms of section
3(1) of Schedule 1, once the Minister had required a water board to
constitute
a selection panel to recommend persons for appointment as
members of a board, the CEO must publish a notice calling for
nomination
in two media of his or her choice, which notice must set
out a variety of factors. In terms of section 3(7), the CEO is
supposed
to be part of the selection panel.
23.15
Takalani nonetheless complains of all of these and other procedures
not having been followed
as the Minister had merely rubber-stamped
the Director-General’s recommendations. On the other hand, it
was the respondent’s
contention that Takalani was in fact
closely involved in setting up and managing the process of selection
and appointment of the
present board members. All these
irregularities however happened under his watch, and there is no
evidence that he even raised
a whimper. In these circumstances he
cannot cry foul when the chickens come home to roost, and
consequently, he cannot benefit
from his own inaction, or to a large
extent, his acquiescence in the alleged irregularities perpetrated by
the Minister and the
Director-General in the appointment of the
impugned board.
23.16 It
is worth repeating that Takalani has consistently professed not to be
averse to the holding
of the disciplinary enquiry. As I understood
his case, or on the common cause facts, he does not have an issue
with the right and
obligation of a properly appointed board to
institute disciplinary proceedings against him, nor does he question
the rationality
of the decision to institute those proceedings
against him. He is adamant that he wants to clear his name at a
disciplinary enquiry
and has not objected to the appointment of
Nugent JA as chairperson of that enquiry. I fail to appreciate how in
any event he would
have a problem with the disciplinary enquiry in
circumstances where he has not challenged the establishment of
investigations by
the two separate entities, their findings and
recommendations to have him subjected to a disciplinary enquiry. That
enquiry is
driven by the respondent’s attorneys of record,
albeit
it was sanctioned by the board.
23.17 In
a nutshell, Takalani merely seeks to delay the inevitable. The
respondent’s proposal
that Takalani should have consented to an
order that despite the invalidity of the appointment of the board,
the decision relating
to the disciplinary enquiry against him should
be declared valid and binding in order to address his concerns, was
not in my view
misplaced, and was the most sensible approach in the
light of the nature of the disciplinary enquiry and the allegations
that he
needs to answer to.
[24] It
follows from the above that even if there are prospects that the High
Court would declare the appointment of the respondent’s
board
to be irregular and unconstitutional, there are limited prospects
that the same court would declare invalid and set aside,
Takalani’s
suspension and the impending the disciplinary proceedings. To this
end, he has not established a
prima facie
right to the relief
that he seeks.
[25] In
the light of the prospects of a preservation order by the High Court
based on the authorities referred to in this judgment,
it cannot
therefore be said that Takalani would suffer irreparable harm if
relief is not granted. The prospects of him being subjected
to a
disciplinary enquiry twice are indeed far-fetched, particularly in
the light of the respondent’s undertaking on record,
that it
would not subject him to the same disciplinary enquiry, whether he is
found guilty or not.
[26] The
balance of convenience does not in any event favour Takalani. The
fact that the review application is set for a hearing
on 7 August
2018 does not detract from the fact that serious allegations of
misconduct have been levelled against him, which on
his own version
he is prepared to answer to. There is no merit in Takalani’s
contentions that the respondent had declined
his request to have the
review proceedings expedited, and as things stand, the review
application is opposed by the respondent.
Furthermore, in the light
of the strong prospects of a preservation order by the review court,
little purpose would be served by
delaying the disciplinary
proceedings. To delay these proceedings would as correctly submitted
on behalf of the respondent, further
cause the latter to incur
wasteful and fruitless expenditure, in the light of Takalani being
placed on paid suspension, whilst
someone acting in his position
equally has to be paid.
[27] In
the light of the relief sought, little purpose would be served by
exploring whether Takalani has alternative available remedies.
Be
that as it may, there is merit in the respondent’s contentions
that his alternative remedy is manifest, in that he should
seek an
order that if the appointment of the board were to be set aside, it
should nonetheless decline to set aside the board’s
decision to
institute and prosecute the disciplinary proceedings against him. The
respondent undertook not to oppose such an order.
Conclusions:
[28] To
conclude then, even though there are prospects that the review court
would declare the appointment of the board to be invalid,
irregular
and unconstitutional, there are in the same token, greater prospects
that the same court even in the light of that declaration,
would as
required of it in terms of the provisions of section 172(1)(b) of the
Constitution, nonetheless ameliorate the consequences
by making an
order that is just and equitable. Such an order may include limiting
the retrospective effect of the declaration of
invalidity and/or,
making an order suspending the declaration of invalidity for any
period and or any condition, to allow the competent
authority to
correct the defect. To that end, the likelihood of Takalani’s
suspension and impending disciplinary proceedings
being set aside by
the review court for all intents and purposes is indeed minimal.
[29]
Furthermore, Takalani has not
satisfied the other requirements of the relief he seeks inclusive of
irreparable harm. In the end,
the balance of convenience do not
favour the granting of the relief he seeks. Crucially however, there
are no exceptional circumstances
placed before the Court to justify
its interference with the disciplinary proceedings, and no grave
injustice or a miscarriage
of justice may perhaps transpire due to
this Court’s refusal to intervene
[24]
.
Ultimately, the interests of justice require that an interdict be
refused.
Costs:
[30] This
court may make an award of costs upon a consideration of the
requirements of law and fairness. The irony in this application
is
that Takalani has consistently professed to be willing to answer to
the serious allegations of misconduct levelled against him.
One would
have thought that since the process and set up of the disciplinary
proceedings was not an issue as already highlighted
elsewhere in this
judgment, Takalani would have as he had professed, willingly
subjected himself to that process and be vindicated.
Inasmuch as he
had a right to approach the High Court with his review application,
in the same token, that step in my view was
merely taken for his own
convenience once the disciplinary process was contemplated in
earnest. Prior to then, he was, or it appears
that he was contend to
function under the very same impugned board, let alone remain on paid
suspension. It is a classic case of
having the best of both worlds.
[31] Even
more disconcerting with this application is that most of the legal
arguments presented in these proceedings on behalf
of Takalani were
dealt with brick by brick and rejected by Nugent JA in his
postponement ruling. As to the reason why Takalani
had persisted with
this application in the face of the lucid postponement ruling remains
a mystery. Consequently, the requirement
of law and fairness dictate
that he be burdened with the costs of this application.
Order:
[32] In the premises, the following
order is made;
1.
The Applicant’s application is dismissed with costs.
___________________
E.
Tlhotlhalemaje
Judge
of the Labour Court of South Africa
APPEARANCES:
For
the Applicant:
Adv. N Lewis
Instructed
by:
Bowman Gilfillan Inc
For
the Respondent:
Adv. B Hitchings
Instructed
by:
Waks Silent Inc
[1]
Act 108 of
1997
[2]
Promotion
of Administrative Justice Act 3 of 2000
[3]
‘
Section
35
Governance of water boards.
(1)
A water board consists of a chairperson and such
other members as
the Minister may appoint from time to time.
(2)
Schedule 1 regulates the terms of office of board
members, the
procedure for the recommendation of persons for appointment as
chairperson or board members and the termination
of office of board
members . . .’
[4]
Booysen v Minister of
Safety and Security and Others
[2011] 1 BLLR 83
(LAC); (2011) 32 ILJ 112 (LAC) at para 54 where it
was held that;
“
To
answer the question that was before the court a quo, the Labour
Court has jurisdiction to interdict any unfair conduct including
disciplinary action. However, such an intervention should be
exercised in exceptional cases. It is not appropriate to set
out the test. It should be left to the discretion of the
Labour Court to exercise such powers having regard to the facts
of
each case. Among the factors to be considered would in my view
be whether failure to intervene would lead to grave injustice
or
whether justice might be attained by other means. The list is not
exhaustive’”
[5]
See
Jiba v Minister:
Department of Justice and Constitutional Development and others
[2005] ZALC 15
;
[2009] 10 BLLR 989
(LC), (2010) 31 ILJ 112 (LC) at para 17, where it
was held that;
‘
Although
the court has jurisdiction to entertain an application to intervene
in uncompleted disciplinary proceedings, it ought
not to do so
unless the circumstances are truly exceptional. Urgent applications
to review and set aside preliminary rulings
made during the course
of a disciplinary enquiry or to challenge the validity of the
institution of the proceedings ought to
be discouraged. These are
matters best dealt with in arbitration proceedings consequent on any
allegation of unfair dismissal,
and if necessary, by this court in
review proceedings under
s 145.
’
[6]
See
McBride
v Minister of Police and Another
(J1396/15) [2015]
ZALCJHB 216 (24 July 2015);
Golding
v Regional Tourism Organisation of Southern Africa and Other
(J2501/17) ZALCJHB 376 (18
October 2017);
IMATU v City
of Matlosana
(J28/14)
[2014] (26 February 2014) at paras 7 – 8;
IMATU
and Another v City Of Matlosana Local Municipality
(2014) 35 ILJ 2459 (LC) at para 26 - 28
[7]
(M253/15)
[2015] ZANWHC 42
(7 August 2015)
[8]
National Treasury and
Others v Opposition to Urban Tolling Alliance and Others
(CCT
38/12)
[2012] ZACC 18
;
2012 (6) SA 223
(CC);
2012
(11) BCLR 1148
(CC) (20 September 2012)
[9]
See
Knox
D’Arcy Ltd and Others v Jamieson and Others
[1996] ZASCA 58
;
1996 (4) SA 348
(AD) at 361 I;
Eriksen
Motors (Welkom) Ltd v Protea Motors, Warrenton and Another
1973 (3) SA 685
(AD) at 691C, where it was held that;
“
The
granting of an interim interdict pending an action is an
extra-ordinary remedy within the discretion of the Court.”
[10]
[2014] ZACC 8
;
2014 (6) BCLR 726
(CC);
2014 (4) SA 371
(CC) (4 April
2014) A
t
para 25. See also
National
Treasury and Others v Opposition to Urban Tolling Alliance and
Others
at para 50, where it was held that;
“
Under
the Setlogelo test the prima facie right a claimant must establish
is not merely the right to approach a court in order
to review an
administrative decision. It is a right to which, if not
protected by interdict, irreparable harm would ensue.
An
interdict is meant to prevent future conduct and not decisions
already made. Quite apart from the right to review and
to set
aside impugned decisions, the applicants should have demonstrated a
prima facie right that is threatened by an impending
or imminent
irreparable harm. The right to review the impugned decisions
did not require any preservation
pendente
lite
”
[11]
See
Golding
at para 16. At Paragraph 4 of the judgment as relied upon by
Takalani, the Court stated that;
“
On
7 September 2017, the applicant received a notice of suspension. A
notice to attend a disciplinary hearing, scheduled for the
27
th
of
September 2017, was issued to the applicant on the 15
th
of
September 2017.On the 18
th
of September 2017, the
applicant's attorneys objected to his suspension without him being
formally asked to show cause why
he should not be suspended. The
first respondent uplifted the applicant’s suspension on the
22
nd
of September 2017 on the basis that the
investigation had been completed. The applicant was required to
return to work on
the 26
th
of September 2017.”
Similarly,
in paragraph 14, the Court held that;
‘
Prima
facie right
[14]
In support of the requirement of prima facie right, the applicant
submitted that he has a right to a fair labour practice
and fair
administrative action. In his oral submissions, the applicant’s
representative submitted that his case was exceptional
and that it
warranted the stay of his disciplinary hearing in that there was a
pending application challenging the lawfulness
of resolutions of the
Board in the South Gauteng High Court. The basis of applicant’s
challenge to the lawfulness and the
validity of the resolutions was
that the resolution that was taken on the 5th of September 2017
mandating the second respondent,
being the former Chairperson of the
Board, to discipline the applicant was allegedly contrary to the
Staff Conditions of Service
of the first respondent. The applicant
argued further that no provision is made in the Charter of the
Regional Tourism Organisation
of Southern Africa (RETOSA) and its
Staff Conditions of Service for the constitution of the enquiry
committee and institution
of disciplinary process as envisaged in
the resolution of the 5th of September 2017.’
[12]
Supra
[13]
State Information
Technology Agency SOC Limited v Gijima Holdings (Pty) Limited
2018 (2) BCLR 240
(CC);
2018 (2) SA 23
(CC) at para 40
[14]
In reference to
MEC for
Health, Eastern Cape and Another v Kirkland Investments (Pty) Ltd
t/a Eye & Lazer Institute
2014
(3) SA 481
(CC); Steenkamp NO v Provincial Tender Board, Eastern
Cape
2007 (3) SA 121
(CC) at para 29 – 30; and
State
Information technology Agency SOC Ltd v Gijima Holdings (Pty) Ltd
where it was held that;
“
[53]
However, under section 172(1)(b) of the Constitution, a court
deciding a constitutional matter has a wide remedial power.
It
is empowered to make “any order that is just and equitable”.
So wide is that power that it is bounded only
by considerations of
justice and equity. Here it must count for quite a lot that
SITA has delayed for just under 22 months
before seeking to have the
decision reviewed. Also, from the outset, Gijima was concerned
whether the award of the contract
complied with legal prescripts.
As a result, it raised the issue with SITA repeatedly. SITA
assured it that a proper
procurement process had been followed.
And,
[54]
Overall, it seems to us that justice and equity dictate that,
despite the invalidity of the award of the DoD agreement, SITA
must
not benefit from having given Gijima false assurances and from its
own undue delay in instituting proceedings. Gijima
may well
have performed in terms of the contract, while SITA sat idly by and
only raised the question of the invalidity of the
contract when
Gijima instituted arbitration proceedings. In the
circumstances, a just and equitable remedy is that the
award of the
contract and the subsequent decisions to extend it be declared
invalid, with a rider that the declaration of invalidity
must not
have the effect of divesting Gijima of rights to which – but
for the declaration of invalidity – it might
have been
entitled. Whether any such rights did accrue remains a
contested issue in the arbitration, the merits of which
were never
determined because of the arbitrator’s holding on
jurisdiction.”
[15]
City of Tshwane
Metropolitan Municipality v Afriforum and Another
[2016] ZACC 19
at para 50
[16]
See Nugent
JA’s Ruling on postponement (Annexure ‘RTT 1” to
the Founding Affidavit)
[17]
Paragraph
20 of the Ruling
[18]
2013 [1] SA
248 (CC)
[19]
(1578/2016P;
3861/2016P [2016] ZAKZPHC 109 (28 November 2016)
[20]
2011 (4) SA 113
(CC);
2011 (3) BCLR 229
(CC) at para 84 - 85 where
it was held that;
‘
It
would be conducive to clarity, when making the choice of a just and
equitable remedy in terms of PAJA, to emphasise the fundamental
constitutional importance of the principle of legality, which
requires invalid administrative action to be declared unlawful.
This
would make it clear that the discretionary choice of a further just
and equitable remedy follows upon that fundamental finding.
The
discretionary choice may not precede the finding of invalidity. The
discipline of this approach will enable courts to consider
whether
relief which does not give full effect to the finding of invalidity,
is justified in the particular circumstances of
the case before it.
Normally this would arise in the context of third parties having
altered their position on the basis that
the administrative action
was valid and would suffer prejudice if the administrative action is
set aside, but even then the ‘desirability
of certainty’
needs to be justified against the fundamental importance of the
principle of legality.’
And,
‘
The
apparent anomaly that an unlawful act can produce legally effective
consequences is not one that admits easy and consistently
logical
solutions. But then the law often is a pragmatic blend of logic and
experience. The apparent rigour of declaring conduct
in conflict
with the Constitution and PAJA unlawful is ameliorated in both the
Constitution and PAJA by providing for a just
and equitable remedy
in its wake. I do not think that it is wise to attempt to lay down
inflexible rules in determining a just
and equitable remedy
following upon a declaration of unlawful administrative action. The
rule of law must never be relinquished,
but the circumstances of
each case must be examined in order to determine whether factual
certainty requires some amelioration
of legality and, if so, to what
extent. The approach taken will depend on the kind of challenge
presented – direct or collateral;
the interests involved and
the extent or materiality of the breach of the constitutional right
to just administrative action
in each particular case.’
[21]
Paragraph
20 of the Respondent’s Written Heads of Argument
[22]
Annexure
‘RTT.1 to the Founding Affidavit
[23]
At para 31
[24]
Booysen v The Minister of
Safety and Security and Others
[2011] 1 BLLR 83
(LAC) at para 54.