IN THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION, CAPE TOWN

Case Number: 17671 /2023

In the matter between:

MKHUSELI MICHAEL MTAKATA Applicant

and

PASSENGER RAIL AGENCY OF SOUTH AFRICA (PRASA) First
Responde nt
PRASA BOARD Second Respondent

HISHAAM EMERAN Third Respondent


JUDGMENT


MAGARDIE AJ

Introduction

1. The applicant is the former Head: Corporate Security of the first respondent,
the Passenger Rail Agency of South Africa (“PRASA”). On 10 April 2017 he
was dismissed for misconduct pursuant to a disciplinary hearing chaired by a
practising advocate and member of the Johannesburg Bar.

2. On 13 October 2023, some six years later, the applicant instituted the present
application seeking in effect to challenge and overturn his dismissal. The
application was brought as a matter of urgency . The substantive relief originally
sought by the applicant was a declar atory order “ …confirming the validity of the
applicant’s contract of employment.” A further order was sought compelling
PRASA to “ …unblock and pay October 2023 salary (sic) immediately and
subsequent to this, all outstanding salaries due with full benefits to be paid
retrospectively from April 2017 to October 2023 on a date to be determined by
the Honourable Court.”

3. According to the applicant, t he trigger for the application and its professed
urgency, was an advertisement published by PRASA inviting suitably qualified
applicants to apply for a number of vacant executive positions. The applicant
says that he saw this advertisement in the City Press newspaper on Sunday 30
July 2023. One of the positions so advertised was that of Chief Security Officer:
Corporate Office . The applicant contends that this particular position was the
position which he occupied before h is dismiss al. He contends that PRASA
acted unlawfully in seeking to fill the position because the disciplinary
proceedings which resulted in his dismissal, were unlawful and invalid to begin
with.

4. The application was initially enrolled for hearing on 20 October 2023 . The
matter did not proceed on that date . A comprehensive answering affidavit had
in the mean while been filed by the respondents’ attorneys, Bowman Gilfillan Inc
(“Bowmans” ).

5. The application was the n set down for hearing on 10 November 2023. On 8
November 2023, two days before the hearing, the applicant filed a Notice in
terms of Rule 28(1) seeking to affect a series of amendments to the relief
sought in his notice of motion . The amended relief sought differed significantly
from the orders initially sought in the applicant’s notice of motion. The
respondents objected on various grounds to the proposed amendments .

6. On 10 November 2023 t he matter came before Pillay AJ . That morning, the
applicant applied in terms of Rule 28(4) for leave to effect the amendments
sought in his Rule 28(1) Notice.

7. In the course of oral argument, counsel for the appli cant moved for yet another
amendment . The latter was an interim interdict restraining PRASA from
continuing with any conduct with the intention of employing a new Head of
Security.

8. In a judgment handed down on 23 November 2023, Pillay AJ granted all the
amendments except the belatedly sought order for an interim interdict relating
to the employment of a new Head of Security by PRASA . That order was
dismissed . The remainder of the amended relief was postponed sine die . Pillay
AJ ordered the applicant to pay the costs of the applic ation including the costs
of the application including the costs in respect of the amendment.1

9. This judgment deals with the merits of the amended relief sought by the
applicant . That relief, as set out at paragraphs (c) to (f) of the applicant’s
amended notice of motion, are orders :

7.1 “that the the appointment of those who constituted the disciplinary
hearing was not in accordance with the procurement policy of PRASA,
including section 217 of the Constitution and as such, was unlaw ful and
invalid ;

7.2 the proceedings of the disciplinary hearing were, as such, vitiated and
accordingly invalid ;


1 Matakata v Passenger Rail Agency of South Africa (PRASA) and Others (17671/2023) [2023]
ZAWCHC 313 (28 November 2023) .
7.3 the result of the said disciplinary hearing was equally vitiated and
accordingly invalid ;

7.4 the applicant’s contract of employment w as never terminated; as such,
the applicant has a right to return to his workplace immediately upon
the granting of this Order and to be paid his salary retrospectively,
which shall include all increments effected since his purported
dismissa l;

7.5 costs of the application.”

10. The applicant advances three main contentions in support of th is relief . Firstly,
he contends that the persons who constituted the disciplinary proceedings were
improperly and unlawfully appointed. Secondly, it is contended that the
chairperson of the disciplinary hearing acted outside the terms of reference set
out in his appointment letter. On this score, a n alternative argument is
advanced that PRASA had no right or power to outsource or delegate to the
chairperson , the power to discipline and dismiss the applicant. Thirdly, the
applicant contends that his dismissal was unlawful because the first and
second respondents failed to give him written notice of the termination of his
employment.

Factual and litigation background

11. The events set out above are but a snapshot of the lengthy and acrimonious
litigation history between the parties. PRASA’s answering affidavit was
deposed to by Ms . Desiree Le Roux, who is employed by PRASA in the
position of Senior Manager: Empl oyee Relations. Her affidavit sets out the
litigation background in detail. That background and the chronology of events
leading to the the present application, was not disputed by the applicant in any
material respect.

12. The applicant was employed by PRAS A in the position of Head: Corporate
Security on 10 June 2013. On 21 November 2016 he was given written noti ce
to attend a disciplinary hearing to answer several charges of misconduct. The
disciplinary hearing convened on 6 and 7 December 2016 and 12 to 13
January 2017. The hearing was chaired by an independent chairperson,
Advocate Timothy Boyce (“the chairperson”) . PRASA was represented by
Advocate Nazeer Cassim SC , who acted as initiator and employer’s
representative in the disciplinary hearing. Both adv ocates were briefed by
Bowmans on the instructions of PRASA .

13. The chairperson found the applicant guilty in respect of one of the several
charges of misconduct. This charge related to the applicant acting in a grossly
unprofessional and unacceptable manner by issuing a defamatory and false
media statement on or about 12 October 2016 and disclosing sensitive and
internal PRASA matters to the media.

14. In a sanction finding issued on 9 March 2017, the chairperson concluded that
given that the applicant’s misconduct had destroyed the trust relationship and
made continued employment intolerable, the only appropriate sanction was one
of dismissal. The chairperson’s sanction finding recorded that the applicant was
accordingly dismissed on one mont h’s notice , with the effect date of dismissal
being 10 April 2017.

15. On 9 March 2017 , the same day that the chairperson issued his sanction
finding in terms of which the applicant was dismissed on one month’s notice,
the applicant referred an unfair dismissal dispute to the Commission for
Conciliation, Mediation and Arbitration (“CCMA”). The applicant referred his
unfair dismissal dispute to the CCMA notwithstanding that his dismissal was at
that stage not yet effective . As set out in the chairperson’s sanction finding, the
applicant had been dismissed on one month’s notice . His dismissal would
therefore only be effective from 10 April 2017. The unfair dismissal dispute
referr ed by the applicant to the CCMA on 9 March 2017 was therefore clearly
premature .2

2 Section 19 0(1) of the Labour Relations Act 66 of 1995 (“the LRA”) : ‘the date of dismissal is the
earlier of (a) the date on which the contract of employment terminated; or (b) the date on which the
employee left the service of the employer. ”

16. The CCMA nonetheless entertained the applicant’s unfair dismissal dispute ,
which then proceeded to arbitration. On 2 August 2017 CCMA Commissioner
Dekker handed down an award finding that the applicant’s dismissal by PRASA
was both substantively and procedurally fair.

17. On 27 September 2017 the applicant filed an application in the Labour Court
seeking to review the ar bitration proceedings.

18. On 25 October 2018, a pproximately twelve months after service of the review
application, the applicant purported to serve a file a notice in terms of Rule
7A(8) of the Labour Court Rules, in dicating that he abided by his 27 September
2017 notice of motion in the review. The respondents ’ attorneys objected to this
approach by the applicant . The reason for their objection was that the applicant
had failed to file a transcribed record of the arb itration proceedings as required
by the Labour Court Rules.

19. The applicant’s 28 September 2017 review was subsequently deemed to have
been withdrawn and lapsed, which was confirmed by a directive issued by the
Labour Court on 19 February 2019. Shortly befo re this and on 9 February 2019,
the applicant filed a transcribed record of the arbitration proceedings. This was
followed on 6 March 2019 by an application instituted by the applicant in the
Labour Court for leave to reinstate the 2017 review application.

20. On 15 September 2020, Rabkin -Naicker J dismissed the applicant’s application
to revive and reinstate the 2017 review application . The learned Judge held that
both the conciliation and the arbitration conducted by th e CCMA were a nullity
as the certificate of outcome of the conciliation was dated 7 April 2017, three
days before the applicant’s dismissal had taken place. The CCMA
consequently had lacked jurisdiction to conciliate the dispute. The Court noted
that the o nly recourse for the applicant would be to refer his dispute afresh to
the CCMA and apply for condonation for the lengthy delay.

21. The applicant duly filed a condonation application in the CCMA on 9 October
2020. PRASA opposed the application and filed an a nswering affidavit. The
condonation application was granted by the CCMA on 13 August 2021. The
condonation ruling was however erroneous ly granted without regard to
PRASA’s answering affidavit. This resulted in PRASA filing an application to
rescind the con donation ruling, which application succeeded and was granted
by the CCMA on 10 November 2021.

22. The applicant in turn filed his own rescission application , seeking to rescind the
10 Novembe r 2021 rescission granted in favour of PRASA. This application
was unsurprisingly opposed by PRASA on the basis that the CCMA lacked the
jurisdiction to effectively appeal and/or review the 10 November 2021
rescission ruling. On 8 December 2021 Commissioner Breedt of the CCMA
issued a juris dictional ruling (“the Breedt ruling”) concluding that the applicant
had failed to comply with the CCMA Rules, had failed to serve an LRA Form
7.11 on PRASA and that there was consequently no valid referral by the
applicant to the CCMA at all.

23. On 24 Febru ary 2022 and 10 March 2022 the applicant filed another review
application and an application for condonation, this time seeking to review and
set aside the Breedt ruling (“the 2022 review application”). On 5 April 2022
PRASA filed a notice to oppose the re view application. The applicant thereafter
and on 13 May 2022 served a notice of withdrawal of the 2022 review
application.

24. According to PRASA, t he applicant did not provide reasons for the withdrawal
of the 2022 review application nor did he tender any costs. This in
circumstances where PRASA is a public body utilizing public funds in its
defence of litigation by the applicant.

25. This was followed by the applicant filing on 1 December 2022 an application for
direct access to the Constitutional Court. PRA SA opposed the application. On
13 February 2023 the Constitutional Court issued an order refusing the
application on the basis that no case had been made out for direct access.

26. The applicant continued undeterred. On 9 March 2023 he served a third Labour
Court review application (“the 2023 review application”) . According to PRASA,
the application was served without a Labour Court case number. Enquiries by
the respondents ’ attorneys with the Labour Court revealed that the latest review
application had in fact not been filed by the applicant with that Court. Further
enquiries were made by PRASA’s attorneys with the applicant himself, who
informed the attorneys that he had informed the Labour Court that he was no
longer interested in p rosecuting the 2023 review application.

27. On 27 June 2023 however, the applicant served further legal proceedings on
PRASA . This time it was an urgent application issued under Labour Court case
no. 328/23 dealing with the circumstances surrounding his dismis sal. PRASA
opposed the application and filed an answering affidavit. On 10 October 2023
the applicant withdrew the application, again without any explanation or tender
of costs incurred by PRASA in opposing the matter.

28. On 13 October 2023, three days after withdrawing his 27 June 2023 urgent
application in the Labour Court, the applicant instituted the present application
in the High Court .

Evaluation

29. The grounds relied on by the applicant in support of the relief sought in this
application are spread over his founding affidavit, a supplementary answering
affidavit, a replying affidavit and a further supplementary replying affidavit. The
respondents objecte d to this approach by the applicant . The respondents
submitted that not only was the applicant’s case a consistently moving target , it
was also a case characterized by numerous instances in which the applicant
impermissibly sought to raise new matters in reply.

30. The respondents have in this regard brought a substantive application for the
striking out of a number of paragraphs of the applicant’s supplem entary
affidavit. The grounds relied on for the striking out application are that the
impugned paragraphs raise matters for the first time in reply and provide further
detail in reply on matters which were only vaguely foreshadowed in the
applicant’s suppl ementary founding affidavit.

31. In the alternative and in the event that the striking out application fails, the
respondents seek leave to introduce an affidavit by Mr. Mfanimpela
Dingiswayo, the former General Manager: Group Legal Services of PRASA.
The st ated purpose of this affidavit, was to address allegations by the applicant
concerning the appointment of Bowmans and the compilation of the disciplinary
body, being both the chairperson Adv Boyce and the initiator Adv Cassim SC.

32. The respondents contend t hat Mr. Dingiswayo’s affidavit should be admitted as
he was directly involved in the matter at the time and has personal knowledge
of the circumstances relating to the appointment of Bowmans and counsel
engaged by PRASA in the applicant’s disciplinary p roceedings. The
respondents submit that in the event that the impugned paragraphs of the
applicant’s supplementary replying affidavit are not struck out, PRASA would
be prejudiced and that it would be in the interests of justice for the relevant
facts set out in Mr. Dingiswayo’s affidavit to then be placed before the Court.

33. A court may in the exercise of its discretion and in exceptional cases allow new
matter to remain in a replying affida vit, subject to the respondent being afforded
a further opportunity to deal with the new matter in reply. In my view, the
interests of justice and finality are best served by a determin ation of each of the
main grounds relied upon by the applicant in suppo rt of the relief sought, as
opposed to a piecemeal excision of individual paragraphs of the applicant’s
affidavits by way of their striking out. I shall accordingly determine the
application on the basis of the affidavits as a whole . In order to address an y
prejudice arising from the applicant’s reliance on new matter in reply, I grant the
respondents ’ application for leave to introduce the affidavit of Mr. Dingiswayo .

The characterization of the applicant’s ca use of action and relief sought

34. A further issue must be addressed before evaluating the merits . That issue
relates to the correct characterization of the applicant’s pleaded cause of action
and the relief sought in consequence thereof. The respondents submit that the
applicant’s case amounts in both form and substance to review relief.
According to the respondents, the reference in the relief sought to the terms
“unlawful”, “invalid” and “vitiated and accordingly invalid”, make it clear that the
applicant is in effect seeking to review and se t aside the disciplinary
proceedings. The respondents contend that the framing of prayer (c) of the
applicant’s amended notice of motion, would have the effect of reviewing and
setting aside the appointments of the persons who const ituted the disciplinary
hearing . The respondents submit that for the applicant to argue otherwise , is
mere sophistry.

35. On the basis of th eir characterization of the applicant’s case a s being review
relief, the respondents submit that such review relief faces an insurmountable
obstacle . That being that the review is seven years late. The respondents
submit that a seven -year delay by the applicant in impugning PRASA’s
decisions relating to the constitution of the disciplinary proceedings, is not
reasonable . The respondents contend that the applicant has in any event failed
to provide a proper explanation for the delay.

36. Proceedings for judicial review , even those that relate to legality review, must
be brought within a reasonable time. The Constitutional Court has made it clear
that the standard to be applied in assessing both delay in legality reviews and
reviews in terms of the Promotion of Administra tive Justice Act 3 of 2000
(“PAJA”), is whether the delay was unreasonable.3

37. The applicant, on the other hand, repeatedly states that h is application is not
based on judicial review either as his cause of action or remedy . The applicant
states that he is not reviewing the decision by PRASA to appoint the persons
who constituted the disciplinary hearing . In addition, he states that he is not
reviewing the chairperson’s decision -making process in relation to his

3 Buffalo City Metropolitan Municipality v Asla Construction (Pty) Limited (2019 (4) SA 331 (CC) at
para 48.
dismissal. According to t he applicant, “ …the true nature of the relief sought in
my application is a declaratory order”. He submits that because he does not
seek review relief, there are no time constraints imposed upon him as to when
he should have brought his application.

38. The applicant has th erefore emphatically disavowed any reliance on review
relief as his cause of action. He then h owever goes on to contradictorily state ,
for the first time in reply, that “…even if the relief sought in the present
application was a review in nature”, the del ay in bringing the review was not
unreasonable “considering the history of the matter” , and that any delay should
be condoned in the interests of justice.

39. This, in my view, the applicant cannot do. He has nailed his colours to the mast
of declaratory relief . He expressly denie s that he seeks review relief. It is not
permissible for the applicant to then plead in the alternative a mutually
inconsistent factual bas is for his cause of action. He cannot say ‘…this is not a
revie w and the delay rule does not apply’ and at the same time say ‘…in the
alternative, this is a review and my delay was not unreasonable .’

40. A party is entitled to know precisely what case it is expected to meet and to
answer that pleaded case. Holding parties to their plead ings is therefore not
merely pedantry but an integral part of the principle of legal certainty which is
an element of the rule of law.4

41. There is , to be sure, much force in the submissions by counsel for the
respondents that the rel ief sought by the applicant has a number of features of
review relief. The applicant’s emphatic eschewing of review relief and the
application of the delay rule may also indicate, as counsel for the respondents
sought to argue, a tactical approach by the a pplicant given the extent of the
delay and what counsel submitted were the applicant’s poor prosects of
success in any review.


4 South African Transport and Allied Workers Union and Another v Garvas and Others (2013 (1) SA
83 (CC) at para 114.
42. On balance however, I am of the view that the interests of finality require this
matter to be determined on the basis of what the applicant pleads his cause of
action to be , rather than how it is characterized by the respondents. The
applicant must in my view be held to his pleaded ca use of action and the
consequences which f low from it. That cause of action, on the applican t’s
version, is declaratory relief.

Requisites for declaratory relief

43. In terms of section 21(1) of the Superior Courts Act 10 of 2013 ( “Superior
Courts Act ”), this Court has the power to:

“in its discretion, and at the instance of any interested person, to
enquire into and determine any existing, future or contingent right or
obligation, notwithstanding that such person cannot claim any relief
consequential upon the determination. ”

44. The granting of declaratory relief is a discretionary remedy which in the first
place requires an applicant to establish an interest in an existing, future or
contingent right. In Cordiant Trading CC v Daimler Chrysler Financial Services
(Pty) Ltd5, Jafta JA said the following regarding section 19(1) (a)(iii) of the
Supreme Court Act 59 of 1959 , the predecessor to section 21(1)(c) of the
Superior Courts Act:

‘Although the existence of a dispute between the parties is not a
prerequisite for the exercise of the power conferred upon the High
Court by the subsection, at least there must be interested parties on
whom the declaratory order would be binding. The applicant in a case
such as the present must satisfy the court that he/she is a person
interested in an “existing , future or contingent right or obligation” and
nothing more is required ( Shoba v Officer Commanding, Temporary
Police Camp, Wagendrif Dam 1995 (4) S A 1 (A) at 14F). In Durban

5 Cordiant Trading CC v Daimler Chrysler Financial Services (Pty) Ltd (2005 (6) SA 205 (SCA) at para
16.
City Council v Association of Building Societies 1942 AD
27 Watermeyer JA with reference to a section worded in identical terms
said at 32:

“The question whether or not an order should be made under
this secti on has to be examined in two stages. First the court
must be satisfied that the applicant is a person interested in an
‘existing, future or contingent right or obligation’, and then, if
satisfied on that point, the Court must decide whether the case
is a p roper one for the exercise of the discretion conferred on
it.”.’

45. I address next the vario us grounds on which the applicant contends that he has
made out a case demonstrating the existence of an existing right justifying the
declaratory orders sought in his amended notice of motion.

The u nlawful and/or improper appointment ground

46. The first ground advanced by the applicant is the contention that the persons
appointed to constitute the disciplinary hearing which found him guilty of
misconduct, were improperly and/or unlawfully appointed. The applicant’s
founding affidavit is in this regard lengthy on argumentative submissions , but
short on detail and factual evidence.

47. The “crux of the matter”, as identified by the applicant in his founding affidavit,
is alleged to be that Mr. Dingiswayo, “…used his proximity to Bowmans and
assisted by Ms. Martha Ngoye, his executive, brought Bowmans through a
back door to conduct a purported disciplinary hearing.” No factual details are
provided for these generalized and speculative allegations. The applicant goes
on to allege that that Bowmans was never on the panel of PRASA and could
not be used to conduct any business on behalf of PRASA. This allegation is
refuted in terms by both PRASA an d Mr. Dingiswayo, an aspect to which I shall
later.

48. Further allegations are made by the applicant in his founding affidavit that the
appointment of Bowmans “ …was a parallel process not approved by the board
and executive of procurement” and that Mr. Dingiswayo “…failed to disclose
that he worked for Bowmans before joining the first respondent.” As to the latter
allegation, it is unclear what relevance Mr. Dingi swayo’s previous employment
history would conceivably h ave to the disciplinary proceedings brought against
the applicant or for that matter, to the relief sought in the present application.

49. An argument is then advanced in the founding affidavit t hat Bowmans was
precluded by a conflict of interest from being appointed by PRASA to initiate the
disciplinary proceedings against the applicant. The basis for this contention, so
the applicant argues, is that during the period that Bowmans was tasked by
PRASA to conduct his disciplinary hearing, Bowmans had at that stage been
mandated by National Treasury to investigate various procurement contracts
exceeding R10 million awarded by PRASA from 2012 to 2017.

50. In its answering affidavit, PRASA points out tha t the National Treasury
investigation was limited to procurement contracts and did not bar PRASA from
utilizing the services of Bowmans, which was on its panel, from assisting with
PRASA disciplinary matters. PRASA denies that Bowmans was conflicted in
being mandated to deal with the applicant’s disciplinary proceedings. None of
this was disputed by the applicant in reply.

51. The applicant has in my view misapprehend ed the concept of disqualification
conflict of interest. A conflict of interest arises and disqualifies legal
practitioners from acting in a matter where they have competing interests of
such a nature as to compromise th e ability to act impartially or in the best
interest of their client. The law requires an actual conflict of interest, not a
notional one.6 The existence of a conflict of interest disqualifying a legal
practitioner from acting for a client in a particular matter is a lso a fact specific
enqui ry. Merely alleging a conflict of interest , as the applicant has done, does
not suffice. Furthermore, it is generally speaking the potentially prejudiced client

6 Knoop and Another NNO v Gupta (Tayob Intervening) 2021 (3) SA 88 (SCA) at para 142.
that is entitled to rely on and seek the disqualification of a legal practitioner
based on an a ctual conflict of interest. In this application, PRASA has
emphatically denied that there was any conflict of interest in Bowmans
representing it in the applicant’s disciplinary proceedings.

52. No sustainable factual basis has been advanced which demonstrat es that the
National Treasury’s appointment of Bowmans to investigate procurement
contracts at PRASA, compromise d the ability of Bowmans to act impartially or
in the best interest of PRASA when dealing with the applicant’s individual
disciplinary proceedings. There is furthermore no factual basis established by
the applicant which suggest s that any individual attorney employed by
Bowmans or counsel instructed by Bowmans, had any personal or financial
interest in the applica nt’s disciplinary proceedings which affect ed their
professional judgment.

53. The applicant has not established a factual foundation for his allegations, in
correspondence attached to his founding affidavit, that Adv ocate Boyce and
Advocate Cassim SC acted i mproperly or unethically in the course of the
disciplinary proceedings. Not only were these specific allegations and
additional allegations by the applicant of “gross dishonesty” by PRASA factually
unsupported, they were entirely jettisoned by counsel for the applicant in his
written and oral argument. No apology or explanation was proffered for why the
applicant had made such serious allegations in the first place and then later not
sought to substantiate or rely on them .

54. The applicant’s conflict of interest point in relation to Bowmans , is in my view
entirely without merit. Having effectively abandoned conflict of interest by
Bowmans as a ground vitiating the disciplinary proceedings, the applicant’s
focus then shifted entirely to a different line of attack. It was now contended by
the applicant , in his supplementary founding affidavit, that by virtue of a certain
report by the Auditor -General of South Africa (“the Auditor -General”) relating to
PRASA, the appointment of the persons who constituted his disciplinary
hearing was unlawful and improper and that consequently, his dismissal was a
nullity.

55. To his supplementary founding affidavit and in support of this ground of alleged
nullity of the disciplinary proceedings, the applicant annexed a grand total of
two pages extracted from a 2016/17 Annual Report by the Auditor -General on
PRASA (“the Auditor -General’s report”) . The first page is the cover sheet . The
applicant relies entirely on the second page of the report, where under the
heading, “Report on audit of compliance with legislation”, the following i s stated:

“Expenditure Management

34. Effective steps were not taken to prevent irregular, and fruitless
and wasteful expenditure, as required by section 51(1)(b)(ii) of
the PFMA. The expenditure mainly resulted from non -
compliance with legislative prescripts and entity policies. The
irregular and fruitless and wasteful expenditure disclosed in
notes 42 and 41 does not reflect the full extent of the fruitless
and wasteful expenditure incurred as indicated in the basis for
qualification paragraphs.

Procurement and contract management

35. Good s, works and service were not procured through a
procurement process which is fair, equitable, transparent and
cost effective, as required by section 51(1)(a)(iii) of the PFMA
and Section 217 of the Constitution of the Republic of South
Africa. This includ ed instances where:

- supply chain management processes were not followed
when procuring services from suppliers

- professional services were sourced from a panel that did
not comply with the requirements of PRASA’s supply
chain management policy

- contracts were issued in excess of the contract period
stipulated on PRASA supply chain management policy

- payments were made to contractors without a valid
contract

- contracts were awarded to suppliers based on deviations
that were not recorded and approv ed by the delegated
authority

- some deviations from the supply chain management
polict were approved by the delegated…” (sentence
incomplete)

56. It is on this tenuous basis of a single page extract ed from the Auditor -General’s
report, that an argument is advanced by the applicant that the findings of the
Auditor -General set out above , have the effect of rendering the composition of
the disciplinary panel and the applicant’s dismissal, unlawful and inv alid. The
applicant further submit s that the se findings of the Auditor -General remain
binding unless reviewed and set aside and that neither PRASA or Bowmans
have sought to challenge the findings made by the Auditor -General. The
applicant ’s counsel in this respect spent a considerable portion of his written
and oral argument on inter -alia submissions relating to the constitutional
powers afforded to the Auditor -General under section 188 of the Constitution
and the statutory duties of that office in terms of the Public Audit Act 25 of
2004.

57. The immediate and obvious difficulty is that the extracts of the Auditor -
General’s report which the applicant relies on, make no mention at all of the
appointment of Bowmans or the appointments and proceedings of the
applicant’s disciplinary hearing. Counsel for the applicant was driven to accept,
as he had to, that this was so. The submission advanced on behalf o f the
applicant , however, was that while it was true that the Auditor -General had not
mentioned those who constituted the applicant’s disciplinary hearing as service
providers or suppliers that were procured unlawfully, the Auditor -General had
not excluded them either.

58. Thus , by virtue of Bowmans, Adv ocate Boyce and Adv ocate Cassim SC not
being expressly excluded by the Auditor -General in his report, or so the
argument went, they were included in the report . Their very exclusion in fact
meant inclusion.

59. The argument flies in the face of logic and ordinary common sense. It is unclear
on what possible legal or factual basis the invalidity of a specific procurement
process or service provider’s appointment by P RASA, arises as a consequence
of being included in generalised statements in the Auditor -General’s report
solely because such a procurement or service provider has not been expressly
excluded from the said report. Nor does there appear to me to be any genu inely
arguable answer by the applicant to PRASA’s retort that the Auditor -General’s
report was never challenged by Bowmans precisely because it never mentions
Bowmans or the applicant’s disciplinary proceedings.

60. I reject as wholly without merit and untenable, the applicant’s contentions that
the disciplinary proceedings and his dismissal were unlawful as a consequence
of the Auditor -General’s report.

61. I am of the view that the applicant has in any event failed to establis h any
sustainable basis to reject the evidence of PRASA and Mr. Dingiswayo that
Bowmans, the chairperson and the initiator of the disciplinary hearing were
properly appointed. Mr. Dingiswayo explains in his affidavit that Bowmans was
placed on a database o f attorneys that were service providers to PRASA, that
he instructed Ms . Keshni Naicker, an attorney at Bowmans, to deal with the
applicant’s matter on behalf of PRASA and that Bowmans was acting on a duly
authorized mandate sanctioned by the then Group CE O and himself.

62. Mr. Dingiswayo further confirms that it was PRASA who decided that Adv ocate
Boyce and Adv ocate Cassim SC should be appointed and that they were
properly appointed following the steps ordinarily followed by PRASA at the time
to procure thes e services. The contents of Mr. Dingiswayo’s affidavit were
confirmed by Ms . Naicker, who set out in detail the engagements between
herself, Mr Dingiswayo and Mr. Letsoalo, the then Group CEO of PRASA,
relating to Bowmans’ instructions on the matter of the applicant’s disciplinary
hearing.

63. Save for generalized and in my judgment largely irrelevant criticism relating
inter-alia to the late filing of Mr. Dingiswayo’s affidavit, the contents of Mr.
Dingiswayo’s and Ms. Naicker’s affidavits were not disputed by the applicant in
any meaningful degree. These being motion proceedings, I am of the view that
there is no basis to dismiss the versions of PRASA, Mr. Dingiswayo or Ms.
Naicker regarding the lawfulness of the appointment of Bowmans, the
chairperson and initiator of the disciplinary proceedings, as being either far -
fetched or untenable. The applicant’s challe nge to the legality of the
appointment of Bowmans, the chairperson and the initiator of his disciplinary
hearing, is without merit .

64. No infringement of rights or existing right has in my view been established to
justify the applicant being granted declara tory relief on th e ground s of unlawful
and/or improper appointment of the persons who constituted his disciplinary
hearing. The relief sought in prayers (c), (d) and (e) of the applicant’s notice of
motion fails.

The ultra vires and failure to give written notice of termination grounds

65. The applicant alleges that this dismissal by PRASAA was unlawful on t hree
further bases. The first is that the chairperson allegedly acted outside of his
mandate as set out in his letter of appointment and terms of re ference . The
second basis is alleged to be that PRASA had no power or right to outsource or
delegate to the chairperson, the power to discipline and dismiss the applicant.
Thirdly, the applicant contends that his dismissal was unlawful because he was
not g iven written notice of termination of his employment by PRASA. On these
bases, the applicant founds prayer (e) of his notice of motion, which seeks
inter-alia an order that his contract of employment “…was never terminated”
and consequential orders that th e applicant is entitled to return to his workplace
immediately and paid his salary retrospectively, including all increments
effected since his dismissa l.

66. The applicant’s challenge on th ese ground s is in my judgment dead on arrival
irrespective of the merits of the contentions advanced by him , for the first time
in reply , relating to specific clauses of his contract of employment and the
chairperson’s terms of reference. The reason for this is that having tied his case
to being one for declaratory relie f as opposed to review relief, the difficulty for
the applicant is that because his dismissal has not been set aside, it must be
found to be valid and legally effective . That is the effect of the principle
established in Oudekraal , which holds that adminis trative decisions, whether
lawful or not, stand until reviewed and set aside.7

67. The granting of declaratory relief in terms of section 21(1) of the Superior
Courts Act requires the applicant to demonstrate in the first place the existence
of an existing, future or contingent right . The applicant does not dispute the fact
that the chairperson’s sanction finding made it crystal clear that the applicant
was dismissed on one month’s notice with the effective date of the dismissal
being 10 April 2017. The statement by the applicant in his founding affidavit that
his contract of employment was “never terminated” is simply inconsistent with
the facts and his own version, which is that he was unlawfully dismissed.

68. However, e ven if the applicant had bee n unlawfully dismissed, which is far from
clear and has not been established in this application, it is the very
consequence of the Oudekraal principle that even an unlawful administrative
act is capable of producing valid consequences for as long as the u nlawful act
is not set aside.8 The applicant’s employment has not been reinstated by any
order of the CCMA or the Labour Court, these being the specialist tribunals
established to determine the lawfulness of dismissal.


7 Oudekraal Estates (Pty) Ltd v City of Cape Town and Others 200 4 (6) SA 222 (SCA).
8 Oudekraal at para 126.
69. The applicant has therefore failed to establish the existence of a valid contract
of employment giving rise to an existing right capable of being determined in
the form of declaratory relief. This conclusion is fatal to the relief sought for a
declaration that the applicant’s contract of employment was never terminated.

70. Having reached this finding, it is in my view unnecessary to consider the merits
of the further grounds advanced by the applicant relating to alleged ultra vires
conduct by the chairperso n and alleged failure to provide the applicant with
written notice of termination of his employment. The declaratory relief sought in
prayer (e) of the applicant’s notice of motion fails fundamentally at its first
hurdle, the presence of an existing right, which is a necessary pre -condition for
the exercise of the court’s discretion to grant or refuse declaratory relief.

Conclusion

71. The applica tion is dismissed with costs .


-----------------------------
S G MAGARDIE
Acting Judge of the High Court
Western Cape Division


Appearances:

For the applicant: Mr. K Lingani
Instructed by : Lingani & Partners

For the first, second and third respondent s: Adv L Ackerman
Instructed by : Bowman Gilfillan Inc

Date of hearing: 13 June 2024
Date of judgment : 18 February 2025