REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
(1)
(2)
(3) REPORTABLE : IN
OF INTEREST TO THE JUDGE§;$NO
REVISED.
'J.3(/ '-~,;--DATE ....... ~ SIGNATURE: ........... ..
In the matter between:
BOLEDI LUCY MONT JANE
And CASE NO: 3734/2023
APPLICANT
MEC DEPARTMENT OF ECONOMIC DEVELOPMENT
ENVIRONMENTAL AND TOURISM LIMPOPO
HEAD OF DEPARTMENT ECONOMIC FIRST RESPONDENT 1
DEVELOPMENT ENVIRONMENTAL AND TOURISM SECOND RESPONDENT
PREMIER OF LIMPOPO PROVINCE THIRD RESPONDENT
LIMPOPO GAMBLING BOARD FOURTH RESPONDENT
JUDGEMENT
2
KGANYAGOJ
[1] The applicant is an admitted legal practitioner. On 111h March 2013 the applicant
was appointed as a member of the Limpopo Gambling Board (board) for a
period of 3 years in terms of the Limpopo Province Casino and Gambling Board
Act1 (old Act). On 29th March 2017 the applicant was reappointed as a member
of the board for a period of 5 years with effect from 151 April 2017. The second
appointment was in terms of the Limpopo Gambling Board Act2 (new Act). On
31st October 2017 the applicant was appointed as the deputy chairperson of
the board for a period of 5 years.
[2] On 3rd November 2022 the first respondent issued a letter to the applicant
notifying her that she had served two terms as a member of the board; that her
term of office as a member of the board had lapsed on 31st October 2022 and;
that in terms of the new Act a member who had served more than one term was
not appointable to the board. The applicant alleges that on 18th November 2022
she had a verbal communication with the fourth respondent who informed her
that there was an error of judgement in not re-appointing her.
[3] Aggrieved by the decision of the of the first respondent , the applicant has brought
a review application in terms of the Promotion of Administrative Justice Act3
(PAJA). In her amended notice of motion of motion, the applicant is seeking
orders that the decision made by the first respondent on 3151 October 2022 not
re-appointing her as a member and deputy chairperson of the board be
1 4 of 1996
2 3 of 2013
3 3 of 2000
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reviewed and set aside; substitution of the decision taken by the second
respondent not to appoint her, and ordering that the applicant is eligible to be
re-appointed as member and deputy chairperson of the board in terms of the
provisions of the new Act for a period of 5 (five) years; and that the second
respondent be ordered to re-appoint the applicant as the deputy chairperson of
the board, alternatively , an order that is just and equitable in terms of the
provisions of section 8 of PAJA.
[4] The applicant's grounds of review are that the decision of the first respondent
was materially influenced by various errors of law; the first respondent has
unlawfully and intentionally made an unreasonable decision not to re-appoint
her without valid reasons; the first respondent failed to take into consideration
that her appointment as a member of the board in 2013 was in terms of the old
Act which was repealed by the new Act; that under the old Act she was
appointed to serve as a member of the board for a period of 3 years which
ended in 2016, and she applied to serve as a new member and was appointed
deputy chairperson in terms of the new Act; and that at the end of the term all
other serving board members were re-appointed in terms of section 8 of the
new Act, whilst she was unfairly excluded.
[5] The applicant submit that the first respondent had failed to take into consideration
that the new Act did not apply retrospective ly, and she ought to have been
appointed for additional one term as she was eligible for re-appointment. The
decision of the first respondent not to re-appoint her was without merit,
unreasonable and made in bad faith as other members of the board were re­
appointed at the end of the term.
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[6] The first and second respondents (respondents) are opposing the applicant's
review application . The respondents have filed the record of the proceedings in
terms of Rule 53(1 )(b) of the Uniform Rules of Court (Rules). On receipt of the
record the applicant has filed a supplementary founding affidavit and also
amended her notice of motion. In her supplementary founding affidavit, the
applicant has stated that from the record of the proceedings filed by the
respondents , she has been replaced by Mr Mahumani to her position of the
deputy chairperson of the board with effect from February 2023. Based on that,
exceptional circumstances exist to grant an order to substitute or vary the
decision taken by the second respondent or correct the defect in the decision.
Further that exceptional circumstances exist that in the alternative the court
order the respondents to pay her compensation . That it will be waste of time to
remit the matter back to the first respondent, as the respondents have already
filled her positions with other persons.
[7] The first respondent has deposed an answering affidavit on behalf of all the
respondents . The respondents in their answering affidavit had submitted that
the appellant is seeking far reaching relief aimed at reinstating her as the
member and deputy chairperson of the board, in circumstances where she had
no right in law to be appointed and/or reappointed . Following the delivery of the
record, the applicant has filed a supplementary affidavit where it appears that
the applicant had accepted that the primary relief of reinstatement is
incompetent , as she now seeks an order to be paid compensation as an
alternative relief.
(8] The respondents avers that the applicant has failed to demonstrate a right to be
re-appointed to the board; she has failed to place any evidence before court
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that she was entitled and qualified to be re-appointed as a board member; she
has failed to demonstrate exceptional circumstances , warranting the court to
interfere with the exercise of the first respondent 's discretion in terms of section
8 of the new Act and substitute his decision; she has failed to demonstrate the
financial loss and the existence of exceptional circumstances , entitling her to
compensation; and that the relief she is seeking has been overtaken by events.
[9] The respondents have raised two points in limine. The first point in limine is that
of non-joinder of Adv Mahumani the deputy chairperson of the board and Ms
Sethume the new board member. The respondents have submitted that both
Adv Mahumani and Ms Sethume have direct and substantial interest in this
matter as the relief which the applicant is seeking is that they be removed from
the positions that they are currently occupying. The second point in /imine is
that the relief which the applicant is seeking is incompetent is that the applicant
in these proceedings is not seeking to challenge the decision to appoint Adv
Mahumani as deputy chairperson and Ms Sethume as the new board member.
The respondents submit that in the absence of the challenge , these
appointments will remain valid until such time that they had been set aside and
consequently , the relief sought by the applicant to be reinstated as a board
member and deputy chairperson are incompetent.
[1 O] On the merits, the respondents have submitted that the applicant was the only
board member who had served on the board for at least two terms, in terms of
the 2013 and 2017 boards, whilst the rest were new members . In considering
whether to re-appoint board members , the first respondent took into account
the number of terms a board member has served, as well as the need to ensure
that board members are rotated, in order to give as many people an opportunity
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to serve on the board. In the light of the fact that the applicant had already
served the board as part of the 2013 and 2017 boards, the first respondent in
the exercise of his discretion, decided against the re-appointment of the
applicant for another term. The respondents submit that the applicant has failed
to make out a case for the relief she is seeking.
[11] In her replying affidavit in relation to the point in limine of non-joinder , the
applicant has submitted that the point in limine is not applicable to her case as
the current deputy chairperson does not have direct and substantia l interest in
the relief she is seeking. Her main contention in the matter is that the court must
review the decision of the first respondent which was taken without applying his
mind on the law. Further that the current deputy chairperson was appointed
despite the fact that she had raised her concern to the first respondent that she
had only served one term as a board member.
[12] At the commencement of the hearing, it was agreed that both points in /imine
and merits of the application be argued at the same time. However, it is vital
that the point in limine of non-joinder be dealt with first. It is trite that the test in
a non-joinder dispute is whether the party sought to be joined has a direct and
substantial interest in the matter. The alleged necessary party must have a legal
interest in the subject-matter which may be affected prejudicially by the
judgment of the court in the proceedings concerned . (See Gordon v Department
of Health, Kwazu/u-Nata/4 ).
[13] In ABSA Bank v Naude5 Schoeman AJA said:
4 2008 (6) SA 522 (SCA) at para 9
5 2016 (6) SA 540 (SCA) at 5421-543B
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"The test whether there has been non-joinder is whether a party has a direct and substantial
interest in the subject matter of the litigation which may prejudice the party that has not been
joined. In Gordon v Department of Health, Kwazulu-Natal it was held that if an order or judgment
cannot be sustained without necessarily prejudicing the interest of third parties that had not
been joined, then those third parties have a legal interest in the matter and must be joined".
[14] As part of her relief in the amended notice of motion, the applicant is seeking
that the respondents be ordered to reappoint her as member and deputy
chairperson of the board. The composition of the board is been regulated by
section 5 of the new Act. In terms of section 5(2) of the new Act, the board must
consist of 9 members . There is no provision for appointment of additional
members. Currently all the positions of the 9 members has been filled. Should
the applicant be successful with her application , one member and the deputy
chairperson must relinquish their positions as section 5(2) in relation to the
composition of the board is peremptory .
[15] Ms Sethume who is the new member of the board and Adv Mahumani are
therefore having a legal interest in the subject matter, and may affected
prejudicially by the judgment and order of this court in these proceedings. The
two are the necessary parties in these proceedings and have a direct and
substantial interest in this matter. They should therefore be joined to the
proceedings . The respondents ' first point in limine of non-joinder stand to be
upheld. However, that is not a point in limine that disposes the whole matter.
The appropriate relief will be to stay the proceedings and enable the applicant
to join Ms Sethume and Adv Mahumani to the proceedings should she so wish.
[16] In the result the following order is made:
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16.1 The respondents ' point in limine of non-joinder is upheld with costs on
party and party scale B.
16.2 The proceedings are stayed pending the joinder of Ms Sethume and Adv
Mahumani should the applicant so wish.
16.3 The applicant to bring the joinder application with 20 days of receipt of this
judgment and order, failing which the respondents are at liberty to bring an
application for the dismissal of the applicant's claim of the same papers or
supplemented where necessary.
JUDGE OF THE HIGH COURT OF SOUTH
AFRICA, LIMPOPO DIVISION ,
POLOKWANE
APPEARANC ES:
Counsel for the applicant
Instructed by
Counsel for P' to 3rd respondents
Instructed by
Date heard
Electronicall y circulated on : Adv Moifo
: Montjane BL Attorneys
: Adv D lVItsweni
: State Attorney Polokwane
: 5th May 2025
: 23rd June 2025