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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number: 086260/2025
In the matter between:
COLLINS PHUTJANE LETSOALO Applicant
and
ROAD ACCIDENT FUND First R espond ent
THE BOARD OF THE ROAD ACCIDENT FUND Second Respondent
Delivered: This judgment was prepared and authored by the Judge whose name is
reflected and is handed down electronically by circulation to the parties/their legal
representatives by e -mail and by uploading it to the electronic file of this matter on
Caselines . The date and fo r hand -down is deemed to be 26 June 2025 .
Summary: The Board of the Road Accident Fund (Board) is contractually
empowered to place the Chief Executive Officer of the Road Accident Fund on
a precautionary suspension. The Board is a statutory body and once cited as a
decision maker, it is entitled to oppose any application seeking to impugn its (1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES
______________ ___________ ___
DATE SIGNATURE
26 JUNE 2025
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decision. Where rule 7(1) of the Uniform Rules is invoked, a person acting on
behalf of a party, whose authority is disputed is only required to satisfy the
Court that he or she is authorised so to act . The fact that the resolution
seeking to prove authorisation has errors regarding dates is of no moment. As
such , an application contemplated in rule 6(5)(e) is not necessary. What is
required is an interpretation of the document to establish the intentions of the
author.
When the Board took a decision to suspend , it exercised contractual power. A
suspension does not amount to an administrative action within the
contemplation of section 33(1) of the Constitution read with the provisions of
the Promotion of Administrative Justice Act (PAJA) , thus the requirements of
reasonableness do not find application. Similarly, a suspension in the context
of the present application is not an exercise of public power, thus the
requirement of rationality finds no application.
The Disciplinary Policy approved by the applicant in his capacity as the Chief
Executive Officer of the Road Accident Fund (RAF) does not apply to him as
part of his conditions of employment as determined by the Board of the R AF.
What finds application is the provisions of clause 21 of the Fixed Term
Contract of employment. There is no dispute that the provisions of clause 21
has been complied with, as such, there is no basis in law to demonstrate
unlawfulness. Accordingly, this Court cannot declare the sus pension to be
unlawful.
The applicant has no legal right to be appointed as the Chief Executive Officer
of the R AF. Speculative evidence that the Board resolved to re -appoint him , is
not sufficient to establish a prima facie right even one open to doubt. Absent
prima facie right, an interim interdict cannot be issued. Speculative evidence
that the position is about to be advertised is not sufficient to establish an
apprehension of harm.
Regarding costs, the principle in Biowatch finds no application. The applicant
is not seeking to enforce a constitutional right. This is purely a contractual
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dispute where the applicant is seeking to protect his pecuniary interests ,
which were contractually acquired . Held: (1 ) The application is heard as one of
urgency . Held: (2) The application is dismissed. Held: ( 3) The applicant must
pay the costs of this application on a party and party scale to be settled or
taxed at scale C, which costs include the costs of employment of two counsel
and the costs occasioned on 17 June 2025 .
JUDGMENT
MOSHOANA, J
Introduction
[1] The present application is concerned with a suspension from work . The term
suspension literally means an act of interruption or temporary cessation and/or
temporary prohibition or exclusion from enjoying a particular privilege. In
employment context there a two types of suspensions namely, (a)
precautionary suspension; and (b) punitive suspension. Involved herein is a
precautionary suspension, often referred to as holding operation. All a
precautionary suspension do is to hold the operation of the employmen t
contract pending the outcome of disciplinary steps. In the present application,
which emerged before this Court as one of urgency, both parties, in the Court’s
view, presented evidence that is not necessary to resolve the relevant dispute.
In this judgment, this Court shall focus its attention to the impugned decision
taken by the Board of the Road Accident Fund (“Board”) on 3 June 2025.
Differently put, this Court shall to a greater degree be guided by the applicant’s
notice of motion.
[2] The above said, the present is an application launched in terms of rule 6(12) of
the Uniform Rules. The application first emerged before Court o n 17 June
2025. On that day, Acting Justice Nthambeleni issued an order simply
postponing the present application to 24 June 2025 . Reasons of such a
postponement order are not apparent anywhere . The issue whether the present
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application meets the requirements of rule 6(12) was not entertained. It must be
assumed by this Court that had the application not commanded any urgency, it
would have been struck off the roll by the Acting Justice. Howbeit, counsel for
the respondents, wisely, conceded that the application may be entertained by
this Court as one of urgency. Accordingly, this Court shall not in this judgment
consider whether the requirements of rule 6(12) have been met or not. This
Court shall forthwith entertain the prese nt application as one of urgency.
The relevant factual matrix
[3] Given the relief sought, it is obsolete for this Court to punctiliously narrate all
the facts appertaining the dispute between the parties. The facts proving or
disproving the alleged misconduct of insubordination shall not be traversed in
this judgment. It is not the duty of this Court at this stage to determine whether
the applicant is guilty or not guilty of insubordination or any form of misconduct.
Differently put, it is not the duty of this Court to decide whether the suspicion
held by the Board is va lid or invalid.
[4] Pertinent facts are that on or about 10 December 2020, the applicant, Mr
Collins Phutjane Letsoalo (Mr Letsoalo) and the Road Accident Fund (RAF)
duly represented by Ms Thembelihle Msibi in her capacity as the acting
chairperson of the Board, concluded a fixed term contract of employment
(FTC) . Relevant to the present application, Mr Letsoalo and the RAF
specifically agreed as follows:
“21. SUSPENSION OF EMPLOYMENT
21.1 if the Fund suspects that the employee is/has prima facie :
21.1.1 engaged in any conduct which may, if proved, justify his
dismissal; or
21.1.2 committed a breach of any terms of this Agreement,
It may, pending a duly constituted enquiry into the alleged conduct in
question and without giving rise to any claim for damages or otherwise
against it, suspend the Employee for a period of not exceeding 90
(ninety) days.
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21.2 During such period, the Employee shall:
21.2.1 not be entitled to attend at work premises of the Fund; and
21.2.2 be entitled to his normal remuneration.”
[5] More importantly, the FTC defined conditions of service to mean the following:
“Conditions of Service means the conditions of service of the Fund , set in this
agreement, the performance agreement as entered into by the Parties from
time to time and policies and procedures in place and as amended from time
to time by the Fund in its discretion.”
[6] In terms of clause 4.4 of the FTC, the appointment of Mr Letsoalo is subject to
the conditions of service as defined. On or about 12 November 2021 , almost a
year after the parties had concluded the FTC, Mr Letsoalo exercised delegated
powers of the Board as contemplated in section 11(1) (d) of the Road Accident
Fund Act (RAFA)1 and approved a category B policy. That policy is known as
“Disciplinary Policy” (DP). The DP replaced the Disciplinary Policy which came
into effect on 1 August 20132. In terms of clause 4.1 , the purpose of the DP is to
establish a framework to promote orderly conduct to manage the interaction
between the RAF and its employees. In terms of clause 6.1, the scope of
application of the DP is to apply to “all employees ”3. In clause 7.9, the DP dealt
with the issue of precautionary suspension (with pay). It is not necessary for the
purposes of this judgment to extract the entire text of clause 7.9 herein, given
the basis of the impugn of the suspension decision . The relevant clause read
as follows:
7.9.2 The precautionary suspension of an employee with pay will be
considered if and when:
1 Act 56 of 1996 as amended.
2 This Court was not favoured with a copy of this policy, and it is unclear to this Court as to what it
provided for.
3 The DP does not define the term “employee”. It is for that reason that Mr. Letsoalo as the person
who approved the policy contended that the DP applies to him .
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(a) An employee’s continued presence may pose a threat to life; property;
or a risk, financial or otherwise.
(b) An employee may influence witnesses in a disciplinary investigation ,
tamper with evidence or records or interfere with the FDH4; and or
(c) An employee may have a disruptive effect on other employees and, or
workplace.
[7] I interpose to mention that it is Mr Letsoalo’s case that since the DP finds
application to hi m, the Board in exercising the right in clause 21 of the FTC,
breached the provisions of clause 7.9.2 of the DP, thus the actions of the Board
are unlawful, irrational and unreasonable , liable to be declared as such and set
aside by this Court.
[8] On 27 May 2025, Mr Letsoalo was placed on special leave. Subsequently, on 3
June 2025, the said leave was withdrawn. On 3 J une 2025, Ms Zanele Lorraine
Francois , in her capacity as the Chairperson of the Board communicated to Mr
Letsoalo the decision of the Board. The relevant parts of the letter from the
Chairperson read as follows:
“RE: NOTICE OF YOUR PRECAUTIONARY SUSPENSION
1. The Board of the Road Accident Fund… at an
Emergency Meeting held on 2 June 2025, resolved to
place you on precautionary suspension as
contemplated in clause 21.1 of your fixed term
contract of employment with the Road Accident Fund…
dated 10 December 2020 on the basis of the
circumstances set out in paragraph 2 hereunder .
2. The Board of the RAF has a prima facie view that you,
on or about 27 May 2025, defied the authority of the
Board by refusing to attend the Standing Committee on
Public Accounts … Meeting in Parliament scheduled for
4 This refers to Formal Disciplinary Hearing.
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28 May 2025 which refusal to attend the said meeting is
a conduct which may, if proved, justify your dismissal.”
[9] Disenchanted by the precautionary suspension, on 6 June 2025, Mr Letsoalo
launched the present application and enrolled it for hearing on 17 June 2025.
On or about 6 June 2025, the cited respondents gave notice of their inte ntion to
oppose the application and appointed Re nqe FY Inc (Renqe) as their attorneys
of record. On 9 June 2025 , Mr Letsoalo invoked the provisions of rule 7(1) of
the Uni form Rules. He called upon the respondents to provide as proof of
authority of Renqe to act on behalf of the cited re spondents, copies of the
resolutions taken by the Board authorizing Renqe attorneys to act on behalf of
the respondents . Indeed, as requested the respondent availed a resolution
signed by the Chairperson of the Board on 12 June 2025 as an annexure to the
answering affidavit. Pertinent to the dispute squarely raised by Mr Letsoalo, the
resolution, in parts, read as follows:
“(b) The appointment of the firm of attorneys, RENQE FY Incorporated
(Attorneys), to act comprehensively on behalf of the RAF and the Board
in all legal matters, whether current , future, or incidental arising from or
connected to the issues involving the CEO.
[10] It is common cause that at the heading of the resolution , a date of 27 May 2025
was recorded to be the date on which the resolution requested on 9 June 2025
was taken . Based on this, Mr Letsoalo alleged fraud and went to the extend of
opening a criminal case against the Chairperson of the Board. Concerned
about the allegations of fraud which were only revealed in a replying affidavit,
the respondents launched a rule 6(5) (e) application for leave to file a further
affidavit seeking to explain the date error on the resolution. Surprisingly, Mr
Letsoalo fiercely opposed the rule 6(5)(e) application.
[11] As indicated earlier, on 17 June 2025, the present application was postponed.
On 24 June 2025, the application emerged before me . At the commencement
of the hearing of the application, the rule 6(5)(e) application was moved . This
Court pointed out to counsel for the respondents, Mr Van Graan SC that the
application is unnecessary since the issue of dates may be resolved by a
proper interpretation of the resolution . Adroitly, counsel relented. That
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notwithstanding, counsel for Mr Letsoalo , Mr Molotsi SC, persisted with the
narrative that the date was not an obvious error but a fraudulent
misrepresentation because in his and Mr Letsoalo ’s ebulliently held view, the
date vacillated from 27 May to 30 May and 9 June 2025. Having listened to
submissions, this Court delivered an ex-tempore ruling with presence of mind at
that time to augment the reasons, should the need arise , in this judgment.
[12] I must point out that on proper reflection; it is unnecessary for this Court to
augment its reasons exposed extemporaneously. Of signific ance , this Court
was satisfied that Renqe , as challenged in terms of rule 7(1) , sufficiently dealt
with the disputed mandate to the satisfaction of this Court . The issues relating
to the alleged fraud are better left for the criminal Court , should the National
Prosecution Authority (NPA) develop an appetite to prosecute. Nevertheless,
Mr Letsoalo has not mounted any attack seeking to review and set aside the
resolution. As such, the resolution factually exists with legal consequences until
set aside by a Court with competent jurisdiction5.
[13] The resolution even with an obvious erroneous date serves the legal purpose
awaited in rule 7(1). It confirms that Re nqe has the necessary mandate to act6.
The mischief of rule 7(1) is to avoid a situation where a party ’s name may be
used to litigate without its consent and knowledge. It is not a rule to be
cunningly used to deflate a hoisting of a defence in law. If so used, the usage
amounts to an abuse of the rule. Herein , the Board and the RAF has not
disputed that Renqe is acting for them in the present application. This is not a
situation where the respondents initiated a litigation . They are dragged into the
present application by Mr Letsoalo . Regard being had to section 34 of the
Constitution, they must defend themselves. The argument that section 15 of
RAFA prevents the Board to defend itself as a cited statutory body is completely
without merit. The Board did not magically land itself as a party in the present
litigation. It was cited, correctly so, as the decision maker. It cannot be legally
5 See Oudekraal Estates (Pty) Ltd v City of Cape Town and others 2004 (6) SA 222 (SCA).
6 See ANC Umvoti Council Caucus and Others v Umvoti Municipality 2010 (3) SA 31 (KZP) .
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correct that a party cites one party in a litigation process and once that party
defends, it is told that it cannot defend itself.
Evaluation
[14] As indicated at the dawn of this judgment, this Court shall be beaconed by the
notice of motion of Mr Letsoalo. In parts, the motion read s as follows:
i. Non-compliance with the time lines, forms and service provided for in the
rules of the above H onourable Court be condoned and that the matter be
heard as an urgent application in terms of the provisions of Rule 6(12) of
the Uniform Rules of Court .
ii. Declaring the decision of the second res pondent taken on 3 June 2025 to
suspend the Applicant to be unlawful , irrational, unreasonable and be
set aside.
iii. Ordering the Applicant to immediately resume his duties as the Chief
Executive Officer of the first respondent.
iv. Interdicting and restraining the respondents from advertising the
position of the Chief Executive Officer of the first respondent pending the
finalization of the process to re -appoi nt the Applicant as the Chief
Executive Officer of the first respondent.
[15] Regard being had to the notice of motion , it is perspicuous that Mr Letsoalo
impugns the decision to suspend him on the basis that the decision is (a)
unlawful ; (b) irrational; (c) unreasonable. Below, this Court addresses the
following question.
Is the suspension unlawful, irrational or unreasonable?
[16] As a departure point, a thing is unlawful if it is not authorised by the law. Before
considering the lawfulness of the suspension, this Court must address the issue
of the source of the power to suspend. Mr Letsoalo does not take issue with the
contents of the letter of 3 June 2025, communicating his suspension . Section
12(1) of RAFA pertinently provides that the Minister shall upon recommendation
of the Board, appoint the Chief Executive Officer of the Fund on such terms and
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conditions of employment as the Board may determine . It is thus clear that the
terms and conditions of employment of Mr Letsoalo were to be determined by
the Board , as it did in 2020 .
[17] Indisputably, the suspension of Mr Letsoalo was carried out by the Board. In so
doing, it perspicuously stated that it is exercising contractual powers. Nowhere
did the Board state that it was exercising powers located in clause 7.9 of the
DP. This Court takes a view that the DP finds no application over Mr Letsoalo.
Firstly , when Mr Letsoalo a greed to the terms of the FTC, as encapsulating
clause 21 , the DP was not in place as a condition of service. Secondly, in
approving the DP , Mr Letsoalo was exercising delegated powers. Nowhere in
section 11 of RAFA is the Board empowered to determine the terms and
conditions of a Chief Executive Officer, to a point that the Board may delegate
such powers in terms of section11 (1) (h) back to the Chief Executive Officer.
What is apparent from section 11(1)( b) is that the power to deter mine the
conditions of employment of staff of the Fund on managerial level lies with the
Board and not the C EO. It is bizarre to accept that using delegated powers Mr
Letsoalo may determine his own terms and conditions of employment contrary
to the terms and conditions determined in an employment contract.
[18] Regarding suspension of employment, long before 12 November 2021, Mr
Letsoalo had agreed to clause 21 of the FTC. Nowhere in cl ause 21 does one
find the provisions like clause 7.9 of the DP. Accordingly, this Court concludes
that clause 21 is the applicable clause . This conclusion puts paid to an
argument so passionately and forcefully pursued by Mr Letsoalo’s counsel that
the principle established in MEC for Education , Northwest Provincial
Government v Gradwell (Gradwell )7 that the suspension must be justified as
required by the provisions of the SMS Handbook, a collective agreement , finds
application as “the law” . Simply put , clause 7.9 of the DP finds no application .
This is so, even in an instance where the respondents who bear no onus had
accepted that clause 7.9 of the DP was read in conjunction with clause 21 .
Interpretation is a matter of law and not of evidence. Therefore, it remains the
7 (2012) 33 ILJ 2033 (LAC)
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duty of a Court to interpret any document having regard to text, context and
purpose8. Gradwell is in any event distinguishable from the facts of this case .
In Gradwell , the MEC invoked the provisions of a collective agreement (SMS
Handbook) , which in terms of section 23 of the LRA acquires legal force. In
casu , the Board invoked the contractual power .
[19] Clause 2.7(2) of the collective agreement involved in Gradwell specifically
empowered the employer to suspend if the member is alleged to have
committed a serious offence; and the employer believes that the presence of a
member at the workplace might jeopardise any investigation into the alleged
misconduct or endanger the well -being or safety of any person or State
Property. These pre-conditions are not provided for in clause 21 of the FTC. In
expatiating on the conditions, the learned Justice Murphy AJA, penning for the
majority, expressed himself in the following clear terms:
“[27] In the result, the learned judge’s supposition that the suspension was
unlawful, because there was no objectively justifiable reason to deny the
applicant access to the workplace when no investigation was under way, was
both legally and factually incorrect.
[28] Aside from that , the judge erred in his approach to determining the
lawfulness of a suspension i n terms of paragraph 2.7(2 ). His choice not to
consider the serious allegations against the respondent was mistaken . As a
rule, a decision regarding the lawfulness of a suspension in terms of
paragraph 2.7(2) will call for a preliminary finding on the allegations of
serious misconduct as well as a determination of the reasonableness of
the employer ’s belief that the continued presence of the employee at the
workplace might jeopardise any investigation etc . The justifiability of a
suspension invariably rests on the existence of a prima facie reason to
believe that the employee committed serious misconduct…
[20] What the learned Justice referenced above was applicable to clause 2.7(2) .
The clause itself refers to alleged to have committed a serious offence and the
believe to be formed by an employer wishing to suspend. An argument that the
8 See University of Johannesburg v Auckland Park Theological Seminary and another 2021 (6) SA 1
and Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 539 (SCA).
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above is law in respect of every suspension is without merit and ignores the
fact that the situation pertained only to clause 2.7(2) of the applicable collective
agreement. Accordingly, this Court rejects a submission that a suspension
effected in terms of clause 21 of the FTC is unjustifiable or unlawful purely on
the principles developed in Gradwell , which principles were solely tailored for
the provisions of clause 2.7(2) of the SMS Handbook .
[21] Irrationality is a species of a legality review. In Albutt9, the Constitutional Court
defined it to mean acting outside the purpose for which the power was given. In
suspending Mr Letsoalo, the Board was not exercisi ng public or statutory power
but contractual power. It is not the duty of a Court to suggest route to be
followed by the decision maker . All a Court must do is to evaluate the chosen
route. Clause 21 of the FTC requires a suspicion that misconduct, if proven,
would lead to a dismissal has been committed. Insubordination, if proven may
justify a dismissal . Accordingly, the decision to suspend serves the purpose and
is not irrational.
[22] Regarding unreasonableness, Bato Star10 informs us that a decision is
unreasonable if it is so unreasonable that a reasonable decision maker may not
reach it. The decision to suspend Mr Letsoalo is not one that falls outside the
bands of reasonableness. Accordingly , the decision is not unreasonable.
Is the applicant entitled to an interdictory relief
[23] An interdict is a special remedy to be granted at the discretion of a Court. What
Mr Letsoalo seeks is an interim interdict . The requirements of an interim
interdict are well known since the Setlogelo case and require no repetition at
every turn. The most important requirement is one of demonstrating a prima
facie right. If a party fails to demonstrate this requirement , cadit quaesto . A
prima facie right essentially relates to prima facie proof of facts that establish
9 Albutt v Centre for the Study of Violence and Reconciliation and Others 2010 (5) BCLR 391 (CC).
10 Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and Others 2004 (4) SA
490 (CC).
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the existence of a right, in terms of substantive law .11 Mr Letsoalo alleges that
he has acquired a right to be re -appointed to the position of the CEO of the
RAF. There is simply no factual or legal basis for this allegation .
[24] In the founding affidavit he makes a nude allegation that the Board has
resolved to re -appoint him. This the Board denies. In terms of section 11(6)(a)
resolutions of the Board are taken based on consensus. Mr Letsoalo failed to
avail any resolution taken by the Board in support of the allegation of a re -
appointment decision . As such, there is no prima facie proof that the Board took
a resolution to appoint him. The phrase “although open to some doubt ” does
not imply that any baseless allegation should be accepted by a Court . The right
must exist as a matter of substantive law. The right to re -appoint Mr Letsoalo
simply does not exist as a matter of substantive law. It is baseless . In terms of
section 12(1)(a) of RAFA, the Board has no power to appoint. It can only
recommend to the Minister. For some unsound reasons in law, the Minister has
not been joined in th e present application. Although a non -joinder point has not
been raised by the respondents, it being a point of law, this Court is entitled to
raise it mero motu . Undoubtedly, the Minister as the repository of statutory
power to appoint has a substantial interest in the relief sought by Mr Letsoalo to
interdict and restrain an appointment of a CEO of RAF . The failure to join the
Minister is fatal to the granting of the interdictory relief .
[25] It is legally implausible for Mr Letsoalo to be re -appointed. In clause 4.6 of the
FTC Mr Letsoalo warranted that there is no expectation by him objectively,
subjectively or otherwise that the FTC will be renewed or extended bey ond 6
August 2025. He also warranted that the non -renewal or non -extension of the
FTC beyond 6 August 2025 shall not constitute his dismissal as contemplated
in section 186 of the LRA. It is therefore unsurprising that Mr Letsoalo tactically
eschewed the provisions of the LRA. In terms of clause 28.1 of the FTC Mr
Letsoalo agreed that no amendment of the FTC shall be binding on the parties
unless reduced to a written document and signed by them . Certainly, the
alleged Board resolution to re -appoint Mr Letsoalo constitute an amendment of
11 See Webster v Mitchell 1948 (1) SA 1186 at 1189 an LCT Harms Civil Procedure in the Superior
Courts page 40.
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clauses of the FTC. Absent a signed written document such an amendment has
no binding effect.
[26] On the strength of all the above facts, Mr Letsoalo dismally failed to establish
prima facie facts establishing a right in terms of substantive law . Even if this
Court were to assume, which assumption it is not making, that a prima facie
right open to some doubt has been established , there is no evidence that such
a right to be re -appointed is facing imminent irreparable harm. In a rather
rumour mongering style , Mr Letsoalo testified that there is already pressure on
the Board from “some quarters” to advert ise the position. When counsel for Mr
Letsoalo was quizzed about the probative value of this evidence, he from the
bar led evidence that some quarters refer to the Deputy Minister. With the
greatest respect to the drafters of the founding affidavit , an allegation of
pressure from some quarters amounts to reckless pleading , in the
circumstances where the source of the pressure is identifiable and known .
Nevertheless, on Mr Letsoalo’s own version the Board with sufficient resolute
rebuffed the pressure . There fore, where is the imminent i rreparable harm, this
Court must ask. On his own version, there is no apprehension capable of being
formed that any harm might arise.
[27] I must add , on the strength of section 12(1)(a) of RAFA, a Board only
recommends. The enabling section does not spell out any procedure to be
adopted by the Board to reach a stage of recommendation to the Minister. This
Court is totally bewilder ed by the alleged advertisement requirement , in the
circumstances where an advertisement procedure is not contemplated in the
enabling section . On his own version, Mr Letsoal o regarding the alleged
resolution to re -appoint him , makes no reference to him having respon ded to an
advertisement first. Finally , assuming that such an advertisement is ultimately
made, there is nothing to prevent Mr Letsoalo to respond to the advertisement
and compete for the position of the CEO of the RAF.
[28] Because of all the above reasons, Mr Letsoalo failed to make out a case for an
interdictory relief even on an interim basis . Accordingly, an application for an
interim interdict falls to be dismissed. What then remains is the question of
costs , which is the question I now turn to .
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The question of costs
[29] This Court was pleasantly surprised to receive an argument that the Biowatch12
principle finds application in the present application. This submission is
blissfully not made in the 49 paged Heads of argument submitted on behalf of
Mr Letsoalo. On the contrary, a submission was boldly made that a punitive
personal cost order must be issued against the chairperson of the Board. The
present litigation is aimed at protecting pecuniary interests as opposed to
protecting a constitutional right. This Court takes a view that the present
application is frivolous and vexatious . Mr Letsoalo for very selfish reason, it
seems to appear , disavowed adequate and substantial remedies available to
him in terms of the LRA . A litigation in the dispute resolution fora contemplated
in the LRA does not attract an order of costs. To simply disavow the remedies in
the LRA does not mean that such remedies are not adequate and substa ntial13.
The fact that Mr Letsoalo disavowed the LRA remedies simply implies that he
was aware that such remedies are made available to him by law. A section
186(2)(b) of the LRA referral , would not have amassed costs of the magnitude
now amassed. The remedies contemplated in section 193(4) of the LRA are
adequate and substantial. Section 1 38(9) of the LRA empowers a
commissioner to make any appropriate award which may include a declaratory
order. It must be remembered that a declaratory order is a nother form of an
interdict14.
[30] Therefore, a submission that a commissioner cannot issue an interdictory relief
is doubtful . In a declaratory order a commissioner may vouchsafe an
interdictory relief. During argument, in a rather veiled attempt to bolster a
submission that the Biowatch principle finds application, counsel for Mr
Letsoalo , with respect, ambivalently argued that Mr Letsoalo was seeking to
protect his fair labour practices rights guaranteed in section 23 (1) of the
Constitution. This , in the circumstances where Mr Letsoalo testified as follows:
12 Biowatch Trust v Registrar Genetic Resources and Others 2009 (10) BCLR 1014 (CC).
13 See Passenger Rail Agency of South Africa and others v Ngoye and others 2025 (2) SA 556 (LAC).
14 Naptosa v Minister of Education Western Cape 2001 (2) SA 112 (C) .
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“33. The Honourable Court has jurisdiction to determine the application . I
disavow any reliance on section 186(2) of the Labour Relations Act 66 of
1995 as amended… as I do not claim that my suspension was unfair … I
do not claim that the conduct of the respondents constitutes unfair labour
practice …”
[31] Disavowa l in another name is a waiver. An orange a nd a grapefruit bear similar
resemblance . Both are yellow outside and are fruits . However, a grapefruit is
not as sweet as a n orange. In this case, Mr Letsoalo picked a grapefruit being
fully conscious that he is picking up a gra pefruit as opposed to an orange.
Therefore, he has no reason to complain about the bitterness in the mouth. On
application of the subsidiarity principle , Mr Letsoalo cannot place direct reliance
on section 23(1) in the face of the LRA. Now that the grapefruit is bitter in the
mouth, it does not avail to Mr Letsoalo to take a chameleon approach and want
to name the grapefruit an orange for sweetness convenience. The Court in
Biowatch admonished as follows:
“25 Merely labelling the litigation as constitutional and dragging in
specious references to sections of the Constitution would, of course, not be
enough in itself to invoke the general rule as referred to in Affordable
Medicines . The issue must be genuine and substantive, and truly raise
constitutional considerations relevant to adjudication …”
[32] Specious reference to unlawfulness, irrational ity and unreasonable ness did not
render this application to be one that truly raise constitutional considerations.
Properly described, the present application is nothing but a breach of contract
claim. Issues raised herein are different from those raised in Barkhuizen v
Napier (Barkhuizen )15.
[33] This Court is satisfied that the Biowatch principle finds no application in the
present in stance. Accordingly, the normal rule of costs following the results
must apply.
Conclusions
15 2007 (7) BCLR 691 (CC).
17
[34] In summary, the suspension effected by the Board is lawful, rational and
reasonable. There is no factual or legal basis to declare the suspension to be
unlawful, irrational and unreasonable . Mr Letsoalo has failed to establish a
prima facie right, even one open to any doubt . He failed to demonstrate any
apprehension of irreparable harm . Thus, he is not entitled to an interdictory
relief of any nature be it interim or final. Accordingly, the application although
heard as one of urgency falls to be dismissed. Regarding costs, the Biowatch
principle finds no application and costs must follow the results.
[35] Because of all the above reasons, I make the following order :
Order
1. The application is heard as one of urgency.
2. The application is dismissed.
3. The applicant is to pay the costs of this application on a scale of
party and party to be settled or taxed at scale C . The costs include
the costs of employing two counsel and the costs occasioned on
17 June 2025.
____________________________
GN MOSHOANA
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
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APPEARANCES:
For the Applicant : Mr H Molotsi SC and Mr P Moshoadiba.
Instructed by: Motalane Inc , Pretoria.
For the Respondents : Mr ESJ Van Graan SC and Mr Hlongwane.
Instructed by: Renqe FY Inc, Pretoria
Date of Hearing 17 and 24 June 2025
Date of judgment : 26 June 2025