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

Case Number: 17671/2023

In the matter between:

MKHUSELI MICHAEL MATAKATA Applicant

and

PASSENGER RAIL AGENCY OF SOUTH AFRICA (PRASA) First Respondent

PRASA BOARD Second Respondent

HISHAAM EMERAN Third Respondent


JUDGMENT DATED 31 JULY 2025
APPLICATION FOR LEAVE TO APPEAL


MAGARDIE AJ

1. The applicant applies for leave to appeal against the whole of the judgment and
the order of this court in Matakata v Passenger Rail Agency of South Africa

(PRASA) and Others (17671/2023) [2025] ZAWCHC 52 (18 February 2025)
(“the principal judgment ”). The principal judgment dismissed with costs an
application for declaratory orders sought by the applicant in the following terms:

1.1 “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 unlawful and
invalid;
1.2 the proceedings of the disciplinary hearing were, as such, vitiated and
accordingly invalid;
1.3 the result of the said disciplinary hearing was equally vitiated and
accordingly invalid;
1.4 the applicant’s contract of employment was never terminated; as such,
the applicant has a right to return to his workplace immediately upon
the granting of this Orde r and to be paid his salary retrospectively,
which shall include all increments effected since his purported
dismissal.”

2. The application for leave to appeal sets out various grounds on which the
applicant contends that an appeal against the principal judg ment has
reasonable prospects of success. In the alternative, the applicant contends that
there are compelling reasons why an appeal should be heard. The main
grounds of appeal, insofar as it has been possible to distill them from the
application for leave to appeal, are essentially three -fold. Firstly, the applicant
contends that the court erred and misdirected itself by failing to address all the
grounds of attack advanced by the applicant in relation to his purported
dismissal by the first respondent (“P RASA”). Underpinning this ground of
appeal is a contention by the applicant that the court erred in its findings
regarding the application of the Oudekraal principle in relation to the termination
of the applicant’s employment with PRASA.

3. Secondly, the applicant contends that based on the common cause facts, an
appeal court would reasonably confirm or declare that the applicant’s

appeal court would reasonably confirm or declare that the applicant’s
employment was never terminated. Thirdly, the applicant contends that the

court erred and misdirected itself in rejecting the applicant’s ground of attack in
relation to alleged unlawful procurement of the professional services of the
persons who constituted his disciplinary hearing.

4. The principal judgment sets out the factual background in some detail . N o
useful purpose would be served by unduly rehashing it again. Suffice to say that
the applicant was the former Head: Corporate Security at PRASA. On 10 April
2017 he was dismissed for misconduct pursuant to a disciplinary hearing. The
disciplinary hearing chairperson and the initiator / employer’s representative at
the disciplinary hearing were advocates from the Johannesburg Bar briefed by
PRASA’s attorneys, Bowmans, on the instructions of PRASA. The applicant
contends on various grounds that the appointm ent of the persons who
constituted the disciplinary hearing and the disciplinary proceedings were
unlawful and invalid. The key issue to be determined was whether the applicant
had established the requirements for declaratory relief in terms of section
21(1)(c) of the Superior Courts Act 10 of 2013 (“Superior Courts Act”). That
section provides that a court may “… 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.”

5. The applicant’s cause of action in the main application was limited to
declaratory relief. This is an important consideration when deciding whether an
appeal against the principal judgment has any reasonable prospects of
success. As set out in the principal judgment, the applicant eschewed any
reliance on judicial review either as his cause of action or the remedy being
sought in the application. He stated that he did not seek to review the decision
by PRASA to appoint the persons who constituted the disciplinary hearing. Nor,

by PRASA to appoint the persons who constituted the disciplinary hearing. Nor,
according to the applicant, was he reviewing the chairperson’s decision -making
process in relation to his dismissal.

6. According to the applicant, the true nature of the relief sought in the application,
was a declaratory order. Consequently, so went the applicant’s argument, there
were no time constraints imposed upon him as to when he should have brought

his application, as would have been the case in a review based on either the
Promotion of Administrative Justice Act 3 of 2000 (“PAJA”) or the principle of
legality.

7. The lengthy history of the litigation instituted by the applicant against PRASA
which followed his dismissal on 10 April 2017 is set out in detail in the principal
judgment. That litigation involved various applications by the applicant in the
Commission for Conciliation, Mediation and Arbitration (“CCMA”), four
applications in the Labour Court, an application for direct access to the
Constitutional Court and applications to this Court firstly for interim interdictory
relief and thereafter the declaratory orders which resulted in the principal
judgment. Counsel for the applicant submitted that the litigation background
was common cause and unnecessarily included in the principal judgment. The
train of events and the applicant’s conduct of his litigation against PRASA
speaks for itself. I fail to see why th at litigation background would not be
relevant. The granting of declaratory orders in terms of section 21(1) (c) of the
Superior Courts Act is a discretionary remedy. Th at the applicant seeks an
order effectively re -instating his employment in a position from which he was
dismissed approxima tely 8 years ago and which dismissal has not been set
aside by the Labour Court or the CCMA , is a factor relevant to the exercise of
that discretion. So too are the uniformly failed outcomes of the plethora of
applications by the applicant in relation to his dismissal on 10 April 2017 and
the findings of the various courts and bodies which dealt with those
applications.

8. I shall deal first with the ground of appeal advanced on the basis that the court
erred in dismissing the applicant’s ground of attack that the persons appointed
to constitute the disciplinary hearing which found him guilty of misconduct, were
improperly and/or unlawfully appointed. There were two foundations to the

improperly and/or unlawfully appointed. There were two foundations to the
applicant’s argument in this regard. The first was that Bowmans, PRASA’s
attorneys, were by virtue of conflict of interest disqualified from conducting the
applicant’s disciplinary hearing.

9. The second was that the disciplinary hearing proceedings were unlawful and
invalid on the basis of certain findings made by the Auditor -General in his
2016/2017 Annual Report on PRASA. The principal judgment sets out the
reasoning for the court’s rejection of the applicant’s various contentions in his
founding affidavit that Bowmans were by virtue of conflict of interest disqualified
from conducting his disciplinary hearing. The applicant’s contentions in this
regard and his unfounded allegations in relation to the legal practitioners
concerned, were found to be devoid of factual substance and singularly lacking
in merit. I am not persuaded that a court of appeal would find otherwise. In any
event, none of these findings are challenged in the application for leave to
appeal.

10. As to the second foundation for the applicant’s improper and/or unlawful
appointment challenge to the disciplinary proceedings, t he applicant in his
supplementary answering affidavit cont ended that by virtue of the Auditor-
General’s 2016/2017 Report on PRASA (“the Auditor -General’s report”), the
appointment of t he persons who constituted his disciplinary hearing was
unlawful and improper and that consequently, his dismissal was a nullity. In
support of this ground of alleged nullity of the disciplinary proceeding, the
applicant annexed to his affidavit certain extracts from the Auditor -General’s
report. The said extracts amount ed to a total of two pages . That included the
report’s covering page.

11. Under the heading, “Report on audit of compliance with legislation”, the Auditor-
General’s report stated in relation to PRASA that “…Goods, 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 Sout h Africa,1996. This
included instances where: ….professional services were sourced from a panel

included instances where: ….professional services were sourced from a panel
that did not comply with the requirements of PRASA’s supply chain
management policy.” It was in reliance on this italicized statement and apparent
finding in the Auditor-General’s report, that the applicant argued that its effect
was to render the composition of the disciplinary panel and his consequent
dismissal, unlawful and invalid.

12. The extracts of the Auditor -General’s report which the applicant relies on make
no mention of the appointment of Bowmans to the panel referred to in the
report. The report does not refer to the appointments of persons to the
proceedings of the applicant’s disc iplinary hearing. That much is obvious. Mr.
Mtshemla, counsel for the applicant, however argued that the Auditor-General’s
report need not have done so. It was not necessary for t he Auditor -General,
counsel submitted, to have mentioned by name each and every supplier /
service provider to which his findings related. According to the applicant’s
application for leave to appeal, this was “…because they were all and
collectively included by virtue of being in a panel for the perio d affected by the
AG report.” Unlawfulness and invalidity of their appointment was thus visited on
these suppliers or service providers not because the y were included and
referred to in the Auditor-General’s report. On the contrary, says the applicant.
It was because those service providers, including those who constituted his
disciplinary hearing were not specifically excluded from the Auditor -General’s
report, that were in fact included in the report.

13. I have dealt with this argument in some detail in the principal judgment. It is
untenable and has no merit. The applicant disagrees. In his application for
leave to appeal , the court’s findings in this regard are described as being
“constitutionally and statutorily (sic) perverse”. I leave aside for a mo ment the
appropriateness of that description. There are in my view no reasonable
prospects of another court concluding that persons who rendered professional
services to PRASA during the period covered by the Auditor -General’s report,
did so unlawfully because although they were not specifically mentioned in the
report, they were somehow impliedly included and hence subject to its adverse
findings by implication. The applicant sought to buttress this novel argument by

findings by implication. The applicant sought to buttress this novel argument by
reliance on the interpretive maxim inclusio unius est exlusio alterius (the
specific inclusion of one implies the exclusion of the other). The maxim does not
apply conversely. It does not mean the specific exclusion of one implies the
inclusion of the other. The interpretation of the Auditor’s General’s report
contended for by the applicant turns this common sense rule of interpretation on
its head.

14. Nor for that matter am I persuaded that there are any reasonable prospects of a
court of appeal rejecting the undisputed evidence of PRASA that the
chairperson and the initiator of the disciplinary hearing were in fact properly and
lawfully appointed in accordance with PRASA’s internal procurement
procedures an d that Bowmans was acting on a duly authorized mandate
sanctioned by the then Group CEO of PRASA. No sustainable factual or legal
basis was established by the applicant that the appointment of the persons who
constituted his disciplinary hearing breached section 217 of the Constitution,
PRASA’s procurement policy was u nlawful and invalid. There was
consequently no basis for a declaratory order to that effect. There are i n my
view no reasonable prospects of a court of appeal granting the declarati on
sought in paragraph (c) of the applicant’s amended notice of motion and the
consequential orders sought in paragraphs (d) and (e) thereof.

15. The applicant set great store in a ground of appeal based on the contention that
the court erred in failing to d eal with all his grounds of attack and in its reliance
on the principle established in Oudekraal.1 In prayer (f) of his amended notice of
motion, the applicant sought a declaratory order that “… the Applicant’s contract
of employment was never terminated a s such, ha s (sic) a right to return to his
workplace immediately upon the grant of this order and to be paid his salary
retrospectively, which shall include all increments effected since his purported
dismissal.” The applicant’s grounds of attack in support of this relief, advanced
for the first time in a supplementary replying affidavit, were that his dismissal by
PRASA was unlawful on three further bases. The first was that the chairperson
allegedly acted outs ide of his mandate as set out in his letter of appointment
and terms of reference. The second was alleged to be that PRASA had no
power or right to outsource or delegate to the chairperson, the power to

power or right to outsource or delegate to the chairperson, the power to
discipline and dismiss the applicant. Thirdly, the ap plicant alleged that his
dismissal was unlawful because he was not given written notice of termination
of his employment by PRASA.


1 Oudekraal Estates (Pty) Ltd v City of Cape Town and Others 2004 (6) SA 222 (SCA).

16. The main judgment held that having tied his case to being one for declaratory
relief as opposed to review relief, the effect of the Oudekraal principle was that
because his dismissal had not been set aside, it must be found to be valid and
legally effective. The court further conclud ed that the applicant had failed to
establish the presence of an existing right in respect of the relief sought in
prayer (e) of his amended notice of motion, that being a necessary pre -
condition for the exercise of the court’s discretion to grant or refus e declaratory
relief. Having failed fundamentally at this first hurdle, the court concluded that it
was unnecessary to consider the merits of the further grounds advanced by the
applicant relating to alleged ultra vires conduct by the chairperson and alleg ed
failure to provide the applicant with written notice of termination of his
employment.

17. The applicant submits that the Oudekraal principle finds no application in the
matter at hand and relies on various authorities which have concluded that the
dismissal of a public servant does not constitute administrative action
reviewable in terms of PAJA. 2 On this basis , the applicant conten ds that the
court erred in failing to determine the merits of his alternative challenges to the
lawfulness of his dismissal. The argument is without merit. Firstly, this was not
an application for judicial review in which it is generally advisable for a co urt to
deal with all the grounds of review advanced by a litigant seeking to impugn
unlawful administrative action. Secondly, the applicant in any event failed to
establish that there was a valid contract of employment giving rise to an existing
right capa ble of being determined by declaratory relief. The declaratory order
sought in paragraph (f) of the applicant’s amended notice of motion was one for
an order that his contract of employment was “never terminated”. But it was. It

an order that his contract of employment was “never terminated”. But it was. It
was terminated by the chair person of the disciplinary hearing on 10 April 2017
in his sanction finding. The applicant has not been re -instated by any order of
the Labour Court or the CCMA and his dismissal has not been set aside.


2 For example , the judgment of the Labour Appeal Court in P ublic Servants Association of South
Africa obo De Bruyn v Minister of Safety and Security and Another (JA91/09) [2012] ZALAC 14;
[2012] 9 BLLR 888 (LAC); (2012) 33 ILJ 1822 (LAC) (15 May 2012).

18. The declaratory order sought by the applicant that hi s contract of employment
was never terminated and that as such he has the right to return to his
workplace, is inconsistent with reality and the established common cause facts.
The applicant referred an unfair dismissal dispute to the CCMA on 9 March
2017. This was the very day that he received his sanction of dismissal from the
chairperson of the disciplinary hearing. He litigated repeatedly in the CCMA and
the Labour Court on the basis that he had been unfairly dismissed by PRASA.
The applicant’s employment had in fact been terminated by PRASA and he
knew it.

19. The test for leave to appeal is set out in section 17(1)(a) read with section
17(1)(b) of the Superior Courts Act. It is whether proper grounds have been
established that there is a reasonable chance of an appeal succeeding or
whether there is some other compelling reason why an appeal should be heard.
This application establishes neither.

Order

20. The application for leave to appeal is dismissed with costs.



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