IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case numb er: 2025-125031
Date of hearing: 24 February 2026
Date delive red: 9 March 2026
DELETE WHICHEVER IS NOT APPLICABLE
(1) REPORTABLE: '?B/NO
(2) OF INTEREST TO OTHERS JUDGES: Y~/NO
(3) ~D
""\i\ ~ ~ ;ru~,
In the application between:
MAKHOSINI MSIBI
and
THE BOARD: ROAD TRAFFIC MANAGEMENT
App licant
CORPORATION First Respondent
THE SHAREHOLDERS COMMITTEE: ROAD
TRAFFIC MANAGEMENT CORPORATION Second Respondent
THE ROAD TRAFFIC MANAGEMENT
CORPORATION Third Respondent
THE MINISTER OF TRANSPORT Fourth Respondent
1
JUDGME NT
SWANEPOE L J:
[1] The applicant is the Chief Executive Officer ("CEO") of the third
respondent. The third respondent is the Road Traffic Management
Corporation ("RTMC"), a Schedule 3 public entity in terms of the Public
Finance Management Act, 1 of 1999 ("the PFMA"), which was established
in terms of the Road Traffic Management Corporation Act, 20 of 1999
("the Act"). The first respondent is the Board of the RTMC ("the Board").
[2] On 1 July 2025 the Board, having received a number of
whistleblower's complaints, delivered a letter to the applicant in which it
advised that he was being placed on:
"precautionary suspension pending the consultation with the
Shareholder and/or the Minister of Transport. The Shareholder has now
been consulted with regard to your precautionary suspension. As a result
you are placed on cautionary suspension with effect from 1 July 2025."
[3] The applicant was also advised that his suspension was with full
pay, for an initial period of 30 days which could be extended to 60 days,
or any further period "as may be reasonably necessary". It must be noted
that when this application was heard, the applicant had been suspended
for almost eight months.
2
[4] The applicant initially sought an order that his suspension be
declared unlawful, that it be reviewed and set aside, and that the Board's
decision to appoint an interim CEO be similarly reviewed and set aside.
The main thrust of the applicant's case is that the Board did not have
delegated powers to suspend him. In its answering affidavit the Board
disclosed a 'Board Charter' which, it says, authorized it (inter alia) to
suspend the applicant. The applicant then delivered a supplementary
affidavit and an amended notice of motion. He took the stance that the
authority to establish a Board Charter had also not been delegated to the
Board. The applicant now seeks an additional order reviewing and setting
aside the Board Charter.
The issues
[5] The Board has raised a number of in limine points. The only points
pursued by the Board in argument, however, are the following: Firstly, it
submits that there is a material non-joinder of the interim CEO, who has
an interest in whether the applicant's suspension is uplifted. The applicant
has abandoned the prayer that the appointment of the interim CEO be
reviewed and set aside. It submits that, if the suspension is set aside,
then by operation of law the appointment of the interim CEO is
automatically of no force and effect. Secondly , the Board has pleaded
that this matter implicates a Constitutional issue, and that notice should
have been given in terms of Rule 16 A. Thirdly, the Board s-ubmitted that
the applicant had not sought leave to supplement , and that the
supplementary affidavit should be disregarded . Fourthly, the Board
3
submitted that the applicant had not sought the filing of a Rule 53 record,
but that it had, instead, employed the provisions of rule 6 of the Uniform
Rules in bringing the application. Finally, the applicant seeks
condonation, to the extent required, for the delay in delivering the
amended review application in respect of the Board Charter.
The statutory matrix
[6] In order to understand the applicant's contentions, it is important
to understand the legislative matrix within which the RTMC exists. The
RTMC was established by virtue of section 3 of the Act. It consists of1:
[6.1] A Shareholders Committee;
[6.2] A chief executive officer;
[6.3] A Board, subject to a decision by the Shareholders
Committee to establish a Board in terms section 8;
[6.4] Managers of functional units;
[6.5] Professional, technical , administrative and support staff.
[7] Section 6 established the Shareholders Committee, which
consists of the Minister of Transport, every MEC with responsibility for
road traffic in each province, and two appointed representatives. The
Shareholders Committee is responsible for directing and guiding the
4
proper functioning of the RTMC in the public interest. 2 Section 8 ( 1)
provides as follows:
"(1) The Shareholders Committee may subject to section (2) establish
a board of the Corporation consisting of-
(a) the Chief Executive Officer;
(b) if the Minister specifies an office in the Department for the
purpose of this subsection, the person for the time being
holding that office; and
(c) not more than eight persons appointed by that Committee."
[8} The material subsections of section 8 are the following:
"(3) The Shareholders Committee must, before appointing a board,
come to a decision as to-
(a) the powers which may be delegated to the board after its
appointment; and
(b) the conditions it thinks fit to impose in respect of the exercise
of delegated powers.
(4) The Shareholders Committee may, in writing, delegate to the
board any of the powers contemplated in subsection (3) (a).
(5) The Shareholders Committee may continue to issue directives in
terms of section 13 with regard to powers delegated to the board.
5
(6) The board must exercise the powers delegated in terms of
subsection (4) subject to the conditions, if any, contemplated in
subsection (3) (b).
(7) The Shareholders Committee may, at any time, withdraw a
delegation effected in terms of this section.
(8) Any delegation in terms of subsection (4) does not prohibit the
Shareholders Committee from exercising the delegated power."
[9] From a reading of the above provisions it is clear that the
appointment of a Board is within the discretion of the Shareholders
Committee, and is not mandatory. Furthermore, the powers of the Board
are strictly limited to those powers specifically delegated to the Board by
the Shareholders Committee in writing. The Board does not have any
powers save for the powers delegated to it.
[10) I n terms of subsection 12 (f), a decision to delegate powers to the
Board requires a special two-thirds majority of the Shareholders
Committee. Section 9 also requires the Shareholders Committee to enter
into a governance agreement with the Board, which agreement must be
published in the published in the Gazette and in every Provincial Gazette.
Section 28 of the Act sets out the functions of the Shareholders
Committee . Its functions are wide-ranging: It monitors the performance of
the RTMC, decides which functions are to be carried out by each of the
RTMC organs, approves the financial and business plan, approves the
award of tenders, consults on and facilitates the implementation of the
6
Act, and publishes particulars of policies. It generally performs all the
powers and duties conferred on it by the Act.
[11] It is against the above legislative background that the matter must
be considered. However, it is necessary to first deal with the in limine
points.
Non-joinder
[12] Section 10 of the Uniform Rules provides for the joinder of parties
having an interest in the matter. The test was stated by the Constitutional
Court in SA Riding for the Disabled Association v Regional Land Claims
Commissioner3 as follows:
"[9] It is now settled that an applicant for intervention must meet
the direct and substantial interest test in order to succeed. What
constitutes a direct and substantial interest is the legal interest in the
subject-matter of the case which could be prejudicially affected by the
order of the court."
[13] The person to be joined must, therefore, have a legal right that may
be adversely affected by the decision. The following question comes to
mind: What legal interest in these proceedings does the interim CEO
have? She has been appointed on a temporary basis. She has no legal
entitlement to remain employed as interim CEO. Save for alleging that the
interim CEO has an interest in the matter, the Board does not say what
7
that interest might be, nor what legal right may be affected. In my view
this point has no merit.
Rule 16 A notice
[14] Rule 16 A requires a party who raises a constitutional issue in a
matter to give notice thereof to the registrar at the time of filing the affidavit
or pleading. The purpose of the notice is to notify persons interested in
the constitutional issue to intervene as amici curiae in order to advance
submissions in respect thereof.
[15] In Phillips v SA Reserve Bank and Others 2013 (6) SA 450 (SCA)4
the Supreme Court of Appeal held that the provisions of rule 16 A (1) (a)
should be interpreted:
" ... in light of the purpose for which it was enacted, viz to bring cases
involving constitutional issues to the attention of persons who may be
effected by or have a legitimate interest in such cases, so that they may
take steps to protect their interests by seeking to be admitted as amici
curiae with a view to drawing the attention of the court to relevant matters
of fact and law to which attention would not otherwise be drawn."
[16] In my view, there is no true constitutional issue to be decided in
this matter, nor an issue regarding which other persons, other than the
respondents, would have an interest. I do not believe that this is a matter
which required notice in terms of rule 16 A ( 1 ) (a).
Admission of the supplementary affidavit
8
[17] I will deal with the merits of the matter, namely, whether the Board
was authorized to suspend the applicant, hereunder. The applicant has,
since he was suspended , sought confirmation that the power to suspend
him had been delegated to the Board. His main contention is that the
Shareholders Committee solely held the power to suspend him, and that
it had never delegated that power to the Board. The response to the
applicant's request was contained in a letter in which the Board's
attorneys said:
"2. At the outset we do not agree with the position advanced therein.
The Board of the Road Traffic Management Corporation ("the
Board") has acted squarely within its legal mandate and in full
compliance with its internal governance framework.
3. The precautionary suspension of your client is and (sic)
administrative measure undertaken in terms of the RTMC
policies and applicable legislation ...
4. The Board is empowered to take decisions of this nature, and any
suggestion that the suspension is procedurally irregular or ultra
vires is misplaced ... "
[18) Save for the aforesaid ipse dixit, the requested proof of delegation
was not forthcoming.
[19] The Board sought to prove its authority by attaching to its
answering affidavit a "Board Charter", which was signed by the Board
9
Chairperson on 29 January 2024. The Board submits that the Charter
afforded it the authority to suspend the applicant.
[20] In a supplementary affidavit (which was filed within days of the
answering affidavit being delivered) the applicant challenged the Board's
powers to adopt the Charter. The applicant contends that he was never
aware of the existence of the Charter, and he disputes its validity on the
basis that the Board was never delegated the power to approve a Charter.
The applicant has amended the notice of motion to include a prayer that
the Charter be declared unlawful.
[21] The Board submitted that the applicant has not sought
condo nation for the filing of the supplementary affidavit, nor has he sought
leave to amend the notice of motion. It is trite that a party is not entitled,
as of right, to deliver a further affidavit, other than those ordinarily allowed.
The applicant has not delivered a formal application for leave to
supplement, nor does a party have to do so, in my view.5 To insist on a
formal application would be over-formalistic.
[22} A party seeking to admit an affidavit must, however, provide a
proper explanation why the evidence was not placed before Court at the
appropriate time, and why it is in the interests of justice to admit the
affidavit. In Porterstraat Eiendomme (Pty) Ltd v PA Venter Worcester
(Pty) Ltd6 the Court summarized the factors that must be considered in
considering whether to admit the further evidence (this is not an
exhaustive list):
10
[22.1] The reason why the evidence was not produced
timeously;
[22.2] The degree of materiality of the evidence;
[22.3] The possibility that it may have been shaped to 'relieve
the pinch of the shoe';
[22.4] The balance of prejudice;
[22.5] The stage of the litigation;
[22.6] The 'healing balm' of an appropriate costs order;
[22. 7] The need for finality in litigation.
[23] In this case the supplementary affidavit followed immediately on a
disclosure made by the Board in its answering affidavit. The Board has
fully replied to the supplementary affidavit in its own supplementary
answering affidavit, and there can be no prejudice to it should the affidavit
be admitted. The submissions made in the affidavit go to the heart of the
matter, namely whether the Board was empowered to suspend the
applicant. It is, in my view, in the interests of justice to allow the affidavit.
Rule 53 as opposed to rule 6
[24] Rule 53 of the Uniform Rules envisages a review procedure akin
to rule 6, save for an important exception. Rule 53 requires an applicant
11
to deliver the application to the person whose decision is sought to be
reviewed7. It also requires the applicant to call on such person to show
cause why the decision should not be reviewed, corrected or set aside,
and to dispatch the record of proceedings to the registrar.
[25] The applicant delivered the application to the Board as required,
but it did not require the Board to show cause for its decision, nor did it
seek the dispatch of the record to the registrar. I suspect that it did not
call for the record due to the urgent basis on which the application was
initially brought. The Board argued that if the entire record of the
proceedings had been part of the court record, it would have assisted the
Court in coming to a conclusion as to the legality of the suspension. This
argument begs the question why, if the Board believed the record to be
important in bringing context to the matter, did it not simply file the record
itself, without having to be asked.
[26] It was held in Jockey Club of South Africa v Forbes 8 that the record
operates to the benefit of the applicant, and it may waive the requirements
of subrule 53 (1) (b). 9 I believe that the papers have provided a
comprehensive picture of the events leading up to the suspension, and
as I have said, if the record was-of value to the Board, it would no doubt
have proffered it in evidence.
Condonation for the late filing of the review in respect of the Board Charter
[27] The applicant argued, correctly so, I believe, that the decision to
implement a Board Charter constitutes the exercise of executive authority
12
as opposed to the suspension of the applicant which constitutes
administrative action under the Promotion of Administrative Justice Act,
Act 3 of 2000 ("PAJA"), and which should be reviewed under PAJA.
[28) In Minister of Defence and Military Vererans v Motau and Others10
the court said:
"[38] ... A power that is closely related to the formulation of policy is
likely to be executive in nature and, conversely , one closely related to its
application is likely to be administrative. "
[29) If one applies that principle in this matter, then the decision to adopt
a Charter is executive action which must be considered under legality. A
review brought under legality must be brought within a reasonable period,
whilst a review under PAJA must be brought within 180 days. The test is
two-fold. Firstly, has the review been brought within reasonable time
periods, and if not, then, secondly, should condonation be granted for the
delay?
[30) The applicant's version is that he only became aware of the
existence of the Charter when he read the answering affidavit. The Board
argued that it was highly unlikely that the applicant would not have been
aware of a Charter that was adopted in January 2024.
[31] It is certainly strange that the applicant was not aware of the
Charter. However, there is no evidence to suggest that he was in fact
13
aware thereof, nor can I simply reject his statement. If I accept what the
applicant says, which I do, then his review of the Charter was timeous.
Was the Board empowered to suspend the applicant, and was it
empowered to adopt a Board Charter?
[32) There is little doubt that it was the Board that suspended the
applicant. The notice of suspension says the following:
"1. Be advised that the Board, through its chairperson, was
alerted by whistleblowers of allegations of misconduct that
include fraud, corruption, and wasteful expenditure against
you. By their nature, the allegations are serious and warrant
an investigation.
2. In an in-committee meeting of the Board held on 13 June
2025, you were advised and excused to enable the Board
to deliberate on these issues and related matters.
3. Following the deliberations in the aforesaid meeting, the
Board resolved to place you on precautionary suspension,
pending the consultation with the Shareholder and/or the
Minister of Transport. The Shareholder has now been
consulted with regard to your precautionary suspension. As
a result, you are placed on a precautionary suspension with
effect from 01 July 2025."
14
[33] In the answering affidavit the Board confirmed that it had placed
the applicant under suspension. The Board's contention is that by virtue
of the applicant's employment contract, the Board is authorized to take
disciplinary steps against him. It also contends that the employment
agreement must be read in tandem with the performance agreement
between the Board and the applicant, and that considering both
agreements, the Board was acting within its powers.
[34] These two documents clearly purport to empower the Board to
take disciplinary action against the applicant. However, there is no
evidence that the Board had delegated powers to enter into the
agreements in the first place.
[35] I have set out the relevant provisions in the Act above. The
structure of the RTMC is unlike other entities. It is controlled by the
Shareholders Committee. The Shareholders Committee not only appoints
the Chief Executive Officer, it may also appoint a Board. The Board is
bound to act within the confines of those powers specifically delegated to
it by the Shareholders Committee. The Shareholders Committee must
decide, before appointing a Board, which powers shall be delegated to
the Board, and the conditions it deems fit to impose in respect of those
powers.
[36] T he Board submitted that the Board of a company derives certain
powers relating to the business and its affairs directly from the Companies
Act, 2008. By virtue of the Companies Act, therefore, the Board says that
15
it is automatically empowered to conduct the affairs of the company,
argues.
[37] This argument reflects a basic misunderstanding of the Act. The
RTMC scheme is sui generis. The RTMC is established as a juristic
person by virtue of section 3 of the Act. It is not registered under the
Companies Act. The "Shareholders" are not shareholders as defined by
the Companies Act, and they have powers that shareholders under the
Companies Act do not have. The RTMC may or may not have a Board,
depending on the decision of the Shareholders Committee. In contrast,
each company has a board of directors. The Companies Act does not, in
my view, apply to the RTMC.
Accounting Authority
[38] The Board submitted that it is the accounting authority of the RTMC
and it thus has certain powers by virtue of section 51 of the PFMA.
Section 49 (1) of the PFMA provides that every public entity must have
an authority which must be accountable for the purposes of this Act.
Subsection (2) reads as follows:
"(2) if the public entity-
(a) has a board or other controlling body, that board or
controlling body is the accounting authority for that entity;
or
16
(b) does not have a controlling body, the chief executive
officer or the other person in charge of the public entity is
the accounting authority for that public entity unless
specific legislation applicable to that public entity
designates another person as the accounting authority."
[39] The Board argued that as the accounting authority for the RTMC,
its responsibilities include the responsibility to take disciplinary steps
against an employee who contravenes the PFMA, commits any act that
undermines the financial management and internal control systems of the
entity, or who makes or permits fruitless or wasteful expenditure.
[40] I do not agree with the Board's submission. The appointment of
the Board is within the discretion of the Shareholders Committee. Should
the Shareholders decide not to appoint a Board, on the Board's
interpretation, the RTMC would then be left without an accounting
authority, which is untenable. It is clear, from a holistic consideration of
the Act, that the Board only exercises the powers delegated to it by the
Shareholders Committee in writing, that its delegated powers may be
revoked, and that, notwithstanding that a power has been delegated , the
Shareholders Committee may nonetheless exercise that power. I hold
that the Shareholders Committee is the 'other controlling body' referred
to in section 49 (1) of the PFMA, and thus it is the accounting authority.
[41] My view, that the Board did not have powers to suspend the
applicant, is supported by the provisions of subsection 39 (3) of the Act.
It reads as follows:
17
"(3) Any complaint regarding the chief executive officer must be
submitted to the Shareholders Committee or the Minister for
investigation."
[42] The above subsection is clear, and it is peremptory. In light of this
provision, it seems to me that it is not open to the Shareholders
Committee to delegate the power to investigate the Chief Executive
Officer to the Board, even if it wished to do so.
[43] The Board has not responded to the applicant's averment that
there has been no written delegation of powers by the Shareholders
Committee. The applicant has been asking for copies of all delegations
for months, without success. It is inconceivable to me that, if written
delegations exist, the Board would not have disclosed same. The only
possible explanation is that that there are no written delegations in
existence. If that is so, then any action by the Board is unlawful, but
particularly, the suspension of the applicant was unlawful. The adoption
of the Board Charter is, therefore, equally unlawful.
[44] Section 172 (1) (a) of the Constitution provides that a court must
declare any conduct that is inconsistent with the Constitution invalid, to
the extent of the inconsistency. Furthermore, a court may make any order
that is just and equitable 11, including an order suspending the invalidity to
allow the competent authority to correct the defence.12
[45] Consequently , the applicant's suspension must be reviewed and
set aside. As far as the Board Charter is concerned, it must, equally , be
18
reviewed and set aside. However, the Board is central to the operations
of the RTMC, and it would be prejudicial to the RTMC to merely set aside
the Charter with immediate effect. Consequent ly, the declaration of
invalidity of the Charter must be suspended for a brief period in order to
allow the Shareholders Committee to delegate to the Board the authority
to adopt a Charter within the provisions of the Act.
Costs of the postponements of 12 and 26 August 2025
(46) The matter was initially set down in the urgent court of 12 August
2025. On 5 August 2025 the Board delivered an unsigned answering
affidavit annexed to which was the Board Charter. It bears repeating that
the applicant had been seeking clarity on the Board's authority to suspend
him for some time, and that it was only at this stage that the Charter came
to light.
(47] The applicant took the view that it would be necessary for him to
challenge the Charter, which would require an amendment of the notice
of motion, and the filing of a supplementary affidavit. It removed the
matter from the urgent roll without seeking the Board's consent.
(48] Once the applicant had considered the matter further, he
concluded that the issues were of such a nature, and the papers so
voluminous, that the matter should not be heard in the urgent court. The
applicant's attorney thus approached the AJP for an allocation as a
special motion, and the matter was also not heard in the urgent court on
26 August 2025.
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[49] The first postponement was the result of the Board's rather coy
approach to the applicant's request for proof of its delegated powers. It
only disclosed the existence of the Charter (which I have held is unlawful)
a week before the matter was to be heard. The applicant's decision to
remove the matter from the 12 August roll was understandab le. However,
it should have become apparent immediately that the matter could not be
heard in the urgent court. The applicant's decision to enroll the matter for
26 August 2025 was ill advised.
[50] In my view, therefore , both parties had a hand in the
postponements of 12 and 26 August 2026. It would be appropriate to
order each party to pay its own costs for those two dates.
[51] Consequently, I make the following order:
[51.1] The first respondent's decision to adopt the Board
Charter dated 29 January 2024 is invalid, and is reviewed and
set aside;
[51.2] The declaration of invalidity above is suspended for
90 days in order for the first respondent to be delegated
appropriate powers;
[51.3] The first respondent's decision on 1 July 2025 to
place the applicant on suspension is unlawful, and is
reviewed and set aside.
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[51.4] In respect of the matter being set down on 12 and 26
August 2025, each party shall pay its own costs.
[51.5] The first respondent shall pay the applicant 's costs
(save for the costs referred to in paragraph 51.4 above) on
Scale C, including the costs of two counsel where so
employed .
Counsel for the applicant:
Instructed by:
Counsel for the First Respondent:
Instructed by:
Heard on:
Judgment on:
1 Section 5 of the Act
2 Section 7 (2)
~··· ·
C SWANEPOEL J
JUDGE OF THE HIGH CO0RT
GAUTENG DIVISION PRETORIA
Adv. JA Motepe SC
Adv. S Manganye
Soldatos Coopers Inc
Adv. PL Mokoena SC
Adv. P Managa
Mothle Jooma Sabdia Inc
24 February 2025
9 March 2025
21
3 SA Riding for the Disabled Association v Regional Land Claims Commissioner v
2017 (5) SA 1 (CC) at 5 A-O
4 Phillips v SA Reserve Bank and Others 2013 (6) SA 450 (SCA)
5 Meropa Communications (Pty) Ltd and Another v Verb Media (Pty) Ltd [2017]
ZAGPJHC 464 (11 August 2017)
6 Porterstraat Eiendomme (Pty) Ltd v PA Venter Worcester (Pty) Ltd 2000 (4) SA 598
(C) at 617 A-E
7 Subrule 53 (1) (b)
8 Jockey Club of South Africa v Forbes 1993 ( 1) SA 649 (A) at 660 E-H
9 Motaung v Mukubela and Another NNO; Motaung v Mothiba 1975 (1) SA 618 (0) at
625 H-626 A
10 Minister of Defence and Military Veterans v Motau and Others 2014 (5) SA 64 (CC)
11 Subsection 172 ( 1 ) (b)
12 Subsection 172 (1) (b) (ii)
22