IN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION, MAHIKENG
In the matter between:
HANSKEKANA
and
MEC FOR COMMUNITY
SAFETY AND TRANSPORT
MANAGEMENT: NORTH WEST
PROVINCE
PREMIER OF THE NORTH
WEST PROVINCE
Coram: Wessels AJ
Date of hearing
Not reportable
CASE NO:2026-030139
Applicant
First respondent
Second respondent
:20 February 2026
2
Delivered: This judgment was handed down electronically, circulated to the
parties' representative s via email, uploaded to CaseLines, and released to
SAFLII. The date and time for the handing down of the judgment are deemed to
be 16h00 on 27 February 2026.
Summary: Public service - Head of Department - Precaution ary suspension
- Authority to suspend - Sections 12 and 16A of Public Service Act 103 of
1994 - Whether Member of Executive Council (MEC) as 'executive authority'
possesses original statutory power to suspend Head of Department (HOD)
notwithstanding Premier being appoint ing authority - Specific provisions of s
16A qualifying genera l powers of s 12 - MEC as statutory repository of
disciplinary power - Chapte r 8 of Senior Management Service Handbook.
Practice - Appl ications and motions - Urgency - Uniform Rule 6(12) -
Precautionary suspension on full pay in terms of paragraph 18.3 of Chapter 8 of
the SMS Handbook - Legality challenge not per se establishing urgency where
no irreparable harm or lack of substantial redress shown - Cou1t nonethe less
exercising discretion to determine unmeritorious application in the interest of
judicial certainty.
Jurisdiction - High Court - Concurrent jurisdiction with Labour Court -
Challenge to executive action framed as breach of principle of legality -
Jurisdiction of High Court not ousted by employment context.
JUDGMENT
3
WESSELSAJ
Introduction
( 1] The applicant , Dr Hans Kekana , who serves as the Head of Department
('HOD ') for Community Safety and Transport Management: Nort h West
Provincia l Governme nt, has approached this court on an urgent basis. He seeks
a dec laratory order to the effect that his precautionary suspension, initiated by the
first respondent on 11 February 2026, is unlawful and ultra vires. The appl icant's
primary conte ntion is that, as an appo intee of the Premier in term s of s 12 of the
Public Service Act' ('PSA') , only the Premier holds the legal authority to suspend
him.
Urgency
(2] Before the merits can be ventilated , I must address the requirement of
urgency. Uniform Rule 6(12) confers a discretion to dispense with the ordinary
forms and serv ice. As articu lated in Mogalakw ena Local Muni cipality v
Provincial Executive Coun cil, Limpopo and others2, this discretion is exerc ised
by eval uating w hether the applicant has explicitly set out the circumstances
rendering the matter urgent and whether substantia l redress can be afforded at a
hearing in due course.
(3] The criteria for deviating from the general provisions of Rule 6 were
clarified in Eniram (Pty) Ltd v New WoodhoLme Hotel (Pty) Ltd3, where the court
emphasised that an applicant must explicitly spec ify the circumstance s justifying
1 Public Service Act I 03 of 1994.
2 Mogalakwe na Local Municipali1_1· v Provincial Executive Council, Limpopo a11d others [20 14] 4
A ll SA 67 (GP) para 64.
3 Enira m (Pl_v) lid v New Woodhol111e 1/vtel (Pt_1") lid 1967 (2) SA 491 (E) 493F-G.
4
urgency. In the present matter, the applicant relies on the principle of legality to
support the claimed urgency. However , the principle of legality should not be
viewed in a vacuum. While the lawfulness of executive conduct is a matter of
significant constitutional imp01tance, a challenge based on legality does not, per
se, establish urgency if the eventual redress will not be rendered nugatory by the
passage of time.
[ 4] I am mindfu l that in cases I ike Mogalakwena 4 , courts have sometimes held
that a serious breach of the princ iple of legality warrants an urgent hearing.
However, that matter is clearly distinguishable from the present instance. In
Mogalakwena 5 the alleged illegality led to a total collapse of local governance
and a conflict between competing legitimate authorities, resulting in
administrat ive paralysis. No such crisis exists here. It is common cause that an
Acting HOD has been appointed under the clear regulatory framework set out in
the SMS Handbook, ensuring the continued administrative functioning of the
Department. In a suspens ion matter where an Acting HOD replaces an HOD, the
'harm' is local ised to the individual and does not threaten the stability of the
Department. Consequently, the legality of the first respondent's action can be
addressed in due course without causing a vacuum in departmental leadership.
As stated in IL & B Marcow Caterers (Pty) Ltd v Greatermans SA Ltd and Others;
Aroma Inn (Pty) Ltd v Hypermarkets (Pty) Ltd and Others6, potential financial
prej udice or profess ional inconvenience alone does not qualify as good cause for
an expedited hearing. The prejudice suffered by the applicant, who remain s on
full pay, thus falls back into the territory of mere professional inconvenience,
which does not const itute a ground for this court to bypass the ordinary roll.
4 Op cil fn2.
5 Op cil fn2.
6 ll & 8 Marcow Caterers (Pty) Lid v Grealer111a11s SA Ud and Others: Aroma l,111 (Pty) Ltd v
6 ll & 8 Marcow Caterers (Pty) Lid v Grealer111a11s SA Ud and Others: Aroma l,111 (Pty) Ltd v
Hyper111arke1s (Pt)~ Llda11c/Others 1981 (4) SA 108 (C) 11311-114/\.
5
[5] The suspens ion of the applicant falls within the purview of paragraphs 18.2
(1) and (2) of Chapter 8 of the Senior Management Service (' SMS') Handbook.
Paragraph 18.3 ( of Chapter 8) governs the consequences of a suspension of an
HOD. It explicitly mandates the following:
'18.3 A suspension of this kind is a precautionary measure that docs not constitute a judgement
[sic] and must therefore be on full pay.'
[6] Nothing in the application leads me to conclude that the applicant is not
receiving his full remuneration. In light of this, I find that the applicant has not
demonstrated that he will be denied substantial redress in the ordinary course. As
stated in Republikeinse Publikasies (Edms) Bpk v Afrikaans e Pers Publikasies
(Edms) Bpk7 the court's power to condone non-compliance is reserved for
deserving cases of necessity. A precautionary suspension with full remuneration
does not meet this threshold .
[7] Although the application fails to meet the requirements for urgency, I
nonetheless deem it appropr iate to deal with the merits. Where an applicatio n
lacks merit, and the papers are complete , it is in the interest of judicial certa inty
to finalise the dispute rather than simply striking it from the roll.
Jurisdiction
[8] A significant issue concerns this Court 's jurisdiction. The respondents,
relying on Chirwa v Transnet Limited and Others8, argue that this matter is
essent ially a labour dispute and should fall within the exclusive jurisdiction of the
7 Repub likeinse Publikos ies (Edms) Bpk v A.fi'ikaa11se Pers Puhl ikasies (Edms) Bpk 1972 ( I) S A
773 (A) 782A-C.
8 Chirwa v Trammel Limited and 01hers (CCT 78/06) [2007) ZACC 23; 2008 (4) SA 367 (CC); 2008
(3) BCLR 251 (CC) ; [2008) 2 BLLR 97 (CC) ; (2008) 29 I LJ 73 (CC) (28 November 2007).
6
Labour Court. In this judgment , the Constitutional Court emphasised 9 that the
Labour Relations Act 10 ('LRA') was intended to be a comprehensive 'one-stop
court' for all labour-related grievances. The Constitutional Court held 11 that the
existence of a dual system of law, where public sector employees could choose
between the High Court and Labour Court by framing labour disput es as
admin istrative action, was to be avoided.
[9] However, the jurisdictional landscape has been further clarified in Baloyi
v Public Protector and Others 12. Thi s judgment confirmed that the High Court 's
jurisdiction is not ousted in emp loyment-related disputes if the cause of action is
framed outside the LRA. As was stated in Gcaba v Minister for Safety and
Security
1
3, when a court's jurisdiction is challenged , the applicant's pleadings
determine the matter. They set out the legal basis of the claim under which the
applicant seeks to invoke a court's competence . The papers, includin g the notice
of motion and supportin g affidavits, must be interpreted to establis h the claim 's
legal foundation. If, properly interpreted , the pleadings must show the
applicant's claim falls under the LRA and is exclusively within the Labour
Court's juri sdiction and only then would the High Court lack jurisdiction.
[ 1 OJ It follow s that where a claim is based on the principle ofle gality or a review
of administrative action in the labour law context , the High Court and the Labour
Court have concurrent jurisdiction.
9 Op cit fn 8 paras 54 and 149.
10 Labour Relation s Act 66 of 1995.
11 Op cit fn 8 para 65.
12 Baloyi v Public Protector and Others (CCT03/20) [2020] ZACC 27; 2021 (2) BCLR I O 1 (CC);
[2021] 4 BLLR 325 (CC); (202 1) 42 ILJ 961 (CC); 2022 (3) SA 32 1 (CC) (4 December 2020) para 26
13 Gcaba v Minister/or Safety and Security and Others (CCT64/08) [2009) ZACC 26: 2010 ( 1) SA
238 (CC); 2010 (I) BCLR 35 (CC); (20 10) 3 1 ILJ 296 (CC); [2009] 12 BLLR 11 45 (CC) (7 October
2009) para 75.
7
[11] Unlike the applicant in Chirwa
1
➔ , who sought to review a dismissa l under
the Promotion of Admin istrative Justice Act15 after failing in the CCMA, the
applicant in this matter has specifically and primarily challenged the first
respondent's statutory power under the PSA. This is a direct challenge to the
principle of legality and the ultra vires exercise of public power, which falls
within the concurrent jurisdiction of this Court.
[12] The High Cou1t retains concurre nt jurisdiction where a claim is framed as
a breach of the principle of legality. On this point, I conclude that in the present
matter, the applicant challenges the first respondent's statuto1y power under the
PSA, thereby engaging this Court's jurisdiction.
Merits
[13] The factual dispute arises from a breakdown in the parties' professional
relationship following an investigation into allegations of misconduct. These
allegations centre on procedura l failures in the 'Airport Tender ' procurement
process and purported deviations from the Supply Chain Management
Framework. Further, the first respondent cites concerns regarding the alleged
unlawful transfer of funds and potential contraventions of the Public Finance
Management Act 16. The first respondent contends that the applicant's continued
presence at the workplace poses a risk of interference with evidence and with the
influence of witnesses, thereby jeopardising the integrity of the pending
investigation.
14 Op cit fn 6.
15 Promotion of Administrative Justice Act 3 of 2000.
16 Public Finance Management Act I of 1999.
8
[14] On 3 February 2026, the second respondent informed the first respondent
that he lacked the authority to suspend the applicant. Despite this, the first
respondent proceeded with the applicant's suspension on 11 February 2026,
relying on his status as the executive authority.
Power to suspend
[ 15] The resolution of this matter requires an analysis of the interplay between
ss 12 and 16A of the PSA. Section 12(1) identifies the Premier as the authority
responsible for the appointment of an HOD. It reads:
'Notwithstanding anything to the contrary contained in this Act, but subject to this section and
sec tions 2 (28) and 32 (2) (b) (i), the appointment and othe r career incident s of the heads of
department and government component shall be dealt with, in the case of-
(a) ...
(b) a head of the Office of a Premier, provincial department or provincial government
component, by the relevant Premier.·
[16] However, s 16A(l) of the PSA provides the following specific, mandatory
instruction:
'An executive authority shall-
(a) immediately take appropriate disciplinary steps against a head of department who
does not comply with a provision of this Act or a regulation, determination or directive
made thereunder; ' (own emphasis)
9
[ 17] Section 1 of the PSA defines 'executive authority' in relation to a provincial
department as the Member of the Executive Council ('MEC') responsible for
such portfolio.
[ 18] The applicant argues that the power to suspend is an incident of the power
to appoint, with reference to Masetlha v President of the Republic of South Africa
and Another 17. It should be borne in mind that at the time Masetlha was handed
down on 3 October 2007, the Public Service Amendment Act18 ('2007
Amendment Act'), which had not yet commenced, introduced the most recent
revisions to the PSA. The 2007 Amendment Act, which largely came into effect
on 1 April 2008, introduced ss 16A and 16B into the PSA, provisions that did not
exist when the Constitutional Court considered the facts in Maset/ha.
[19] While the common law principle identified in Maset/ha 19 holds that the
power to dismiss or suspend is implied by the power to appoint, the legislat ure
has, through the 2007 Amendment Act, provided an express and mandatory
statutory framework that specifically assigns the initiation of disciplinary steps to
the 'executive authority'. By defining the 'executive authority' in s 1 as the MEC
for provincia l departments, the PSA creates an original statutory power that exists
independently of the Premier 's power to appoint.
[20] For the sake of completeness, the insertion of ss 16A and 168 introduced
the initiation of disciplinary steps (Section 16A) and the disciplinary steps
themselves (Sect ion 168) , which are central to contemporary disputes over
17 Masell ha v President of the Republic of South Africa and Another (CCT 0 1/07) [2007] ZACC 20;
2008 (I) SA 566 (CC); 2008 (I) BCLR I (3 October 2007).
18 Public Service Amendment Act 30 of 2007.
19 Jbid.
10
whether the MEC or the Premier has the authority to suspend, were inserted into
the PSA by the 2007 Amendment Act.
[21] While the power to suspend is an incident of the power to appoint, it is a
general principle that must yield to the specific statutory scheme established by
the legislature. Section l 6A( 1) of the PSA grants the MEC , as the executive
authori ty, an original statutory power to ensure departmental accountability. If
the legislature intended for the Premier to be the sole actor in disciplining an
HOD, it would not have specifically designated the executive authority ins 16A,
which is a term defined in s 1 as the MEC .
[22] The fact that the political head of a department must possess the statutory
tools to manage senior officials to ensure service delivery has been reinforced in
Shabane v Minister of Public Service and Administration 20. The court in
Shabane21 furthermore stated that, while s 42A of the PSA allows for the
delegation of powers, s 16A confers an original power upon the MEC to initiate
disciplinary steps. The decision in Shabane is a well-reasoned judgment and
constitutes a well-founded precedent.
[23] The MEC, therefore, does not act as a mere delegate of the Premier when
initiating disciplinary steps, but as a statutory repository of power.
[24] The communication from the second respondent to the first respondent
cannot supersede a power directly conferred upon the first respondent by the PSA.
Execut ive instructions do not have the legal effect of amending or vacating
20 Shabane v Minister Nkwinli and Another (J 1947/2017) [2018] ZALCJHB I 02 ( 13 March 2018).
21 Ibid.
11
statutory jurisdiction. In conclusion, therefore, as the first respondent acted
within the scope of Section 16Aand the SMS Handbook, the suspension is lawful.
Costs
[25] On the issue of costs, the general rule is that costs follow the result. This
matter involved complex questions of administrative and constitutional law,
specifically concerning the hierarchical distribution of executive power and the
interpretation of amended provincial legislation. The dispute required an in-depth
analysis of the interplay between the PSA, the SMS Handbook, and established
case law. Given the high stakes involved in the administrative leadership of a
provincial department and the intricate legal nature of the arguments presented,
the respondents' employment of senior counsel was a reasonable precaution.
[26] However , while the comp lexity and the importance of the legal principles
at stake warrant the costs of senior counsel, I am not conv inced that the matter
necessitated the employment of two counsel. The legal points, while complex,
were focused on a narrow statutory interpretation. The volume of the record and
the nature of the hearing do not justify the additional expense of a second
advocate . Therefore , while I acknowledge the necessity of senior counsel , the
costs of two counsel cannot be allowed.
Order
[27] Resultantly, the following order is made:
1. The application is dismissed.
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2. The applicant is ordered to pay the costs of the application on scale C,
which include the costs of senior counsel.
MWESSELS
ACTING JUDGE OF THE HIGH COURT
NORTH WEST DIVISION, MAHIKENG
Appearances
Counsel for applicant
Instructed by
Counsel for the first respondent
Instructed by
:Adv M Makoti
:Adv J Mabuza
:Moshidi Inc
:Mahikeng
:Adv JA Motepe SC
:Adv Z Ngwenya
:Mthombeni & Ramoboea Inc
:Pretoria
:c/o Molefakgotla Attorneys
:Mahikeng