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[2026] ZAGPPHC 821
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Ngwenya and Others v Minister of Sport, Arts and Culture and Others (2026-156157) [2026] ZAGPPHC 821 (31 July 2026)
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HIGH
COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
No. 2026-156157
(1) REPORTABLE:
YES
/
NO
(2) OF INTEREST TO
OTHER JUDGES:
YES
/
NO
(3) REVISED
DATE:
31 July 2026
SIGNATURE:
In
the matter between:
TWAIN
SIBONISO NGWENYA
FIRST
APPLICANT
ZOLANI
MKIVA
SECOND
APPLICANT
JEWEL
MASHAO
THIRD
APPLICANT
PAMELA
EVIDENCE NDLOVU
FOURTH
APPLICANT
HENRY
VUSUMIZI LEEUW
FIFTH
APPLICANT
LESIBA
MOTHOA
SIXTH
APPLICANT
CELENHLE
THEMBAYENA DLAMINI
SEVENTH
APPLICANT
MICHAEL
EDWIN WORSNIP
EIGHTH
APPLICANT
THEMBA
NDULINI
NINTH
APPLICANT
THOBILE
KOMAZI
TENTH
APPLICANT
QUEEN
NEO MONONELA MOPELI
ELEVENTH
APPLICANT
And
THE
MINISTER OF SPORT, ARTS AND CULTURE
FIRST
RESPONDENT
EUGENE
BOTHA
SECOND
RESPONDENT
CLINT
BRINK
THIRD
RESPONDENT
SIMON
CLARKE
FOURTH
RESPONDENT
DR
LAURA DE HARDE
FIFTH
RESPONDENT
ZAK
GORDON
SIXTH
RESPONDENT
HAROON
GUNN-SAILE
SEVENTH
RESPONDENT
TAU
MASEMOLA
EIGHTH
RESPONDENT
OMPHEMETSE
MOKGOSI
NINTH
RESPONDENT
SIPHOSETHU
MTAMZELI
TENTH
RESPONDENT
TRACY
PERUMAL
ELEVENTH
RESPONDENT
BONGANI
TEMBE
TWELVETH
RESPONDENT
CHARNIE-LEE
ADAMS-KRUGER
THIRTEENTH
RESPONDENT
Coram:
Millar
J
Heard
on:
29
July 2026
Delivered:
31
July 2026 - This judgment was handed down electronically by
circulation to the parties' representatives by email,
by being
uploaded to the
CaseLines
system of the GD and
by release to SAFLII. The date and time for hand-down is deemed
to be 09H00 on 31 July 2026.
JUDGMENT
MILLAR
J
[1]
The
applicants are members of the National Arts Council (NAC),
established in terms of the National Arts Council Act
[1]
(the Act). The first respondent, the Minister of Sports, Arts
and Culture (the Minister) is the Minister under whose aegis
the NAC
falls.
[2]
On 25 May
2006, the Minister purporting to act in terms of Section 5(5) of the
Act, dissolved the NAC. Before this Court,
is an urgent
application brought in two parts. Part A with which this Court
is seized is for an order temporarily setting
aside the dissolution
of NAC pending Part B which is for a review of the Minister’s
decision of 25 May 2026.
[3]
The
application was brought on urgency. The case for the applicants
is that because, the NAC was dissolved, it was only acting
in their
individual and personal capacities that they could bring the present
application. The dissolution of the NAC deprived
them of access
to the resources of the NAC and unlike the Minister, who in that
capacity, has no such restriction, it took them
some time to make the
necessary financial and other arrangements before the application was
issued on 2 July 2026.
[4]
The
explanation provided by the applicants demonstrates in my view, that
they acted with the necessary expedition to bring these
proceedings
and that insofar as there was any delay, this was in direct
consequence of the very action that they seek to challenge.
It
is for this reason that I am of the view, notwithstanding the
Minister’s assertion, that the urgency is self-created by
the
applicants, that the application is indeed urgent.
[5]
The
view taken by me in this regard is not one sided. The Minister
for his part, failed to keep to the time periods stipulated
by the
applicants for the noting of his intention to oppose the matter as
well as the filing of an answering affidavit. The
Minister
explained at some length the reason for the delays, brought about in
the main by his being out of the country on official
business.
This included inter alia attendances at the recently held FIFA World
Cup in North America as well as Commonwealth
Games in the United
Kingdom. The Minister applied for condonation for the late
filing of his notice of intention to oppose
as well as his answering
affidavit. Given the view taken by me regarding the
reasonableness of the conduct of the applicants,
I also take the view
that condonation should be granted.
[2]
[6]
The factual
background relating to this application is uncontentious. Its
genesis is found in two letters addressed by the
Minister to the
NAC. The first letter was dated 22 April 2026 and the second 25
May 2026.
THE
FIRST LETTER – 22 APRIL 2026
[7]
The letter of
22 April 2026 is headed
“
MINISTERIAL
REQUEST TO CONVENE URGENT SPECIAL COUNCIL MEETING FOR CONSIDERATION
OF PROPOSED ONCE-OFF FULL AND FINAL SETTLEMENT OF
ONGOING BONUS
DISPUTE”
.
The letter is 5 pages in length. I do not intend to quote it in
full. The salient points that are recorded in
the letter are
the following:
[7.1]
The Minister addressed the letter to the NAC in his capacity as the
Executive Authority
of the NAC in the exercise of his oversight
capacity and in terms of the PFMA.
[3]
[7.2]
Recorded that the NAC has been engaged in a labour dispute relating
to performance bonuses
for the financial years 2019/20, 2020/21 and
2021/22.
[7.3]
That
“
I
understand that Council has determined that no contractual or
statutory entitlement to those bonuses exists, as prior Councils
at
the time made considered decisions not to approve them.”
[7.4]
That
“
I
have also been advised that Council has explored the possibility of
settlement but has been uncertain whether it has the legal
authority
and financial management basis to conclude one. The purpose of
this letter is to address that uncertainty and to
offer formal
support for an urgent settlement process.”
[8]
The Minister
pertinently recorded that “
Notwithstanding
the legal position that no entitlement exists, I am satisfied, having
considered the matter carefully, that the
continued prosecution of
this dispute is not in the public interest. The aggregate value
of the dispute is modest.
The legal costs already incurred by
the NAC, and those likely to be incurred in the matter proceeds to
the Labour Court, materially
exceed the value of the underlying
claim. The reputational harm to the institution, and the
disruption to its core mandate
of delivering funding to the arts
sector, compound this assessment.”
[9]
The Minister
then requested that the NAC convene a special meeting of the council
“
for
the specific purpose of considering whether, if lawfully satisfied on
the material before it, council should approve a once
off full and
final settlement of the bonus dispute.”
[10]
Tellingly, the
letter also records the Minister’s recognition that the NAC
retained full authority and responsibility as the
responsible
accounting authority and that “
Nothing
in this letter overrides or replaces that authority.”
[11]
The Minister
then went on to set out what information and documentation ought to
be considered at the special meeting and what steps
should be taken
if the NAC resolved to settle the dispute. Specifically, the
Minister requested that he be notified of the
outcome of the meeting
within 2 days of the meeting and that he be furnished with a copy of
any settlement that may have been authorised
within 5 days.
[12]
The NAC duly
planned for the holding of the special meeting. This was
scheduled for 29 May 2026. The Minister was informed
accordingly and all things being equal, could have expected
notification of the outcome of the meeting by 31 May 2026 and in the
event of a settlement having been approved, a copy of that settlement
by 4 June 2026.
THE
SECOND LETTER - 25 MAY 2026.
[13]
The second
letter of 25 May 2026, was headed
“
RE:
DISSOLUTION OF THE NATIONAL ARTS COUNCIL IN TERMS OF SECTION 5(5) OF
ACT 56 OF 1997 AS AMENDED.”
[14]
In this
letter, the Minister re-iterated that he had requested a special
meeting and that he be notified within 2 days of the outcome
of the
meeting.
[15]
The Minister
then stated “
Despite
this, no settlement has been concluded. The Council has failed
to provide my office with written notification of a
resolution in the
terms requested. The matter continues to cause financial
distress to employees and attracts ongoing public
and media
scrutiny. I have been advised that the Council resolved to
defer substantive consideration pending further internal
audit
reports, with a meeting scheduled only for 29 May 2026. I do
not consider this timeline consistent with the urgency
required.”
[16]
The Minister
then raised what was stated to be “
credible
information”
which
was received by him relating to certain procurement decisions and
then somewhat inexplicably recorded that there had been
a
“
broader
breakdown in institutional leadership and governance.”
The
Minister then summarily invoked the provisions of Section 5(5) of the
Act and dissolved the NAC.
[17]
It is
inapposite in this judgment, to deal with the full contents of each
of either the first or the second letter. Their
contents and
any other information or documentation which forms part of the record
for the Minister’s decision will serve
before the Review Court
in Part B. It suffices to state at this stage that Section 5(5)
of the Act provides that
“
The
Minister may dissolve the Council on any reasonable grounds.”
[18]
Since the NAC
did not have the opportunity to consider the issue that had been
referred to it by the Minister on 22 April 2026,
and it had scheduled
the special meeting it was requested to, it does not seem that this
could reasonably have been the reason
for the Minister’s
dissolution of the NAC. This is particularly so since the
letter of 22 April 2026 did not prescribe
by when the meeting was to
be convened. Similarly, the vague reference to credible
information and procurement decisions
without notifying the NAC which
decisions were said to be questionable, could also not be a
reasonable ground. I make no
finding on whether there were in
fact reasonable grounds or not.
[19]
However, the
decision of the Minister has had the consequence that the NAC is now
left rudderless. The NAC, absent the applicants
in their
capacity as members of the Council now finds itself under the
stewardship of the Chief Executive Officer (CEO).
In terms of
Section 13(2) of the Act, the CEO is responsible for the management
of the affairs of the NAC and is required to
“
report
on those affairs to the Council as often as may be required by the
Council.”
[20]
In other
words, the CEO has no independent authority to make any policy
related decision. Section 13(2) makes him specifically
subject
to the Council.
[21]
One of the
grounds of upon which the present application was brought, was that
the Minister had indicated in the second letter that
he was going to
“
initiate
the process for the appointment of a new Council.”
This
it was argued, would render the Part B review moot if a new Council
were appointed before it was concluded.
[22]
The Minister
for his part, in his answering affidavit, on this point, stated that
“
When
I dissolved the Council, the Chief Executive Officer, by law, became
the Accounting Authority for the Council. All the
functions of
the National Arts Council will continue without disturbance.”
While it
is so that the CEO is the Accounting Officer, this is in terms of
Section 14(1) of the Act. He does not replace,
nor does he have
the authority to exercise those functions of the NAC or to make any
decisions in regard thereto without the specific
authority of the
Council.
[23]
The Minister’s
assertion in his answering affidavit that
“
the
process to elect and appoint the new Council has not yet commenced.
In fact, no date has been set. The process is
by its nature
cumbersome and takes substantial time. I can estimate that the
process will take more than six months before
it can happen.
There is no immediate prospect of a new Council being appointed.
Therefore, the applicants have all
the time to prosecute their review
application. There is no need of this urgent interdict to
freeze a process which has not
yet commenced.
”
This was the position
as of 27 July 2026.
[24]
What is not
addressed by the Minister, is the urgent matter set out in the letter
of 22 April 2026 and how the dissolution of the
Council and at least
a 6-month delay before any replacement Council could be appointed
affects the issue to which the Minister
had attached such urgency.
On the papers before me, this issue, at least insofar as the Minister
was concerned in his letter
of 22 April 2026, was a matter falling
within the remit of the Council and something that could only be
decided by the Council.
It is for this reason that the decision
taken does not at this stage, at least insofar as the present
interdict proceedings are
concerned, withstand scrutiny.
[25]
Before turning
to deal with the interdict sought, the Minister raised several points
in limine
.
None of these have any merit for the following reasons:
[25.1]
Lack of urgency – this is dealt with above. The assertion
by
the Minister that lack of financial resources and time to make
arrangements can never justify a delay in urgent proceedings is
simply not correct. To adopt such an approach favours those
with the means (financial or otherwise) and discriminates
unjustifiably
against those who do not have means. Urgency is
determined regarding the circumstances of the matter and not the
means of
the parties.
[25.2]
Lack of proper service - it was asserted on behalf of the Minister
that service
upon the second to fourteenth respondents by email was
improper. There is nothing before this Court to gainsay the
affidavit
filed by the applicants’ attorney confirming that he
had dispatched by email to each of those respondents a copy of the
papers.
Given the circumstances of the matter, I regard service
by email as having been entirely appropriate.
[26]
Turning now to
the requirements for an interim interdict.
INTERIM
INTERDICT
[27]
It
is settled law
[4]
that in respect of an interim interdict, an applicant must establish
the following:
[27.1]
A
prima facie
right, even if open to some doubt.
[27.2]
A well-grounded apprehension of irreparable harm.
[27.3]
A balance of convenience in favour of the granting of an interim
order.
[27.4]
The absence of any other satisfactory remedy.
PRIMA
FACIE
RIGHT, EVEN IF OPEN TO SOME DOUBT
[28]
The
crux of the right argued by the applicants was that they are entitled
to complete their terms of office as members of the NAC,
in the face
of what is argued is an irrational and baseless decision to dissolve
the NAC.
[5]
[29]
There
is no Council. There needs to be a Council for the statutory
scheme to operate.
[6]
[30]
The Minister argued that the applicants
accepted that they had no right to remain in office. In this
regard, the Minister
referred to the applicants’ founding
affidavit where they stated “
the
Applicants do not contend that the Respondent lacks statutory
authority under Section 5(5) of the Act to dissolve the Council
in
appropriate circumstances. Neither do the Applicants contend
that members of the Council enjoy an immutable right to remain
in
office for the duration of their appointments regardless of the
circumstances.”
The
Minister misconstrues this assertion on the part of the applicants.
They accept that there may well be circumstances where
the Council
can be dissolved or where one or all of them can be removed but that
this is circumstance specific and in the present
case, the
circumstances that merit the dissolution of the Council do not seem
to me on the papers before me to be there. It is
for this reason that
I find that the applicants have a right to be reinstated pending the
part B review.
APPREHENSION
OF HARM
[31]
The
harm in this matter is the displacement of a properly appointed
Council in terms of the Act. The Act does not provide
for a
situation where the NAC is to function without a Council. In
the present matter the statutory scheme has been subverted
by the
summary dissolution of the Council – a specific governance
structure established by the legislature in terms of the
Act.
It seems to me self-evident that the subversion of an act of
Parliament must reasonably permit of an apprehension of
harm.
[7]
BALANCE
OF CONVENIENCE
[32]
It is without doubt that the NAC requires a
Council to function. The CEO cannot properly manage the affairs
of the NAC without
a Council. The statutory scheme and in
particular Section 13 make this abundantly clear. It is averred
by the Minister
that the appointment of a new Council will take at
least 6 months, if not longer. Since the issue raised in the
letter of
22 April 2026 was said to be urgent, requiring the
attention of the Council, it is undesirable that this issue (which on
the papers
is still unresolved) remains so until a new Council is
appointed many months hence.
[33]
On the facts of the present matter, in my
view the balance of convenience favours the granting of the order
sought.
ABSENCE
OF AN ALTERNATIVE REMEDY
[34]
In the present circumstances, there is no alternative remedy
other than an order setting aside the dissolution of the NAC.
If the Minister were to proceed to appoint a new Council, at least
insofar as the applicants are concerned, the review of the Minister’s
decision would be academic and “after the fact” insofar
as their completion of their terms of office as members of
the NAC is
concerned.
[35]
It was argued that only interim relief
directed at preserving the
status quo
could prevent the progressive entrenchment of the consequences of the
Minister’s decision before the Part B review is heard.
I
am of the view that this must be so.
COSTS
[36]
Costs will follow the result. The applicants were
represented by two counsel. Given the importance of this
matter, the
engagement of two counsel seems to me to have been a wise
and reasonable precaution and it is for this reason that I intend to
make the order that I do. While the costs order will be as
between party and party, the costs of counsel in terms of Rule
67A
are awarded on scale C.
ORDER
[37]
In the circumstances,
pending
the institution and final determination of the review proceedings
referred to in Part B of the notice of motion,
it is
ordered:
[36.1]
The forms and service provided for in the Uniform Rules of Court be
dispensed
with and this application is heard as one of urgency in
terms of Rule 6(12).
[36.2]
The late delivery of the answering affidavit of the First Respondent
is condoned.
[36.3]
The decision of the First Respondent dated 25 May 2026 dissolving the
Council
of the National Arts Council of South Africa in terms of
section 5(5)
of the
National Arts Council Act 56 of 1997
and
terminating the appointments of the Applicants and the remaining
members of the Council be and is hereby suspended together
with the
implementation thereof.
[36.4]
The Applicants and the remaining members of the Council of the
National Arts
Council of South Africa be reinstated to office pending
the final determination of the review proceedings contemplated in
Part
B.
[36.5]
The First Respondent be interdicted and restrained from:
[36.5.1]
implementing the decision of 25 May 2026 dissolving the Council;
[36.5.2]
taking any further steps pursuant to the dissolution of the Council;
and
[36.5.3]
commencing, continuing or finalising any process for the appointment
of a replacement Council
for the National Arts Council of South
Africa.
[36.4]
Any appointment, nomination, designation or other step already taken
pursuant to the impugned dissolution
decision be suspended pending
the final determination of the review proceedings.
[36.5]
The costs of Part A are to be paid by the First Respondent on the
scale as between party and party which
costs are to include the costs
consequent upon the engagement of two counsel on Scale C.
A MILLAR
JUDGE
OF THE HIGH COURT
GAUTENG DIVISION,
PRETORIA
HEARD
ON:
29
JULY 2026
JUDGMENT
DELIVERED ON:
31
JULY 2026
COUNSEL
FOR THE APPLICANTS:
ADV.
M KGOMONGWE
ADV.
MPHAHLELE
INSTRUCTED
BY:
MORORE
MPHAHLELE
ATTORNEYS
REFERENCE:
MR. A
RASEBOYE
COUNSEL
FOR THE FIRST RESPONDENT:
ADV.
K TOMA
INSTRUCTED
BY:
THE
STATE ATTORNEY, PRETORIA
REFERENCE:
MS
M MOLOTO
NO
APPEARANCE FOR THE SECOND TO THIRTEENTH RESPONDENTS
[1]
56
of 1997.
[2]
Pangbourne
Properties Ltd v Pulse Moving CC and Another
2013
(3) SA 140
(GSJ).
Grootboom
v National Prosecuting Authority
2014 (2) SA 68
(CC) at para [23].
[3]
Public
Finance Management Act 1 of 1999
.
[4]
Setlogelo
v Setlogelo
1914 AD 221
at 227.
[5]
See
Minister
of Defence and Military Veterans v Motau and Others
2014 (5) SA 69
(CC) and also
National
Treasury and Others v Opposition to Urban Tolling Alliance and
Others
2012 (6) SA 223
(CC) at paras [44] and [47].
[6]
Simons
NO v Air Operations of Europe AB and Another
[1998] ZASCA 79
;
1999
(1) SA 217
(SCA) at 228G-H.
[7]
Janit
and Another v Motor Industry Fund Administrators (Pty) Ltd and
Another
[1994] ZASCA 110
;
1995
(4) SA 293
(A) at 304H-I.