DEL ETE WHICHEVER IS NOT APPLICABLE (1) REPORTABLE: Y ES/ JI(! (2) OF INTERE~TTO OTHERS JUDGES: YES/ ~ (3) REVISED J w .2.. ~+~;..7..u.LS .......... . . 4. ; ······· , DATE NATURE In the matter between: MZAMO MICHEAL MLENGANA and MINISTER OF AGRICULTURE FORESTRY AND FISHERIES JUDGMENT RANCHODJ: Introduction , CASE N0 :76891/2017 APPLICANT RESPONDENT [1] The applicant, who is the Director-General of the Department of Agriculture, Forestry and Fisheries (the Department) was placed on precautionary suspension by the respondent (the Minister) on 9 July 2017
Transcript
DELETE WHICHEVER IS NOT APPLICABLE
(1) REPORTABLE: YES/JI(! (2) OF INTERE~TTO OTHERS JUDGES: YES/~
(3) REVISED J w .2..~+~;..7..u.LS .......... . .4. ;······· ,
DATE NATURE
In the matter between:
MZAMO MICHEAL MLENGANA
and
MINISTER OF AGRICULTURE FORESTRY AND FISHERIES
JUDGMENT
RANCHODJ:
Introduction ,
CASE N0:76891/2017
APPLICANT
RESPONDENT
[1] The applicant, who is the Director-General of the Department of
Agriculture, Forestry and Fisheries (the Department) was placed on
precautionary suspension by the respondent (the Minister) on 9 July 2017
2
pending investigations into, inter alia, allegations of gross misconduct against
him. ,
[2] Thereafter, on 25 July 2017, the applicant was served with a
provisional charge sheet and he was informed that a Departmental
Disciplinary Enquiry was to be held into the alleged deeds of misconduct.
[3] During November, 2017 the applicant launched an urgent application in
this court seeking an order in the following terms: -
'1 . Condoning the non-compliance with the Rules of this Honourable Court in
relation to time for service of documents and that the matter may be heard as
one of urgency; ,
2. Declaring that the respondent lacks the authority to suspend the applicant;
3. Declaring that the suspension of the applicant by the respondent is
unconstitutional, unlawful, invalid and of no force and effect;
4. That the decision of the respondent to suspend the applicant be set aside
with immediate effect;
5. Declaring that the respondent lacks the authority to institute disciplinary
proceedings against the applicant;
6. Declaring that the institution of disciplinary proceedings against the applicant
by the respondent is unconstitutional, unlawful, invalid and of no force and
effect;
7. That the disciplinary proceedings instituted by the respondent against the , applicant be set aside with immediate effect;
8. Ordering the respondent to allow the applicant to return to full duty with
immediate effect after this order has been granted;
9. Costs of the application on a scale as between attorney and own client.
10. Further and/or alternative relief. '
3
, [4] On 23 November 2017 the matter was struck off the urgent court roll
for lack of urgency. The matter was thereafter heard by me in the normal
opposed motions court.
[5] It is apparent from the submissions made that the applicant challenges
his suspension on two grounds. Firstly, that the Minister lacked the authority
to suspend him or to institute disciplinary proceedings against him as that
power has not been delegated to the Minister by the President of the Republic
of South Africa. Secondly, that insofar as the institution of disciplinary steps is
concerned the period within which the Minister had to commence with a , disciplinary hearing has lapsed.
The facts
[6] The applicant says he was appointed in terms of a written contract of
employment by the Minister as Director-General of the Department for five
years from 1 June 2016 until 31 May 2021 . On 20 June 2017 the applicant
was handed a letter from the Minister informing him of the latter's intention to
suspend him from service on various grounds (the details of which are not
necessary to set out for the purposes of this judgment). The applicant was
requested to provide the Minister with written representations within seven
days as to why he should not be placed on precautionary suspension pending
the finalisation of investigations into allegations of misconduct against him.
The applicant responded to the allegations a week later in a letter dated 27
June. The Minister thereafter issued the letter dated 9 July notifying the
4
applicant of his decision to suspend him from service on full pay with , immediate effect. On 25 July the applicant was served with a provisional
charge sheet. The applicant says since then he has not received any further
communication from the Minister regarding any further steps having been
taken or that the matter is ready to be set down for a disciplinary hearing.
[7] As I said, the applicant challenges his suspension on two grounds. A
third ground is suggested in paragraphs 16.6 and 16.7 of the founding
affidavit where it is stated that the Minister's decision is actuated by ulterior
motives (i.e. to influence the operational decisions of the Department) but no
relief is sought on this ground in the notice of motion nor was it argued hence , I will not deal with it.
[8] The Minister contends that he does not require any delegation of
authority from the President to discipline the applicant, including the power to
suspend him. He derives his authority from the Public Service Act
(Proclamation 103 of 1994) as amended (the PSA).
The legal framework
[9] The values and principles governing public administration are
prescribed by chapter 10 of thelConstitution. Within the public administration
there is a public service. Section 197 of the Constitution states that the public
service must be structured in terms of national legislation, and its terms and
5
conditions of employment must also be regulated by nation legislation. The , relevant national legislation is the PSA 1 .
[1 O] The PSA provides that the public service includes national
departments, provincial departments, national government components and
provincial government components2.
[11J Section 7(3)(a) of the PSA reads-
'Each department shall have a head who shall be the incumbent of the post on the
establishment bearing the designation mentioned in column 2 of Schedule 1, 2 or 3
opposite the name of the relevant department or component.' ,
[12J Section 8A of the PSA provides for the mechanism for obtaining the
services of persons employed in the public service. Sub-section (a) provides
that a Head of Department (HoD) is appointed in terms of section 12, while
other appointments are made in terms of section 9.
[13] Section 12 of the PSA provides-
·12. Appointment of heads of department and career incidents
(1) Notwithstanding anything to the contrary contained in this Act, but subject to
this section and sections 2(28) and 32(2)(b)(i), the appointment and other
career incidents of thi heads of department ... shall be dealt with, in the
case of-
(a) a head of a national department ... by the President; and
(b)
1 Section 7(1) of the PSA 2 PSA, section 7(2)
6
(2) (a) A person shall be· appointed to the post of head of department in , terms of section 9 for such term, not exceeding five years, as the relevant
executive authority may approve.
(b}
(c} The relevant executive authority may at the expiry of the term of
office of a head of department or at the expiry of an extended term of office
extend the term for a period of not more than five years at a time.'
(Sections 2(28) and 32(2)(b)(i) are not relevant here.)
[14] Section 1 of the PSA defines executive authority as follows
'executive authority in relation to -
(a} the Presidency . .. means the ~resident; , (b) a national department . . . within a Cabinet portfolio, means the Minister
responsible for such portfolio;
{C) . .. .'
[15] Section 3(7) of the PSA provides-
'(?) An executive authority has all the powers and duties necessary for-
(a) the internal organisation of the department concerned , including its
organisational structure and establishment, . .. and
(b) the recruitment, appointment, performance management, transfer,
dismissal and other career incidents of employees of that department, . ..
and such powers and duties shall be exercised or performed by the
executive authorit: in accordance with this Act.'
[16] Section 42A(3) of the PSA, which deals with delegation of authority
provides -
'(3) The executive authority referred to in section 12(1) may, in the case of-
7
(a) the President, dell9ate to the Deputy President or a Minister any power
conferred on the President by section 12; or
(b) ... .'
[17] An employee is defined in the PSA as-
' ... a person contemplated in section 8, but excludes a person appointed in terms of
section 12A:'
[18] Section 8(1) provides-
'(1) The public service shall consist of persons who are employed -
(a) in posts on the establishment of departments; and
-(b) additional to the e!tablishments of departments.'
(Section 12A deals with persons appointed on grounds of policy
considerations and is not relevant in the present context.)
[19] Section 16A of the Act provides for disciplinary steps against a head of
department who does not comply with the PSA. It provides -
'(1) 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; I
(b) immediately report to the Minister [for the Public Service and Administration] the
particulars of the disciplinary steps taken. '
[20] Section 168 of the Act provides -
8
'(1) Subject to subsection (2) , when a chairperson of a disciplinary hearing
pronounces a sanction in respect of an employee found guilty of misconduct, the
following persons shall give effect to the sanction:
(a) In the case of a head of department, the relevant executive authority;
(b) ... .'
[21] Section 17 of the PSA deals with termination of employment. It
provides -
'(1) (a) Subject to paragraph (b), the power to dismiss an employee shall vest in
the relevant executive authority and shall be exercised in accordance with the
Labour Relations Act.
(b) The power to diSrl)SS an employee on account of misconduct in terms of
subsection (2)(d) shall be exercised as provided for in section 168(1).'
(Sub-section 2(d) provides that an employee may be dismissed on account of
misconduct.)
The appointment and other career incidents of Heads of Departments
[22] Section 12(1) provides that the appointment and other career incidents
of heads of national departments are dealt with by the President. The
President may delegate this power to a Minister.
[23] Counsel for the applicarii, Mr Mokhari SC submitted that the Aplenf
case was on all fours with this matter as the facts are similar. There, Mr
Apleni, who was the director-general of the Department of Home Affairs, was
suspended by the Minister of Home Affairs. The court was asked to set aside
3 Mkuseleni Apleni v President of the Republic of South Africa & Another (Gauteng Division of the
High Court, Pretoria) (Case number 65757/2017); judgment handed down on 25 October 2017, as yet unreported.
9
l
the suspension on two main grounds - firstly, that the suspension was invalid
because the Minister did not have a proper and lawful delegation from the
President to do so and she therefore acted outside her authority. Secondly,
that the decision was unlawful and reviewable because it was irrational,
procedurally unfair and unreasonable.4 The case was decided on the basis of
the first point. The Minister had relied on a delegation of power from the
President. The court found that the delegation relied upon by the Minister was
not valid and that the Minister was therefore not empowered to suspend the
applicant.5 The Apleni judgment focused only on whether there was a
delegation of authority from the1
President to the Minister of Home Affairs. It
was found that there was no proper delegation of authority by the President.
As it is common cause in this matter before me that there has been no
delegation to the Minister of Agriculture, Forestry and Fisheries, the
applicant's suspension, so it was submitted , is unlawful and that should be the
end of the matter.
[24] Unlike in the Apleni case, however, the contention of the Minister is
that he does not require a delegation from the President to exercise the power
to suspend the applicant and institute disciplinary proceedings against him.
Mr Redding SC submitted that tlfe Minister has that power in terms of the PSA
and it exists independently of (or alongside) any power which the President
has. In terms of the PSA the executive authority to conduct the disciplinary
process is, in this ins,tance, the Minister, although the President appoints the
HoD. The provisions in the PSA which made the President the executing
4 Apleni para 5 5 Apleni paras 26 and 27
10 I
authority (as the executive authority was referred to then) in relation to certain
HoDs (referred to in certain cases6) have been repealed7
• Hence, says
counsel, while the PSA provides that the President appoints National HoDs,
authorises their transfers and the like, he is not the executive authority
responsible for discipline, nor decides upon the dismissal or sanction of the
HoD's employment.
[25] The questions that inevitably arise are: What about the term 'and other
career incidents' used in s 12(1 )? Section 3(7) indudes 'dismissal' under
'other career incidents' of empl~ees. In s 42A(3), which deals with delegation
of authority, the phrase 'The executive authority referred to ins 12(1)' is used.
However, sub-section (1) does not explicitly use the phrase 'executive
authority' -that is found in sub-section (2). Does that mean that ins 12(1)(a) it
is implied that the President is the executive authority? If so, then what about
the definition in section 1 of the term 'executive authority' which provides that
in relation to a national department within a Cabinet portfolio, it means the
Minister responsible for such portfolio?
[26] Mr Mokhari submitted that the Minister's purported power cannot be I
derived from s 16A of the PSA as that section deals only with failure by a Hoo
to comply with the PSA. Hence the executive authority's power (i.e. the
Minister's power) to discipline a HoD in terms of s 16A is limited to such
failure only. I agree.
6 For example, Masetlha v President of the Republic of South Africa and Another 2008(1) SA 566
(CC) at para 4 I and n24 7
The text of section 3B(I) and (2) have been repealed in their entirety
, 11
[27] However, Mr Redding submitted that other sections of the PSA show
that the Minister has this power not only in relation to s 16A. While s 16A
deals with failure to comply with the PSA there is no such limitation in s 168
which is simply headed 'Discipline' and deals with an employee found 'guilty
of misconduct' without reference to the PSA as does s 16A. Section1688
provides inter alia that where a disciplinary committee finds a HoD guilty of
misconduct and pronounces a sanction it is the 'executive authority' that must
give effect to the sanction which, in the case of a national department within a
Cabinet portfolio, means the Minister responsible for such portfolio. Section , 17 is headed 'Termination of employment' and provides that the power to
dismiss an employee on account of misconduct shall vest in the 'relevant
executive authority' and must be exercised as provided for in s 168(1 ). The
question in the present case, says counsel, is not whether the President has
the power to dismiss the applicant. The question is whether the President is
the only person who has the power to discipline, suspend or dismiss the
applicant. Put differently, does the Minister have the express power to
discipline HoDs in terms of s 17 of the PSA as otherwise this power would be
impliedly rendered nugatory by section 12(1)(a). It was submitted that that
cannot be the case. ,
[28] Mr Redding submitted further that as the executive authority of a
national department within a Cabinet portfolio is the Minister responsible for
such portfolio in terms of s 1 of the PSA he or she is the 'manager' of a HoD -
not the President. The Key Performance Areas and Measurable Performance
8 Supra
12
Indicators are set by tbe Minister and measured by the Minister. The Minister
has certain powers and duties, including ensuring compliance with s 16A(1) of I
the PSA; deciding to confirm (or not) probation of an employee9; and to
dismiss the employee in terms of the Labour Relations Act if probation is not
confirmed. The question is whether these express powers are . implicitly
revoked and that the power to suspend is provided exclusively to the
President, subject to the President's power to delegate this power. It was
submitted that the PSA simply reflects the reality that the Minister is the
person who is responsible for the Hoo and the latter's compliance with
employment obligations. The fact that the President may appoint does not
exclude the power of the Minister to act as the executive authority over the
Hoo, to manage the HoO, and t<, discipline him or her. The power to discipline
is a managerial prerogative and is an incident of the management of an
employee. The power to discipline includes the power to suspend. This is
because, as Murphy AJA (as he then was) states:
' ... as a precautionary suspension invariably forms part of the procedure leading to
disciplinary action it is inherently disciplinary in nature.'10
[29] In terms of s 1 of the PSA an employee is a person contemplated in s
8. The latter section provides that employees in the public service include
those who are employed 'in posts on the establishment of departments.' No
doubt this includes Hoos. ,
9 Section 13(2) of the PSA 10
Member of the Executive Council/or Education, North-West Provincial Government v Gradwell (20111) 33 ILJ 2033 (LAC) at para 43
13
[30) It was contended by Mr Redding that the PSA does not constitute the
President as the HoD's sole manager. For example, the provisions of section
16A of the PSA oblige the Minister, as executive authority, to take steps
against a HoD in those circumstances. The President is not empowered
expressly or impliedly to intef\/ene in this respect11. The PSA imposes
important disciplinary duties on Ministers hence, so it was argued, the
legislature must have intended that the Ministers exercise these powers
themselves.
[31) It seems to me that the answer lies in the phrase 'Notwithstanding
anything to the contrary contained in this Act' in s 12(1) of the PSA. The
power vested in the President to appoint heads of departments and other
career incidents exists independently of other provisions of the PSA that are
contrary to this section. Only the President has the power to appoint a HoD. ,
The power to dismiss a HoD is contemplated in the phrase 'and other career
incidents. ' In any event, the general rule is that where a power is given to a
person to appoint, it implies a power to dismiss. The power to dismiss has
been described as 'an essential corollary' of the power to appoint12.
Suspension of an employee pending disciplinary proceedings is often the first
step in what may ultimately lead to the dismissal of the employee.
[32] The submission that there is no reason why the Minister's power to
discipline a HoD cannot exist alongside that of the President cannot pass
IJ. TJ_ie ~ording of sec~ion 16A states that a1 executive authority "shall" immediately take appropriate disc1plmary steps agamst a Head of Department who does not comply with the provisions of the Act, or a regulation, determination or directive made under it. In this respect, the obligation is similar to that of an accounting authority under the PFMA in section 51 (I)( e) of that A ct 12 Masetlha at para 68
14
muster. In my view it could create an intolerable situation where the President
decides to appoint a HoD and shortly thereafter the Minister proceeds to
suspend him or her without the President's input and worse, where the
President may hold a different view. In any event, if the President wishes to
delegate that responsibility to a Minister the PSA expressly provides for it in s
42A(3) -
'(3) The executive authorit,' referred to in section 12(1) may, in the case of-
(a) the President, delegate to the Deputy President or a Minister any
power conferred on the President by section 12;
(b)
When read withs 12(1), it is clear that it is the President who is the executive
authority in relation to HoDs. It is so that in s 1 the term 'executive authority' in
relation to a national department within a Cabinet portfolio means the Minister
responsible for such portfolio. However, it seems to me that when it comes to
Hoos the definition must be read in the context of the word 'Notwithstanding
anything to the contrary contained in this Act' ins 12(1).
, [33] Section16B is also not about conferring authority or power on the
executive authority. It is about the duty to execute or give effect to a sanction
imposed by a disciplinary hearing chairperson. If the President has delegated
the authority or power to institute disciplinary steps to the Minister as
executive authority, that authority would include the authority to give effect to
any imposed sanction. The purpose of s 168 is to determine who is
responsible for giving effect to the sanction.
,
15 ,
[34] According to the respondent, s 17 confers on the Minister the power to
dismiss an employee for misconduct therefore it is the Minister who has the
authority to take disciplinary steps against the HoD. Section 17(1) provides
that the power to dismiss an employee 'shall vest in the relevant executive
authority . ... ' As I said, the executive authority in relation to HoDs is the
President. In the absence of delegation of authority it is the President who
may dismiss a HoD. The power to dismiss an employee for misconduct is a
logical consequence of s 168(1), which places a duty on an executive
authority to give effect to a sanction imposed by the chairperson of a I
disciplinary hearing.
[35} It is common cause that there has been no delegation of the authority
to the Minister by the President to suspend the applicant. The suspension of
the applicant is therefore ultra vires and must be set aside. In coming to this
finding I am in respectful in agreement with Fabricius J in Apleni where the
learned Judge said 'No delegation in terms of the amended Public Service Act
exists. The result is that the Second Respondent, the Minister, had no lawful
authority to suspend the Applicant. '13
, The failure to hold a disciplinary hearing within sixty days
[36] The applicant submitted that even if it were found that the suspension
was lawful the failure by the Minister to institute disciplinary proceedings
within sixty days renders the further suspension of the applicant beyond that
time unlawful.
13 Apleni para 27
16
[37] Counsel for the respondent submitted that this was a labour issue that
should be determined by the Labour Court. ,
[38] In view of the decision I have come to it is not necessary to deal with
this issue in any detail save to say that I am in respectful agreement with
Molahlehi J of the Labour Court (as he then was) in Lekabe14 where the
learned Judge ordered that the suspension of Mr Lekabe be uplifted as the
respondent in that matter had failed to institute a disciplinary hearing within
sixty days as provided for in paragraph 2.7(2)(c) of Chapter 7: Misconduct
and Incapacity - of the Senior Management Service Handbook (the SMS
Handbook). In this matter before me it is common cause that the disciplinary
hearing was not held within sixt', days. In fact, as at the time of the hearing of
the matter, it had still not been held. In my view the continued suspension of
the applicant is unlawful and should be set aside on that ground as well.
[39] There remains the question of costs. The applicant seeks a punitive
costs order. Counsel for the applicant submitted that the Minister should be
ordered to pay the costs de bonis propriis if the applicant succeeds in his
claim. Counsel for the Minister submitted that the normal costs order should
follow the result. It is accordingly necessary to determine whether the conduct
of the Minister was of such a mfture that he should be mulcted in costs in his
personal capacity.
14 Lekabe v Minister:Department of Justice & Constitutional Development (2009) 30 ILJ 2444 (LC) at
para [I8]
17
[40] The issue as to what order of costs would be appropriate falls primarily
within the discretion of a Court which must be exercised in a judicial manner.
Generally speaking, a Court will not grant an order for costs to be paid
personally where a litigant is acting in a representative capacity. Herbstein &
Van Winsen15 give the following'summary of the law in this regard-
'A representative litigant whose conduct is so unreasonable as to justify this special
order can, despite acting in good faith, be ordered to pay the costs de bonis propriis.
The Court will not, however, make such an order lightly, and mere errors of judgment
will not be sufficient. It has been held that such an order should not be granted in the
absence of some really improper conduct, and that the fairness or unfairness of
proceedings honestly brought should not be scrutinised too closely. The criterion has
been stated to be actual misconduct of any sort or recklessness, and the
reasonableness of the conduct should be judged from the point of view of the person
of ordinary ability bringing an average intelligence to bear on the issue in question,
not from that of the trained lawyer.·
,
[41] In Gauteng Gambling Board & Another v MEG for Economic
Development, Gauteng Provincial Govemment16 the following was said by
Navsa JA with regard to the personal liability of public officials for the payment
of legal costs-
'The MEC, in her responses to the opposition by the Board, appeared indignant and
played the victim. She adopted this attitude whilst acting in flagrant disregard of
constitutional norms. She attempted to turn turpitude into rectitude. The special costs
order, namely, on the attorney and client scale, sought by the Board and Mafojane is
justified. However, it is the taxpayer who ultimately will meet those costs. It is time for
courts to seriously consider holding officials who behave in the high-handed manner ,
15 The CiviJ Practice of the High Court of South Africa, 5th Ed, Vol II, p983
16 2013 (5) SA 24 (SCA) para 54
18
described above, personally liable for costs incurred. This might have a sobering
effect on truant public office bearers.'
{42] Four days after the applicant was placed on precautionary suspension,
the then Minister for Public Service and Administration (Minister Muthambi}, in
a letter dated 13 July 2017, drew the Minister's attention to the fact that
paragraph 2.7(2)(c) of Chapter 7 of the SMS Handbook requires the employer , to hold a disciplinary hearing within sixty days. This requirement is repeated in
Chapter 8 of the SMS Handbook which specifically deals with 'Employment of
Heads of Departments' and more specifically in clause 18.4. It does not
appear from the papers before me that the Minister responded to Minister
Muthambi's exhortation.
[43] Minister Muthambi thereafter addressed a further letter dated 11
October 2017 to the Minister. It is necessary to quote it in full. It reads:
'RE: PRECAUTIONARY SUSPENSION OF THE DIRECTOR-GENERAL: DEPARTMENT OF AGRICULTURE, FORESTRY AND FISHERIES
1 As you recall, you have notified me that Mr M Mlengana, the Diector-General of the Department of Agriculture, Forestry and Fisheries, has been placed on precautionary suspension in terms of clause 7.2 of the Disciplinary Code and Procedures for Members of the Senior Management Service with effect from 9 July 2017. I have also noted that -
a) as at the date of this letter he is still on precautionary suspension; and b) he has been served with "provisional" charges, but no notice of the
disciplinary hearing has been issued.
In terms of clause 7.2(c) of the Disciplinary Code and Procedures for Members of the Senior Management Service, if a member 1s suspended or transferred as a precautionary measure, the employer must hold a disciplinary hearing within 60 days. The chair of the hearing must then decide on any further postponement. According to the Department of Public Service and Administration , Public Service Precautionary Suspensions Guide, the 60 days refer to calendar days.
In Lekabe v Minister: Dept of Justice and Constitutional Development (2009) 30 ILJ 2444 (LC). Molahlehi J held that the suspension of the applicant fell away after the
,
l 19
expiry of the 60 day period, unless the chairperson of the disciplinary hearing had extended that period. Referring to clause 2.7(2)(c) of Chapter 4 of the SMS Handbook, the court noted that the purpose of precautionary suspension of SMS member was to address the "problem of protracted suspensions which demoralise and unfairly prejudice suspended employees, and specifically to curb the power of employers in the public service by using protracted suspension as a means of marginalising employees who may have fallen out of favour'. The Court ordered that the period of precautionary suspension beyond 60 days, was invalid.
In the case of Dlamini and Others v Independent Police Investigative Directorate and Another (JJ1782/15) [2016] ZALCJHB 452 (29 April 2016), the Labour Court, referring to the judgement in the Lekabe case, indicated that the employer has no right unilaterally to extend any period of transfer or suspension; this is a power reserved for the chairperson of a disciplinary enquiry.
Therefore in this case, if a chair of a hearing had not decided on any further postponement by 7 September 2017, Mr Mlengana should have been allowed to resume duty with immediate effect pending the finalisation of the investigation and the outcome of the disciplinary r,locess. Mr Mlengana's precautionary suspension is therefore invalid and I therefore request you to lift the suspension with immediate effect. [My underlining.]
Since the President has only delegated the precautionary suspension of Heads of Department at national level to Executive Authorities, I would also like to refer you to my fetter dated 13 July 2017 wherein I advised you of the due process that had to be followed. Furthermore, I wold like to enquire whether the Minister has informed the Honourable President of the impending disciplinary action against Mr Mlengana and whether a President's Minute that allows the Minister to proceed with disciplinary action has been issued.
Also to alert the Minister that you had not complied with paragraph 4 of my letter that I sent you in response to your notice of the DG's precautionary suspension.
The Minister's urgent feedback by no later than 20 October 2017 regarding the matter would be appreciated to enable me to report to the Honourable President on the matter. '
[44] It is apparent that this lefter too was -not acted upon as the applicant
remained on suspension. I do not have anything in the papers before me to
show that the Minister informed Minister Muthambi as to why he did not or
would not act on the advice given. Had the Minister acted on the advice this
application would in all probability not have been necessary. As I said I do not
know what motivated the Minister to not uplift the suspension of the applicant
and not act upon the advice of Minister Muthambi given that she was after all
20
the Minister entrusted with the portfolio of Public Service and Administration. I
am therefore of the view that I' should afford the Minister an opportunity to
make submissions as to why he should not be held personally liable for costs.
That can only be done after the affected party is joined to the proceedings in
his or her personal capacity and given an opportunity to explain his or her
conduct in relation to the issue 17. An appropriate order will be made in this
regard.
[45] I make the following order:
1. It is declared that the Respondent lacked the authority to
suspend the Applicant; , 2. It is declared that the suspension of the Applicant by the
Respondent is unlawful, invalid and of no force and effect;
3. The precautionary suspension of the Applicant by the
Respondent is set aside with immediate effect;
4. It is declared that the Respondent lacked the authority to
institute disciplinary proceedings against the Applicant and such
proceedings are unlawful and invalid and are set aside;
5. The Respondent is to allow the Applicant to resume his duties
with immediate effect;
6. The Respondent il called upon to show cause on affidavit on or
before 15 May, 2018 why-
6.1 he should not be joined in his personal capacity; and
6.2 he should not pay the costs of the application from his
11 Black Sash Trust v Minister of Social Development 2017 (3) SA 335 CC
21
own pocket.
7. Costs are reserved until conclusion of these proceedings.
,
N.RANCHOD
JUDGE OF THE HIGH COURT
Appearances:
Counsel on behalf of Applicant
, Instructed by
: Adv. WR Mokhari (SC)
Adv. Molefe
: Hogan Lovells Attorneys
Counsel on behalf of Respondent : Adv. A Redding (SC)
