Makhanya v Minister of Water Affairs and Sanitation and Others (1578/2016P; 3861/2016P) [2016] ZAKZPHC 110 (8 December 2016)
The court found that the order delivered on 28 November 2016 was ambiguous and required correction under Rule 42(1)(b) of the Uniform Rules of Court. The extension of the board members' terms of office by the first respondent was declared invalid, as was the decision by the board members to pursue disciplinary...
Source-derived case information.
- Citation
- [2016] ZAKZPHC 110
- Parties
- Applicant: Atwell Sibusiso Makhanya; Respondent: The Minister of Water Affairs and Sanitation; Respondent: Duduzile Myeni N.O.; Respondent: Musa Xulu N.O.; Respondent: Poppy Dlamini N.O.; Respondent: Frederick Bosman N.O.; Respondent: Nonhlanhla Khumalo N.O.; Respondent: Amit Badul N.O.; Respondent: Brian Rawlins N.O.; Respondent: Nica Gevers N.O.; Respondent: Thembinkosi Madikane N.O.; Respondent: Bongi Mshengu N.O.; Respondent: Simo Chamane N.O.; Respondent: Mhlatuze Water
- Court
- Kwazulu-Natal High Court, Pietermaritzburg
- Jurisdiction
- South Africa
- Case Number
- 1578/2016P; 3861/2016P
- Procedural Posture
- Review Application / Correction of Order Under Rule 42(1)(b) Following Judgment Delivered on 28 November 2016
- Outcome
- Order corrected under Rule 42(1)(b); previous decisions declared invalid and set aside; costs awarded to applicant.
- Judges
- Mbatha
- Legal Topics
- Review of Administrative Action, Setting Aside Invalid Decisions, Rule 42 Correction of Orders, Disciplinary Proceedings, Board Appointments
Source-derived case record
Summary, issues, holding and outcome
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Parties
Atwell Sibusiso Makhanya
Applicant
The Minister of Water Affairs and Sanitation
Respondent
Duduzile Myeni N.O.
Respondent
Musa Xulu N.O.
Respondent
Poppy Dlamini N.O.
Respondent
Frederick Bosman N.O.
Respondent
Nonhlanhla Khumalo N.O.
Respondent
Amit Badul N.O.
Respondent
Brian Rawlins N.O.
Respondent
Nica Gevers N.O.
Respondent
Thembinkosi Madikane N.O.
Respondent
Bongi Mshengu N.O.
Respondent
Simo Chamane N.O.
Respondent
Mhlatuze Water
Respondent
Procedural Posture
Review Application / Correction of Order Under Rule 42(1)(b) Following Judgment Delivered on 28 November 2016
Legal Issues
- 1 Whether the extension of the board members' terms of office by the first respondent was valid.
- 2 Whether the disciplinary proceedings and suspension of the applicant by the board members were lawful.
- 3 Whether the previous order required correction due to ambiguity under Rule 42(1)(b).
Ratio Decidendi
The court found that the order delivered on 28 November 2016 was ambiguous and required correction under Rule 42(1)(b) of the Uniform Rules of Court. The extension of the board members' terms of office by the first respondent was declared invalid, as was the decision by the board members to pursue disciplinary proceedings and suspend the applicant. The court suspended the operation of these orders for 180 days to allow the first respondent to appoint a new board. The disciplinary proceedings against the applicant were to be conducted by an independent firm and finalized by a specified date, with recommendations to be considered by the newly appointed board. The applicant was awarded costs...
Court Disposition
Order corrected under Rule 42(1)(b); previous decisions declared invalid and set aside; costs awarded to applicant.
Orders
- The decision by the first respondent to extend the terms of office of the board members of the thirteenth respondent is declared invalid and set aside.
- The decision by the second to twelfth respondents to pursue disciplinary proceedings against the applicant and suspend him is declared invalid and set aside.
Full Case Text
Judgment text and source record
46 paragraphs
IN HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL DIVISION, PIETERMARITZBURG
CASE NO: 1578/2016P
and 3861/2016P
In the matter between:
ATWELL SIBUSISO MAKHANYA APPLICANT
and
THE MINISTER OF WATER AFFAIRS AND
SANITATION FIRST
RESPONDENT
DUDUZILE MYENI N.O. SECOND
RESPONDENT
MUSA XULU N.O. THIRD
RESPONDENT
POPPY DLAMINI N.O. FOURTH
RESPONDENT
FREDERICK BOSMAN N.O. FIFTH
RESPONDENT
NONHLANHLA KHUMALO N.O. SIXTH
RESPONDENT
AMIT BADUL N.O. SEVENTH
RESPONDENT
BRIAN RAWLINS N.O. EIGHTH
RESPONDENT
NICA GEVERS N.O. NINTH
RESPONDENT
THEMBINKOSI MADIKANE N.O. TENTH
RESPONDENT
BONGI MSHENGU N.O. ELEVENTH
RESPONDENT
SIMO CHAMANE N.O. TWELFTH
RESPONDENT
MHLATUZE WATER THIRTEENTH
RESPONDENT
CORRECTION OF AN ORDER IN TERMS OF RULE 42 (1) (b) OF THE UNIFROM RULES OF COURT
Due to the ambiguity of an order that I gave in the judgment delivered on 28 November 2016, I accordingly correct it and it should read as follows:
[77] Accordingly, I make the following order:
1. The decision by the first respondent to extend the terms of office of the board members of the thirteenth respondent (second to twelfth respondents) is declared invalid and set aside;
2. The decision by the second to twelfth respondents (Mhlatuze Board Members) to pursue disciplinary proceedings against the applicant and suspend him is declared invalid and set aside;
3. The orders in paragraph 1 and 2 above are suspended from operation from the date of this order for a period of 180 days for the first respondent to appoint a new board within a period of 180 days from the date of this order;
4. The disciplinary proceedings against the applicant are to be conducted by Edward Nathan, Sonnenbergs Africa (ENS) and should be finalised by not later than 31 January 2017, whereafter its recommendations will be submitted for consideration by the newly appointed board as contemplated in paragraph 3 above, as soon as it is constituted;
5. The rule nisi in case number 3861/2016P is discharged; and
6. The applicant is awarded costs in respect of both matters (1578/2016P and 3861/2016P) including the costs consequent on the employment of senior and junior counsel, where applicable. The costs are to be borne by the first respondent in respect of both matters.
Dated this on this 8th day of December 2016 at Pietermaritzburg.
_______________
MBATHA J