S v Basson

IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA CONSTITUTIONAL, a URT., “CASE NO: 133/2013 In the matter between: THE MINISTER OF DEFENCE AND MILITARY VETERANS Applicant (First Respondent a quio) and MAOMELA MORETI MOTAU First Respondent (First Applicant @ quo) REFILOE MOKOENA Second Respondent (Second Applicant a quo) ARMAMENTS CORPORATION OF SOUTH AFRICA (SOC) LIMITED Third Respondent (Second Respondent a quo) APPLICATION FOR LEAVE TOE APPEAL AGAINST THE WHOLE OF THE JUDGMENT AND THE COST ORDER HANDED DOWN BY THE HONOURABLE JUSTICE M F. LEGODI IN THE NORTH GAUTENG HIGH COURT, PRETORIA (REPUBLIC OF SOUTH AFRICA) ON 18 SEPTEMBER 2013. ON BEHALF OF APPLICANT ON BEHALF 187 & 28° RESPONDENTS THE STATE ATTORNEY MEKUHABELA HUNTLEY ADEKEYE SALU Building ATTORNEYS Cnr Francis Baard & clo MKHAVELE INC Thabo Sehume Streets 168 Main Street PRETORIA ; Tel 012 309 1500 Fax: 012 309 1649 ale Ref: = Mr M Mhambi/5767/13/Z39/mm at Xx HEADS OF er _— In the matter between: THE MINISTER OF DEFENCE AND MILITARY VETERANS Applicant (First Respondent a quo) | and MAOMELA MORETI MOTAU First Respondent (First Applicant a quo) REFILOE MOKOENA Second Respondent (Second Applicant a quo) ARMAMENTS CORPORATION OF ‘ SOUTH AFRICA (SOC) LIMITED Third Respondent (Second Respondent a quo) APPLICATION HEADS OF ARGUMENT IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA Constitutional Court Case No: CCT133/13 In the matter between: THE MINISTER OF DEFENCE AND Applicant MILITARY VETERANS and MAOMELA MORETI MOTAU 4® Respondent REFILOE MOKOENA 2” Respondent ARMAMENTS CORPORATION OF SOUTH 3° Respondent AFRICA (SOC) LIMITED PRACTICE NOTE: PRACTICE DIRECTION 5 IN TERMS OF RULE 32(2) 1 NAME AND NUMBER OF THE MATTER 1.1 Applicant: The Minister of Defence and Military Veterans, 42 First Respondent. Maomela Moreti Motau, 4.3 Second Respondent: Refiloe Mokoena, kee is justified. PORTIONS OF THE RECORD NECESSARY FOR THE DETERMINATION OF THE MATTER 41 4.2 43 44 4.5 4.6 47 Notice of Motion, pp 1-4; Founding Affidavit, pp 5-19; Annexure “RM2”, pp 23-25; Opposing Affidavit by the Applicant, pp 35-69; Annexure “I!” to the Opposing Affidavit, pp 81-84; Paragraphs 5.3 and 5.4 of annexure “K” to the Opposing Affidavit, pp 87-93; Supporting Affidavit of Antonie Visser, annexure “L” to the Opposing Affidavit, pp 94-103. ESTIMATION OF THE DURATION OF ORAL ARGUMENT Approximately three hours. SUMMARY OF APPLICANT'S ARGUMENT 6.4 First and Second Respondents were appointed as the Ve 6.6 6.7 6.8 6.9 In terms of the definition of ‘administrative action” and specifically Section 1(b)(aa) the exercise of any executive function in terms of Section 85(2)(e) of the Constitution is excluded from the definition of administrative action in the PAJA; With reference to the matter of Masethla v President of the Republic of South Africa & Another 2008 (1) SA 566 (CC) (specifically paragraphs [76] and [77]) the dismissal of a “person appointed by the Minister constitutes the exercise of executive function and not administrative action; The High Court therefore should have found that the dismissal of the Respondents as directors of the Board of Armscor constituted executive action by the Minister and the finding of the High Court that the Minister should have followed an administratively fair process as set out in Section 3 of the PAJA is, with respect, wrong; The decision by the Minister to terminate the services of the Respondents complied with the requirements of legality and rationality as provided for in the matter of Masethla v President of the Republic of South Africa & Another 2008 (1) SA 566 (CC), para [81]; 6.10 itis therefore respectfully submitted that the High Court erred in granting the relief sought by the Respondents, and the High Court should have dismissed the Application with cost, including cost of two counsel. LIST OF AUTHORITIES ON WHICH PARTICULAR RELIANCE WILL BE PLACED DURING ARGUMENT 7.4 7.2 7.3 7.4 7.5 President of the Republic of South Africa & Others v South African Rugby Football Union & Others 2000 (1) SA 1 (CC), para 141; Masethla v President of the Republic of South Africa & Another 2008 (1) SA 566 (CC); Premier Western Cape & Others v Overberg District Municipality 2011 (4) SA 441 (SCA); Democratic Alliance v President of the Republic of South Africa & Others 2013 (1) SA 248 (CC), Affordable Medicines Trust & Others v Minister of Health & Others 2006 (3) SA 247 (CC); 7.6 Democratic Alliance & Others v Acting National Director of Public Prosecutions & Others 2012 (3) SA 486 (SCA). MC ERASMUS SC MC KGATLA First Respondent's Counsel Chambers BROOKLYN/SANDTON 5 DECEMBER 2013