Tonise and Others v Minister of Water and Sanitation and Others (1274/2022) [2023] ZAECMKHC 68 (24 May 2023)

Tonise and Others v Minister of Water and Sanitation and Others (1274/2022) [2023] ZAECMKHC 68 (24 May 2023)

The court found that the Minister's decision to terminate the applicants' appointments and dissolve the Amatola Water Board was not an executive action but constituted administrative action subject to the requirements of procedural fairness under PAJA. The Minister failed to provide evidence that he properly considered the applicants' submissions or engaged meaningfully with the allegations against them. The Rule 53 record did not contain the applicants' written submissions, and there was no substantiated link between the alleged dysfunctionality and any negative impact on water services. The Minister's justification for dissolution was not rationally connected to the purpose of ensuring...

Citation
[2023] ZAECMKHC 68
Parties
Applicant: Buhle Tonise; Applicant: Zama Xalisa; Applicant: Mxolisi Joe Sikhosana; Applicant: Tabisa Wana; Applicant: Nkosazana Nomaxhosa Jongilanga; Respondent: Minister of Water and Sanitation; Respondent: Amatola Water Board; Respondent: Mosidi Makgae; Respondent: Lebo Letsoalo; Respondent: Mokgobi Ramushu; Respondent: Gaathier Mahed; Respondent: Abraham Le Roux
Court
Eastern Cape High Court, Makhanda
Jurisdiction
South Africa
Judgment Date
24 May 2023
Case Number
1274/2022
Procedural Posture
Review Application / Final Judgment on Part B of Review Application
Outcome
Application granted. Minister's decisions reviewed and set aside. Applicants reinstated as Board members. Costs awarded against the Minister.
Judges
N G Beshe
Legal Topics
Promotion of Administrative Justice Act, Legality Review, Board Dissolution, Ministerial Discretion, Procedural Fairness
Administrative Law Civil Procedure Promotion of Administrative Justice Act Legality Review Board Dissolution Ministerial Discretion Procedural Fairness

Case Brief

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Parties

Buhle Tonise

Applicant

Zama Xalisa

Applicant

Mxolisi Joe Sikhosana

Applicant

Tabisa Wana

Applicant

Nkosazana Nomaxhosa Jongilanga

Applicant

Minister of Water and Sanitation

Respondent

Amatola Water Board

Respondent

Mosidi Makgae

Respondent

Lebo Letsoalo

Respondent

Mokgobi Ramushu

Respondent

Gaathier Mahed

Respondent

Abraham Le Roux

Respondent

Procedural Posture

Review Application / Final Judgment on Part B of Review Application

Legal Issues

  1. 1 Whether the Minister's decision to terminate the applicants' appointments to the Amatola Water Board was lawful.
  2. 2 Whether the dissolution of the Amatola Water Board and appointment of an interim board were rational and procedurally fair.
  3. 3 Whether the Minister's actions constituted administrative action subject to PAJA or executive action subject to legality review.

Ratio Decidendi

The court found that the Minister's decision to terminate the applicants' appointments and dissolve the Amatola Water Board was not an executive action but constituted administrative action subject to the requirements of procedural fairness under PAJA. The Minister failed to provide evidence that he properly considered the applicants' submissions or engaged meaningfully with the allegations against them. The Rule 53 record did not contain the applicants' written submissions, and there was no substantiated link between the alleged dysfunctionality and any negative impact on water services. The Minister's justification for dissolution was not rationally connected to the purpose of ensuring...

Court Disposition

Application granted. Minister's decisions reviewed and set aside. Applicants reinstated as Board members. Costs awarded against the Minister.

Orders

  • The decision taken by the first respondent on or about 25 March 2022 to terminate the applicants' appointment to the Amatola Water Board in terms of Section 35(5) of the Water Services Act 108 of 1997 is reviewed and set aside.
  • The decision taken on or about the same date to dissolve the Amatola Water Board is reviewed and set aside.