CASE N0:76891/2017. In the matter between: JUDGMENT. RANCHODJ: Introduction, [1] The applicant, who is the Director-General of the Department of

Transcription

1 CASE N0:76891/2017 DELETE WHICHEVER IS NOT APPLICABLE (1) REPORTABLE: YES/JI(! (2) OF INTERE~TTO OTHERS JUDGES: YES/~ (3) REVISED J w.2..~+~;..7..u.ls ; DATE NATURE In the matter between: MZAMO MICHEAL MLENGANA APPLICANT and MINISTER OF AGRICULTURE FORESTRY AND FISHERIES RESPONDENT JUDGMENT RANCHODJ: Introduction [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 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 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 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 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 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 components 2. [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 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 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 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 the 1 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. 9 [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 instance 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 10 HoDs (referred to in certain cases 6 ) have been repealed 7 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 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. Section168 8 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 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 employee 9 ; 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 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 respect 11. 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 appoint 12. 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 a 1 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 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 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 disciplinary hearing. I [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 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 Lekabe 14 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 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 Winsen 15 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 Govemment 16 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 The CiviJ Practice of the High Court of South Africa 5th Ed Vol II p (5) SA 24 (SCA) para 54

18 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 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 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

19 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 rlocess. 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 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 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) Instructed by :Cheac;Ue Thompson & Haysom Inc. Attorneys Date heard Date delivered : 14 March 2018 : 23 April 2018