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REPORTABLE

SOUTH GAUTENG HIGH COURT, JOHANNESBURG

CASE NO: 01563/2012

DATE:08/05/2012

In the matter between:

GAUTENG GAMBLING BOARD.................................................1st Applicant

SEFAKO PHANUEL MAFOJANE ….........................................2nd Applicant

And

MEC FOR ECONOMIC DEVELOPMENT:.................................Respondent

GAUTENG PROVINCIAL GOVERNEMENT

CORPORATION LIMITED

J U D G M E N T

MATHOPO J

[1] The first applicant, Gauteng Gambling Board (The Board) seeks an order challenging the lawfulness of the Respondent MEC of Economic Development to terminate its membership. The second applicant is the chairperson of the Board.

BACKGROUND

[2] The Gauteng Executive Committee (EXCO) took a decision to rationalise Gauteng Provincial State Agencies. All agencies reporting to the Department of Economic Development were instructed to move to 124 Main Street, Johannesburg. The Board which was operating at Bramley was also instructed to adhere to the EXCO decision but failed or ignored this instruction. The underlying reasons for the EXCO decision appear in a document marked business case study for Department of Economic Development Agencies. This decision according to EXCO would serve to facilitate service delivery by the Provincial Government. At that time the Board which is one of the agencies was not part of that decision. However towards the end of the year, the Board which was operating in Bramley was instructed to align itself with the decision to join other agencies. The Board was duly advised in a letter on the 25th October 2011 that it had until the 31st December 2011 to comply with the instruction. It is common cause that the Board did not comply with the instruction with the result that the respondent terminated its membership of the Board. This was after the Board had failed to furnish reasons to the respondent why its membership of the Board should not be terminated.

[3] The Board resisted the move on the basis that about 2 years when it was still operating in Centurion, moved to Bramley at a cost of R101 million and contend relocating to Johannesburg would amount to wasteful and fruitless expenditure and offend fiscal discipline particularly the Public Finance and Management Act and other related treasury regulations. It also resisted the relocation on the basis that the suggestion by the Respondent to lease the premises to an entity called African Romance would also flout the treasury regulations because no approval had been obtained. At the hearing of this matter, the issue relating to African Romance was no longer viable as it (African Romance) had decided not to take up the premises of the applicant.

[4] Various discussions ensued between the Board and the Respondent in an attempt to break the impasse. Matters came to a head when the Respondent dispatched a letter to the Board requesting it to furnish reasons by the 18th January 2012, why its membership should not be terminated. Instead of responding to the said letter, the Board tersely and without giving reasons, informed the Respondent that it would be launching an urgent application and the reasons would be found in the application.

[5] The Board launched an urgent application seeking to set aside the decision taken by the Respondent to terminate the membership of the respective members of the Board and to interdict the Respondent from appointing an Administrator to run the affairs of the Board. In the notice of motion the relief sought was in the form of a temporary interdict subject to the review of the Respondent’s actions at a later stage. The notice of motion was formulated in the following manner:

PART A

1. That the Applicant’s non-compliance with the normal rules of this Honourable Court relating to service, filing and time limits is condoned and that the matter is dealt with as one of urgency in terms of the Rules of this Honourable Court.

2. That pending the determination of the review and declaratory orders sought in Part B of this Application, the following interim relief is granted:

2.1 The Respondent is interdicted from terminating the membership of the members of the Board

2.2 The Respondent is interdicted from unlawfully interfering with the operations of the Board

3. That should the Respondent oppose the relief sought under Part A of the Notice of Motion she is ordered to pay the costs of this part of the application

4. That the applicant is granted such further and/or alternative relief as this Honourable Court deems just and equitable

PART B

1. That it be declared that the Respondent’s instructions that the Gauteng Gambling Board (“the Board”) vacate its premises at Bramley is declared to be unconstitutional, unlawful and invalid.

2. The Respondent’s instruction that the Board vacate its premises at Bramely is hereby reviewed and set aside.

3. That the Respondent’s instructions that the Board relocate to Main Street in the Johannesburg CBD is declared to be unconstitutional, unlawful and invalid.

4. That the Respondent’s instruction that the Board relocate to Main Street in the Johannesburg CBD is hereby reviewed and set aside.

5. That the Respondent’s instruction that the Board’s premises in Bramley be let to African Romance is declared to be unconstitutional, unlawful and invalid.

6. That the Respondent’s instruction that the Board’s premises in Bramley be let to African Romance is hereby reviewed and set aside.

7. That if the Respondent opposes the relief sought under Part B of the notice of Motion she be ordered to pay the costs of the application.

[6] Apparently and unbeknown to the Respondent, that the urgent application had already being issued and served, terminated the applicant’s membership of the Board.

[7] In response, the applicant amended its the urgent application by substituting the first notice of motion with the second one, wherein the relief sought was now in the form a of final interdict without any reference to the review application. To appreciate fully how the relief sought was couched, the contents of the second notice of motion bears repeating:

2. That Sefako Phanuel Prince Mafojane is admitted as the Second Applicant to the proceedings brought under the same Case Number by First Applicant on 18 January 2012 and that he be joined as a party to those proceedings.

3. That this application be heard simultaneously with the application referred to in paragraph 2 above.

4. Setting aside the purported termination on 23 January 2012 by the Respondent of the membership of the members of the Gauteng Gambling Board (“the Board”).

5. Interdicting the Respondent from unlawfully interfering with the operations of the Applicant herein.

6. Interdicting the Respondent from appointing an administrator pending the finalization of the review application that was launched in this Court on 18 January 2012.

7. Alternatively to paragraph above, and in the event that an administrator has been appointed, setting aside that appointment forthwith.

I will deal with the relief sought by the applicants in the first and second

notice of motion later in my judgment.

[8] It is common cause that the Respondent filed its answering affidavit and reiterated that its decision to terminate the membership of the Board was lawful and further relied on section 41(3) of the Constitution, which discourages court battles amongst organs of state. The latter section provides as follows:

An organ of state involved in an intergovernmental dispute must make every reasonable effort to settle the dispute by means of mechanisms and procedures provided for that purpose, and must exhaust all other remedies before it approaches a court to resolve the dispute.

[9] The argument advanced on behalf of the Respondent is that since the applicant is an organ of state within the meaning of section 235 of the Constitution, compliance within the provision of section 41(3) was peremptory prior to any litigation. Further reliance was placed on section 45 of the Intergovernmental Relations Framework Act 2005 which also discourages litigation amongst the organs of state before any attempts to settle the dispute have been explored. The latter section provides as follows:

“No government or organ of state may institute judicial proceedings in order to settle an intergovernmental dispute unless the dispute has been declared a formal intergovernmental dispute in terms of section 41 and all efforts to settle the dispute in terms of this Chapter were unsuccessful”.

[10] In the light of the Respondent’s reliance on the above legislative prescripts, when the urgent application came before Weiner J on the 26th January 2012, the parties agreed that the decision to terminate the membership of the members of the Board be stayed and that every reasonable effort to settle the dispute be made within section 45 of the Intergovernmental Relations Framework Act.

[11] Mediation took place between the parties and the deadlock could not be resolved. In the interim some of the concerned members of staff of the first applicant reported the issue to the Public Protector for investigation to determine whether relocation of the Board does not amount to fruitless and wasteful expenditure and other alleged procedural irregularities. On the 17th February 2012, the Public Protector confirmed that her office is investigating the relocation of the Board’s operation and the validity of the Respondent’s termination of the members of the Board and requested the respondent to keep in abeyance the relocation of the Board. The Respondent as it was entitled to do so, adopted an attitude that the decision to terminate the membership of the Board did not fall within the purview of the Public Protector and set the matter down for argument.

[12] When the matter came before me, the applicant persisted with its argument that all issues must be kept in abeyance pending the outcome of the Public Protector. The argument advanced on behalf of the applicant is that it is impracticable and undesirable to excise one issue from the others because all the issues are interlinked and contended the Public Protector with her wide and extensive powers should first determine the issues before the court can make a pronouncement. The Respondent objected to the application to stay the proceedings on the basis that the applicant’s argument was devoid of merit and the issue fall within the jurisdiction of the court.

PRELIMINARY ISSUE

(A) WHETHER THE PROCEEDINGS MUST BE ADJOURNED PENDING THE OUTCOME OF THE PUBLIC PROTECTOR’S FINDINGS

[13] I was then invited to determine whether there is any merit in the applicant’s submission that the proceedings be adjourned pending the outcome of the findings of the Public Protector.

[14] Mr Soni who appeared on behalf of the applicants contended that the Respondent prematurely set the matter down for argument before the Public Protector has finalised her investigations. He argued that it is undesirable and unconstitutional to require the constitutional institutions i.e. the court and Public Protector to enquire into the same matter. He submitted that, as opposed to the Public Protector who has extensive and wide powers, the court’s powers to determine the issues would be based on limited facts. Properly construed, his argument boils down to the fact that the Public Protector has more investigation powers and she is not confined to legality but extends to governance and propriety. In support of his argument counsel relied on the judgment of Public Protector v Mail and Guardian Ltd & Others 2011 (4) SA 140 (SCA) at paragraph 6 where Nugent JA said the following:

“The office of the Public Protector is an important institution. It provides what will often be a last defence against bureaucratic oppression, and against corruption and malfeasance in public office that are capable of insidiously destroying the nation. If that institution falters, or finds itself undermined, the nation loses an indispensable constitutional guarantee”.

[15] Counsel for the applicant submitted that, in the light of the above dicta proceedings must be stayed pending the determination by the Public Protector because the latter with her wide and extensive powers of investigation would be in a better position to ferret out all the facts relating amongst others to the following, the instruction to the Board to relocate, the dismissal of the Board members for not complying with the instruction and the reason why the Board was asked to make way for African Romance.

[16] Mr Semenya for the Respondent submitted that the applicants have not advanced any legal authority why the jurisdiction of the court make a determination on a dispute clearly falling within its jurisdiction must await an investigation by the Public Protector. He argued that reliance on the Mail and Guardian case supra was misplaced. According to Mr Semenya the Public Protector is not enjoined in terms of the Constitution to determine the lawfulness or otherwise of the Respondent’s decision to terminate the members of the Board. According to his submission the issues that the “concerned staff members of the applicant” have reported to the Public Protector can still be investigated even after the court has made a determination on the lawfulness of the Respondent’s conduct. In essence, so the argument goes, the issues before the Public Protector will remain unaffected by the court ruling.

[17] Finally counsel for the Respondent submitted that given the fact that it is not clear how long the Public Protector will take to finalise or investigate, to stay the proceedings given this uncertainty would be untenable and frustrate any court processes and argued that it is impracticable and undesirable to stay the proceedings for an indefinite period of time.

[18] In the light of the comments of the Public Protector regarding the stay of the proceedings, I briefly adjourned the matter and requested the parties to approach the Public Protector and ascertain her attitude regarding the possible stay of the proceedings pending her investigation. The Public Protector indicated by letter dated 23 March 2012 that the proceedings must continue. In paragraph 2 and 3 of her letter she stated the following:

2. I do not deem it appropriate to stop court proceedings and the matter before court must proceed as scheduled.

3. However, the intended relocation of the Gauteng Gambling Board be held in abeyance pending the finalisation of my investigation. Please be advised that the decision by the court will not affect other aspects of the allegations, which are still under my investigation.

[19] When the matter resumed for further argument and notwithstanding the views of the Public Protector, Mr Soni was undaunted and with much vigour persisted with his argument. As authority for his proposition, he again relied on the paragraph 19 of the Mail and Guardian case supra, where Nugent JA said the following:

The Public Protector must only discover the truth, but must also inspire confidence that the truth has been discovered. It is no less important for the public to be assured that there has been no malfeasance or impropriety in public life, if there has not been, as it is for malfeasance and impropriety to be exposed where it exists. There is no justification for saying to the public that it must simply accept that there has not been conduct of that kind, only because evidence has not been advanced that proves the contrary. Before the Public Protector assures the public that there has not been such conduct he or she must be sure that it has not occurred. And if corroboration is required before he or she can be sure then corroboration must necessarily be found. The function of the Public Protector is as much about public confidence that the truth has been discovered as it is about discovering the truth.

[20] Mr Semenya, in reply submitted in the present matter that there is a clear distinction between what the Public Protector is required to investigate and the issues before court. As a result of that distinction, he urged upon me to reject the applicants submission on the basis that the issue relating to lawfulness of the respondent’s conduct falls within the purview of the court and not the Public Protector.

[21] I agree with Mr Semenya that reliance on the Mail and Guardian case is misplaced. Although I fully associate myself with the laudable remarks by Nugent JA. In my view, the issues in the present matter are entirely different from the issues that Nugent JA dealt with. In the present matter, the integrity of the Public Protector’s office to discover the truth has not been called into question. In the Mail and Guardian case, the court dealt with the jurisdiction, duties, breath of powers and functions of the Public Protector, especially when it becomes aware of the maladministration, malfeasance or impropriety in public life. The court remarked that the investigative powers of the Public Protector includes alleged improper or dishonest conduct in respect of public money. It is not the applicants case that the respondent’s conduct amounts to impropriety or malfeasance. The complaint relates to the financial viability of the proposed relocation

[22] In my view, it does not fall within the purview of the Public Protector to determine the lawfulness of the Respondent’s decision to terminate the membership of the members of the Board. The Public Protector in her letter dated 23 March 2012 correctly did not arrogate to herself or her office such powers. Quite clearly, the Public Protector was mindful of her constitutional imperatives, as a chapter nine institution, that she cannot encroach upon the issues before the court. I consider that approach to have been correctly made. To my mind the argument by the applicants is unsustainable.

[23] I have not been referred to any authority which supports the applicants case that the jurisdiction of the court to deal with matters falling within its jurisdiction must be stayed indefinitely pending the outcome of the Public Protector. Neither has the Public Protector adopted such an approach. In my view the Mail and Guardian case is not authority for that proposition. In terms of section 34 of the Constitution, everyone has a right to have a dispute that can be resolved by the application of law decided in a fair public hearing before a court of law or where appropriate, another independent and impartial tribunal or forum. What the applicants now seek to do is to deny the respondent its constitutionally entrenched right. I have no doubt that the constitution frowns upon such conduct and same cannot be countenanced by any democratic society founded upon the rule of law.

[24] Another reason why the argument by the applicants is untenable is because the issues which the Public Protector is investigating have been raised by the staff members and not the Board itself. For the Board to attempt to seek refuge in the staff complaints before the Public Protector is not only opportunistic but clearly an attempt to delay finalisation of this matter. I say this for the reason that, on applicants version, for as long as the Public Protector is still investigating, litigation will be kept in abeyance and the courts power to deal with this issue will be ousted. This is unconscionable and against the spirit of the Constitution.

[25] I am satisfied that the argument that the only responsible organ to deal with the issues is the Public Protector is equally misconceived. The matter which the court is seized with, is the lawfulness or otherwise of respondent conduct to terminate the membership of the members of the Board. The court is not seized with determining the truth of the allegations raised by concerned members of the staff of the Board, which the Public Protector needs to investigate which inter alia include whether the relocation will offend fiscal discipline required by Public Finance Management Act.

[26] For the above mentioned reasons, there is accordingly no merit in the preliminary issue raised by the applicants and falls to be dismissed with costs including the costs occasioned by the employment of senior counsel.

(B) LAWFULNESS OF THE RESPONDENT TO TERMINATE THE MEMBERSHIP OF THE BOARD

[27] At the heart of this matter, is whether the Board is justified in its refusal to relocate to 124 Main Street Building, on the basis that such relocation would amount to wasteful and fruitless expenditure as contemplated in the Public Finance Management Act and offend treasury regulations.

[28] The Respondent’s case is that after EXCO took a decision which was based on a business study, to rationalise all the agencies into 124 Main Street Building. All the other agencies with the exception of the applicant migrated their businesses to the said building. The Board, as one of the agencies, after being duly advised did not comply with the instructions and also failed despite an invitation to do so in the respondent’s letter dated 10 January 2012 to furnish reasons. With the result that absent any reasonable explanation, the respondent acting in terms of Section 8(2) of the Gauteng Gambling Act 4 of 1995 (“the Act”), terminated the membership of the Board. The said section provides as follows:

Section 8 (1)…

(a)…

(b)…

(2) “The responsible member may, after giving the board member concerned an opportunity to be heard and after consultation with the Standing Committee of the Provincial Legislature responsible for economic affairs, terminate the membership of any member of the Board if good reasons exist for doing so”. (my emphasis)

[29] It was contended on behalf of the respondent that the decision to terminate the members from serving on the Board was accordingly informed by the decision of the Provincial Executive Committee which wants to rationalise various agencies under the Economic Department and this decision was informed by the Provincial Government in asserting its political mandate and service delivery objectives.

[30] Mr Semenya submitted that respondent complied with all the procedural requirements of the Act because the Board was afforded an opportunity to provide reasons why they should not be terminated and when the said reasons were forthcoming, the respondent after proper consultation with the standing committee of the Provincial Legislator responsible for economic affairs, terminated the membership of members of the Board. Counsel further submitted that such a decision was taken rationally, lawfully and validly. This decision until set aside by a court in proceedings for judicial review it exist in fact and has legal consequences that cannot be over looked. See: Oudekraal Estates (Pty) Ltd v City of Cape Town & others 2004 (6) SA 222 (SCA)

[31] The case advanced for the respondent is that the instruction given to the Board to relocate was an instruction which the respondent is competent to make to execute a political mandate for which the respondent was elected into power. This mandate which is a provincial policy was informed by a business case study for the migration of all the agencies falling under the Department of Economic and Development into 124 Main Street Johannesburg and the first applicant was one of the agencies.

[32] It was submitted that in the light of the above legislative prescripts, the respondent was accordingly empowered by the overarching legislation to terminate the membership of the members of the Board once the procedural requirements were complied with. Mr Semenya persisted with his argument that the applicants have not been able to demonstrate that the conduct of the respondent in the circumstances was unlawful, irrational or unreasonable. He submitted quiet persuasively that it would seem that the applicants merely want to remain in office pending the investigation by the Public Protector and urged me to reject the applicants case.

[33] On behalf of the respondent, it was again argued that it is disingenuous for the applicants to contend that sole reason for the termination of the membership of the Board is because of the refusal to let premises to an entity called African Romance. Counsel for the respondent submitted that since African Romance had not taken the lease, persisting with the argument demonstrates that the applicants were clutching at straws.

[34] Mr Soni for the applicants submitted that the Board took the view that since the instruction to relocate was unlawful it was entitled to refuse to comply with the respondent’s instruction and relied also on counsels opinion furnished to the respondent. The applicants stance according to his argument, was based on the fact that relocation would result in a violation of the Public Finance Management Act, the Treasury Regulation and would constitute fruitless and wasteful expenditure.

[35] Another reason contended for by the applicants for the refusal to comply relate to the initial proposal by the respondent to lease the premises to African Romance, which according to the applicants was in violation of the Treasury Regulations. It was argued, that the fact that the respondent took into account the Board’s refusal to comply with the said instruction (letters) as a basis for termination, of its membership, the conduct of the respondent in such circumstances is unlawful and not reasonable. This, according to the applicants, is because it was conceded by the respondent that instructing the Board to lease the premises to African Romance was against Treasury Regulations.

[36] Again, it was contended that pursuant the obligations of the Board as contained in section 18 of the Act, the Board as the accounting authority inter alia must act with honesty, fidelity and integrity in the best interest of the Board. This include that effective and appropriate steps be taken to prevent irregular or fruitless and wasteful expenditure. Applicants submitted that since the instruction by the respondent was clearly in conflict with section 18 of the Act, the Board was in the circumstances justified in refusing to relocate to Johannesburg.

[37] Mr Soni for the applicants also submitted that the termination by the respondent is unconstitutional, unlawful and invalid. The submission made in support of this argument, is that the conduct of the respondent is unreasonable and procedurally unfair because not only did the Board refuse to comply with the instructions but was supported by counsel’s opinion which was forwarded to the respondent for consideration and ignored. This, according to the applicants was to demonstrate its bona fides that refusal to comply with the instructions was not based on ulterior motives but was motivated by the desire to comply with statutory obligations enshrined in the Act.

[38] Properly construed, the case advanced for the applicants is that the Board and respondent as organs of state in terms of the constitution are constitutionally obliged to act lawfully, reasonably and procedurally fair and comply with section 33 of the constitution and PAJA. It was argued that given the fact that the Board had recently moved to the present building at the cost of R101 million, for the respondent to now instruct it to relocate to Johannesburg, amounts to fruitless and wasteful expenditure and not in accordance with the section 18 of the Act and thus clearly in conflict with the constitution, other treasury regulations and this conduct is irrational.

[39] Finally, the applicants contended that it was procedurally unfair for the respondent to afford the applicants “too short a time” to respond to its letters of termination. On behalf of the applicants, it was submitted that notwithstanding that short period, the applicant complied with the request when it advised the respondent that its reasons would be contained or found in the contemplated urgent application.

[40] Mr Soni for the applicants submitted quiet vigorously that in the light of the aforegoing, it is procedurally unfair for the respondent to dismiss the members of the Board when the urgent application was already served and filed on the respondent on the 16th January 2012. He further submitted that it is unacceptable for the respondent to say that the application, which was properly served by the applicants attorneys, was not brought to her attention, when a decision to terminate the members of the Board was taken. He argued that the respondent’s failure to make enquiries and consider what was said in the application renders her decision to terminate the membership of the Board procedurally unfair. On that basis alone, he submitted that the respondent decision must be set aside.

[41] Although I agree with the applicants that it is not desirable that a party take a “further step” in the face of a validly issued court process. In the present matter, the explanation by the respondent that it was unaware of the application when it took the decision to terminate the membership of the respondent cannot be said to be irrational or unreasonable. Applicants were afforded an opportunity to furnish reasons and they elected not to do, so, contending that such reasons would be found in the urgent application to be issued.

[42] I am in agreement with the respondent that the decision by EXCO to rationalise all agencies into 124 Main Street was based on a rational decision, after a proper business case study was made. Consequently the decision to relocate all the agencies was also based on an informed decision. The suggestion that the Board was initially excluded from the business study and that it was only included after it raised objection to let the premises to African Romance cannot justify its refusal to relocate.

[43] Another argument advanced by the applicants is that section 125 (2) (d) (e) of the constitution does not give the Premier and EXCO the power to issue instructions. In my view this argument is unsustainable and based on a narrow interpretation of the section. I do not agree with interpretation of the applicants, that the powers of the Premier and EXCO are confined to administration and co-ordination only. It is absurd to suggest that the Premier and EXCO can administer and coordinate, without powers to issue instructions. Such a construction would render the powers of the Premier and EXCO hollow and ineffective.

[44] I am not persuaded that the reason for termination of the applicants membership is linked to the letting of the premises to African Romance. In my view, the EXCO after conducting a proper business study, decided that all agencies must relocate to Johannesburg. This was in accordance with the constitutional mandate to govern the province in much more efficient way to cater for proper service delivery. The applicants were given sufficient time to put their house in order and join other agencies and not adhere to the instruction.

[45] The Act empowers the respondent to terminate membership of the members of the Board if good reasons exists. The Board, did not furnish any cogent reasons for it to remain in Bramley. It would appear that its reason to remain in Bramley is because, on its version, the relocation would amount to fruitless expenditure. As the issue of the relocation is currently being investigated by the Public Protector, there is in my view no legitimate basis why the applicants should resist relocation on that basis. Its steadfast approach that the matter should be kept in abeyance pending the investigation by the Public Protector is rejected. It should have been obvious to the applicants that after they were invited to furnish reasons why the membership of the Board should not be terminated, that failure to do so, will result in the termination of their membership. I am fortified in my view that there is no authority in law that says that a member is entitled to disobey an instruction on the basis that it would result in fruitless or wasteful expenditure.

[46] I agree with Mr Semenya that after the respondent complied with the procedural requirements, it is empowered by the overarching legislation to terminate the membership of the Board if good reasons exist. In my view, absent any good reasons from the applicants, the respondent was entitled to follow and implement the rational decision of EXCO by terminating the membership of members of the Board.

[47] I have no doubt in my mind that, in view of all the objective facts, the respondent was procedurally entitled to issue instructions to the Board to relocate. The Board’s refusal to comply with such validly issued instructions, if condoned will frustrate well researched and motivated objectives of the respondent in the provinces. On a conspectus of all the facts, I remain unpersuaded that the conduct of the respondent was irrational, unlawful, unreasonable and procedurally unfair. On these basis I would dismiss the application

I now turn to deal with the first and second notice of motion.

[48] A considerable time was spent by the parties on what relief was being sought by the applicants. I have already alluded to the fact that in the initial notice of motion, the relief sought by the applicants was in the form of a temporary interdict pending the review, however when one examines the relief sought, it is final in form as the applicants seek the setting aside of the termination which is final interdict.

[49] The case advanced by the applicants in the two notices of motion was clearly confusing. Applicants counsel in seeking to challenge the lawfulness of the respondent conduct to terminate the membership of the members of the Board, spent a considerable time arguing on the rationale of the instruction to relocate. This argument forms part of the application in Part B of the first notice of motion. I agree with Mr Semenya that this argument is misconceived and prejudicial to the respondent for the following reasons:

49.1 The record of the review proceedings has not been filed;

49.2 The applicants have not been afforded an opportunity to supplement its papers;

49.3 More importantly the respondent has not provided an answer to the allegations on the review;

49.4 The applicants have not replied to the respondents answer.

[50] It is evident to me that the applicants seek to remain in the office pending the investigation by the Public Protector pending the review. The applicants have not been able to show that they have a prima face right to remain in office or whether they would suffer irreparable harm if they remain in the office pending the review and neither have they been able to demonstrate on the papers that there is no alternative remedy and that the balance of convenience favours them remain in the office.

[51] For the applicants to succeed it must be able to demonstrate that the removal is unlawful to obtain a final relief. On their version, they have not been able to do so because they rely on the relocation as the basis to resist to move to Johannesburg. I am not satisfied that the requirements of the temporary and final interdict have been satisfied by the applicants.

[52] I therefore make the following order:

1. The application is dismissed with costs including the costs occasioned by the employment of senior counsel.

___________________________

R MATHOPO J

Judge of the South Gauteng

High Court, Johannesburg

Appearances:

For the Appellant : Adv Soni Sc

instructed by : Hewu Attorneys

For the Respondent : Adv Semenya Sc

with Adv Platt (Ms)

instructed by : MV Gwala & Associates Inc.

Date of hearing : 22 MARCH 2012

Date of Judgment : 08 MAY 2012

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