THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case No: 796/2017
In the matter between:
ATTWELL SIBUSISO MAKHANYA

APPLICANT

and

MINISTER OF WATER AFFAIRS AND SANITATION
FIRST RESPONDENT
DUDUZILE MYENI N.O

SECOND RESPONDENT
MUSA ZULU N.O.

THIRD RESPONDENT
POPPY DLAMINI N.O.

FOURTH RESPONDENT
FREDERICK BOSMAN N.O.

FIFTH RESPONDENT
NONHLANHLA KHUMALO N.O.

SIXTH RESPONDENT
AMITA 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

Neutral citation: Makhanya v Minister of Water Affairs & others (796/2017) [2018]
ZASCA 172 (30 November 2018)
Coram:
Tshiqi, Makgoka and Schippers JJA and Mokgohloa and Mothle AJJA
Heard:
05 November 2018
Delivered:  30 November 2018
Summary: Administrative Law – s 8 of Promotion of Administrative Justice Act 3 of
2000 (PAJA) read with s 172(1) of the Constitution – court’s powers to declare law or
conduct inconsistent with the Constitution invalid to the extent of its inconsistency
and to make any order that is just and equitable – order – suspension of declaration
of invalidity of decision to initiate a disciplinary hearing against applicant not a just
and equitable remedy in the circumstances – Applicant precluded from performing his
duties as CEO of Umhlatuze Water pending decision of a properly constituted Board
___________________________________________________________________

ORDER
___________________________________________________________________

On appeal from: KwaZulu-Natal Division of the High Court, Pietermaritzburg
(Mbatha J sitting as court of first instance):

1 The application for leave to appeal is granted to the Supreme Court of Appeal.
2 The application for leave to adduce further evidence relevant to the developments
at Umhlatuze Water after Mbatha J’s order, is granted.
3 The appeal is upheld to the extent set out herein below:
3.1 Paragraph 3 of the order of the court a quo insofar as it relates to the
applicant’s suspension and disciplinary proceedings against him, and paragraph 4
of the order, are set aside and substituted as follows:
‘(a) A properly and legally appointed Board of Umhlatuze Water or the Minister of
Water and Sanitation, acting in terms of s 73(1)(f) of the Water Services Act 108 of

1997 must consider the report compiled by Edward Nathan, Sonnenbergs
Forensics and decide whether to suspend and initiate disciplinary proceedings
against the applicant, which decision must be taken within 30 calendar days from
the date of this order.
(b) Pending the decision referred to in (a) above, the applicant is precluded from
reporting to his office at Umhlatuze Water and from performing his duties as the
Chief Executive Officer of Umhlatuze Water.’
4 Each party to pay its own costs.
___________________________________________________________________

JUDGMENT
___________________________________________________________________
Tshiqi JA (Makgoka and Schippers JJA and Mokgohloa and Mothle AJJA
concurring):

[1] The applicant, Mr Attwell Sibusiso Makhanya was employed by the thirteenth
respondent (Mhlatuze Water) as the Chief Executive Officer (CEO). On 7 November
2015 the second to the thirteenth respondents, acting in their official capacities as the
Board members of Umhlatuze Water passed a resolution suspending Mr Makhanya
from his employment pending a disciplinary hearing. His suspension flowed from
findings of alleged impropriety contained in a report compiled by Edward Nathan
Sonnenbergs Forensics (ENS Forensics). It is common cause that the report was
compiled at the request of the Board who instructed their attorneys, ENS Africa, to
facilitate the conduct of the necessary investigations.

[2] Mr Makhanya decided to challenge his suspension and the decision to subject
him to a disciplinary hearing and launched an application in the high court, Kwa-Zulu
Natal Division, Pietermaritzburg on an urgent basis seeking an order in the following
terms:

‘1) That pending determination of the relief set out in paragraphs 2 to 6 below,
respondents be and are hereby directed to permit applicant to continue performing his
functions and responsibility as thirteenth respondent’s Chief Executive Officer.
2) That first respondent’s [the Minister of Water Affairs and Sanitation] purported
extension of second to twelfth respondents’ term of office as Board members of
Umhlatuze Water (the thirteenth respondent):
2.1 from 28 February 2015 to 30 June 2015; and
2.2 from 30 June 2015 until the appointment of the new Board, are unlawful, invalid
and are set aside.
3) That first respondent’s purported action to extend second respondent’s term of office
as Chairperson of Umhlatuze Board beyond 28 February 2015 is unlawful, invalid and
is set aside.
4) Declaring that the second to thirteenth respondents’ decision contained in their
resolution dated 7 November 2015 purporting to suspend applicant as the Chief
Executive Officer of the thirteenth respondent is invalid, unlawful and of no force and
effect.
5) That second respondent to thirteenth respondents’ decision referred to in paragraph 4
above be and is hereby reviewed and set aside.
6) That second respondent’s decision of 20 November 2015 purporting to suspend
applicant as thirteenth respondent’s Chief Executive Officer is declared to be
unlawful, invalid and of no force and effect, alternatively, is hereby reviewed and set
aside.
7) That second respondent’s decision of 20 November 2015 purporting to suspend the
applicant as thirteenth respondent’s Chief Executive is declared to have lapsed,
invalid and in contravention of clause 7.2 of the disciplinary code and procedure for
the public service.
8) That the order in paragraph 1 above shall operate as internal [interim] interdict
pending the finalization of this application.
9) That any respondent opposing this application be directed to pay the costs of the
application, mutatis mutandis jointly and severally, the one paying the other to be
absolved, such costs to be costs occasioned by employment of two counsel.’

[3] The urgent application and the main application were consolidated and heard
by Mbatha J who made an order in the following terms:
‘1. The decision by the Minister to extend the terms of office of the board is declared invalid
and set aside;

2. The decision by the board to pursue disciplinary proceedings against the applicant and
suspend him is declared invalid and set aside;
3. The orders in paragraph[s] 1 and 2 above are suspended from the date of the order for a
period of 180 days for the Minister to appoint a new board
4. The disciplinary proceedings against the applicant are to be conducted by Edward Nathan
Sonnenbergs Africa (ENS) and should be finalised by no later than 31 January 2017. Edward
Nathan Sonnenbergs Africa (ENS) will then make its recommendations to the newly
appointed board as stated 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.’

[4] On 8 December 2016, Mbatha J amended paragraph 4 of the order to read:
‘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, where-
after 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] On 12 December 2016, the Chairperson of the Board, Ms Duduzile Myeni,
issued Mr Makhanya with a notice of a disciplinary hearing to be held on 18–20
January 2017 and 23–27 January 2017 at 9:00 am. On 19 December 2016, Mr
Makhanya’s attorneys wrote to the Board and said that in view of the court order the
Chairperson of the Board could not participate in the disciplinary hearing. On 21
December 2016 Ms Myeni withdrew the notice, which was subsequently substituted
with a new one from ENS Africa dated 21 December 2016 and received by Mr
Makhanya on 22 December 2016. On 13 January 2017, Mr Makhanya filed an urgent
application for an order interdicting the first to the thirteenth respondents and ENS
Africa from proceeding with the disciplinary proceedings, pending an order clarifying
and altering paras 4 and 6 of Mbatha J’s order. This application was dismissed by the
court with costs on the basis that there was no ambiguity in Mbatha J’s amended
order.

[6] On 18 January 2017, which was the date on which the disciplinary hearing
was scheduled to commence, it transpired that ENS Africa had appointed Professor
Brenda Grant, an independent person, as a presiding officer at the hearing, ENS
Forensics would lead the evidence whilst ENS Africa would conduct the prosecution.
Mr Makhanya’s counsel applied for a postponement on the basis that he had not
been furnished with certain documents, especially the policy documents referred to in
the charge-sheet. The application for a postponement was refused but the
chairperson allowed the proceedings to stand down for two hours to allow for the
perusal of the documents. The disciplinary proceedings could however not proceed
because during the adjournment, an application for leave to appeal Mbatha J’ order
was served on the respondents.

[7] The Minister in turn launched an application to cross-appeal the court’s order.
The Board launched an application for execution pending the appeal in terms of s 18
of the Superior Courts Act 10 of 2013 and another application for a declaration that
Mr Makhanya had perempted the order he sought to appeal. All these applications
were heard on 10 April 2017 and judgment was reserved. On 26 April 2017 and
before judgment was handed down, the Minister withdrew the cross-appeal and
tendered costs. The Minister also dissolved the Board. It seems that the court may
not have been aware that the cross-appeal was withdrawn because on 27 June
2017, it granted the Minister leave to cross-appeal. The court also granted an order
striking out the application for leave to appeal, declaring that Mr Makhanya had
acquiesced in its order against which he sought leave to appeal and also made a
costs order against Mr Makhanya.

[8] On 1 August 2017 Mr Makhanya filed a petition to this court in terms of s
16(1)(a) of the Superior Court Acts and on 20 September 2017, this court (per Lewis
JA and Rogers AJA), referred the application for oral argument in terms of s 17(2)(d)
of the Superior Courts Act and further ordered the parties to be prepared, if called
upon to do so, to address the court on the merits. Subsequent to this order Mr
Makhanya filed an application in terms of s 19(b) of the Superior Courts Act for leave
to lead further evidence in the hearing of the appeal, which he alleges is material to
its outcome, since it sheds light on the developments at Umhlatuze Water after
Mbatha J’s order. Regarding the appointment of a new Board as envisaged in para 4

of the order, Mr Makhanya stated that the Minister, then Ms Nomvula Mokonyane did
not appoint a new Board as contemplated by the court, but that she instead created a
new structure referred to as the Amalgamated Provincial Water Board (the
Amalgamated Board), and appointed Ms Myeni as the transitional chairperson of the
Amalgamated Board. Mr Makhanya has attached a notice dated 10 November 2017,
issued by the Minister under Government Gazette number 1247, in terms of which
she proposed to disestablish the Mhlatuze Water Board and transfer its staff, assets
and liabilities to Umngeni Water and change its name to Kwa-Zulu Natal Water
Board.

[9] Regarding his position as the CEO, Mr Makhanya attached documents which
showed that the position of CEO at Umngeni Water was advertised and that after he
challenged this in a court application, the matter was settled on the basis that he
would be appointed as the CEO of Umngeni Water if the disestablishment takes
place and the staff of Umhlatuze Water is transferred to Umngeni Water. Mr
Makhanya submits that the amalgamation of Umhlatuze Water and Umngeni Water
shows that the erstwhile Minister, Ms Nomvula Mokonyane, was working together
with Ms Myeni in order to get rid of him so that the latter could remain at the helm of
the Board, in order to plunder the public funds of Umhlatuze Water.

[10] The application for leave to adduce further evidence is opposed by the
thirteenth respondent, which has filed an affidavit deposed by its acting CEO, Mr
Mthokozisi Pius Duze. Mr Duze submits that the evidence which Mr Makhanya seeks
to lead is irrelevant to the outcome of the appeal because the erstwhile Minister,
against whom the allegations of impropriety are being made, was relieved of her
portfolio and replaced by Minister Gugile Nkwinti on 26 February 2018. Mr Duze also
alleges that the irregularities that Mr Makhanya is raising were committed during the
latter’s tenure as an accounting authority and that some of these irregularities form
the basis of the charges preferred against Mr Makhanya in the pending disciplinary
hearing.

[11] It transpired during the hearing of the appeal that there have been further
developments concerning Umhlatuze Water. Counsel for the respondents informed
this court from the Bar that the new Minister has decided to revoke the previous

Minister’s decision to disestablish Umhlatuze Water and has decided to appoint a
new Board. Mr Makhanya’s counsel on the other hand, and also from the Bar, said
that his instructions were that the new Minister planned to replace Umhlatuze Water
or amalgamate it with Rand Water. What is clear from both submissions is that there
is still no clarity about the fate of Umhlatuze Water and its Board.

[12] Both counsel were prepared to concede however that the new evidence
dealing with the developments within Umhlatuze Water since Mbatha J’s order was
relevant. Leave to adduce further evidence regarding the developments at
Umhlatuze Water is accordingly granted and this evidence will be taken into account
in the application for leave to appeal and when considering the merits of the appeal.
The rest of the evidence and which suggests that Mr Makhanya’s suspension and
pending disciplinary proceedings are aimed at victimizing him, is however irrelevant.

The application for leave to appeal
[13] As the Minister withdrew the cross-appeal, there is no appeal against the
orders of invalidity. The application concerns their suspension. Mr Makhanya’s
counsel, Mr Madonsela submitted that there was no need to suspend the orders of
invalidity as there was no public interest that would be adversely affected by such
declarations. He further contended that the fear of the high court that there would be
a disruption of the affairs of the Umhlatuze Water if the orders of invalidity were not
suspended was misplaced because Umhlatuze Water could operate seamlessly
without a Board, under the leadership of the CEO, until the Minister had appointed a
new Board. He further argued that there would be no prejudice suffered by
Umhlatuze Water if Mr Makhanya’s suspension as CEO was set aside and he was
allowed to resume his duties as the CEO. Regarding the seriousness of the
allegations against Mr Makhanya, he referred to Mr Makhanya’s affidavit where he
states that the decision to charge him was actuated by ulterior motives and malice on
the part of Ms Myeni because he had refused to engage in irregular and corrupt
practices, when requested to do so by the former.

[14] Counsel for the respondent, Ms Annandale, on the other hand contended that
the suspension order was a just and equitable relief in the circumstances because it
was meant to avoid disruption of the business of Umhlatuze Water, that Mr

Makhanya was facing serious allegations of impropriety contained in a report by an
independent entity, and the report itself has not been impugned. Ms Annandale also
submitted that in the event the court is inclined to find that the suspension of the
invalidity of the orders was not fair and equitable, the court should not lift Mr
Makhanya’s suspension as he is facing serious allegations – is in a senior position
and there are allegations that he tried to influence some of the witnesses and to
tamper with the evidence relevant to the charges against him. Ms Annandale
contended that a practical solution in view of the uncertainty around the future of
Umhlatuze Water and its Board, would be to invoke the provisions of s 73(1)(f) of the
Water Services Act 108 of 1997, which grants the Minister the general power to
perform the functions of a Water Board. A fair order in the circumstances, so the
argument went, would be that Mr Makhanya remains on suspension and the Minister
be given a period of 30 days within which to consider the report by ENS Forensics,
and make a decision whether to proceed with a disciplinary hearing.

[15] In purporting to extend the term of the Board, the Minister was performing an
administrative function in terms of s 1 of the Promotion of Administrative Justice Act
of 2000 (the PAJA). In terms of s 8 of the PAJA read with s 172(1) of the Constitution,
a court must declare that any law or conduct that is inconsistent with the Constitution
is invalid to the extent of its inconsistency; and may make any order that is just and
equitable, including an order limiting the retrospective effect of the declaration of
invalidity; and an order suspending the declaration of invalidity for any period and on
any conditions, to allow the competent authority to correct the defect.

[16] In Steenkamp NO v Provincial Tender Board of the Eastern Cape [2006]
ZACC 16; 2007 (3) SA 121; 2007 (3) BCLR 300 (CC) (Steenkamp) paras 28-29 the
Constitutional Court said:
‘[S]ince the advent of our constitutional dispensation administrative justice has become a
constitutional imperative. It is an incident of the separation of powers through which courts
review and regulate the exercise of public power. The Bill of Rights achieves this by
conferring on “everyone” a right to lawful administrative action that must also be reasonable
and procedurally fair. . . .

It goes without saying that every improper performance of an administrative function would
implicate the Constitution and entitle the aggrieved party to appropriate relief. In each case
the remedy must fit the injury. The remedy must be fair to those affected by it and yet
vindicate effectively the right violated. It must be just and equitable in the light of the facts,
the implicated constitutional principles, if any, and the controlling law.’ (Footnotes omitted.)

[17] In Bengwenyama Minerals (Pty) Ltd & others v Genorah Resources (Pty) Ltd
& others [2010] ZACC 26; 2011(4) SA 113; 2011 (3) BCLR 229 (CC)
(Bengwenyama) paras 84-85, the Constitutional Court said;
‘It would be conducive to clarity, when making the choice of a just and equitable remedy in
terms of PAJA, to emphasise the fundamental constitutional importance of the principle of
legality, which requires invalid administrative action to be declared unlawful. This would
make it clear that the discretionary choice of a further just and equitable remedy follows upon
that fundamental finding. The discretionary choice may not precede the finding of invalidity.
The discipline of this approach will enable courts to consider whether relief which does not
give full effect to the finding of invalidity, is justified in the particular circumstances of the
case before it. Normally this would arise in the context of third parties having altered their
position on the basis that the administrative action was valid and would suffer prejudice if the
administrative action is set aside, but even then the “desirability of certainty” needs to be
justified against the fundamental importance of the principle of legality.
The apparent anomaly that an unlawful act can produce legally effective consequences is not
one that admits easy and consistently logical solutions. But then the law often is a pragmatic
blend of logic and experience. The apparent rigour of declaring conduct in conflict with the
Constitution and PAJA unlawful is ameliorated in both the Constitution and PAJA by
providing for a just and equitable remedy in its wake. I do not think that it is wise to attempt to
lay down inflexible rules in determining a just and equitable remedy following upon a
declaration of unlawful administrative action. The rule of law must never be relinquished, but
the circumstances of each case must be examined in order to determine whether factual
certainty requires some amelioration of legality and, if so, to what extent. The approach taken
will depend on the kind of challenge presented – direct or collateral; the interests involved
and the extent or materiality of the breach of the constitutional right to just administrative
action in each particular case.’ (Footnotes omitted.)

[18] Regarding the nature of the wide discretion a court has in crafting a just and
equitable remedy, the Constitutional Court in Black Sash Trust v Minister of Social
Development & others [2017] ZACC 8; 2017 (5) BCLR 543; 2017 (3) SA 335 (CC) at

para 51 cautioned that the exercise of the court’s powers, although wide, are not
without limitations. It said:
‘It is necessary to be frank about this exercise of our just and equitable remedial power. That
power is not limitless and the order we make today pushes at its limits. It is a remedy that
must be used with caution and only in exceptional circumstances. But these are exceptional
circumstances.’
In Corruption Watch NPC & others v President of the Republic of South Africa and
Others; Nxasana v Corruption Watch NPC & others [2018] ZACC 23; 2018 (10)
BCLR 1179; 2018 (2) SACR 442 (CC) at paras 68-69, the Constitutional Court again
emphasised the restrictions and said:
‘There is no preordained consequence that must flow from our declarations of constitutional
invalidity. In terms of section 172(1)(b) of the Constitution we may make any order that is just
and equitable. The operative word “any” is as wide as it sounds. Wide though this jurisdiction
may be, it is not unbridled. It is bounded by the very two factors stipulated in the section –
justice and equity. . . .
What must be paramount in the relief that a court grants is the vindication of the rule of law.’
(Footnote omitted.)

[19] One of the factors that the Constitutional Court has taken into account when
deciding whether an order of invalidity should be suspended or not is whether the
declaration of invalidity is likely to cause a disruption of services to the public or is
likely to create a national crisis or public disorder.

[20] In McBride v Minister of Police 2016 (2) SACR 585 (CC) (McBride) at paras 52
the Constitutional Court said:
‘The Minister incorrectly contends that Kruger supports the proposition that “an act done
pursuant to invalid statutory provisions must nonetheless remain valid in the interests of
certainty and to avoid disruption”. But the case supports no such general proposition. In
Kruger, the Court preserved the conduct of the Road Accident Fund that had relied on invalid
proclamations. This was to avoid disruption and disorder. There must be an interests of
justice consideration that overrides the presumption of objective constitutional invalidity.’
(Footnote omitted.)

[21] In Black Sash, the Constitutional Court was also concerned that there would
be a national crisis if it did not suspend the orders of invalidity. In the matter before us
the high court also expressed concern that if it did not suspend the order of invalidity
concerning the decision of the Minister to extend the tenure of the Board, Umhlatuze
Water would be a ‘headless institution’ at the time of a water crisis in the country and
that this would be against the interests of the public. However it seems that the
court’s attention was not drawn to the provisions of s 73(1)(f) of the Water Services
Act and as a result thereof, the option of entrusting the affairs of Umhlatuze Water on
the Minister until a properly constituted Board was appointed was not explored. It can
thus not be said that its concerns about the possible risks of having an institution
without a Board were baseless. Water is indeed a scarce resource all over the world
and it is disturbing that even at this stage, there seems to be a lot of uncertainty
about what is going on with Umhlatuze Water as an entity.

[22] Regarding the suspension of the order of invalidity of the decision to suspend
and initiate disciplinary proceedings against Mr Makhanya, I hold a slightly different
view to that of the high court. I accept that Mr Makhanya is facing serious allegations
of impropriety varying from failure to disclose certain conflicts of interest in relation to
certain employees at Umhlatuze Water, failure to follow procurement processes, and
tender irregularities. Mr Makhanya occupies a very senior position as CEO of
Umhlatuze Water and exercises a lot of control and influence over its employees.
There are allegations that the forensic report was leaked to him before his
suspension, that whilst on sick leave he requested certain documentation relevant to
the forensic investigation from employees of Umhlatuze Water, and that he requested
the erstwhile Supply Chain Manager and Chief Financial Officer to meet him at a
local police station. These allegations suggest that Mr Makhanya attempted to
interfere with potential witnesses and or temper with evidence relevant to the pending
disciplinary proceedings – but they are still simply allegations, as he has not yet been
found guilty of any wrongdoing. Whilst I accept that these allegations were a cause of
concern and merited that he should be kept away from the workplace until a new
Board had been appointed, there was no basis to suspend the declaration of
invalidity of the decision to initiate a disciplinary hearing. This is so because such a
declaration did not invalidate the report which formed the basis of the allegations
against Mr Makhanya.

[23] A properly and legally appointed Board or the Minister, may in terms of
s 73(1)(f), still consider the report afresh and make a decision whether to proceed
with the disciplinary proceedings or not. The purpose of a public law remedy is to pre-
empt or correct or reverse an improper administrative function and to afford the
prejudiced party administrative justice. (See Steenkamp para 29). The order which
had the effect that the disciplinary proceedings against Mr Makhanya should
proceed, despite the declaration of invalidity left hollow his victory in setting aside
such a decision. One of the factors to be considered on whether the relief is justified
in the particular circumstances of a case is whether third parties altered their position
on the basis that the administrative action was valid and would suffer prejudice if the
administrative action is set aside. (See Bengwenyama para 84). As Mr Madonsela,
contended, there was no public interest that would be adversely affected by the
declarations of invalidity in this matter.

[24] This however does not mean that Mr Makhanya should be allowed to go back
to work and resume his duties as the CEO. In McBride the Constitutional Court
decided to afford the Minister the opportunity, if he so wished, to restart the process
of initiating disciplinary proceedings against Mr McBride, but on a proper basis but
ordered that he should remain on suspension. Mr McBride had expressed a
willingness to participate in his disciplinary process and did not object to an order that
he remain on suspension until a proper decision had been taken. In this matter,
although there have been several challenges by Mr Makhanya against the decision
to charge him, he has in the same breath not said that he is not prepared to attend a
properly constituted disciplinary hearing. Instead he claims that the decision to
charge him is victimisation arising from his refusal to be involved in corrupt activities
at the behest of Ms Myeni. These allegations are not yet tested and he will be free to
raise them at a properly constituted disciplinary process or at any other competent
forum if and when the time comes. The allegations are however so serious that they
cannot be ignored. A fair and equitable remedy in the circumstances is that Mr
Makhanya be precluded from resuming his duties as CEO of Umhlatuze Water for a
certain period, until the Minister or a properly constituted Board has considered the
report, and has made a fresh decision on whether to proceed with a disciplinary
hearing against Mr Makhanya. Such an order will ensure that his right to be

presumed innocent is not infringed, that he is afforded administrative justice, and the
concern that he may compromise the pending disciplinary process through attempts
to interfere with the evidence and potential witnesses is addressed.

Costs
[25] In view of the fact that both parties have attained substantial success in the
appeal, an appropriate order is that each party should pay their own costs.

[26] In the premises the following order is made:
1 The application for leave to appeal is granted to the Supreme Court of Appeal.
2 The application for leave to adduce further evidence relevant the developments at
Umhlatuze Water after Mbatha J’s order, is granted.
3 The appeal is upheld to the extent set out herein below:
3.1 Paragraph 3 of the order of the court a quo insofar as it relates to the
applicant’s suspension and disciplinary proceedings against him, and
paragraph 4 of the order, are set aside and substituted as follows:
‘(a) A properly and legally appointed Board of Umhlatuze Water or the Minister
of Water and Sanitation, acting in terms of s 73(1)(f) of the Water Services Act
108 of 1997 must consider the report compiled by Edward Nathan,
Sonnenbergs Forensics and decide whether to suspend and initiate
disciplinary proceedings against the applicant, which decision must be taken
within 30 calendar days from the date of this order.
(b) Pending the decision referred to in (a) above, the applicant is precluded
from reporting at his office in Umhlatuze Water and from performing his duties
as the Chief executive Officer of Umhlatuze Water.’
4 Each party to pay its own costs.

___________________
Z L L Tshiqi
Judge of Appeal
APPEARANCES

For the Applicant:
T G Madonsela SC (with N Mfeka and M Mtati)
Instructed by:
Strauss Daly Attorneys, Umhlanga

Strauss Daly Inc., Bloemfontein

For the Thirteenth Respondents:  A M Annandale SC (with L Naidoo)
Instructed by:
Edward Nathan Sonnenbergs, Umhlanga

Phatshoane Attorneys, Bloemfontein