IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

CASE NO: 2023/049211

In the matter between: -

SIMPHIWE HAMILTON Applicant

and

MEMBER OF EXECUTIVE COUNCIL RESPONSIBLE FOR

ECONOMIC DEVELOPMENT, GAUTENG First Respondent

GAUTENG GROWTH AND DEVELOPMENT

AGENCY Second Respondent

_________________________________________________________________________

APPLICANTS’ HEADS OF ARGUMENT

_________________________________________________________________________________

INTRODUCTION

1. The law should not countenance those in power with hidden agendas who not only
“chop and change” their version to suit their case but also invoke misguided and
misconceived defences, to deprive persons of well-deserved job opportunities, in order
to realise their personal objectives. This in essence is what this case is all about, as
more detailed hereinbelow.
 2

2. This application concerns the appointment of applicant as the Group Chief Executive
Officer (GCEO) of the second respondent (GGDA), pursuant to a recruitment process
undertaken by the Board of GGDA. The Board on 23 September 2022 recommended
applicant for appointment by the former MEC (Mr Parks Tau) of the Gauteng Province
Department of Economic Development, to the position of GCEO of GGDA. On 24
September 2022, the former MEC (Mr Parks Tau) pursuant to such recommendation by
the Board of the GGDA, duly appointed applicant as GCEO of GGDA.

3. Such appointment was done by the former MEC in accordance with the provisions of
section 8(3) of the Gauteng Growth Development Agency (Proprietary Limited Act 5 of
2003, empowering or authorising the MEC to appoint a GCEO of GGDA. This
appointment was recorded in the memorandum dated 24 September 2022, a copy of
which is annexure “SH6” to applicants’ founding papers.

4. Subsequent thereto and prior to either the former MEC (Mr Tau) and/or the Board of the
GGDA processing applicants’ appointment as GCEO, by providing him with a letter of
appointment and a contract of employment, the Gauteng Provincial Government was
reshuffled, resulting in Mr Tau being replaced by the current MEC, Ms Tasneem Motara,
cited as first respondent herein.

5. Upon assuming office as the new MEC for the GDED on 7 October 2022, Ms Tasneem
Motara failed and/or refused to process applicant’s appointment as GCEO, initially
challenging such appointment on the basis that the procedure so undertaken by the
Board for the recruitment and selection of a GCEO leading to the recommendation by
the Board of applicant as GCEO and culminating in his appointment by the former MEC
as such, was not mandated or authorised by the former MEC, contending that the
procedure or process followed by the Board for such recruitment, as set out in the
applicable recruitment policy applicable to such appointments, as contained in the
GDED Group Transversal Policy on Recruitment, Secondments and Transfers ( the
TPRST) was not applicable for the recruitment and selection of the GCEO of GGDA.

6. Subsequent thereto and for the first time, the MEC in her Answering affidavit, sought to
assail such appointment on the basis (i), that as the decision by the former MEC (Mr
Tau) to appoint applicant as GCEO was not communicated to applicant either by Mr Tau
or herself, no “final decision” was taken regarding such appointment, with the attendant
 3

consequences that no “administrative action” as so contemplated in the Promotion of

Administrative Justice Act 3 of 2005 (PAJA) occurred, susceptible to review or challenge
in terms of PAJA, and (ii) as a matter of approbating and reprobating, now invoking the
TPRST, asserting that the recruitment process so undertaken by the Board did not
comply with the relevant provisions of the TPRST (i.e. challenging the lawfulness of
such recruitment process as being in non-compliant with the TPRST), which defence is
the subject matter of the MEC’s conditional counter application, as more fully outlined
hereafter.

7. Stripped of all niceties and trappings, the opposition or resistance by the MEC of the
relief sought in Part B is predicated on the definition of “administrative action” as so
defined in section 1 of PAJA, defining “administrative action” to mean “any decision
taken, or any failure to take a decision” by an organ of state exercising a public power
or performing a public function in terms of any legislation. In essence then the defence
so raised by the MEC is to the effect that in the absence of the decision by Mr Tau or
the MEC to communicate to applicant that his application was successful, no
“administrative action” as so contemplated in PAJA took place. That the decision of Mr
Tau approving his appointment as GCEO (as per annexure “SH6”) did not in the
absence of communicating same to the applicant, amount to a final decision constituting
“administrative action” as so defined in section 1 of PAJA, and thus not reviewable under
PAJA, contending that as such, she was not bound by annexure “SH6” and thus at
liberty to start the recruitment process afresh as she did do so. For the reasons outlined
hereafter we demonstrate that this purported defence or resistance to the applicant’s
claim, is in fact and in law not only flawed but misguided and misconceived.

8. The determination the “non-communication” defence is intricately intertwined with the

determination of the recommendation by the Board recommending applicant for
appointment as GCEO and allied thereto the lawfulness of the procedure undertaken
by the Board for the recruitment of the GCEO.

TERMINATION OF APPLICANT’S ACTING TENURE BY THE MEC

9. In terms of a letter dated 28 March 2023, the MEC (Ms Motara) unilaterally and without
lawful cause and without affording applicant a hearing in terms of the audi alteram
 4

partem rule, terminated applicant’s secondment as acting GCEO with immediate effect.
A copy of such letter is annexure “SH9” to the founding affidavit.1

10. Furthermore, it is submitted that applicant’s secondment as GCEO of the GGDA was
not only prematurely terminated but also improperly and unlawfully. The MEC
terminated his contract while she was in Portugal, completely disregarding the fact that
there was an MEC duly appointed to act in her stead (whilst so abroad), Ms Kedibone
Diale-Tlabela, who was the person or functionary duly authorised and entitled in law to
exercise the powers, functions and duties of the MEC and take such decision. Ms Diale-
Tlabela’s acting appointment confirmation is annexure “SH10” to the founding affidavit.
Such lawful acting -appointment, divested (albeit temporarily) the MEC of the powers
and functions she exercised as MEC, whilst so overseas, and during the tenure of the
acting MEC. To contend otherwise, it is submitted, would be tantamount to rendering
the Acting MEC not only a token functionary without any powers, functions or
responsibilities of the office of an MEC, if not a mere figurehead or “dummy,” taking into
account that the Premier in terms of sec 138 of the Constitution assigns to an MEC the
powers and functions of an MEC who is absent from office. Accordingly, and on this
score too, the purported termination of the applicant’s acting tenure was improper,
invalid and unlawful. This also demonstrates the resolute intent on the part of the MEC,
to clear or pave the way for the realisation of her agenda.

BACKGROUND

11. For present purposes, the salient features of this matter are in essence as follows:

11.1 Applicant was appointed for a six-month period with effect from 1 May 2022 until
31 October 2022 as the Deputy Director General for Business Regulation and
Governance matters in the GDED. Upon such appointment, he was
simultaneously seconded by the then former MEC (Mr Tau) to be the acting
GCEO of the GGDA for a period of six months from 1 May 2022 until 31 October
2022. This position of the GCEO became vacant when the former GCEO was
suspended in April 2022 and ultimately dismissed form the GGDA.

1
FA para 56 at page 28
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11.2 On or about 31st July 2022, the vacant position of the GCEO was widely
advertised by the Board of the GGDA on two media platforms i.e. Sunday Times
newspaper and on the website of the GGDA.2

11.3 Applicant and other candidates responded to the advertisement and submitted
applications for such position. It is of paramount importance to highlight the fact
that at the time he so applied applicant was already acting in such position as
aforesaid. The Board as it was its function to do so (being responsible for the
day-to-day management and operational activities of the GGDA) initiated and
facilitated the recruitment and selection process for the appointment of the
GCEO, in accordance with TPRST. We deem it imperative to highlight the fact
that such recruitment process was done with the knowledge, approval and
oversight of the then MEC (Mr Tau). We furthermore deem it imperative to
highlight the fact that at all times material hereto Mr Tau was represented in this
process by the HOD of GDED, Mr Blakes Mosley-Lefatola, as the shareholder
representative and informed and updated of every step and decisions taken,
pertaining to such recruitment process culminating in the recommendation by the
Board, so recommending applicant for appointment to the position of GCEO3.

11.4 The interview panel so constituted by the Board with the knowledge and
oversight of Mr Tau comprised of six persons, namely Dr Sibongile Vilakazi
(chairperson of the Board), Mr Blakes Mosley-Lefatola (HOD) representing the
executive shareholder, (then MEC Mr Tau) and four other Board members.

11.5 The applications were evaluated by the interviewing panel and four candidates
were shortlisted by the Board, namely applicant, Ms B Koyana, Mr B Manilal and
Ms S Mafoyane. Thereafter virtual interviews were conducted by the interview
panel in respect of all such four shortlisted candidates scheduled for 20 August
2022. After recommending the candidate, namely Mr B Manilal, Ms S Mafoyane
and applicant for competency assessments as per section sec 11:6.1 of the

2
FA paras 10-14 at page 14 and 15.
3
FA paras 20,21 & 23 at page at page 16 and 17; Applicant’s RA pp… paras …
 6

TPRST, the interview panel recommended applicant for appointment by the then
MEC (Mr Tau) to the position of GCEO.4

11.6 In accordance with such recommendation, Mr Tau duly appointed applicant as

GCEO, as per the memorandum dated 24 September 2022.5 A copy of such
memorandum is annexure “SH6” to the founding affidavit.

11.7 In so appointing applicant as GCEO, the then MEC (Mr Tau) was acting pursuant
to the provisions of section 8(3) of the Act, which empowers or authorises the
MEC to appoint the GCEO of the second respondent (GGDA).

Section 8(3) provides thus:

“8(3) The MEC must appoint the Chairperson of the Board and the Chief
Executive Officer of the Company.”

11.8 The net effect thereof being that the then MEC, Mr Tau, in the exercise of his
powers in terms of section 8(3) of the Act and in accordance with the principle of
legality, duly appointed applicant as GCEO of the GGDA, as evidenced by
annexure “SH6” to the founding papers.6

PROCESS OR PROCEDURE SUBSEQUENT TO SUCH APPOINTMENT

12. The procedural process that was supposed to follow after the then MEC (Mr Tau) so
appointed applicant as GCEO was as follows. The MEC was supposed to provide
applicant with or ensure that the Board of GGDA and/or the Department provide him
with a letter of appointment and a contract of employment as GCEO, as so required or
obliged in terms of Regulation 57 (d) of the Public Service Regulations 2016 GG No.

4
FA paras 20-28 at page 16 to 19; annexure “SH5” to the FA at page 96 to 99
5
FA para 29 at page 19 – 20.
6
FA paras 30, 33, 34, 35, 36 and 39 at page 20 - 22.
 7

40167. This regulation is also referred to by the MEC in para 23.1 of her Answering
affidavit. 7 Such letter of appointment precedes the contract of employment and is
usually prepared by the Board and/or the Department and signed by the MEC. Once
applicant had duly signed such offer of employment as per such letter of employment
then the Board and/or the department will prepare and provide applicant with a contract
of employment setting out the terms and conditions of such employment as GCEO for
a fixed period of five years to be signed by the applicant and the then MEC, (Mr Park
Tau). This is what applicant anticipated or expected to occur, alternatively this is what
was supposed to occur after the then MEC (Mr Tau) so appointed applicant as GCEO
in the exercise of his powers pursuant to the provision of section 8(3) of the Act. Alas,
this did not happen, in that by the cruel twist of fate, the events outlined in paras 1.4,
1.5 and 1.6 above intervened or occurred.

THE APPLICABLE LEGISLATIVE FRAMEWORK

13. The GGDA is a legal or corporate entity with powers to sue or be sued, established in
terms of the Gauteng Growth and Development Agency (Proprietary) Ltd Act 5 of 2003
(the Act).8

14. In terms of the Act, the Gauteng Provincial Government is the sole shareholder of the
GGDA as represented by the MEC of the Gauteng Department of Economic
Development (GDED).9

15. Section 8(3) of the Act, which is relevant herein and which deals with the powers of the
MEC to appointed either the chairperson or the chief executive officer (GCEO) of the
GGDA, provides thus:

7
This regulation provides that an executive authority (MEC) “shall ensure that each person upon
appointment, is provided with written particulars of employment, including the terms and
conditions of his or her services.”
8
Sec 2(1) of the Act
9
Sec 5(1) and (2)
 8

“8(3) The MEC must appoint the chairperson of the Board [of the GGDA] and
the chief executive officer of the company [GGDA].”

16. In terms of the definition section reference to the “company” means the Gauteng Growth
and Development Agency (Proprietary) Limited (GGDA) as contemplated in section 2
of the Act.

17. The internal policy or procedure applicable to the recruitment and selection process of
inter alia the GCEO of GGDA is the GDED Group Transversal Policy on Recruitment,
Secondments and Transfers (TPRST). A copy thereof is annexure “SH3” to the founding
affidavit.10 It is apposite (despite the MEC maintaining that it is her prerogative to initiate
and undertake the recruitment process), to point out that “neither the Act nor the TPRST
provides that the recruitment process must be undertaken by the MEC”.11

THE PROCESS FOR THE RECRUITMENT AND SELECTION OF THE GCEO OF THE
GGDA

18. At all times material hereto the process for the recruitment and selection of the GCEO
was conducted in accordance with the procedure outlined in the TPRST version 1.00 of
November 2015, whenever a vacancy existed regarding such position. In accordance
therewith the Board utilised the process set out in the TPRST for the recruitment and
selection of the GCEO.12 A copy thereof is annexure SH3 to the founding affidavit.

RESHUFFLING OF THE GAUTENG PROVINCIAL GOVERNMENT

19. Prior to the MEC presentation to the Provincial Cabinet, and between 24 September
and 7 October 2022 and as fate would dictate, political changes occurred in the Gauteng
Province, resulting in a new premier being appointed, who reshuffled the composition

10
FA para 40 at page 22 and 23.
11
Dr Vilakazi’s affidavit at page 501 para 64.
12
Dr Vilakazi’s affidavit, at page 490 para 12
 9

of the then provincial cabinet resulting in the then MEC Mr Tau being replaced with the
current MEC Ms Tasneem Motara as new MEC of GDED.

20. Ms Motara assumed office as new MEC with effect from 7 October 2022. On or about
27 October 2022 Ms Motara as the new MEC extended applicant’s acting tenure as
GCEO for a period of six months with effect from 1 November 2022 to 31 April 2023,
on the ostensible or purported basis that she needed time to ascertain whether
applicant will be a suitable GCEO to work with her. The Applicant accepted her bona
fides in this regard and accepted the extension of his acting tenure as such. A copy of
such letter of extension is annexure “SH7” to the founding affidavit13.

APPOINTMENT OF APPLICANT AS GCEO

21. It is common cause that the document evidencing the appointment by the former MEC
(Mr Tau) of applicant as GCEO is annexure “SH6” to the founding affidavit.

22. At all times material hereto and in particular since October 2022 (when the Ms Motara
assumed office as MEC) she (as outlined below) acknowledged or admitted that she
had received the “briefing documents” concerning applicant’s appointment as GCEO,
which documents included annexure “SH6”, hence being aware of such
recommendation by the Board and applicant’s appointment as GCEO by Mr Tau.

23. The said recommendation by the Board and appointment as GCEO by Mr Tau, was only
recorded or contained in the said memorandum, annexure “SH6” and no other
document. It is the sole memorial embodying both the recommendation by the Board
and appointment by Mr Tau. It does not permit of selective or piecemeal reading.

24. The MEC did indicate to Dr Vilakazi as outlined below, of having received the “briefing
documents” in terms of which the Board recommended applicant for appointment as
GCEO by Mr Tau and his appointment as such by Mr Tau.

13
FA para 40 at page 22 – 23.
 10

25. The said memorandum (annexure “SH6”) not only recorded or contained the
recommendation of the Board so recommending applicant for appointment as GCEO
but also recorded or contained the approval of his appointment as GCEO by the former
MEC (Mr Tau).

26. As such, having received and being placed in possession of annexure “SH6”, the
ineluctable inference to draw in the circumstances, is that the MEC did ascertain and/or
determine and/or establish and/or gained knowledge therefrom, not only such
recommendation by the Board but also the approval of applicant’s appointment as
GCEO by Mr Tau as so contained or recorded therein. To conclude otherwise, would
lead to absurd results, being tantamount to ascribing or attributing selective or
piecemeal perusal or reading by the MEC of the document.

27. On annexure “SH6” the Board outlined the recruitment and selection process
undertaken by it (with the approval, knowledge and oversight of Mr Tau as outlined
above), culminating in the former MEC (Mr Tau) approving the recommendation by the
Board recommending applicant for appointment as GCEO of GGDA i.e. appointing him
as GCEO, by signing such memorandum.

28. It is pointed out that the MEC does not (a) dispute the correctness of the contents of
annexure “SH6”, (b) nor dispute that same was signed by Dr Vilakazi (in her capacity
as chairperson of the Board of GGDA) on 23 September 2022 and by Mr Blake Mosley-
Lefatola (in his capacity as HOD) on 24 September 2022, and (c) signed by Mr Tau (in
his capacity as former MEC) on 24 September 2022. Nor does the MEC dispute that
the former MEC was exercising his powers in terms of section 8(3) of the Act when so
appointing applicant as GCEO as per annexure “SH6”.

THE AMENDMENT OF THE MEMORANDUM ANNEXURE “SH6”

29. On or about 10 October 2022, Dr Vilakazi (chairperson of the Board), at the instance of
the MEC, prepared a second memorandum duplicating (subject to minor
inconsequential amendments) annexure “SH6”, that was prepared and issued to the
former MEC (Mr Tau) as outlined above. However, this memorandum provided for the
approval of the MEC, Ms Motara. A copy thereof is annexure “SV1” to Dr Vilakazi’s
 11

answering affidavit herein.14 It can be gleaned from annexure “SV1” that this second
memorandum is in essence a replica of annexure “SH6”, albeit with the name of Mr Tau
as then MEC being substituted with that of Ms Motara as the MEC. Furthermore, the
date of signature thereof by Dr Vilakazi (in her capacity as chairperson of the Board)
being changed from 23 September 2022 to 10 October 2022, with the name of Mr
Mosley-Lefatola in his capacity as HOD being left unchanged. MEC Motara and the
HOD never signed this second memorandum.

30. It is submitted that such state of affairs does not supersede, annul, replace or render
nugatory annexure SH6. Same does not affect the validity, finality or legality thereof.
Same remains valid, final and in extant. The relevance thereof is as set out below.

31. Such state of affairs, it is respectfully submitted entails that at all times material hereto
and since October 2022, the MEC was aware and in possession of annexure “SH6”,
and that was amended to reflect her name as the new MEC instead of Mr Tau, probably
for purposes submitting applicant’s appointment as GCEO to the Provincial Executive
Council (Exco) for concurrence. Otherwise, why should the document be changed or
seek the changing of something not aware of and not in possession thereof, and for
what purposes were such changes made or why did she seek such amendments to the
document?

KERNEL OF THE MEC’S OPPOSITION OR RESISTANCE TO THE APPLICATION

THE SAXON HOTEL MEETING

32. On 10 November 2022 and at the instance of Dr Vilakazi (in her capacity as chairperson
of the Board of second respondent), the MEC held a meeting with Dr Vilakazi at the
Saxon Hotel, Johannesburg. The purpose thereof was for Dr Vilakazi to formally
introduce herself to the MEC and “get a sense of her expectations as the new MEC”. 15
At this meeting Dr Vilakazi provided her with information about the GGDA and briefed
the MEC about the strategy that had been adopted by the Board and her view of its
performance in relation to such strategy. She also indicated to the MEC “very strongly

14
Dr Vilakazi’s affidavit at page 493 para 25.
15
Dr Vilakazi’s affidavit at page 493 para 27.
 12

that a particular kind of GCEO was needed to execute the strategy effectively” 16. It
should be borne in mind that at this time applicant was already appointed by Mr Tau as
GCEO as per annexure SH6 and the MEC was aware thereof, being in possession of
thereof as outlined above. Thus, there was no doubt as to who Dr Vilakazi was referring
to.

33. In response thereto, the MEC acknowledged to her that she had received the “briefing
documentation” regarding applicant as the candidate recommended (for appointment
as GCEO) by the Board. However, to Dr Vilakazi’s surprise, the MEC stated in no
uncertain terms that she had no intention of approving his appointment (processing or
implementing his appointment) as GCEO, as she had another person in mind for the
job, indicating that she preferred that this person should be appointed as GCEO.17

34. It is submitted that the acknowledgement by the MEC of having received and being in
possession of the “briefing documents” regarding applicant’s recommendation by the
Board for appointment as GCEO, entails in the circumstances to acknowledging having
received and being in possession of annexure “SH6”. It is submitted or asserted so, in
that there is in casu only one memorandum which the Board addressed to Mr Tau,
recommending applicant for appointment as GCEO and in terms of which Mr Tau so
approved such recommendation and appointed me as GCEO. This being so, it is
common cause if not undisputable that annexure “SH6” is the only memorandum, in
terms of which the former MEC (Mr Tau) signed on 24 September 2022, so appointing
applicant as GCEO. There is no doubt that in this context the MEC was inter alia
referring to annexure SH6. If there is any other document or memorandum so signed
by Mr Tau in terms of which he appointed applicant as GCEO, then and in that event,
the MEC or anyone for that matter, is challenged to produce same.

35. Accordingly, the only ineluctable inference or conclusion to be reached in this regard, is
that the MEC on 10 November 2022, when acknowledging being in receipt of such
“briefing documents” relating to the recommendation (by the Board) for applicant’s
appointment as GCEO, she was acknowledging and admitting being in receipt and
possession of inter alia, annexure “SH6”.

16
Dr Vilakazi’s affidavit at page 494 para 28
17
Dr Vilakazi’s affidavit at page 494 para 29.
 13

36. Such acknowledgement and admission by the MEC, is indicative of the fact that prior to
such Saxon Hotel meeting, the MEC had already received or was given possession of
the said memorandum, annexure “SH6” so signed by Dr Vilakazi the chairperson, the
HOD and Mr Tau as outlined above, and that she perused same, hence ascertaining
therefrom that the Board recommended applicant for appointment as GCEO and Mr Tau
by signing same, appointed him as GCEO. At this stage, it is submitted that the MEC
had already resolved to disregard the appointment of applicant by Mr Parks Tau and not
process or implement such appointment, being actuated by the ulterior motives of
having preferred persons for the job, hence indicating to Dr Vilakazi that she had a
preferred person for the job “ whom she could rely on to assist her in areas she felt
challenged, such as knowing people in the investment community”.18 (own emphasis).
This then is the cardinal reason impelling the MEC to disregard applicant’s appointment
as per annexure SH6, thus purportedly treating it as not binding on her invoking spurious
grounds, and unlawfully restarting the recruitment process for the appointment of a new
GCEO, to achieve the objective or agenda of appointing or ensuring the appointment of
her favoured or preferred person.

SERENGETI MEETING

37. On 27 October 2022, the MEC extended applicant’s term as acting GCEO for a period
of six months i.e. from 1 November 2022 to 30 April 2023. The reason she advanced
for such extension was that she needed time to ascertain whether he is or will be a
suitable person to work with her.

38. On 10 January and at the invitation of the MEC, applicant held a meeting with the MEC
at the Serengeti Estate, where she resides. At this meeting, the MEC inter alia intimated
or disclosed to him the fact of the Board’s recommending him for appointment as the
GCEO of GGDA and his appointment by the former MEC as
GCEO, adding that she did not “sign off” on such appointment pursuant to such
recommendation (i.e. process or implement such appointment), in that she needed time

18
Dr Vilakazi’s affidavit at page 494 paras 29 – 30.
 14

to ascertain whether I was the right person to work with her, hence extending my acting
term as GCEO as outlined above. She further indicated that she had two preferred
candidates for the GCEO job and thus intended restarting the recruitment process de
novo and applicant was at liberty to re – apply for the job.

39. In this regard, I submit that such intimation on the part of the MEC constitutes in the
circumstances or amounts to communication or notification on the part of the MEC, of
the recommendation by the Board recommending me for appointment by the former
MEC (Mr Tau) as GCEO and the approval of his appointment by the former MEC (Mr
Tau) as GCEO of GGDA, as per annexure SH6.

40. By so informing applicant, the MEC wittingly or unwittingly communicated to him the
recommendation of the Board, recommending him for appointment as GCEO and the
approval of his appointment as GCEO by the former MEC.

41. It is submitted that at this meeting the MEC never raised or asserted the issue of such
defence pertaining to the “non-communication” to applicant of his appointment by Mr
Tau as GCEO of GGDA. This purported defence or narrative only surfaced for the first
time in the MEC’s answering affidavit, filed on 22 August 2022. At all times material
hereto, the MEC challenged his appointment as GCEO on the misplaced and misguided
basis of impugning the recruitment process so undertaken by the Board culminating in
my appointment as GCEO, contending that the Board had no mandate or authorisation
from the former MEC, to embark on the recruitment and selection process so
undertaken by the Board, culminating in my appointment as GCEO, asserting that the
TPRST was not applicable for the recruitment and selection of a GCEO.

DEFENCE OF “NON- COMMUNICATION”

42. The MEC challenges the appointment by the former MEC (Mr Tau) of applicant as
GCEO on the basis that as such decision by the former MEC was not communicated to
applicant, same did not constitute a “final decision” and thus does not amount to
“administrative action” as so contemplated in PAJA, we respectfully submit is in the
circumstances flawed for the following reasons:
 15

42.1 Such “defence” or assertion constitutes in the circumstances a new or recent

version if not an “afterthought” on the part of the MEC in that:

42.1.1 at all times material hereto the MEC challenged applicant’s appointment
by the former MEC as such, squarely placing reliance on the lack of
mandate or authorisation on the part of the former MEC, mandating or
authorising the Board to undertake the process or procedure so followed
for the recruitment and selection of a GCEO,
42.1.2 the MEC contended that the procedure set out in the TPRST, which the
Board utilised for such recruitment process, was not applicable for the
recruitment of a GCEO.

42.1.3 the dissolution by the MEC of the entire Board for failure to execute a
lawful instruction by her i.e. failure to furnish or provide her with the said
mandate or authorisation by the former MEC mandating or authorising
the Board to undertake the procedure which it did for the recruitment of
the GCEO.

42.1.4 The MEC persistently maintained in her answering affidavit opposing the
application launched by the Board to review and set aside inter alia the
dissolution of the Board, that she lawfully so dissolved the Board on the
basis of defiance on the part of the Board i.e. failure by the Board to
execute a lawful instruction on her part to provide her with the mandate
and authorisation by the former MEC authorising the Board to undertake
the recruitment process for the appointment of the GCEO, culminating in
the Board recommending applicant for appointment as such by the former
MEC.

42.1.5 Nowhere in the correspondence exchanged between the MEC and the
Board or between the MEC and the applicant, nor for that matter between
the MEC and applicant’s attorneys, did the MEC allude to the defence of
“non – communication” to applicant of his appointment as GCEO by the
former MEC.
 16

42.1.6 Such defence of “non-communication” of the decision by Mr Tau

appointing him as GCEO, constitutes in the circumstances so I submit, a
“recent version or narrative”, if not an “afterthought” on the part of the
MEC in a misguided and misplaced endeavour to “thwart” the relief
sought by applicant herein.

43. It is respectfully submitted that such conduct on the part of the MEC is indicative of a
tendency or pattern on her part, in persistently “moving or shifting her goal posts” to suit
her purported resistance to the matter. This is so in that at all times material hereto she
declined to “sign off” (process or implement my appointment as GCEO) on the basis
that she had preferred candidates for the position or that the Board had no mandate
from the previous MEC to undertake the recruitment process culminating in my
appointment as GCEO or asserting that the process so followed was flawed and
irregular. At some point she contended that the TPRST and the procedure outlined
therein which the Board had used for the recruitment and selection process for the
appointment of GCEO “does not find application in respect of the appointment of the
GCEO” (as per paragraph 134 of the MEC’s answering affidavit in the Board case)
contending that it is ultra vires and which fact was reiterated by Nyathi J in paragraph
18 of the judgment in the case brought by Dr Vilakazi and others against the MEC.19
However, and despite so contending that the TPRST was not applicable to the process
of appointing a GCEO and as such ultra vires, the MEC in casu has somersaulted and
made a 90 degree turn, by relying on the TPRST to challenge the lawfulness of the
procedure or process followed by the Board culminating in my appointment as GCEO.
Such conduct, it is respectfully submitted, is indicative of a desperate endeavour on the
part of the MEC to tailor her case in a misguided and misplaced attempt to resist my
claim.

44. Furthermore, we respectfully submit that the present matter is distinguishable from that
in the Constitutional Court’s decision of Mncwabe20 for the following reasons:

19
Applicant’s RA p207 - 208 para 25.12; annexure “SH23C” to RA at page 743.
20
Mncwabe v President of the Republic of South Africa & Others; Mathenjwa v President of the
Republic of South Africa & Others [2023] ZACC 29 (an unreported decision of the Constitutional Court
delivered on 24 August 2023).
 17

44.1 the present case does not deal with the appointment of a public official as is a
Director of Public Prosecutions (DPP), appointed in terms of the National
Prosecuting Authority Act, read with section 101 of the Constitution who fulfils a
very important role in South Africa’s criminal justice system and constitutional
democracy.

44.2 a DPP is appointed by the President in terms of section 13(1) of the NPA Act.
Hence it is of no trifling significance that section 13(1) confers the power of
appointment of a DPP in the President in that the DPP’S are key role players in
the realisation of a constitutional vision and aspirations of all our people, who are
appointed and ultimately removed by the President; hence the necessity for
personal communication by the President or someone authorised by him to notify
the appointee (DPP) about the appointment.

45. In casu, we are not dealing with the appointment of a public official who occupies an
important public position or key role in the realisation of our constitutional vision and
aspirations, but the commercial appointment of a GCEO within a corporate entity by an
MEC for commercial activities and not for public functions by a DPP.

46. The appointment of a GCEO within a corporate entity such as the GGDA does not
require public announcement or personal notification for it to become a final and binding
decision prior to being provided with a letter of appointment and contract of employment,
as is the case with the appointment of CEOs of commercial or corporate entities.

47. Notwithstanding the fact that the power to appoint a GCEO vests with the MEC, there
is no express or implied power or requirement in the Act or Public Service Regulations
or the TPRST for personal notification by the MEC, HOD or Chairperson of the Board,
to such appointee i.e. successful candidate.

48. The power to appoint a GCEO is exercised solely by the MEC in terms of section 8(3)
of the Act and not after consultation with a minister or other public official (NDPP) as
the President is so required in section 13(1) of the NPA Act. This being an appointment
within the context of a commercial or corporate entity (company), once the former MEC
had exercised his statutory powers in terms of section 8(3) of the Act to so appoint him
as GCEO, as per annexure “SH6”, his decision was final. All that was left to do, was to
 18

provide him with a letter of appointment followed by a contract of employment. The MEC
has not provided evidence of previous appointees being personally notified of their
appointment as GCEO. This issue cannot be decided in a vacuum.

49. The decision by the former President Zuma in so appointing the applicants in
Mncwabe’s case constitutes executive decisions taken by the President in terms of
section 101 of the Constitution. Section 101 specifically provides the manner and form
in which such executive decision by the President needs to be made i.e. in writing.

50. In casu, the decision by former MEC Mr Parks Tau to so appoint applicant as GCEO
does not constitute an executive decision as so contemplated in section 101 of the
Constitution nor does sec 8(3) prescribe the manner and form thereof.

51. Whereas in casu, the signing of the memorandum (annexure “SH6”) not constituting an
executive decision taken in terms of section 101 of the Constitution, constitutes on its
own a final decision by the former MEC in this regard. Accordingly, the signing of
annexure “SH6” by the former MEC appointing applicant as GCEO, as shareholder
representative of the Provincial Government, constituted in the circumstances a final
decision by the former MEC appointing applicant as GCEO. In essence then, we
respectfully submit, the signing of annexure “SH6” by the former MEC was sufficient to
finalise applicant’s appointment as GCEO. There existed no need in the circumstances
for personal notification thereof to applicant.

52. In any event according to the internal governance requirements and protocols of the
Department and GGDA, once the former MEC so duly appointed applicant as GCEO
as so empowered or authorised by the provisions of section 8(3) of the Act, the next
steps or procedural requirements to be followed was the submission of such
appointment to the Provincial Exco for concurrence as a matter of internal governance
protocol or “good order” 21 . Thereafter a letter of appointment was supposed to be
issued either by the Department or the GGDA offering applicant the position of GCEO
and requiring him to signify his acceptance thereof by signing such letter within a fixed
period. Upon acceptance thereof a contact of employment as GCEO would then be
presented to applicant for signature by applicant and the MEC. There is no requirement

21
Dr Vilakazi’s affidavit at page 492 para 22
 19

or prerequisite, legislative, or otherwise, requiring or enjoining either the Department,

GGDA or the MEC to personally notify applicant about the decision appointing him as
GCEO. It is submitted that the provision of the letter of employment constitutes in the
circumstance notification of his appointment as GCEO.

53. In Mncwabe the decision by the former President Zuma to appoint the applicants was
recorded in the Presidential Minutes. The communication of such decision to applicants
was done by the then National Director of Public Prosecutions. Such communication
was done in the form of providing the applicants with copies of the Presidential Minutes
recording the decisions appointing them.

54. However, in casu the decision by the former MEC to appoint applicant as GCEO was
recorded in annexure “SH6”. There is no evidence documentary or otherwise by the
MEC in all her affidavits indicating which person was so required to communicate such
decision to applicant or whether this was to be done by way of providing applicant with
a copy of such memorandum, annexure “SH6” or in what form such communication
should or ought to have occurred. All that the MEC says is that same was not
communicated to her. This is the high watermark of the MEC’s defence or case in this
regard.

55. In the circumstances, and in particular in the absence of any evidence by the MEC as
to how, when and by whom such decision by the former MEC Mr Parks Tau appointing
applicant as GCEO was to be communicated to him, such defence cannot in the
circumstances hold sway. On this score the applicant’s defence falls to be dismissed
with costs on an attorney and client scale.

56. We interpose to make an important and crucial point to the effect that the MEC, for
obvious reasons, does not state or specify by whom, when and how such
communication was supposed to be to be made. Was such communication supposed
to be to be made by the former MEC, the HOD, Dr Vilakazi (in her capacity as
chairperson of the Board of GGDA) or by Ms Motara herself and at what stage was
same to be communicated and in what form. Failure on her part to do so, is it respectfully
submitted fatal to this defence. The court cannot determine this issue on the basis of
speculation, hypothesis, or suppositions. This being so, cadit quaestio.
 20

57. Furthermore, it is submitted that having regard to the fact that at all times material
hereto, the MEC was aware and in possession of annexure “SH6” as outline above, the
MEC is the author of the non-communication to the applicant of his appointment by the
former MEC as GCEO, in that she knowingly and deliberately withheld communicating
such appointment to the applicant, impelled by ulterior motives as aforementioned. As
such it ill-beholds her to raise the defence of “noncommunication”. She is not coming to
court with clean hands and the law cannot countenance a party from benefiting from
her own wrongful and mala fide conduct. The administration of justice will fall into
complete disrepute by allowing her to use the law to benefit from her wrongful and mala
fide conduct. On this score to, the purported defence “non-communication” cannot hold
sway.

58. In the circumstances, and in particular in the absence of any evidence by the MEC as
to how, when and by whom such decision by the former MEC Mr Parks Tau appointing
applicant as GCEO was to be communicated to him, such defence cannot in the
circumstances hold sway. This entails it is submitted that factually and legally the
decision by the former MEC (Mr Parks Tau) in so appointing applicant as GCEO,
pursuant to the powers conferred on him in terms of sec 8(3) of the Act as aforesaid,
was final and thus constituted an administrative action as so contemplated in PAJA.
On this score the MEC’s defence falls to be dismissed with costs on an attorney and
client scale.

59. In any event, for the sake of completeness, the applicant points out that he had no
knowledge of his appointment by the former MEC as GCEO nor was he informed
thereof by anyone including the current MEC, hence stating in his founding papers that
he was not informed of his appointment by the former MEC appointing me as such.

60. By saying so, applicant actually meant that he received no formal communication in
writing in the form of a letter or an email neither from the MEC, Dr Vilakazi in her capacity
as chairperson of the Board, nor from the current MEC informing him of the decision by
the former MEC appointing me as GCEO. He only learnt for the first time after perusal
of the MEC’s answering affidavit of the assertion by the MEC, challenging, or resisting
the relief he seeks in this application on the basis of the “noncommunication” of such
appointment, contending that absent such “communication” this entails that this
decision in law was not final and thus not reviewable under PAJA.
 21

61. Without detracting from the aforegoing and for the sake of completeness, it is submitted
as follows. By stating that he was never informed of such decision, applicant meant that
he never received formal communication in writing in the form of a letter or email from
the former MEC, Dr Vilakazi or Ms Motara notifying him of such appointment. That it
was only upon consultation with his legal representatives (after receipt of MEC’s
answering affidavit) that it was explained that the issue of “communication”
contemplated herein is not only confined to communication in writing but also extends
to verbal or telephonic communication. It is in this regard that applicant alluded to the
discussion at the Serengeti meeting during which the MEC intimated or disclosed to him
the fact of the Board’s recommending him for appointment as GCEO and his
appointment by the former MEC as such, as outlined above. This was the first -time
applicant came to know of such recommendation by the Board and his appointment by
the former MEC as GCEO. 22 Accordingly, such intimation or disclosure constituted
“communication” of his appointment as GCEO. As such, the decision by the former
MEC, appointing applicant as GCEO, constituted a final decision amounting to
“administrative action” as so contemplated in PAJA.

62. In the alternative, it is submitted that the argument of the MEC loses sight of the fact
that in terms of PAJA, a failure to take a decision constitutes likewise “administrative
action”, reviewable under PAJA. This is so, in that the failure or non- disclosure (albeit
deliberate actuated by ulterior motives on the MEC’s part), be it on the part of the former
MEC, HOD, Dr Vilakazi (in her capacity as Chair of the Board) or Ms Motara herself, to
communicate such appointment to applicant, constitutes a failure by an organ of state
or administrator to take a decision, as so contemplated in PAJA. As such the purported
defence by the MEC that the failure to communicate to applicant his appointment by the
former MEC as GCEO, renders such decision not final and as such not amounting to
“administrative action”, is in the circumstances a self – defeating exercise, in that the
failure by the MEC to take a decision to communicate the appointment to applicant,
likewise constitutes “administrative action” as so defined in PAJA.

63. Accordingly, on the basis of one or more or all of the reasons outlined above, this
defence of “non- communication” falls to be dismissed with costs on an attorney and
client scale, including the costs of two counsel where so employed.

22
Applicant’s RA at pages 699 - 700 paras 25.9 – 25.11.
 22

REFERRAL OR SUBMISSION OF APPLICANT’S APPOINTMENT TO THE PROVINCIAL

EXCO FOR CONCURRENCE

64. It is respectfully submitted that the aspect of the referral or submission by the MEC of
applicant’s appointment as GCEO to the Gauteng Provincial Executive Council
(Provincial Exco) for concurrence is neither a requirement nor obligation required or
stipulated in terms of the Act, the TPRST, the Public Service Regulations or for that
matter the MOI of GGDA. In other words, such referral or submission is not a statutory
or legislative requirement or prescript enjoining the MEC to do so.

65. Such referral or submission is merely an internal governance protocol, which does not
detract from or affect the validity, legality or finality of the appointment of applicant as
GCEO by the former MEC, pursuant to section 8(3) of the Act. It is done “as a matter of
good order” as the “concurrence of the Provincial Exco is not a requirement for the
finalisation of the appointment of a GCEO”.23

66. To render the validity or finality of such appointment by the former MEC subject to
finalisation by a structure like the Provincial Exco, would be in violation of the principle
of legality, as only the MEC is the person or functionary empowered or authorised to
appoint a GCEO. This is so, in that the Provincial Exco lacks legal authority to appoint
a GCEO.24

67. Furthermore, it is respectfully submitted that the submission of applicant’s appointment

as such to the Provincial Exco for concurrence, does not entail that the Provincial Exco
substitutes or replaces the MEC as the appointing or executing authority nor does such
submission affect or detract from the finality of the former MEC’s appointment of
applicant as GCEO. In order words, such submission to the Provincial Exco does not
constitute a further condition precedent affecting, superseding, or overriding the finality

23
Dr Vilakazi’s affidavit at page 492 para 22.
24
Baxter Administrative Law (1984) at 201, Ahmed v Min of Home Affairs 2019 (1) SA (CC)
paras 41-2; Rapholo v State President 1993 (1) DSA 680 (T) at 693D-E.
 23

of the decision by the former MEC appointing applicant as GCEO, in the exercise of his
statutory powers in terms of section 8(3) of the Act authorising him as the appointing
authority to appoint a GCEO of the GGDA.25

68. Accordingly, the MEC’s decision to disregard applicant’s appointment by the former
MEC, Mr Parks Tau and treat it as if it was not unlawful and binding decision, is in the
circumstances unlawful and irrational.26

69. There are material and fundamental fault lines underpinning the MEC’s version or
defence in resisting applicant’s claim, demonstrating that such version or defence is
materially flawed.

70. The MEC for the first time in her answering affidavit raises the defence of
“noncommunication” in resisting applicant’s claim, contending that by virtue of such
noncommunication of the decision to so appoint applicant by the former MEC, she was
not bound by such appointment, entailing that she was at liberty to start de novu the
recruitment process for the appointment of a GCEO, hence doing so. Despite being a
recent version or “afterthought” such contention or defence or purported defence is in
the circumstances misplaced and misguided for the following reasons:

71.1 At all times material hereto (despite the MEC purporting to plead ignorance of
annexure “SH6”), the MEC with effect from 10 October 2022 and during her
briefing by the HOD, the HOD briefed her about the recruitment process
culminating in applicant’s appointment by the former MEC, Mr Tau as GCEO and
provided her with “briefing documentation” in this regard, which briefing
documentation contained annexure “SH6”.

71.2 After the MEC was provided with annexure “SH6”, same was changed or
amended by substituting Mr Tau’s name with her name, as per annexure “SVI”,

25
FA para 8 at page 13 - 14 ; Dr Vilakazi’s Affidavit pp 6-7 paras 21-23; confirmatory affidavit of the
HOD para 10 at page 752 - 753.
26
Applicant’s FA paras 87 & 89 at page 34.
 24

for purposes of presenting it to the Provincial Exco for concurrence. This was
done. However, she failed to sign same.

MEC’S EXTENSION OF APPLICANT’S ACTING APPOINTMENT AS GCEO

71. On or about 27 October 2022, the MEC despite knowledge of annexure “SH6”
purportedly extended applicant’s acting appointment as GCEO for a period of six
months with effect from 31 October 2022 to 30 April 2023, on the ostensible reason that
she required time to ascertain whether applicant was a suitable candidate to work with
her as GCEO. The reason so advanced by the MEC for extending applicant’s acting
tenure, is in the circumstances common cause, as the MEC has admitted same.

72. It is respectfully submitted that such purported extension by the MEC of applicant’s
acting tenure was on the contrary impelled by ulterior motives, improper and unlawful
considerations for the following reasons:

72.1 On 10 November 2022, the MEC during a meeting with Dr Vilakazi confirmed
having received the “briefing documentation” which included annexure “SH6”,
but intimated that she had no intention of approving applicant’s appointment as
GCEO (implementing or processing his appointment”, indicating that she had a
candidate whom she preferred should be appointed for the job and forwarded
her on WhatsApp the profile of such preferred candidate. Dr Vilakazi indicted
that such person was not only unsuitable but did not meet the requirements for
the job of GCEO.

72.2 On 10 January 2023 at the Serengeti meeting, indicated to applicant that she
was aware of the recommendation by the Board recommending applicant for
appointment as GCEO and his appointment as such by the former MEC,
however indicating that she was not prepared to “sign off” on such appointment
(processing or implementing his appointment), as she had two other preferred
candidates whom she preferred for the job of GCEO and as such intended
starting the recruitment process de novo and applicant was at liberty to reapply
for the job.
 25

73. In any event, we respectfully submit that the extension by the MEC of applicant’s acting
tenure as GCEO, was in the circumstances irrational, improper and unlawful for the
following reasons:

73.1 the former MEC, Mr Tau had already on 24 September 2022 approved the
recommendation by the Board recommending applicant for appointment as
GCEO as per annexure “SH6”.

73.2 the legal effect thereof was that the former MEC in the exercise of his powers in
terms of section 8(3) of the Act, appointed applicant as GCEO of GGDA.

73.3 the former MEC having so exercised his legislative powers authorising him to
appoint the GCEO of GGDA, it was not in law open to MEC Motara to purport to
extend applicant’s acting tenure as aforesaid, more so on the basis of the
purported or ostensible reasons so advanced by her in this regard in doing so,
MEC Motara so purportedly extended applicant’s acting tenure actuated by inter
alia bias, ulterior purpose and motives, in bad faith, designed to pave the way for
her preferred candidates.

74. It is common cause if not undisputable that when the MEC so extended applicant’s
acting tenure as GCEO, she did so on the ostensible basis that she required time to
ascertain whether applicant was a suitable person to work with her as GCEO and not
on the basis that she was not bound by the decision of the former MEC so appointing
him as GCEO as per annexure “SH6”, or on the basis of the non-communication of such
decision to applicant.

75. Furthermore, it is common cause if not undisputable that the MEC so extended
applicant’s acting tenure as such not on the basis of challenging the propriety, validity
or legality of the process followed by the Board for the recruitment of a GCEO but on
the basis of the reasons aforesaid.

76. Assuming that the MEC was not allegedly bound by annexure “SH6” on the basis of the
non-communication of the former MEC’s decision so appointing applicant as GCEO,
(which is denied or disputed), then and in that event, it was not in law open to the MEC
 26

to so extend applicant’s acting tenure on the basis that she required time to ascertain
whether applicant was a suitable person to work with her as GCEO. This is so, so it is
submitted, that as so extending his acting tenure, the MEC implicitly accepted the
validity or legality of his appointment as GCEO, hence requiring time to ascertain
whether he was a suitable person to work with her as GCEO.

77. We respectfully submit, as outlined above that MEC clearly and unequivocally knew or
had knowledge that applicant was duly appointed by the former MEC as GCEO, as per
the briefing by the HOD and during the meeting with Dr Vilakazi at the Saxon Hotel but
did not process or implement such appointment in accordance therewith, as she had an
ulterior, improper and unlawful reason or basis for failing to do so. This simply being on
the basis of the self-confessed or admitted reason of having preferred candidates for
the job, hence dissolving the Board and unlawfully and impermissibly restarting de novo
the recruitment process for the appointment of a GCEO. This, we respectfully submit
unequivocally demonstrates that the MEC at all times material hereto is not coming to
court with “clean hands” and her conduct was tainted by male fide in this regard.

78. It is within this context or prism that the MEC’s conduct in handling applicant’s
appointment as GCEO should be viewed, appreciated and determined.

PART A

79. In terms of Part A of the notice of motion, applicant sought urgent relief interdicting and
restraining the MEC to halt or suspend the recruitment and selection process for the
position of GCEO, pending the determination of Part B.

80. It is submitted that the MEC was asked on several occasions prior to the launching of
the application on 24 May 2023 and thereafter on 26 May 2023 as per the attorneys
letter addressed to the MEC on 26 May 2023 (a copy of which is annexure “TM1” to
respondent’s answering affidavit) to halt or suspend the recruitment and selection
process for the position of GCEO, which the MEC had wrongfully, improperly and
impermissibly embarked upon which he male fide and recklessly persisted therewith
(even after filing and service of the application papers) in male fide and reckless
defiance of the relief sought in part A of the notice of motion.
 27

81. It is submitted that it was upon receipt of annexure “TM1”, being a letter by applicant’s
attorneys that the MEC ultimately capitulated and gave an undertaking to suspend the
unlawful recruitment process, costs being reserved, pending the outcome of Part B. in
this regard, it is submitted that absent such letter and the assertions contained therein,
the MEC would have persisted (in the face of the relief sought in Part A of the notice of
motion) with the unlawful recruitment process for the appointment of a GCEO, in
reckless and flagrant disregard of the relief sought in Part A.

82. Accordingly, it is submitted that such conduct on the MEC’s part was not only defiant,
but unlawful, mala fide and impermissible and demonstrates its displeasure regarding
same, with a punitive costs order on an attorney and client scale against the MEC.

AD CONDITIONAL COUNTER APPLICATION

83. In the event that the court finds in favour of the applicant in respect of the main
application i.e. finds that the decision by the former MEC appointing applicant as GCEO
as so empowered in terms of section 8(3) of the Act, constitutes in the circumstances a
final decision, the MEC seeks relief in terms of a conditional counter application, to
review and set aside the former MEC’s decision to appoint applicant as GCEO as per
annexure “SH6”, being the memorandum dated 24 November 2022.

84. I/we deem it apposite to raise the following points in limine primarily for purposes of an
expeditious disposal of this misguided and misconceived conditional counter
application. In the event of this Honourable Court upholding any or all of such points in
limine, this will result in the expeditious disposal of the conditional counter application
without it being necessary for the court to traverse or deal with the merits thereof.

CONDONATION

85. The counter application is in substance a review application for a declarator which is
brought in terms of sec 172 of the Constitution, and ought to have been brought within
a reasonable time after having knowledge thereof in October 2023.
 28

86. However, for reasons unknown, the MEC delayed for a period of about 10 months
(despite being called upon to do so earlier in the year). Such inordinate and excessive
delay moreover by an official/functionary of government (organ of state), in the absence
of a condonation application, cannot in law be countenanced. Context matters herein.

87. As it was extremely or inordinately out of time, the MEC was enjoined or obliged to apply
for condonation for failure to do so.

88. In keeping with her reckless and defiant attitude, the MEC in her replying affidavit,
despite conceding the inordinate delay of 10 months, maintained that there exists no
need for a condonation application. Such defiant and reckless attitude deserves
censure in the form of a punitive costs order. The election by the MEC not to seek
condonation is fatal to the conditional counter application.

89. If the court were to hold that there exists no need for the MEC, who has (despite being
called upon to do so) to delay for an inordinate period of 10 months, to launch this review
application, this it is submitted would enable not only well- resourced parties but organs
of state like the MEC, to knowingly drag their feet with impunity in launching such review
application. This is counterintuitive to the requirement that legality reviews be brought
within a reasonable time after the lawfulness of the impugned process forming the
subject matter thereof, for purposes of promoting certainty regarding the lawful status
of administrative actions or decisions.

90. In the result, the absence of such formal application for condonation on the part of the
MEC, is in the circumstances fatal to the conditional counter application, with the
attendant consequences in law that the above Honourable Court cannot or is precluded
from entertaining the counter application i.e. such application falls to be dismissed with
costs on attorney and own client scale, de bonis propriis against the MEC on this score.

NON-JOINDER

91. The applicant seeks relief to self-review and set aside annexure “SH6” on the basis that
the procedure embarked upon by the Board in the recruitment and selection process
for the appointment of the GCEO was in the circumstances unlawful and irregular, being
 29

in non-compliance with the provisions of the TPRST and the public service regulations
as so cited in paragraphs 41.2, 42 and its sub paragraphs and 43 of the MEC’s
conditional counter application.

92. This in the circumstances entails that the former MEC Mr Parks Tau does have a direct
and substantial interest not only in respect of the recruitment and selection process so
undertaken by the board in terms where of the board recommended me for appointment
to the position of GCEO, culminating in the former MEC Mr Parks Tau approving such
recommendation and appointing him to the position of GCEO, but also in respect of the
decision by Mr Parks Tau appointing me as GCEO of GGDA. As such the former MEC
Mr Parks Tau, ought to be joined in these proceedings, before any decision can be made
by the court on the relief so sought by the MEC in the conditional counter application,
having regard to the fact that according to Dr Vilakazi and Mr Mosley-Lefatola (HOD),
the recruitment process so undertaken by the Board was done with the knowledge,
approval and oversight of the former MEC, who was updated by the HOD of every step
and decision taken in relation to such recruitment process, which process was also
outlined in annexure SH6, forming the subject matter of the conditional counter
application.

93. However, the MEC has failed to cite the former MEC Mr Parks Tau regarding the alleged
unlawful recruitment process undertaken by the board recommending applicant for
appointment to the position of GCEO culminating in the decision by former MEC Mr
Parks Tau to appoint him as GCEO.

94. The MEC despite being called upon by applicant’s attorneys to contact his predecessor
(now Deputy Minister of Cogta according to Dr Vilakazi) and enquire or seek
confirmation regarding the lawfulness of the recruitment process undertaken by the
Board and his knowledge and approval thereof, this misconceived and misguided
review application would have been unnecessary. However, for reasons outlined above
she likewise failed to do so.

95. The failure to join the former MEC Mr Parks Tau is fatal to the conditional counter
application, rendering same susceptible to being dismissed or removed from the roll on
this basis or score only, as it is not competent for the above Honourable Court to hear
this application without the former MEC Mr Parks Tau being joined as a party to such
 30

conditional counter application, as such an act would violate the rights or interests of
former MEC Mr Parks Tau right to the principle of audi alterem partem and extremely
prejudicial to applicant, who was not privy to such recruitment process.

96. In the result, the failure or omission by the MEC to cite and join the former MEC Mr
Parks Tau to the present conditional counter application, is fatal to the relief sought by
the MEC in casu. On this score alone, the present misguided conditional counter
application stands to be dismissed with costs on a punitive scale against the MEC.

AD MERITS OF CONDITIONAL COUNTER APPLICATION

97. The MEC seeks to review and set aside annexure “SH6” on the basis that the process
or procedure so undertaken by the Board for the recruitment of the GCEO culminating
in the appointment of applicant as GCEO by the former MEC, was in the circumstances
improper, invalid, unprocedural, irregular and unlawful being in noncompliance with the
relevant provisions of the Public Service Regulations and the Department’s (GDED)
Transversal Policy on Recruitment, Secondments and Transfers (TPRST).

98. We respectfully submit that such purported challenge on the MEC ’s part placing
reliance on the provisions of the Public Service Regulation and the TPRST not only
constitute in the circumstances a desperate last -ditch attempt on the part of the MEC
to thwart the granting of the relief sought by applicant herein but also constitutes in the
circumstances a misguided, misplaced, and misconceived defence on her part for the
reasons outlined above and the following reasons:

98.1 The provisions of the Public Service Regulations so relied upon by the MEC as
so contained in paragraph 23.1 of her answering affidavit form part of the relief
applicant seeks, particularly having regard to the fact that Regulation 57(d)
enjoins the MEC to provide applicant with “written particulars” of his employment
as GCEO, including the terms and conditions of his service as such. On her own
showing, the MEC has not only violated such Regulation but the Constitution
which obliges officials, functionaries and members of government and the State
(organs of state) not only to act in accordance with the Constitution but also to
obey, respect and uphold the law including the Constitution. Insofar as it relates
 31

to Regulation 67, it is submitted that the former MEC complied with same, hence
appointing applicant as GCEO.27

98.2 Insofar as it concerns reliance by the MEC on the TPRST, it is imperative firstly,
to submit that such reliance constitutes “double speak” on the part of the MEC if
not the MEC speaking with “forked-tongue” in that at all times material hereto the
MEC maintained that the TPRST is not applicable for the recruitment of a GCEO
and for the first time in her answering affidavit somersaults” placing reliance
thereto. This constitutes a further instance on the part of the MEC approbating
and reprobating if to clutching at straws, in a desperate endeavour to “salvage a
lost cause”, as so outlined above. Such conduct cannot be countenanced in law
being impermissible for a party in litigation to do so.

98.3 In any event, the provisions of clauses 12.8 and 12.9 of the TPRST are of no
application in casu, particularly as same contemplates a situation whereby either
the HOD or CEO or delegated person has approved the appointment of an
applicant for the job. Such clauses do not apply to situations where the
appointment of a GCEO is made by the MEC as is in casu. Furthermore,
reference to a CEO entails in the circumstances reference to the GCEO. As such
it would be an anomaly as acting GCEO for applicant to approve his permanent
appointment as GCEO. Same applies to the provisions of clauses 13.6, 13.7
and 13.10 so relied upon by the MEC. It is respectfully submitted that the
purported reliance by the MEC on these clauses is demonstrative of a further
instance of “clutching at straws” on the part of the MEC to “salvage a lost cause”
or “shore up or bolster” a lost cause. Accordingly, reliance thereon is in the
circumstances misplaced and misconceived, with the attendant consequences
that same cannot be used or serve as a foundation to mount an attack or case
to review and set aside annexure “SH6”.28

98.4 It is submitted that reference to Regulation 57(d) to “providing each appointed

person with written particulars of employment, including the terms and conditions
of his or her service”, means or entails processing the appointment of such

27
Applicant’s RA paras 53 to 55 at page 709.

28
Applicant’s RA paras 56, 57, 58 and 59 at pages 709 - 710.
 32

person by providing him/her with a letter of appointment and a contract of

employment, which forms part of the relief applicant seeks herein, which the
MEC has failed to do in violation of Regulation 57(d).

98.5 Furthermore, it is respectfully submitted that the contents of paragraphs 41.2, 42

and its sub paragraphs and 43 constitutes nothing more than a recital of the said
provisions or requirements of the TPRST, without any evidence or allegations
that such provisions or requirements were not complied with or met. In any event
neither the Act nor the TPRST stipulate or require that the recruitment process
for the appointment of a GCEO should or must be “undertaken” or embarked
upon by the MEC. The mere reproduction by the MEC of the said provisions of
the TPRST, without more, cannot in the circumstances avail the MEC.29

99. Absent any proof of non-compliance by the Board with the provisions or requirements
of the TPRST, the appointment of applicant as GCEO by the former MEC, Mr Parks Tau,
remains valid in extant and thus binding on the MEC. In other words, it is submitted that
as the recruitment process so undertaken by the Board for the appointment of the
GCEO was in accordance with the TPRST, and with the knowledge, approval and
oversight of the former MEC (Mr Parks Tau), coupled with the involvement and
participation of the HOD (as his nominated shareholder representative) informed and
kept him updated of every step taken in the entire recruitment process, entails in the
circumstances that the appointment by the former MEC, Mr Parks Tau, of applicant as
GCEO remains in extant and thus valid and binding on the MEC. In this regard it is
apposite to quote the dicta of Nyathi J to the following effect:

“The first respondent [MEC] ignored evidence of the involvement of her

predecessor in the recruitment process for the new GCEO. This despite having
called for proof thereof …All these reasons leave one to reasonably infer the
existence of ulterior motives on the part of the first respondent”.30

29
Dr Vilakazi’s affidavit to the counter application pp 501 - 503 paras 64-72 and para 96 at
page 507.
30
See paras 54.4 & 55 of Nyathi J’s judgement in the case by Dr Vilakazi & others v The MEC
at page 177 - 178, a copy thereof is annexure “SH20” to the founding affidavit at page 163 -
181.
 33

100. It is submitted that the assertion or contention by the MEC that “the process that resulted
in annexure ‘SH6’ contravened section 11 of the Constitution” is not only further
evidence of a desperate “last ditch” endeavour or “clutching at straws” on the part of the
MEC to “salvage a lost cause” but is also misguided and misconceived in that section
11 of the Constitution deals with “the right to life” of everyone.31 It is also incorrect for
the MEC to assert in her Replying Affidavit, that she only became aware of annexure
“SH6” after receipt of application papers in the case brought by Dr Vilakazi and Others
v the MEC. This is so, in that such document did not from part of such application
papers.

101. Accordingly, it is submitted that having regard to the reasons outlined above and in the
affidavit of Dr Vilakazi, the purported attack so mounted by the MEC challenging the
lawfulness of the recruitment process so undertaken by the Board, is not only
unmeritorious but misconceived and misguided, likewise constituting a desperate
attempt on her part to thwart the relief sought by applicant herein.

102. In the result, the MEC’s conditional counter application falls to be dismissed with costs
on an attorney and client scale, which costs should include the cost of two counsel
where so employed.

CONCLUSION

103. In the light of the aforegoing and on the basis of one or more or all of the reasons
outlined above, it is submitted that applicant has made out a proper case for the grant
of the relief sought in Part B of the notice of motion and the dismissal of first
respondent’s conditional counter application, for an order in the following terms:

ORDER

31
MEC’s conditional counter application at page 449 para 45.
 34

104. An order is granted in terms of the draft order attached hereto marked “X”.

105. First respondent’s conditional counter application is dismissed with costs on an attorney
and own client scale, which costs should include the costs consequent upon the
employment of two counsel where so employed.

106. First respondent is ordered to pay the costs of Part A of the notice of motion on an
attorney and own client scale, which costs would include the costs of two counsel where
so employed.

R MOGAGABE SC

Applicant’s counsel

Chambers, Sandton

6 October 2023