5 SEPTEMBER 2017 TABLE OF CONTENTS Background and RELIEF sought PRELIMINARY ISSUES 3 Reasons for the dissolution of the board of PAN SOUTH AFRICAN LANGUAGE BOARD PanSALB 4 ORDER MADE BY THE COURT ID: 637985
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PRESENTATION TO THE PORTFOLIO COMMITTEE REGARDING THE PANSALB JUDGMENT : M. MADIBA & OTHERS // MINISTER OF ARTS AND CULTURE AND OTHERS
5 SEPTEMBER 2017Slide2
TABLE OF CONTENTS
Background and RELIEF sought
PRELIMINARY ISSUES
3.
Reasons for the dissolution of the board of PAN SOUTH AFRICAN LANGUAGE BOARD (PanSALB)4. ORDER MADE BY THE COURT
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1. BACKGROUND AND RELIEF SOUGHT
The First Applicant, Mbulungeni Madiba and other Board members were appointed by the Minister of Arts and Culture (the Minister) as members of the Board of PanSALB during April 2014.
Due to ongoing challenges at PanSALB, the Minister on 12 January 2016 gave notice of dissolution of the Board of PanSALB to the First Applicant as the Chairperson of Board.
In February 2015, the First Applicant and purportedly, others members of the Board launched a review application at the Pretoria High Court against the Minister’s decision to dissolve the Board of PanSALB.
Among others, they sought an Order in the following terms: 1) That the Minister’s decision to dissolve the Board of PanSALB should be declared unlawful and invalid; 2) Reviewing and setting aside of the Ministers’ decision dissolving the Board of PanSALB;
3) That the Minister pays the costs of the review application on the scale between attorney and own client; and
4) Further and/or alternative relief.
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2. PRELIMINARY ISSUES
The Court dealt with two preliminary issues namely:
1. Authority of the First Applicant to depose to the main affidavit on behalf of co- applicants (Second Applicant to Tenth Applicant)
There were no confirmatory affidavits filed on behalf of the alleged co-applicants at the hearing of the matter. As a result, the Court concluded that the First Applicant was never authorised to represent the alleged co-applicants and that the First Applicant’s false assertion of authority was a deliberate untruth meant to mislead the Court. This the Court held, extended to the First Applicant’s attorneys of record who may also be guilty of untruthfully purporting to represent the co-applicants.
Nonetheless, the Court held that the First Applicant was affected by the Minister’s decision and as such he was entitled to bring the review application and have the Minister’s decision subjected to judicial scrutiny. 4Slide5
2.PRELIMINARY ISSUES continued
2. Whether
allowing Mr Feni to represent the First Applicant would not
result in a failure of justice and the approach to be adopted in that regard.The Court was concerned that the First Applicant would be represented by Mr Feni who had prior employment relationship with the Board and against whom the Minister had made many factual allegations critical of Feni. Also, Feni had numerous litigation matters against the Board some of which were still pending and this potentially raised a conflict of interest.Ultimately, Feni withdrew as Counsel for applicants and the matter was handled by another Counsel whereafter it proceeded in the normal way.
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3. REASONS FOR THE DISSOLUTION OF THE BOARD
In summary, the Court found three charges that the Minister brought against the Board of PanSALB namely:
1. PanSALB had not advanced in its performance under the present Board and the Board failed to provide adequate leadership despite continuous interaction between the Board and the Department as well as the adoption of the agreed turnaround strategy;
2. The Board of PanSALB had failed to provide the Minister with certain information for which he had asked thereby placing the budget vote of the Department in jeopardy; and
3. The Board of PanSALB had taken an unlawful and unjustified decision to dismiss staff members appointed during Zwane tenure even though it knew that Zwane’s appointment had been held to be valid by the Pretoria High Court thereby entitling the said Zwane to hire staff.6Slide7
4. ORDER MADE BY THE COURT
The Court’s Judgment dated 15 August 2017, made provision for the following Order namely:
It dismissed the review application by Madiba and others;
It held that the Madiba must pay the costs of the Minister including the costs occasioned by the employment of two Counsels;
The Court further directed the State Attorney, Pretoria to provide the Pretoria Society of Advocates and the Law Society of the Northern Provinces with hard copies of the judgment to enable those bodies to consider such disciplinary action against Adv. Feni and Makhafola & Verster Inc. attorneys respectively, as they deem fit.
We understand that the Entities Management Unit (EM) of the Department has commenced with the process of inviting appointees to the Board for the PanSALB.
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