CCT133/13

[2014] ZACC 18

2014 (8) BCLR 930 (CC)

2014 (5) SA 69 (CC)

Khampepe J Majority judgment

Jafta J separate judgment

17 February 2014

10 June 2014

http://hdl.handle.net/20.500.12144/3741

Application for leave to appeal against a judgment of the Pretoria High Court: Motau and Another v Minister of Defence and Military Veterans and Another, Case No 51258/13, 18 September 2013.

Armaments Corporation of South Africa Limited Act 51 of 2003 — section 8(c) — Minister’s power to dismiss board member “on good cause shown” — Minister had good cause to dismiss the first and second respondents Promotion of Administrative Justice Act 3 of 2000 — section 1 — definition of administrative action — distinction between administrative and executive action — Minister’s power to dismiss is executive action Companies Act 71 of 2008 — section 71 — section regulates procedure by which board members may be dismissed by shareholders — section must be read with section 8(c) of the Armaments Corporation of South Africa Limited Act — Minister did not comply with section 71’s procedural requirements. Application for leave to appeal concerning the Minister of Defence and Military Veteran’s decision to terminate the respondents’ membership of the Board of the Armaments Corporation of South Africa SOC Ltd (Armscor). The majority found that the decision was not reviewable under section 33 of the Promotion of Administrative Justice Act 3 of 2000 (PAJA) because it amounted to executive (rather than an administrative) action. In part, the termination was held to be the performance of an executive function under section 85(2)(e), rather than an implementation of national legislation under section 85(2)(a), since the power to remove directors is more closely linked to the formulation of defence policy than to its application. The majority further found that, in accordance with section 8(c) of the Armaments Corporation of South Africa Limited Act 51 of 2003, there was good cause to terminate the respondents’ membership as they had failed to effectively fulfil their statutory mandate. Although the termination did not satisfy the procedural requirements of the Companies Act 71 of 2008 (which rendered it unlawful), the majority held that it was nevertheless not just and equitable to set aside the decision of the High Court. The dissenting judgment concluded that the decision was reviewable under PAJA and held that the decision was unlawful because the respondents were entitled to a hearing. Majority judgment: Khampepe J (Moseneke ACJ, Skweyiya ADCJ, Cameron J, Dambuza AJ, Froneman J, Majiedt AJ and Van der Westhuizen J concurring). Dissent: Jafta J (Madlanga J and Zondo J concurring).