Mr Attwell Sibusiso Makhanya was employed as the Chief Executive Officer of Mhlatuze Water. In November 2015 the Board of Umhlatuze Water resolved to suspend him and to institute disciplinary proceedings, relying on a forensic report compiled by ENS Forensics alleging impropriety. The Board members’ terms had, however, been extended by the Minister of Water Affairs and Sanitation in circumstances later found to be unlawful. Mr Makhanya challenged both the Minister’s extension of the Board’s term and the Board’s decisions to suspend him and initiate disciplinary proceedings. The KwaZulu-Natal High Court declared those decisions invalid but suspended the declarations of invalidity for 180 days and directed that disciplinary proceedings continue under ENS pending the appointment of a new Board. Mr Makhanya sought leave to appeal against the suspension of the invalidity orders, contending that it deprived him of effective relief. Subsequent uncertainty arose regarding the governance and possible disestablishment or amalgamation of Umhlatuze Water.
The appeal was upheld in part. The High Court’s order suspending the declaration of invalidity relating to the applicant’s suspension and disciplinary proceedings was set aside. It was substituted with an order directing that the Minister or a properly constituted Board consider the forensic report and decide within 30 days whether to suspend and institute disciplinary proceedings. Pending that decision, the applicant was precluded from performing his duties as CEO. Each party was ordered to pay its own costs.
The case clarifies the limits of courts’ remedial discretion under PAJA and the Constitution, emphasising that suspending declarations of invalidity must be justified by concrete public-interest considerations. It reinforces the principle of legality by holding that relief which effectively preserves invalid administrative action is not just and equitable without proper justification.