Motau

• This is a case about accountability. To what standard of performance may a Minister, as the responsible member of the Executive, hold the leadership of a state-owned entity that falls under her supervisory control? And to what standard should a court of law hold that Minister when she exercises her powers of oversight in relation to that state-owned entity?
• Armscor


  A wholly state-owned entity regulated by the Armscor Act, incorporated primarily to provide South Africa's armed services with military material, equipment, facilities and services, as well as to meet the "defence technology, research, development, analysis, test and evaluation requirements" of the Department of Defence
• Armscor Board


  • Comprises nine non-executive members and two executive members (a chief executive officer (CEO) and a chief financial officer (CFO))
• General Motau and Ms Mokoena

  Appointed to the Armscor Board (as non-executive members) by the Minister's predecessor, designated as Chairperson and Deputy Chairperson respectively
• Appointment of General Motau and Ms Mokoena to the Armscor Board

  1. Appointed by the Minister's predecessor in terms of section 7(1) and (2) of the Armscor Act

  2. Designated as Chairperson and Deputy Chairperson respectively
• The Minister took office on 12 June 2012. At that time, there was a live dispute between General Motau and the Minister's predecessor, who had attempted to dismiss General Motau as the Chairperson and appoint Ms Mokoena in his stead.
• Resolution of dispute over General Motau's dismissal

  1. Minister appointed a committee consisting of three Board members to resolve the issue

  2. Committee recommended that General Motau be retained as Chairperson and Ms Mokoena remain as Deputy Chairperson

  3. This was accepted by the Minister and communicated to the parties
• The Minister convened three meetings with the Board

  General Motau failed to attend any of the meetings, and Ms Mokoena failed to attend the meeting held on 4 June 2013
• The Minister terminated General Motau and Ms Mokoena's membership of the Armscor Board in terms of section 8(c) of the Armscor Act.
• Section 8(c) of the Armscor Act


  A member of the Board must vacate office if their services are terminated by the Minister on good cause shown
• Reasons cited by the Minister for terminating General Motau and Ms Mokoena's services


  • Various procurement projects had failed to progress timeously, allegedly as a result of the Board's decisions or inaction
  • Armscor had not been able to conclude a service level agreement with the Department of Defence as required by section 5 of the Armscor Act
  • Complaints received about Armscor from members of the defence industry, suggesting the Corporation's relationship with the industry had broken down
• The Minister concluded that General Motau and Ms Mokoena had "not acted in the best interests of the Department" and therefore terminated their services as Chairperson and Deputy Chairperson of the Armscor Board.
• The Corporation's relationship with the industry had broken down
• This rendered Armscor unable to "provide marketing support to defence-related industries in respect of defence matériel" as required by the Armscor Act
• The Minister concluded that General Motau and Ms Mokoena had "not acted in the best interests of the Department" and that their services as Chairperson and Deputy Chairperson of the Board were therefore terminated
• The Minister believed that the removal of General Motau and Ms Mokoena was "not a legal matter", but a "political matter . . . informed by [her] experience"
• The Minister expressed the hope that the matter would not get to a point where the Department would need to "engage a legal rep" as she did not think that this was necessary
• The Minister stated that when she removed the chair, she removed both the chair and the deputy because she thought there would have been an expectation that she had an obligation to appoint the deputy chair
• The Minister acknowledged that the Board as a collective might be blamed for some of Armscor's failings, but she was concerned about the impact of the wholesale dismissal of the Board on the continued functioning of the Corporation
• The High Court concluded that the Minister's decision was administrative rather than executive action
• The High Court held that the Minister committed an error of law in terminating the services of General Motau and Ms Mokoena as she acted under the misapprehension that her conduct was executive rather than administrative in nature
• The High Court held that the Minister acted unfairly in failing to give General Motau and Ms Mokoena an opportunity, with appropriate notice, to explain why their appointments should not be terminated
• The High Court held that the Minister acted on the basis of an ulterior motive in that she expressly acknowledged that the removal of General Motau and Ms Mokoena was a "political" rather than a legal matter
• The High Court found that the Minister's decision to dismiss Ms Mokoena was not rational to the extent that her membership of the Board was "terminated simply on the basis that the Minister [did] not know what to do with her"
• The High Court granted a punitive costs order (on an attorney-and-own client scale) against the Minister
• The High Court reasoned that the Minister failed to identify particular occurrences for which General Motau and Ms Mokoena were directly responsible, and thus failed to show the good cause required by section 8(c) of the Armscor Act
• The Minister was granted leave to appeal directly to the Constitutional Court
• The Constitutional Court granted condonation for the late filing of submissions by the respondents
• Administrative action


  Action that meets the positive requirements of the administrative-action definition and is not expressly excluded from the ambit of the Promotion of Administrative Justice Act
• Executive action


  Action that is conferred especially on the Minister for the effective pursuit of government business, particularly the national and territorial security of South Africa
• The power to implement national legislation under section 85(2)(a) of the Constitution is conspicuously absent from PAJA's list of excluded executive powers
• The failure expressly to exclude the implementation of legislation by the National Executive from PAJA was deliberate
• The implementation of legislation by a senior member of the Executive ordinarily constitutes administrative action
• Implementing national legislation (section 85(2)(a))

  Applying formulated policy to particular factual circumstances
• Performing any other executive function provided for in national legislation (section 85(2)(e))

  High-policy or broad direction-giving powers, such as the formulation of policy or the initiation of legislation
• The distinguishing feature between implementing national legislation (section 85(2)(a)) and performing any other executive function (section 85(2)(e)) is the verb "implement"
• Assessing the nature of a power

  • Consider how closely the decision is related to the formulation of policy (likely executive) or its application (likely administrative)
  • Consider the source of the power (constitutional powers are often wide-ranging and direction-giving, while statutory powers are generally more narrow and the concretisation of formulated policy)
  • Consider the constraints imposed on the power (closely circumscribed powers are more likely to be administrative)
• While administrative powers more commonly flow from legislation, PAJA's definition of administrative action expressly contemplates that the administrative power of organs of state may derive from a number of sources, including the Constitution
• An executive power may also be sourced in legislation
• The mere fact that a power is exercised by a member of the Executive is not in itself determinative of whether it is executive or administrative in nature