Suspended gambling board officials fail to interdict MEC

Gauteng economic development MEC Tasneem Motara scored one over Gauteng Gambling Board (GGB) officials after the high court dismissed their urgent interdict against her.

In January, Motara terminated Thiran Marimuthu’s stint as Gauteng Gambling Board’s acting CEO and appointed Karabo Mbele, triggering the interim interdict application.

After her appointment, Mbele overhauled the Gauteng Gambling Board , suspending Marimuthu, then senior manager for gaming control, and four of his co-applicants. The other four are Dumisani Dlamini (CFO), Lucky Lukhwareni (acting chief operating officer), Zandile Gumede (senior HR manager) and Bongiwe Myakana (HR executive).

The applicants told acting judge Steven Budlender that Mbele’s appointment was unlawful. Consequently, her decisions to suspend and institute disciplinary proceedings against them were also invalid.

Marimuthu and co-applicants argued Motara lacked the authority she purported to exercise when she terminated his acting role; and even if she had it, that was not the power she purported to exercise because she relied on the wrong provision.

Budlender said he doubted the applicants’ interpretation of the law in the context of a decision to terminate the appointment of an acting CEO. However, he stated that the court hearing the application’s merits would deal with queries regarding the strength of the grounds for review.

He was nonetheless happy to proceed on the assumption that the applicants’ review grounds had prospects of success and they had prima facie right.

But even on the assumption that Motara’s decision was unlawful, said Budlender, the case faced formidable difficulties on the question of irreparable harm. The applicants alleged, among others, that their replacements lacked experience and would earn acting allowances, and that Mbele could interfere in ongoing investigations.

Budlender said: “The allegations – particularly given that they are scantily pleaded – manifestly do not meet the requirement for irreparable harm.”

In terms of harm, the applicants would at best be suspended with pay and undergo disciplinary proceedings initiated by an unlawfully appointed acting CEO.

“In the context of this case, that is not irreparable harm sufficient to justify the granting of an interim interdict.”

Beyond irreparable harm, he said, the applicants would still have had to persuade him that the balance of convenience favoured an interim interdict.

“There are two obstacles in this regard,” said Budlender, adding that an interim interdict of this sort might only be granted to restrain statutory powers.

He said the second principle was that courts generally did not interfere with incomplete disciplinary proceedings.

“They do so only if there are exceptional circumstances warranting interference and where declining to do so would produce a grave injustice.”

He said it was clear that whether one focused on the interdict of statutory powers or the interdict of disciplinary proceedings, the applicants had an extremely high bar to overcome.

They have failed to meet that threshold in this case, Budlender said.

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