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[2016] ZAWCHC 57
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Stevens v Cape Agulhas Local Municipality and Others (A358/15) [2016] ZAWCHC 57 (8 April 2016)
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IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No.: A358/15
DATE:
08 APRIL 2016
In
the matter between:
REYNOLDS
STEVENS
...........................................................................................................
Appellant
And
CAPE
AGULHAS LOCAL
MUNICIPALITY
...........................................................
First
Respondent
THE
MUNICIPAL COUNCIL OF CAPE AGULHAS
LOCAL
MUNICIPALITY
.......................................................................................
Second
Respondent
THE
MUNICIPAL MANAGER OF CAPE AGULHAS
LOCAL
MUNICIPALITY
.........................................................................................
Third
Respondent
DEAN
O’NEILL
.......................................................................................................
Fourth
Respondent
THE
MEC: LOCAL GOVERNMENT,
ENVIRONMENTAL
AFFIARS AND DEVELOPMENT
PLANNING,
PROVINCIAL GOVERNMENT OF THE
WESTERN
CAPE
........................................................................................................
Fifth
Respondent
AFRICAN
NATIONAL
CONGRESS
........................................................................
Sixth
Respondent
DEMOCRATIC
ALLIANCE
.................................................................................
Seventh
Respondent
JUDGMENT:
FRIDAY 8 APRIL 2016
SCHIPPERS
J:
[1]
This is an appeal, with leave from the
Supreme Court of Appeal, against an order by the court below
dismissing with costs the appellant’s
application to review and
set aside the fourth respondent’s appointment as municipal
manager of the first respondent, the
Cape Agulhas Local Municipality
(“the Municipality”), in terms of the Promotion of
Administrative Justice Act 3 of
2000 (PAJA). In the review
proceedings the appellant also sought an order that he be appointed
as municipal manager of the
Municipality; alternatively, that the
decision to appoint the municipal manager be remitted to the
Municipality, together with
directions which the court considers
appropriate.
[2]
Prior to launching the review proceedings
under PAJA in this court on 13 June 2014, the appellant referred a
dispute relating to
the Municipality’s failure to appoint him
to the position of municipal manager (which he initially
characterised as an unfair
labour practice and subsequently, an
unfair dismissal), to the South African Local Government Bargaining
Council (“the Bargaining
Council”) on 26 July 2013.
However, the appellant abandoned those proceedings in March 2014,
after the Bargaining Council
refused his application for condonation
of the late referral of the unfair dismissal dispute.
Factual
overview
[3]
The basic facts, for present purposes, are
common ground. The appellant was the former municipal manager
of the Municipality,
employed on a fixed-term contract for five
years, from 1 August 2008 to 31 July 2013.
[4]
On 7 April 2013 the Municipality placed an
advertisement for the post of municipal manager. The closing
date was 28 April
2013. The second respondent assigned the
recruitment and selection process to the Mayoral Committee (“the
Committee”)
of the Municipality. The Executive Mayor, Mr
Richard Mitchell (“Mitchell”); the Deputy Mayor, Mr Dirk
Jantjies
(“Jantjies”); and Mr Raymond Mokotwana
(“Mokotwana”) served on the Committee, which had to make
a recommendation
on the appointment of the municipal manager to the
second respondent. The Committee was assisted by a specialist
human resources
consultant, namely ODS Consultants CC (“ODS”).
[5]
The appellant and the fourth respondent, a
former municipal manager of Matzikama Municipality in the Western
Cape, applied for the
post. Six candidates, including the
appellant and fourth respondent, were shortlisted and invited to
attend an interview
and evaluation session. Four candidates
attended the evaluation session. According to the Selection
Report by ODS dated
July 2013, the appellant was ranked first in the
selection process and the fourth respondent, second; and the
appellant was also
the preferred candidate for appointment as
municipal manager. The Report further states that there was a
“technical
problem”, namely that at the time of the
selection process, the appellant was not in possession of a
certificate relating
to the Municipal Minimum Competency Levels
Training - a requirement for appointment to the post of municipal
manager. The
appellant had completed the training but was
waiting for Stellenbosch University to issue his results. ODS
expressed the
view that the appellant’s appointment may lead to
a dispute if the other candidates for the post were to claim that
they
complied with the requirements and thus were the only suitable
candidates. ODS recommended that the second respondent take
cognizance of the problem; and that it should decide which candidate
is the most suitable and offer employment to that candidate.
[6]
On 8 July 2013 the appellant attended a
meeting at which Mitchell, Jantjies, Mokotwana and the Speaker of the
Municipal Council
were present. When the appointment of the
municipal manager came up for discussion, the appellant asked to be
excused from
the meeting. However, he was told to remain since
the Committee had already finalised its recommendation to the second
respondent.
He was informed that he was the preferred candidate
for the post and that the second respondent would confirm his
appointment
as municipal manager at its meeting on 9 July 2013.
[7]
However, the appellant was not appointed as
municipal manager on 9 July 2013. That day Mitchell,
Jantjies, Mokotwana
and the Speaker informed the appellant that the
meeting of the second respondent had been called off pursuant to an
instruction
from the provincial leadership of the African National
Congress (ANC). The appellant responded that he had no other
option
but to enforce his rights.
[8]
At a meeting of the second respondent on 23
July 2013, the fourth respondent was appointed to the position of
municipal manager
of the Municipality. Prior to that meeting, a
delegation of the ANC was present in Mitchell’s office the
entire morning
and also attended the meeting. The appellant
contends that the delegation attended the meeting to ensure that the
ANC coalition
councillors carried out a political instruction - the
appointment of the fourth respondent as municipal manager. The
first
to third respondents deny this. They say that the
resolution to appoint the fourth respondent was unanimous, and that
there
was no objection by councillors of the Democratic Alliance.
For present purposes, it is unnecessary to decide whether the
fourth
respondent was indeed appointed pursuant to a political instruction
from the ANC.
[9]
On
26 July 2013 the appellant, assisted by the representative of his
trade union - the South African Municipal Workers’ Union
(SAMWU) - referred a dispute to the Bargaining Council. The
appellant claimed that the Municipality’s failure to appoint
him to the position of municipal manager was an unfair labour
practice, based on non-appointment, as contemplated in s 186(2)(a)
of the Labour Relations Act 66 of 1995 (LRA).
[1]
I shall refer to that dispute as the “unfair labour practice
dispute”.
[10]
In
an affidavit made on 21 February 2014 in his application for
condonation of the late filing of a dispute in the proceedings before
the Bargaining Council (annexed to the founding papers), the
appellant states that the unfair labour practice dispute was referred
to conciliation on 26 July 2013. The Bargaining Council issued
a certificate of outcome declaring the unfair labour practice
dispute
unresolved, and the matter was set down for arbitration, by mutual
agreement, on 24 January 2014.
[2]
[11]
In his affidavit in the proceedings before
the Bargaining Council, the appellant also states that he sought to
reclassify the dispute
as an unfair dismissal in terms of s 186(1)(b)
of the LRA, instead of an unfair labour practice; that notice of his
intention to
reclassify the dispute was given to the Municipality in
December 2013; that the facts of the dispute had always remained the
same;
and that it was simply a case of incorrect categorisation of
the dispute as an unfair labour practice when it should have been
unfair dismissal.
[12]
At the arbitration on 24 January 2014, held
under the auspices of the Bargaining Council, the appellant was
represented by the same
attorneys who act for him in this
application. The Municipality was also legally represented.
Two preliminary points
relating to the jurisdiction of the Bargaining
Council and reclassification of the dispute were argued on behalf of
the parties.
The arbitrator found in favour of the
Municipality.
[13]
The
appellant then decided to refer a dispute based on unfair dismissal
to the Bargaining Council (“the unfair dismissal dispute”).
That dispute should have been referred to the Council by 23 August
2013. It was however only referred on 26 February 2014
- some
six months later.
[3]
The
appellant thus had to bring an application for condonation of the
late referral of the unfair dismissal dispute.
The Municipality
opposed that application.
[14]
The appellant was represented by counsel in
the condonation application. On 31 March 2014 the Bargaining Council
delivered its ruling.
It accepted that the delay between the
date of the alleged dismissal - 23 July 2013 to 24 January 2014 - was
sufficiently explained,
based on the fact that an incorrect referral
had been made. The late referral of the unfair dismissal
dispute would have
been condoned had the appellant referred it on 24
January 2014 or very soon thereafter, but the appellant and/or his
legal representatives
had allowed a further delay of 32 days, and
failed to show good cause for condonation of that delay. The
application for
condonation was therefore refused.
[15]
After condonation of the late filing of the
unfair dismissal dispute was refused on 31 March 2014, the appellant
did nothing to
advance his case which had been before the Bargaining
Council. More specifically, he did not approach the Labour
Court to
review and set aside the decision refusing condonation.
[16]
On
13 June 2014 - more than two months later - the appellant launched
this application as one of urgency, to review and set aside
the
appointment of the fourth respondent as municipal manager, in terms
of PAJA. There is no explanation for this further
delay in the
founding affidavit. The appellant claims that the impugned
decision falls to be reviewed basically on the ground
that the fourth
respondent’s appointment was as a result of a political
instruction from the ANC. He contends that
the decision-maker
was biased;
[4]
that the
administrative action was procedurally unfair;
[5]
that it was taken for a reason not authorised by the empowering
provision, for an ulterior purpose, because of the unauthorised
dictates of another body, in bad faith, and arbitrarily or
capriciously;
[6]
that the action
itself is not rationally connected to the purpose for which it was
taken;
[7]
that it is
unreasonable;
[8]
and that it is
otherwise unconstitutional or unlawful.
[9]
The
Bargaining Council has jurisdiction
[17]
The court below held that it did not have
jurisdiction to decide this case, essentially on the following
grounds. The appellant
had correctly referred a dispute to the
Bargaining Council as the dispute fell squarely under the LRA.
Having submitted himself
to the jurisdiction of the Bargaining
Council, the appellant should have pursued that dispute to its end.
When condonation
was refused for the late referral of the unfair
dismissal dispute, the appellant should have reviewed the decision of
the Bargaining
Council in terms of s 145 or 158(1)(g) of the LRA.
He should not have abandoned the LRA route in favour of the PAJA
route. Generally, employment and labour related issues do not
constitute administrative action as contemplated in PAJA.
[18]
The first question is whether the
bargaining council had jurisdiction to decide the unfair dismissal
dispute. In my view,
it did, for the reasons set out below.
[19]
The
Bargaining Council is established in terms of s 27 of the LRA.
[10]
Its constitution states that its scope of registration is the Local
Government Undertaking in South Africa.
[11]
The powers and functions of a bargaining council are set out in s 28
of the LRA. These include the prevention and resolution
of
labour disputes, and performing the dispute resolution functions
referred to in s 51 of the LRA, which are also incorporated
in the
Constitution of the SALGBC.
[12]
[20]
In terms of s 51 of the LRA, a “dispute”
includes any dispute about a matter of mutual interest between on the
one hand,
one or more employees; and on the other, one or more
employers.
[21]
The dispute which the appellant referred to
the Bargaining Council for resolution, was one of unfair dismissal as
contemplated in
s 186(1)(b) of the LRA. The relevant provisions
read:
“
(1)
‘
Dismissal’
means
that-
(a)
…
(b)
an
employee
employed in terms of a fixed-term contract of employment reasonably
expected the employer-
(i)
to renew a fixed term contract of
employment on the same or similar terms but the employer offered to
renew it on less favourable
terms, or did not renew it;”
[22]
The appellant’s claim that he was
unfairly dismissed within the meaning of s 186(1)(b), is best
described in his own words:
“
I
am of the view that I have good prospects of succeeding in a referral
under Section 186(1)(b) in that I was informed by the Respondent
on 8
July 2013 that I would be appointed to the position of Municipal
Manager. However, what transpired on 23 July 2013,
was that
during the course of the meeting, which was adjourned briefly, a
political decision was taken to appoint the second preferred
candidate, Mr O’Neill. This decision was both
procedurally and substantively unfair in that I was the recommended
candidate, having received the highest score in the interview process
and was further advised of my successful application for the
position
by the Respondent and furthermore the Respondent failed to follow its
own procedure in determining the appointment of
a Municipal
Manager.”
[13]
[23]
In my view, and on his own showing, the
appellant’s claim falls within the ambit of s 186(1)(b) of
the LRA. First,
it is a dispute about a matter of mutual
interest between an employee and an employer, as envisaged in s 51 of
the LRA. Second,
the appellant claims that whilst employed on a
fixed-term contract - which only came to an end on 31 July 2013 - he
was informed
by the Municipality on 8 July 2013 that his application
for the position of municipal manager had been successful, and that
he
would be appointed to that position. He thus reasonably
expected the reintroduction or renewal of a fixed-term contract of
employment as a municipal manager, which did not happen.
[24]
In any event, I consider that the
Bargaining Council would have jurisdiction by virtue of the
appellant’s complaint that the
decision to appoint the fourth
respondent was procedurally and substantively unfair, because the
appellant had received the highest
score in the interview process,
was the recommended candidate and was advised by the Municipality
that he would be appointed as
municipal manager.
[25]
The
unfair dismissal dispute, the impact of which is felt mainly by the
appellant with little or no direct consequence for any other
citizen,
is quintessentially a labour-related issue.
[14]
So too, the appellant’s claim that the appointment of the
fourth respondent was procedurally and substantively unfair.
[26]
It
is precisely because the appellant’s complaints are
quintessentially labour-related issues, that the Bargaining Council
-
a structure established under the LRA - has jurisdiction. As
the Constitutional Court said in
Gcaba
,
the Labour Court and other LRA structures have been created as a
special mechanism to adjudicate labour disputes such as alleged
unfair dismissals grounded in the LRA, and not applications for
administrative review. The Court went on to say that the
High
Court adjudicates alleged violations of constitutional rights and
administrative review applications, which corresponds with
a proper
interpretation of s 157(1) and (2) of the LRA.
[15]
[27]
Sections 157(1) and (2) of the LRA read:
“
(1)
Subject to the Constitution and section 173, and except where
this
Act
provides otherwise, the Labour
Court has exclusive jurisdiction in respect of all matters that
elsewhere in terms of
this Act
or in terms of any other law are to be determined by the Labour
Court.
(2)
The Labour Court has concurrent jurisdiction with the High Court in
respect of any alleged or threatened violation of any fundamental
right entrenched in Chapter 2 of the Constitution of the Republic of
South Africa, 1996, and arising from-
(a)
employment and from labour relations;
(b)
any dispute over the constitutionality of any executive or
administrative act or conduct or any threatened executive or
administrative
act or conduct, by the State in its capacity as an
employer; and
(c)
the application of any law for the administration of which the
Minister is responsible.”
[28]
The
Constitutional Court has held that s 157(1) confirms that the Labour
Court has exclusive jurisdiction in any matter which the
LRA
prescribes should be determined by it; that s 157(1) should therefore
be given expansive content to protect the special status
of the
Labour Court; and that s 157(2) should not be construed to permit the
High Court to have jurisdiction over those matters
as well.
[16]
[29]
Section
157(2) confers limited constitutional jurisdiction on the Labour
Court in respect of matters involving alleged or threatened
violations of the rights in the Bill of Rights, arising out of
employment and labour relations.
[17]
Its purpose is to extend the jurisdiction of the Labour Court to such
matters; rather than to restrict or extend the jurisdiction
of the
High Court.
[18]
This
power of the Labour Court to deal with such disputes is essential to
its role as a specialist court, responsible for
developing a coherent
and evolving employment and labour relations jurisprudence.
[19]
Section 157(2) should be interpreted to mean that the Labour Court is
able to determine constitutional issues which arise
before it in the
specific jurisdictional areas created for it by the LRA and which are
covered by s 157(2)(a), (b) and (c).
[20]
[30]
Applying these principles to the facts in
the instant case, the Bargaining Council is a specialist structure
established to deal
with labour and employment related disputes such
as alleged unfair dismissals grounded in the LRA, as contemplated in
s 157(1).
So viewed, it unquestionably has jurisdiction in
respect of the unfair dismissal dispute as well as the appellant’s
claim
that the decision to appoint the fourth respondent was
procedurally and substantively unfair.
[31]
This finding, in my view, is not
inconsistent with the provisions s 54A(4) of the Local Government:
Municipal Systems Act 32 of
2000 (“the Municipal Systems
Act”). It reads:
“
(4)
If the post of municipal manager becomes vacant, the municipal
council must-
(a)
advertise the post nationally to attract a
pool of candidates nationwide; and
(b)
select from the pool of candidates a
suitable person who complies with the prescribed requirements for
appointment to the post.”
[32]
The unfair dismissal dispute was not that
the Municipality did not advertise the post or that it failed to
attract a pool of candidates
nationally, as contemplated in s 54A(4)
of the Municipal Systems Act. Instead, the appellant’s
case before the Bargaining
Council was that the post was advertised
nationally; that he obtained the highest score in the evaluation
process; that he was
the preferred candidate; that on 8 July 2013 he
had been informed by the Municipality that he would be appointed to
the position
of municipal manager; and that it failed to enter into a
new fixed-term contract with him.
It
was not open to the appellant to approach this court under PAJA
[33]
In
Chirwa
,
[21]
the employee initiated proceedings in the Commission for Conciliation
and Arbitration (CCMA) on the grounds that her dismissal
was unfair.
When the dispute was not resolved by conciliation, she did not
continue with the CCMA process. Instead,
she instituted
proceedings in the High Court alleging that in dismissing her, her
employer had not complied with the mandatory
provisions of the LRA
and had therefore infringed her constitutional right to just
administrative action as given effect to in
PAJA. She did so
because she was advised that she had two causes of action: one
arising from the provisions of the LRA and
another, from PAJA.
[34]
The dictum by Ngcobo J in
Chirwa
makes it clear that a party may not initiate a process under the LRA
and halfway through that process, allege another cause of
action and
institute proceedings in the High Court:
“
Ordinarily
and as a matter of judicial policy, even if the High Court had
concurrent jurisdiction with the Labour Court in this
matter, it
should be impermissible for a party to initiate the process in the
CCMA alleging one cause of action namely unfair labour
practice, and
halfway through that process allege another cause of action and
initiate proceedings in the High Court. It
seems to me that
where two courts have concurrent jurisdiction, and a party initiates
proceedings in one system alleging a particular
cause of action, the
party is bound to complete the process initiated under the system
that he or she has elected. Concurrent
jurisdiction means that
a party must make an election before initiating proceedings. A party
should not be allowed to change his
or her cause of action midstream
and then switch from one court system to another. In effect the
applicant is inviting us
to countenance such a practice. It is an
invitation which should in my view be firmly rejected.”
[22]
[35]
This
approach was affirmed in
Gcaba
,
in which it was held that forum- shopping is undesirable; and that
once a litigant has chosen a particular cause of action and
system of
remedies, for example, the structures provided by the LRA, he should
not be allowed to abandon that cause as soon as
a negative decision
is encountered.
[23]
[36]
That is exactly what happened in this
case. The appellant abandoned his cause of action under the LRA
when condonation of
the late filing of the unfair dismissal was
refused, and then launched this application. The court below
was thus correct
in holding that the appellant could not abandon the
LRA proceedings midstream. And the appellant’s contention
that
the referral of the unfair labour dispute to the Bargaining
Council constitutes an internal remedy contemplated in s 7(2) of
PAJA,
is wrong. It is no “internal” remedy.
Instead, it is a different cause of action and remedy under the LRA
which the appellant had to take to its conclusion.
[37]
I would make the following order:
(a)
The appeal is dismissed with costs.
(b)
The order of the court below is confirmed.
SCHIPPERS
J
DLODLO
J:
[38]
I agree.
DLODLO
J
BLIGNAULT
J:
[39]
I have read the judgment of Schippers J.
Whilst I agree with the orders proposed by him I do so for the other
reasons.
They follow hereunder.
[40]
Appellant, Mr Reynold Stevens, applied for
the vacant post of the municipal manager of first respondent, the
Cape Agulhas Local
Municipality (‘the Municipality’).
His application was not successful. Second respondent, the
Municipal
Council of Cape Agulhas Local Municipality (‘the
Municipal Council’), instead appointed fourth respondent, Mr
Dean
O’Neill, to the position.
[41]
On 13 June 2013 appellant launched a review
application in terms of the Promotion of Administration of Justice
Act 3 of 2000 (‘PAJA’)
for the review and setting aside
of the appointment of fourth respondent as municipal manager by the
Municipal Council and the
appointment of himself in that position.
The review application was opposed by first, second, third and fourth
respondents.
The MEC: Local Government, Environmental Affairs
and Development Planning, Provincial Government of the Western Cape,
the African
National Congress and the Democratic Alliance were cited
as fifth, sixth and seventh respondents respectively. They did not
oppose
the application and abided the decision of the court.
[42]
The court below dismissed appellant’s
review application with costs.
Having obtained leave to appeal
from the Supreme Court of Appeal, appellant lodged this appeal to
this court, a full bench of this
division, against the dismissal of
his application.
The legislative
framework
[43]
The appointment of a municipal manager by a
municipality is governed by the provisions of section 54A of the
Local Government: Municipal
Systems Act 32 of 2000 (‘the
Municipal Systems Act’). Sub-sections 54A(1),(2),(3)
and(4), insofar relevant, read
as follows:
54A
Appointment of municipal managers and acting municipal
managers
(1)
The municipal council must appoint-
(a) a municipal
manager as head of the administration of the municipal council; or
(b) acting municipal
manager under circumstances and for a period as prescribed.
(2)
A person appointed as municipal manager in terms of subsection (1)
must at least have the skills, expertise, competencies and
qualifications as prescribed.
… …
(3)
A decision to appoint a person as municipal manager, and any
contract concluded between the municipal council and that
person in consequence of the decision, is null and void if-
(a)
the person appointed does not have the
prescribed skills, expertise, competencies or qualifications; or
(b)
the appointment was otherwise made in
contravention of this Act.
(4)
If the post of municipal manager becomes vacant, the municipal
council must-
(a)
advertise the post nationally to attract a
pool of candidates nationwide; and
(b)
select from the pool of candidates a
suitable person who complies with the prescribed requirements for
appointment to the post.
[44]
The ‘
qualifications’
referred to in section 54A(2) of the
Municipal Systems Act were prescribed by Regulation 493 dated 15 June
2007. The relevant
regulation is encapsulated in the
advertisement as follows:
‘
In
order to meet the needs of the Cape Agulhas Municipality, the
successful applicant will comply with the following requirements:
… …
·
Certificate in Municipal Finance Management
(SAQA qualification ID no 48965) for Accounting Officers of
municipalities, as is provided
for in Regulation 493 dated 15 June
2007 obtained before the prescribed date of 1 January 2013…
…’
Appellant’s
affidavits
[45]
Appellant had previously been appointed as
municipal manager of the Municipality on 1 August 2008 for a five
year period which ended
on 31 July 2013. The Municipal Council
was therefore obligated to appoint a person to that position with
effect from 1 August
2013. The vacant position was advertised
on 7 April 2013 with the closing date being 28 April 2013. The
Municipal Council
mandated the mayoral committee of the Municipality
to deal with the selection process and make a recommendation to it.
The mayoral
committee was assisted in this task by specialised human
resource consultants, ODS Consultants CC.
[46]
One of the requirements of the position was
that a candidate had to be in possession of a certificate in respect
of municipal finance
management for accounting officers of
municipalities, obtained before the prescribed date of 1 January
2013. Appellant said
that he had completed the course by that
date but he was still waiting for the University of Stellenbosch to
issue his results.
He had disclosed this to the selection panel.
[47]
Appellant said that the fact that he was
not yet in possession of the certificate was not an obstacle since he
was covered by an
exemption and extension of the compliance deadline,
which had been issued in respect of the Municipality’s
officials by Circular
60 issued by the National Treasury during April
2012 in terms of the Minimum Competency Regulations of 15 June 2006.
In terms
thereof provision was made for municipalities to apply for
consideration as ‘special merit cases’ (‘SMC’s’),
delaying the enforcement of certain provisions for up to eighteen
months from 1 January 2013, i e 30 June 2014. The Municipality
had
applied for SMC status, which was awarded by the National Treasury
dated 3 September 2012. The effect of this was that appellant
and
other affected official were exempted from the requirements of the
Minimum Competency Level Regulations.
[48]
Appellant stated in para 5 of his affidavit
that he was summoned to a meeting in the mayor’s office on 8
July 2013 which was
attended by the mayor and a number of
councillors. He was informed that he had emerged as the top
candidate for the post
and that his appointment would be confirmed
the next day.
[49]
It appeared from the ODS Consultants’
selection report that appellant was the preferred candidate for
appointment as municipal
manager. He obtained the best score of
all the candidates. Fourth respondent obtained the second best
score in terms
of the criteria applied by ODS Consultants. The
report of ODS Consultants, however, contained the following comment:
‘
5.2.1
The Selection Committee’s finding in terms of the adopted
selection policy was that Mr R Stevens is the
preferred candidate for
appointment as Municipal Manager. The technical problem is that
the qualification was not fully completed
at the time of the
selection process while the remaining three candidates conform to all
the requirements for the Municipal Minimum
Competency Levels defined
in the Act. The appointment of Mr Stevens may lead to a dispute
as the other candidate may claim
that they conform to the
requirements and are the only suitable candidates for the post.
We do not expect such a challenge,
but it is important for council to
note the risk when making an appointment. It should be noted
that the cost of a dispute
action may incur substantial cost and or
the MEC for local government may intervene.’
[50]
Appellant said that the municipal manager
was to be appointed at the council meeting to be held on 9 July 2013
at 10h00. During
the morning of that day, however, the Speaker,
Ms Marthinus, cancelled the meeting. Applicant proceeded as
follows:
’
31.
During the afternoon of 9 July 2013, Messrs Mitchell, Jantjies,
Mokotwana, and Ms Marthinus came to my office to discuss the
issue
with me. They all expressed regret that the council meeting had
been called off, and made no secret of the fact that
this had been as
a result of an instruction from the ANC provincial leadership.
Mr Mokotwana, the ANC chief whip, informed
me that he considered it
necessary to inform me directly of the position out of respect and
acknowledgement of my dignity. I expressed
appreciation towards the
delegation for coming to see me and informing directly of the
position, but indicated to them that I,
being my family’s
breadwinner, had no other option but to investigate and enforce my
rights. It was, however, clear
that the interference and
instructions from the ANC provincial leadership was such that it
would not be possible for ANC councillors
to defy such instructions.’
[51]
On 9 July 2013 the University of
Stellenbosch issued a document with reference to appellant’s
results. It reads as follows:
‘
The
School of Public Leadership, Stellenbosch University is the service
provider for the Municipal Minimum Competency Levels Training
that Mr
Reynold Stevens (Identity Number: [64…………])
is currently registered for (sic) in order to obtain
the necessary
competencies in the various aspects of his occupation. He has
successfully completed the unit standards mentioned
below subject to
LGSETA verification. The authority of this specific programme
is the Local Government SETA (LGSETA) and
is rolled out according to
the Government Gazette: Municipal Finance Management Act, 2007.
Should you need any further information
or have any enquiries, do not
hesitate to contact me.’
[52]
Appellant said the following in para 36 of
his founding affidavit:
‘
36.
At the council meeting of 23 July 2013, the second-ranking candidate,
the Fourth Respondent, was officially appointed.
I have been
informed that an instruction was received from Mr Songezo Mjongile,
the ANC provincial secretary, by the ANC coalition
councillors, that
the Fourth Respondent had to be appointed. In this regard I
annex hereto as “RS8”, a copy of
a letter addressed to Mr
Mjongile by Mr Jantjies, the Deputy Mayor, complaining of the
political interference which had occurred.
I shall attempt to
obtain a confirmatory affidavit by Mr Jantjies.’
[53]
Mr Jantjies’ letter dated 27 August
2013 was addressed to the Secretary General ANC National Office and
copied to the ANC
Western Cape Provincial Secretary, the ANC Overberg
Regional Secretary and the ANC Chief Whip Cape Agulhas. The
relevant
part of Mr Jantjies’ letter reads as follows:
‘
Uneasiness
with local, regional and provincial ANC coalition-partners
The
undersigned is an independent ward councillor and deputy-mayor of the
Cape Agulhas Municipal Council, in the Overberg Region
of the Western
Cape. The Councillor, which comprises of nine councillors, is
composed as follows: 4 – ANC, 4 –
DA and 1 –
independent. The author hereof, as the independent, holds the
balance of power in Council. Due to
the fact that I am an ex-
long standing member of the ANC, I opted to form a coalition with the
ANC since he last local elections,
which resulted in Cape Agulhas
becoming an ANC-led council. From within this capacity, I
herewith wish to urgently engage
with a delegation or representative
of your National Executive Committee in respect of the under
mentioned:
1.
I am seriously concerned about my continued
working relationship with the ANC in Council, which stems from the
fact that my opinions
on matters are being disregarded by the
REC/PEC. One such example is the recent appointment of a new
municipal manager.
The ANC led coalition has supported the
appointment of the previous incumbent, who was also the preferred
candidate for a second
term as per the selection processes. He
qualified for the position in terms of the Municipal Systems Amended
Act of 2011.
In terms of the Municipal Minimum Competency
requirements, the preferred candidate has a Special Merit Case status
as per National
Treasury Circular nr 60. However, prior to the
official appointment of the preferred candidate, the REC/PEC
interjected in
council’s official processes and instructed the
ANC-councillors, seven minutes before the official council meeting
was to
start, to appoint the candidate that scored second best during
the selection processes. The inputs and concerns that I have
raised around this issue, was totally discarded.’
[54]
In para 42 of his founding affidavit
appellant said inter alia the following:
‘
During
the morning of 23 July 2013 before the council meeting, an ANC
delegation headed by Mr Mjongile was present in the office
of the
Executive Mayor for the entire morning, and also attended the council
meeting, but they did not want to sign the attendance
register and,
therefore, their names do not reflect in the attendance register of
the minutes.’
[55]
Appellant annexed a copy of Circular 60 to
his founding affidavit. The heading and the introductory
paragraph thereof read
as follows:
‘
Minimum
Competency Level Regulations, Gazette 29967 of 15 June 2007. This
circular provides an approach to managing the requirements
of the
above regulations towards the remaining eight-month deadline.
MFMA sections 83, 107 and 119 outline the competency
levels of
financial officials. The Municipal Regulations on Minimum
Competency Levels prescribe the required competency levels
for
uniform and consistent application of the Act.’
[56]
An appointment of an official in terms of
the Circular is, however, subject to certain conditions, the first
two of which may be
summarised as follows: (i) the
municipality must write to the National Treasury seeking its
concurrence to delay the
enforcement of the required regulation;
(ii) the application must be accompanied by information
explaining why the
municipality was unable to appoint a duly
qualified person.
[57]
After learning that he had not been
appointed to the position of municipal manager, appellant first
sought to pursue the remedies
which he was advised were available to
him under the Labour Relations Act 66 of 1995 (‘the LRA’).
He referred
the matter as an unfair labour practice dispute to the
South African Local Government Bargaining Council (‘SALGBC’)
on 26 July 2013. The SALGBC issued a ‘certificate of
outcome’, declaring the dispute unresolved as an unfair
labour
practice based on promotion, which it found was an incorrect
classification. The matter was thereafter set down for
arbitration for 31 October 2013, which was postponed by mutual
agreement. A preliminary date was set by the SALGBC for 12
December 2013 but it had failed to confirm the date with appellant’s
legal team who were unavailable. After an intervention
from
appellant’s attorney the date was set for Friday 24 January
2014. On 24 January 2014 the parties argued two points
in
limine
, relating to the jurisdiction of
the SALGBC and a re-classification of the dispute from an unfair
labour practice to an unfair
dismissal dispute. Notice of the
application for re-classification was given to first respondent
during December 2013.
Both
in
limine
points taken against appellant
were, however, successful and the arbitration did not proceed.
Appellant was then compelled
to institute new arbitration proceedings
for which condonation of his delay was required. He applied for
such condonation
but this was refused by the arbitrator.
Respondents’
answering affidavits
[58]
Mr Richard Mitchell, the Executive Mayor of
the Municipalty, deposed to two answering affidavits on behalf of
first to fourth respondents.
In the first affidavit, in the
light of time constraints, he dealt mainly with certain preliminary
and procedural points.
In a supplementary answering affidavit
he dealt fully with respondents’ opposition to the merits of
the application.
[59]
In paras 14 and 15 of his supplementary
answering affidavit Mr Mitchell said the following in regard to
appellant’s qualifications:
‘
14.
Appellant was put on the short list, even though he did not have the
necessary qualifications. He was the committee’s
preferred candidate and it was hoped that the exemption, which
applies in respect of existing employees, could also be applied
to
the Appellant.
15.
Existing employees had been granted exemption in order to get the
qualifications at the time. Once their employment, however,
came to an end and if they were to apply for reappointment, they
were, we were advised, to be treated as new employees.’
[60]
Mr Mitchell said this in regard to the
exemption on which appellant relied:
’
17.
Mr Steele of ODS Consultants, the consultants who advised and
assisted the Municipality in the process of appointing a new
Municipal Manager, later pointed the risk of litigation out to the
committee and to Council should Appellant be appointed in the
face of
the legislative requirements set out in the advertisement not having
been met by him. This concern was included in the
report to Council.
18.
The Committee (and Council) were advised the exemption did not apply
to new appellants for the post, which the Appellant now
was, with the
result that he should not (according to Steele) have been considered
for the position without the qualification.
He was, according
to Mr Steele, not a “suitable” candidate because of not
having the necessary qualification for the
post at the time of the
interview. Applying the criteria provided for in the selection
procedure resulted in Fourth Respondent
being considered by Council
to have been the most suitable.’
[61]
Mr Mitchell pointed out that appellant’s
score in the evaluation process was marginally higher than that of
fourth respondent.
The council was, however, not bound to
appoint the preferred candidate. It was obliged to appoint the
most suitable candidate.
He described the proceedings at the
meeting held on 23 July 2013 as follows:
‘
71.
At the council meeting held on 23 July 2013 the Speaker, Eve
Marthinus, asked for proposals on the appointment of the municipal
manager. Only one proposal in favour of the appointment of the
Fourth Respondent was received.
72. Council
thereafter on 23 July 2014 after the Council meeting scheduled for 9
July 2014 had been postponed to this date) determined
for itself who
would be the appropriate Municipal Manager.
73.
It was Council who ultimately took the decision. The decision
of Council was taken by 8 members as one of the councillors
was on
leave.’
[62]
Mr Mitchell described the ANC caucus
meeting held prior to the meeting:
’
82.
Council was informed that if the requirements as set out in the
advertisement were not applied, the Fourth Respondent could
have his
non-appointment reviewed and set aside and that of the Applicant set
aside.
83. Mr Steele
advised the Executive Mayor at the time, of these issues and
concerns. Based on Mr Steele’s advice, the
Executive
mayor submitted a report to Council. Council took the issues
into account and resolved unanimously as it did.
The Council’s
decision was not dependent on any caucus meeting. Not all the
councillors are members of the ANC and
accordingly not all of them
were party to any caucus decision.
84. As is customary
in local government, prior to council meetings separate caucus
meeting are held by each represented political
grouping in council.
Each caucus would debate the Council agenda items and contemplate how
the caucus members ought to be
dealing with certain issues raised at
the council meeting.
85. A caucus meeting
was held on 8 July 2014 which was attended by ANC Councillors and the
then independent councillor Jantjies.
86. At the caucus
meeting of 8 July 2013 the report of Mr Steele was discussed by the
caucus.
87.
The caucus of the ANC, of which only two of these members were on the
selection committee, concluded at that meeting that Fourth
Respondent
should be supported by them at the council meeting.’
[63]
Mr Mitchell proceeded as follows:
’
94.
Council consists of members of various political parties who also
base their decisions, in part, on their political affiliations
and
that which is discussed by their caucuses.
95. This is the
reality of the process. It does not affect the lawfulness or
procedural regularity of the decisions taken
by Council.
96. In the present
matter the members of the opposition parties in Council in fact also
ultimately agreed with the ANC councillors
that the Fourth Respondent
be appointed as Municipal Manager.
97.
The council consists of four DA members, four ANC members and one
independent member. The agreement reached in respect
of the
Fourth Respondent’s appointment was unanimous.’
[64]
In response to para 31 of appellant’s
founding affidavit, Mr Mitchell said the following:
‘
109.
The decision to appoint the municipal manager is a function of the
full Council. Individual or certain groups of councillors
cannot make promises of appointment. The suggestion that Fourth
Respondent was appointed because of outside political control
is
denied.
110.
Council decided on the appointment of the Municipal Manager.’
[65]
In answer to para 36 of appellant’s
founding affidavit, which incorporated Mr Jantjies letter, Mr
Mitchell said the following:
‘
116.
The letter referred to by the Applicant is not addressed to the ANC
Provincial Secretary but to the ANC Secretary General.
I cannot
confirm or deny the allegations of instruction from the Provincial
Secretary made by the Applicant.’
The issues
[66]
Five main issues arise in this matter.
The first concerns the jurisdiction of the High Court, as opposed to
the Labour Court,
to determine this application. The second is
whether the appointment of fourth respondent as municipal manager of
the Municipality
constituted an ‘
administrative
action’
within the meaning of
PAJA. The third main issue concerns the merits of appellant’s
grounds of review. The fourth
is the validity of appellant’s
reliance on the exhaustion of his internal remedies. The fifth
concerns the effect of
appellant’s delay in instituting the
present proceedings.
Jurisdiction
[67]
Respondents raised a defence
in
limine
that the Labour Court has
exclusive jurisdiction in terms of the LRA to adjudicate the present
application. If it has exclusive
jurisdiction then it would
follow that the High Court does not have jurisdiction to determine
the application in terms of PAJA.
[68]
Respondents
relied on two overlapping grounds for the submission that the Labour
Court and not the High Court has jurisdiction to
decide the present
application. The first is that appellant’s appointment fell
within the ambit of the provisions of section
186(1)(b) of the LRA
which rendered it subject to the provisions of the LRA. The second
ground is that the dispute is quintessentially
a labour matter,
which, according to the judgment of the Constitutional Court in
v
Gcaba Minister for Safety & Security and Others
2010
(1) SA 238 (CC)
, should have been heard by the Labour Court.
[69]
The exclusive jurisdiction of the Labour
Court is defined in section 157(1) of the LRA, which reads as
follows:
‘
157
Jurisdiction of Labour Court
(1)
Subject to the Constitution and section
173, and except where this Act provides otherwise, the Labour
Court has exclusive
jurisdiction in respect of all matters that
elsewhere in terms of this Act or in terms of any other law are to be
determined by
the Labour Court.’
[70]
Respondents’ contention is that the
failure of the Municipal Council to appoint appellant as municipal
manager was an unfair
dismissal within the meaning of section
186(2)(b) of the LRA. The latter provision reads as follows:
‘
Dismissal
means that -
(a)
…
(b)
an employee employed in terms of employment
reasonably expected the employer –
(1)
to renew a fixed term contract on the same
or similar terms but the employer offered to renew it on less
favourable terms, or did
not renew it.’
[71]
Counsel for respondents submitted that
appellant had previously been employed as municipal manager for a
fixed period of five years.
He reasonably expected that his
contract would be extended for another five years. The
Municipal Council’s failure
to appoint him for a further five
years thus amounted to an unfair dismissal which allowed him to
pursue the remedies available
to him under the LRA. Counsel
argued that the dispute was therefore quintessentially a labour
matter which had to be determined
in terms of the LRA.
[72]
I do not agree with the construction of
section 186(1)(b) of the LRA advanced on behalf of respondents.
In my view there are
two errors in counsel’s reasoning.
The first is that it is in direct conflict with the provisions of
section 54A of
the Municipal Systems Act (quoted above). The
latter section provides
inter alia
for the selection of a suitable person who complies with the
prescribed requirements for appointment. The nationwide
advertising
and the selection from a pool of candidates are in my
view irreconcilable with the provisions of section 186(1)(b) of the
LRA.
A candidate in appellant’s position would have had
an advantage above the other candidates in that the failure to
appoint
him would per se have constituted wrongful conduct in terms
of the LRA. The effect of the latter section, I must say, was
not mentioned at all in the actual selection process.
[73]
In the law of the interpretation of
statutes the principle expressed in the maxim
generalia
specialibus non derogant
applies
when there is an irreconcilable conflict between two statutes, The
one dealing specifically with a particular topic
will be regarded as
impliedly repealing the one dealing with it more generally.
Similarly the maxim
lex posterior priori
derogat
also applies in such a conflict
situation. A later statute is deemed to repeal an earlier
statute on the same topic.
See
LAWSA
second edition Volume 25 (Part 1)
para
305. The application of both presumptions to the present case
supports the conclusion that section 54A of the Municipal
Systems Act
repealed section 186(2)(b) of the LRA
pro
tanto.
[74]
The second error in counsel’s
contentions is that they overlook the fact that the principal
objective of the present application
is the setting aside of fourth
respondent’s appointment. Although appellant seeks in a
second prayer the appointment
of himself as municipal manager, the
primary object of the application is not appellant’s
appointment but the setting aside
of fourth respondent’s
appointment. The setting aside of fourth respondent’s
appointment as municipal manager
is indeed a prerequisite for
appellant’s possible future appointment but the latter would by
no means be a foregone conclusion.
[75]
Fourth respondent was not an employee of
the Municipality when he applied for the position and there was no
other contractual link
between him and the Municipality. It is
this lack of a contractual link between fourth respondent and the
Municipality which
distinguishes the present case from those which
have been described as quintessentially labour matters. In
Gcaba v Minister for Safety &
Security and Others
2010 (1) SA 238
(CC) the appellant was a commissioner in the South African Police.
When his post was upgraded he unsuccessfully applied for
the upgraded
position. In
Chirwa v Transnet Ltd
and Others
[2007] ZACC 23
;
2008 (4) SA 367
(CC) the
appellant was described as a public sector employee. I was also
referred by respondents’ counsel to the judgment
of the Supreme
Court of Appeal in
Mkumatela v Nelson
Mandela Metropolitan Municipality
and
Another
2010 (4) BCLR 347
(SCA). In the latter case an
employee of the respondent municipality applied unsuccessfully for
promotion.
[76]
It is my view therefore that the provisions
of section 186(b)(2) of the LRA did not confer jurisdiction on the
Labour Court to hear
the dispute between the parties. The High Court
thus has jurisdiction to determine the dispute.
Administrative
action
[77]
It is clear from sub-sections 6(1) and 6(2)
of PAJA that the existence of an ‘
administrative
action’
is a prerequisite for
judicial review in terms of that statute. Sub-section 6(1)
provides as follows:
‘
(1)
Any person may institute proceedings in a court or a tribunal for
the judicial review of an administrative action.’
The introductory
sentence of sub-section 6(2) is quoted hereunder. It is
followed by a lengthy list of reviewable actions
and reads as
follows:
‘
(2)
A court or tribunal has the power to judicially review an
administrative action if …’
[78]
The relevant part of the definition of
‘
administrative action’
in section 1 of PAJA reads as follows:
‘“
administrative
action”
means any decision taken, or
any failure to take a decision, by-
(a)
an organ of state, when-
(I)
exercising a power in terms of the Constitution or a provincial
constitution; or
(ii) exercising a
public power or performing a public function in terms of any
legislation;
which
adversely affects the rights of any person and which has a direct,
external legal effect, but does not include … ..’
[79]
On the face of it the decision of the
Municipal Council to appoint fourth respondent as municipal manager
falls naturally within
the ambit of that definition. The
Municipal Council is a public authority. It is responsible to
and answerable to the
inhabitants of the Municipality for its
administration. A municipal manager is the administrative head
of the administration
of the Municipality with a wide range of
administrative powers which are set forth in section 55 of the
Municipal Systems Act.
He is also the accounting officer of the
Municipality.
[80]
The conclusion that the appointment of
fourth respondent as municipal manager is an administrative action,
is supported by authority.
The judgment in
Mlokoti
v Amathole District Municipality and Another
2009
(6) SA 354
(E) is directly in point. It also concerned the
appointment of a municipal manager. The unsuccessful applicant
was
described as an external candidate for the position which meant
that he was not employed by the municipality at the time of his
application. The court held that the decision of the municipality
constituted administrative action as defined in PAJA.
[81]
There are other cases of comparable
appointments or awards in fields other than employment where an
action by a public authority
was regarded as administrative action.
See the cases on public procurement and licensing in Hoexter
Administrative Law in South Africa
2
nd
edition (2012) at 184-185. See also
Mkhatshwa
2002(3) SA 433 (TPD) at 449 G - I (the
appointment of a tribal chief by a premier);
Head
of the Western Cape Education Department v Governing Body of
the Point High School
2008 (5) SA
18
(SCA) (the appointment of a principal and a deputy principal of a
school);
Grey’s Marine Hout Bay
(Pty) Ltd v Minister of Public Works
[2005] ZASCA 43
;
2005 (6) SA 313
(a Minister’s decision to let Waterfront
property).
Grounds
of review
[82]
Appellant relies on two main grounds for
reviewing the decision of the Municipal Council.
(1)
The failure of the Municipal Council to consider his compliance with
the necessary qualification, was materially influenced
by an error of
law within the meaning of section 6(2)(d) of PAJA, alternatively that
the Municipal Council did not consider relevant
considerations within
the meaning of section 6(2)(e)(iii) of PAJA.
(2)
The second ground of review is that the decision of the Municipal
Council to appoint fourth respondent was taken ‘
because
of the unauthorised or unwarranted dictates of another person or
body’
within the meaning of
section 6(1)(e)(iv) of PAJA.
[83]
The difficulty that I have with appellant’s
first ground of review is that he failed to place sufficient evidence
before the
Municipal Council to enable it to make any firm findings
in this regard. Appellant referred to the letter from the
University
of Stellenbosch dated 9 July 2013 in support of his
allegation that he complied timeously with the relevant legal
requirements
for the post. Appellant himself, however,
described the contents of the letter as his ‘
preliminary
results’.
The letter
furthermore contains the phrase ‘
He
has successfully completed the unit standards mentioned below subject
to LGSETA verification.’
There
is no explanation whether this ‘
verification’
was a substantive requirement or a mere
formality. In the absence of such an explanation the Municipal
Council could only
speculate as to its meaning.
[84]
Appellant’s second ground of review,
however, has merit. The specific complaint in this regard is
that the decision
to appoint fourth respondent was taken because of
the unwarranted dictates of another person, namely the instruction
given to the
ANC councillors by Mr Mjongile. Applicant
incorporated the letter of Mr Jantjies, dated 27 August 2013 in his
founding affidavit.
The contents thereof were confirmed by Mr
Jantjies on affidavit. Mr Mitchell’s response is evasive
in the extreme.
It reads as follows:
‘
The
letter referred to by Applicant is not addressed to the ANC
Provincial Secretary but to the ANC Secretary General. I cannot
confirm or deny the allegation of instruction from the Provincial
Secretary made by the Applicant.’
[85]
Mr Mitchell’s reference to the
addressee of the letter is wholly irrelevant. His statement
that he cannot confirm or
deny the allegations of an instruction is
simply disingenuous. There are other significant allegations of
appellant which
were simply evaded by Mr Mitchell. One instance
is his allegation regarding the meeting during the afternoon of 9
July 2013,
at which Mr Mitchell was present, where it was made clear
to him that the meeting had been called off because of an instruction
emanating from the ANC provincial leadership. See para [50]
above. Another instance is appellant’s allegation
that an
ANC delegation, headed by Mr Mjongile, was present in Mr Mitchell’s
office for the entire morning before the meeting
held on 23 July
2013. See para [53] above. In the circumstances I accept
appellant’s contention that the ANC
councillors were instructed
by Mr Mjongili to vote in favour of fourth respondent.
[86]
The facts in the
Mlokoti
case
supra
bear
a remarkable resemblance to those in the present case. See the
passage at 379J-380D:
‘
Be
that as it may, one fact emerges clearly from VM23, a fact which is
not in any way refuted, and that is that the regional executive
committee of the ANC instructed the caucus to appoint the second
respondent and the caucus carried out this instruction. This is
not
an example of democracy in action as was submitted by Mr Quinn,
certainly not of constitutional democracy. It, rather than
the two
legal opinions, amounted to a usurpation of the powers of first
respondent's council by a political body which, on
the papers,
does not appear even to have had sight of the documents relevant to
the selection process, including the findings of
the interview panel.
In my view, the involvement of the regional executive council of the
ANC in the circumstances described in
VM23 constituted an
unauthorised and unwarranted intervention in the affairs of first
respondent's council. It is clear that the
councillors of the ANC
supinely abdicated to their political party their responsibility to
fill the position of the municipal
manager with the best qualified
and best suited candidate on the basis of qualifications,
suitability, and with due regard to the
provisions of the pertinent
employment legislation as set out in para 1 of the recruitment
policy. This was a responsibility owed
to the electorate as a
whole and not just to the sectarian interests of their political
masters.
’
[87]
In the present case I am similarly
satisfied that the instruction given by Mr Mjongile amounted to an
unauthorised and unwarranted
intervention in the affairs o fthe
Municipal Council.
Internal remedies
[88]
The provisions of sub-sections 7(1) and
7(2) of PAJA read as follows:
‘
7
Procedure for judicial review
(1)
Any proceedings for judicial review in
terms of section 6 (1) must be instituted without unreasonable delay
and not later than 180
days after the date-
(a)
subject to subsection (2) (c), on which any
proceedings instituted in terms of internal remedies as contemplated
in subsection (2)
(a) have been concluded; or
(b)
where no such remedies exist, on which the person
concerned was informed of the administrative action, became aware of
the action
and the reasons for it or might reasonably have been
expected to have become aware of the action and the reasons.
(2) (a) Subject to
paragraph (c), no court or tribunal shall review an administrative
action in terms of this Act unless any internal
remedy provided for
in any other law has first been exhausted.’
[89]
Counsel for appellant submitted that the
pursuit of the remedies available to him in terms of the LRA, as
described above, amounted
to an exhaustion of his internal remedies
within the meaning of sub-sections 7(1) and 7(2) of PAJA.
[90]
I
do not agree. In
Koyabe
v Minister for Home Affairs (Lawyers for Human Rights as Amicus
Curiae)
2010
(4) SA 327
(CC) para (45) the Constitutional Court
(per
Mokgoro J) said this:
‘
[45]
Thus, as the international jurisprudence illustrates,
judicial enforcement of the duty to exhaust internal remedies,
in
giving content to the 'exceptional circumstances' exemption, must
consider the availability, effectiveness and adequacy of the
existing
internal remedies.’
[91]
In the present case,
as I pointed out above, the Labour Court did not have jurisdiction to
determine appellant’s dispute.
Any pursuit of his
remedies in terms of the LRA was therefore bound to fail.
[92]
The effect of this
conclusion is twofold. The first is that appellant was not
precluded from pursuing his application under
PAJA by the fact that
he did not exhaust his internal remedies for there was no valid
remedy to exhaust. The second, however,
is that he is not
excused from complying with the time limits imposed in terms of
section 7(1) of PAJA.
Appellant’s
delay in launching the present proceedings
[93]
Sections 7(1) and 9 of PAJA read as
follows:
‘
9
Variation of time
(1)
The period of -
(a)
90 days referred to in section 5 may be reduced; or
(b)
90 days or 180 days referred to in sections 5 and 7 may be extended
for a fixed period, by agreement between the parties or,
failing such
agreement, by a court or tribunal on application by the person or
administrator concerned.
(2)
The court or tribunal may grant an application in terms of subsection
(1) where the interests of justice so require.’
[94]
Respondents raised the defence that
appellant did not comply with these provisions. Its
application, so it was contended,
must for that reason alone, be
dismissed.
[95]
The relevant dates are the following:
(i)
The Municipal Council’s impugned
appointment of fourth respondent as municipal manager was made on 23
July 2013. Appellant
obtained knowledge thereof very soon
thereafter.
(ii)
Appellant instituted proceedings for relief
under the LRA on 26 July 2013.
(iii)
According to appellant the pursuit of his
remedies under the LRA terminated on 31 March 2014 when the
arbitrator refused his application
for condonation of the late
institution of his unfair dismissal proceedings in terms of the LRA.
(iv)
Appellant launched the present review
application on 12 June 2014.
[96]
Appellant did not file an application for
condonation of the delay together with his founding affidavit in the
review application.
It was filed as part of a replying
affidavit on 15 August 2014. It reads as follows:
‘
In
the event that it be found that this application has been filed
outside of the period of 180 days prescribed in
s 7(1)
of the
Promotion of Administrative Justice Act 3 of 2000
, that the period of
180 days referred to in the aforesaid provision be extended until 13
June 2014, being the date of filing of
this application.’
[97]
The explanation furnished by appellant for
the delay is contained in his replying affidavit. It reads as
follows:
‘
The
application was launched within 180 days of the conclusion of the
internal remedies that I pursued. I then had to consider
my
position carefully, and take and consider further legal advice.
I do not believe that the legal issues in this matter
are
uncomplicated, and I proceeded cautiously before finally deciding to
launch this application.’
[98]
The nature of the enquiry in such a
case was explained as follows in
Camps
Bay Ratepayers’ and Residents’ Association v Harrison
(2010) 2 All SA 519
(SCA) para [5]:
‘
The
appellants “might reasonably have been expected to have become
aware” of the infringement when they first inspected
the
original plan and proceedings for review on that ground ought
ordinarily have been commenced within 180 days of that date.
Section 9(2)
however allows the extension of these time frames where
“the interests of justice so require”. And the
question
whether the interests of justice require the grant of such
extension depends on the facts and circumstances of each case:
the party seeking it must furnish a full and reasonable explanation
for the delay which covers the entire duration thereof and
relevant
factors include the nature of the relief sought, the extent and cause
of the delay, its effect on the administration of
justice and other
litigants, the importance of the issue to be raised in the intended
proceedings and the prospects of success.’
[99]
It seems to me that appellant’s
explanation for the delay is legally flawed and factually inadequate.
It appears from
my discussion above that the Labour Court did
not have jurisdiction to determine appellant’s application for
relief.
His attempt to enforce his alleged rights under that
statute was accordingly futile. As a matter of fact,
furthermore, his
delay was not properly explained given, in
particular, the prejudice suffered by respondents.
[100]
In considering the consequences of
appellant’s delay, the order which the court would have given
had he been successful, is
also relevant. Had appellant
succeeded there would have been two options open to the court, namely
to remit it to the Municipal
Council for its decision or to
substitute the court’s own decision for that of the Municipal
Council. In my view the
appropriate order would have been to
remit it to the Municipal Council. The reason is that the
Municipal Council would be
obliged to exercise its discretion afresh
so that the result would by no means have been a foregone
conclusion. The Municipal
Council would have had to consider
the candidates again, at least those on the short list, which would
have included fourth respondent.
[101]
In all the circumstances it would in my
view not be in the interest of justice to condone appellant’s
delay in bringing the
present application.
Conclusion
[102]
In the result I would make the following
order:
(1)
Appellant’s appeal is dismissed.
(2)
The orders of the court below are upheld,
including the costs orders.
(3)
Appellant is ordered to pay the costs of
appeal of the respondents who opposed the appeal.
BLIGNAULT
J
[1]
Section
186(2)(a)
of the LRA reads:
“ ‘
Unfair
labour practice
’ means any
unfair act or omission that arises between an employer and an
employee
involving-
(a)
unfair conduct by the employer relating to
the promotion, demotion, probation (excluding
disputes
about dismissals for a reason relating to probation) or training of
an
employee
or relating to the provision of benefits to an
employee
;”
[2]
Clause
12.10 of the Constitution of the SALGBC provides that if
conciliation has failed, the conciliator must issue a certificate
stating whether or not the dispute has been resolved. In terms
of clause 13.1, any party to a dispute may refer it to the
Bargaining Council for arbitration if the dispute has been referred
to a conciliator and a certificate has been issued in terms
of
clause 12.10.
[3]
In
terms of clause 12.3 of the Constitution of the SALGBC, a dispute
concerning the fairness of a dismissal must be referred within
30
days from the date on which internal proceedings are exhausted.
[4]
Section
6(2)(a)(iii) of PAJA.
[5]
Section
6(2)(c) of PAJA.
[6]
Sections
6(2)(e)(i), (ii), (iv), (v) and (vi) of PAJA.
[7]
Section
6(2)(f)(ii) of PAJA.
[8]
Section
6(2)(h) of PAJA.
[9]
Section
6(2)(i) of PAJA.
[10]
Section
27 of the LRA reads:
“
(1)
One or more registered
trade unions
and one or more registered
employers’
organisations
may establish a
bargaining council
for a
sector
and
area
by-
(a)
adopting a constitution that meets the requirements of section 30;
and
(b)
obtaining registration of the
bargaining
council
in terms of section 29.”
[11]
Clause
1.2 of the Constitution of the SALGBC.
[12]
Clauses
3.1.2 and 3.1.4 of the Constitution of the SALGBC.
[13]
Appellant's
founding affidavit in the application for condonation in the
proceedings before the Bargaining Council made on 21
February 2014,
para 5.
[14]
Gcaba
v Minister for Safety and Security and Others
2010 (1) SA 238
(CC) para 66.
[15]
Gcaba
n 14 above para 69.
[16]
Gcaba
n 14 above para 70.
[17]
Chirwa
v Transnet Limited and Others
[2007] ZACC 23
;
2008 (4) SA 367
(CC) para 115 per Ngcobo J.
[18]
Gcaba
n 14 above para 71.
[19]
Chirwa
n 17 above para 118 per Ngcobo J.
[20]
Gcaba
n 14 above para 72.
[21]
Note
14 above.
[22]
Chirwa
n 17 para 85.
[23]
Gcaba
n 14 para 57.