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[2021] ZAWCHC 195
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George Municipality v Van Staden (12734/2020) [2021] ZAWCHC 195; (2021) 42 ILJ 2714 (WCC) (4 October 2021)
IN THE HIGH COURT OF
SOUTH AFRCA
[WESTERN CAPE
DIVISION, CAPE TOWN]
Case
no: 12734/2020
In
the matter between:
GEORGE
MUNICIPALITY
Applicant
and
RANDAL
VAN
STADEN
Respondent
JUDGMENT
DELIVERED (VIA EMAIL) ON 4 OCTOBER 2021
SHER,
J:
1.
This is an application in terms of which the George
municipality seeks an Order reviewing and setting aside the
appointment of the
respondent as the Manager: Sewer Network, in March
2017. The post falls within the municipality’s Civil
Engineering Services
directorate.
The background
2.
The respondent was appointed pursuant to a
vacancy which arose in 2015. A job description for the position which
was approved by
the head of department in April 2015 listed, as part
of the job specifications, the ‘essential’ and the
‘preferred’
requirements for the post. The essential
requirements constituted the minimum, necessary requirements that a
successful candidate
needed, in order to be eligible for the
position. The preferred requirements constituted the ideal
requirements which a suitable
candidate would have.
3.
A national diploma in civil engineering and
10 years relevant experience in a civil engineering environment were
set as essential
requirements for the post, whilst a B.Tech degree in
civil engineering and professional registration as an engineering
technician
with the Engineering Council were listed as preferred
requirements.
4.
In terms of the municipality’s
recruitment and selection policy (which was adopted in 2012) an
advertisement for a position
in the municipality was to be based on
the audited job description for it, and only candidates who met the
minimum i.e the essential
requirements, or who could be expected to
meet such requirements within a reasonable time, could be shortlisted
and appointed.
5.
An advertisement for the vacancy was drawn
up and signed off by the municipal manager on 16 March 2016, before
it was placed. The
closing date for applications was 1 April 2016.
6.
The advertisement listed a national diploma
in civil engineering as the requisite essential educational
qualification which was
needed, and registration as a professional
civil engineering technician as the added practical qualification
which was required,
although as indicated this was not an essential
requirement listed in terms of the approved job description. The
advertisement
also stipulated that only 3 years relevant experience
was required contrary to the 10 years stipulated in the job
description,
and that candidates should be able to communicate in 2
of the 3 official languages which were spoken in the Western Cape.
The latter
requirement was also not an essential one in terms of the
job description. Thus, the advertisement was a ‘mish-mash’
of essential, preferred, and non-essential requirements.
7.
Applications from some 20 candidates were
received, but as it was felt that the pool of applicants was not
sufficiently representative
of certain designated, under-represented
groups in terms of the municipality’s employment equity plan,
the post was re-advertised
again in August 2016. The second
advertisement attracted no additional applicants from such groups,
beyond the 5 that had originally
applied.
8.
A shortlist of 11 candidates was drawn up
on 14 December 2016 and interviews and practical assessments took
place on 23 February
2017. Ultimately, only 2 candidates qualified
for the position in terms of the criteria which had been set viz the
respondent and
one Van Rooi, with the respondent obtaining a
marginally higher score.
9.
On 23 March 2017 the Director: Civil
Engineering Services recommended that the position be awarded to the
respondent, and some 4
days later the Municipal Manager signed a
letter (which he correctly dated 27 March 2017 above his signature,
albeit that the letter
was dated 7 March at the top thereof) in which
the respondent was informed that his application was successful, and
subject to
his accepting the offer in writing, he would be appointed
to the position with effect from 15 May 2017. The respondent duly
accepted
the offer on 19 April 2017.
10.
On 29 March 2017 Van Rooi lodged a
complaint with the office of the Public Protector. He averred that
the respondent’s appointment
was irregular because at the time
when the respondent applied for and had been appointed to the
position, he was not yet registered
with the Engineering Council. In
this regard it appears that the respondent’s application for
registration as a technician
was pending at the time of his
application, and was only effected on 22 March 2017.
11.
The Public Protector took more than 2 years
to investigate the complaint (which, on the face of it, appears to
have been a fairly
uncomplicated and straightforward one), and to
render a report.
12.
Her office first engaged with the
municipality in August 2017, some 5 months after the complaint had
been lodged. This was followed
by an exchange of correspondence
between the parties from October 2017 to May 2018, whereafter the
matter became dormant for some
time.
13.
In May 2019 the Public Protector caused a
formal notice to be served on the Municipal Manager in terms of which
certain information
was sought. From his response it appears that the
municipality’s council resolved on 31 January 2019 to appoint
an external
service provider to investigate the circumstances leading
up to the respondent’s appointment and to consider whether
there
had been a breach of the municipality’s recruitment
policy by its human resources division. In addition, it appeared that
the Municipal Manager had previously instructed the Director:
Corporate Services and the Deputy Director: Legal Services and
Compliance
to review the municipality’s recruitment policy in
order to ensure that it complied with all relevant legislation.
14.
In a lengthy and repetitive report the
Public Protector eventually concluded on 25 October 2019, some 2½
years after receiving
the complaint, that the respondent’s
appointment had not been ‘fair and proper’ i.e in
accordance with the relevant
legislative and municipal prescripts
regulating the recruitment and selection of staff, and as such the
municipality’s conduct
amounted to maladministration.
15.
The
Public Protector held that in appointing the applicant the Municipal
Manager had breached s 55(1) of the Municipal Systems Act
[1]
,
read together with Item 2 of the Code of Conduct,
[2]
which required him as head of the municipality’s administration
to implement and execute its policies and to ensure the due
and
proper appointment of its staff, in accordance therewith.
16.
The Public Protector’s conclusions
were based on the finding that, by stipulating in its advertisements
that registration
as a professional engineering technician was an
essential requirement for the post, the municipality had breached the
terms of
its recruitment policy.
17.
In addition, the Public Protector held that
the respondent’s appointment had been irregular because he was
not registered
with the Engineering Council at the time when he
applied for and when he was appointed to the position, as he was only
registered
as a (candidate) engineering technician on 22 March 2017.
18.
Consequently, the Public Protector directed
that a number of remedial steps were to be taken. In the first place,
she directed that
disciplinary action should be taken against the
Municipal Manager and the other officials who had been involved in
the appointment
of the respondent, within 30 business days from the
date of her report.
19.
Secondly, she directed that the
municipality should conduct an evaluation of the respondent’s
qualifications, experience and
competence against the requirements of
the job and the description of the position, and a report in this
regard should similarly
be submitted to Council within the same time
period.
20.
Finally,
the Public Protector directed that proceedings for the review of the
respondent’s appointment should be instituted
in terms of ss 6
and 7 of the Promotion of Administrative Justice Act
[3]
,
within 30 business days from the date of her report.
21.
I
digress to point out that the latter directive does not square with a
further directive which was made
[4]
that the municipality’s Council should consider the report of
the respondent’s assessment and take a resolution on
the matter
within 60 business days. As it would have been necessary for Council
to pass a resolution authorizing the institution
of proceedings the
review would accordingly not have been able to have been instituted
within 30 days from the date of the Public
Protector’s report.
22.
Be that as it may, it appears that no
disciplinary action was taken against any municipal officials, let
alone the Municipal Manager,
and the review was eventually only
launched on 10 September 2020, one month short of a year after the
release of the Public Protector’s
report and some 9 months
later than was directed by her; and some 3 ½ years after the
respondent’s appointment.
23.
An evaluation of the respondent’s
qualifications, experience and competence vis-à-vis the job
description and its requirements
was carried out by the municipality,
and although a copy thereof was not annexed to the papers it is
common cause that it was favourable
to the respondent.
24.
In the light of this, and given that the
respondent had been carrying out his functions and duties in a
satisfactory manner from
the time of his appointment and was not to
blame for any flaws in the process that led up to it, the applicant
proposed that in
the event the Court were minded to declare that the
appointment was invalid and should be set aside, it should direct
that this
should not be with retrospective effect.
25.
In
addition, the applicant proposed (at least initially)
[5]
that pending the outcome of any rerun of the appointment process any
declaration of invalidity which might issue should also be
suspended
from having prospective operation, so as to allow the respondent to
continue in the position for the time being, pending
the
re-advertisement and filling of the position afresh.
The law
26.
Ever
since the decision of the Constitutional Court in
Gijima
[6]
it has been accepted that an
organ of state cannot apply for the review and correction of its own
decisions in terms of the Promotion
of Administrative Justice Act
(‘PAJA’), and must do so in terms of the principle of
legality, to which the exercise
of all public power is subject.
[7]
Considering that the decision in
Gijima
,
which was handed down in 2017, was confirmed by the Constitutional
Court on 16 April 2019 in its subsequent decision in
Asla,
[8]
one would have assumed that the Public Protector would have been
alive to this by the time she delivered her report at the end
of
October 2020.
27.
The
main implication of this for the purposes of these proceedings is
that whereas, had this been a PAJA review the proceedings
would have
had to have been launched within a period of no later than 180 days
from the date when the appointment was made (subject
to condonation),
as the review was properly brought as a legality review the question
which needs to be determined is simply whether
the delay in launching
proceedings was unreasonable.
[9]
In this regard it is trite that the clock started running not from
the time that the applicant became aware, but when it ‘reasonably
ought to have become aware’, of the action being taken which
required review i.e of the defects in the process of appointment.
[10]
28.
It
is by now also well-established that a Court has the power either to
refuse a legality review in circumstances where there has
been an
unreasonable or undue delay,
[11]
or it may in appropriate circumstances ‘overlook’ i.e
condone it.
29.
In
this regard in
Khumalo
[12]
(the facts of which are not dissimilar in certain material respects
to those in this matter), the Constitutional Court held that
whereas
s 237 of the Constitution provides that all constitutional
obligations must be performed diligently and without delay it
elevates the need for expeditious and diligent compliance by organs
of state with their constitutional duties, to an obligation
which
forms a central part of the principle of legality. It is a
requirement which is based on ‘strong’ public interest
in
the certainty and finality of decisions that have been taken by
functionaries and organs of state, because those who are the
subject
of such decisions base their actions thereon.
30.
In
that matter the Constitutional Court set aside an Order which had
been granted by the Labour Court
[13]
in terms of which it had reviewed and set aside the appointment of Mr
Khumalo to the position of Chief Personnel Officer (Human
Resources)
in the KwaZulu-Natal Department of Education, on the basis that he
did not meet the requirements which had been set
out in an
advertisement for the post.
31.
Contrary to the Labour Court, the
Constitutional Court held that the delay of about 20 months which it
had taken the MEC to launch
review proceedings had not been
adequately explained and was unreasonable, and given the adverse
consequences which would occur
were it to be overlooked, which would
lead to Mr Khumalo losing the job which he had occupied by that time
for nigh on 9 years,
it could not be condoned.
32.
Whether
a delay is unreasonable or undue involves a factual enquiry upon
which a value judgment is to be made in the light of all
relevant
circumstances.
[14]
In
Govan
Mbeki Municipality
[15]
and
Special
Investigating Unit
,
[16]
two of its most recent decisions on the point this year, the SCA
emphasized with reference to the decision of the Constitutional
Court
in
Asla
that when an organ of state has delayed before approaching a Court
for an Order reviewing a decision it has taken, it must furnish
a
proper and acceptable explanation which covers the entire period of
delay.
33.
In
determining whether to overlook a delay that is considered to be
unreasonable the Court must have regard for a number of factors.
It
must firstly consider the likely consequences of setting aside the
decision in question, including any potential prejudice that
may be
suffered by affected parties. And in this regard, where the decision
is one which was made in the context of public-sector
employment,
such as the one in this matter, the Constitutional Court has
remarked
[17]
that the ‘value
of security’ for employees and the need to mitigate the
inherent inequality of the workplace must be
borne in mind.
34.
As
a counterpoint to any adverse consequences that may eventuate
following a declaration of constitutional invalidity the Court
must
recognize that in terms of s 172 (1)(b) of the Constitution it has
the power to mitigate any unfairness that may occur by
making an
Order that is just and equitable. To this end it may limit the
retrospective operation of a declaration of invalidity
[18]
and/or it may make an Order suspending the invalidity for any period
and on any condition as it may deem appropriate, in order
to afford
the competent authority an opportunity to correct the defect.
[19]
35.
In
the second place the Court must have regard for the nature of the
decision that is to be reviewed and the merits of the challenge
thereto. Thus, it will have to consider whether any failure on the
part of the decision-maker to comply with statutory and/or policy
prescripts was egregious
[20]
and whether it involved a violation of the Constitution. W
here
there is ‘clear and undisputed’
[21]
unlawfulness or where there is ‘indisputable and clear
inconsistency’
[22]
with
the Constitution the Court may be compelled to declare the decision
invalid and to make an Order in terms of s 172(1)(a) of
the
Constitution declaring it to be inconsistent therewith, irrespective
of the length of the delay involved.
[23]
But, the Constitutional Court has also held,
in
order to ensure that the rationale behind the rules pertaining to
undue delay is not undermined, this principle should be applied
‘narrowly and restrictively’.
[24]
36.
Lastly,
the Court must also have regard for the conduct of the applicant. In
this regard in
Kirland
[25]
Cameron J reminded us
that:
‘
[T]here
is a higher duty on the state to respect the law, to fulfil
procedural requirements and to tread respectfully when dealing
with
rights. Government is not an indigent or bewildered litigant, adrift
on a sea of litigious uncertainty, to whom the courts
must extend a
procedure-circumventing lifeline. It is the Constitution’s
primary agent. It must do right, and it must do
it properly.’
An assessment
37.
I am of the view that the review must fail
at the first hurdle i.e at the level of delay. In this regard the
explanation which the
municipality has sought to provide is
materially unsatisfactory, in a number of respects.
38.
The municipality contends that the period
of delay which must be considered is not 3 ½ years but only a
period of about 9
months, between the time when it received the
instruction in the Public Protector’s report to launch review
proceedings and
the date when the application was finally launched,
and it claims that it has provided a satisfactory explanation for
this period.
On both scores I do not agree.
39.
In my view, even if one considers the
period of 9 months which the applicant relies on it is evident that
its conduct in this time
was not only dilatory but lackadaisical in
the extreme, and the explanation it has provided is full of holes.
40.
Although the Public Protector’s
report was only received by it on 31 October 2020, by its own
admission the municipality chose
not to comply with the directive
contained therein because it decided to obtain a legal opinion in
respect thereof instead. Why
it required an opinion in relation to a
directive which it was bound to comply with unless it had been set
aside by an Order of
Court, has not been explained.
41.
It was supplied with the opinion in
February 2020. Clearly, given that it subsequently proceeded to
launch review proceedings, the
opinion must have endorsed the Public
Protector’s directive that a review should be brought. But once
again the applicant
did not proceed to take the necessary action with
the requisite degree of alacrity one would have expected and a
further delay
of some 5 months ensued, until 6 July 2020, when its
council eventually passed the necessary resolution authorizing the
institution
of proceedings, at which time it also apparently gave
instructions to its legal representatives to proceed. Yet, despite
this,
there was again a further lengthy delay and papers were only
finalized and issued some 2 months later on 10 September 2020. No
explanation of any sorts has been given for this. Thus, it is evident
that even on the basis that one is dealing with an explanation
in
respect of a period of 9 months only, the applicant was clearly in no
hurry to carry out the instruction it had been given by
the Public
Protector and was extremely dilatory.
42.
Contrary to what it suggests, it is evident
from the municipality’s own papers that it did not need to wait
to be told by
the Public Protector that the process by which the
respondent had been appointed was irregular. In the founding
affidavit the Municipal
Manager says that Van Rooi complained to the
municipality about the outcome of the appointment process ‘shortly’
(sic)
after it was concluded. Given that Van Rooi lodged his
complaint with the Public Protector’s office on 27 March 2017
i.e
the same day on which the Municipal Manager made an offer to the
respondent, one can safely assume that he probably lodged his
complaint with the municipality at or about the same time.
43.
Coyly, the Municipal Manager does not say
what the complaint entailed. It must surely have been in writing,
given that Van Rooi
lodged a written complaint with the Public
Protector. Yet a copy of the complaint was not annexed to the
founding affidavit.
44.
The Municipal Manager says that at that
stage the municipality did not appreciate that ‘something had
gone wrong’ with
the process viz that there was a disjunct
between the actual and the advertised requirements for the position.
He says he is unable
to say ‘precisely when’ the
municipality came to understand that something had gone wrong, but to
the best of his recollection
it only became aware of the disjunct ‘as
a result and
during
’
(sic) the Public Protector’s investigation. These loose
comments hardly constitute a satisfactory explanation, let
alone a
plausible or tenable one. They hide more than what they reveal, and
one is constrained to ask why.
45.
As is evident from the terms of the
complaint which Van Rooi lodged with the Public Protector’s
office, he alleged that the
respondent’s appointment was
inconsistent with the municipality’s recruitment and selection
policy, because at the
time the respondent applied for and was
appointed to the position he was not registered as an engineering
technician, contrary
to the stipulated requirement in this regard, as
per the advertisements. It is reasonable to infer that this was
probably also
the basis of the complaint which Van Rooi lodged with
the municipality.
46.
Whatever the circumstances, there is no
indication that the municipality made any attempt to investigate the
complaint that was
lodged with it, such as it was. In fact, it is
apparent that it did not even have the courtesy to acknowledge
receipt of the complaint
or to contact or interview Van Rooi, or even
to follow up with him at any stage thereafter, and it appears to have
simply ignored
the complaint until the Public Protector commenced her
investigation.
47.
As was previously pointed out, from 22
August 2017 onwards the Public Protector addressed a series of
letters to the municipality,
all the way through to May 2018. On 10
February 2018 representatives from her office interviewed the Deputy
Director: Water and
Sanitation and the Director: Civil Engineering
Services as well as two HR managers of the municipality. One would
have thought
that by this stage the municipality must have been well
aware of what the essential aspects of the complaint entailed, and it
must
surely have realized that there was a contradiction between the
requirements for the position as listed in the advertisements, as
compared to those which had been set out in the job description, and
that they were consequently more onerous than was required.
Despite
this, the municipality’s officials did nothing but to sit back
and await the outcome of the Public Protector’s
investigation.
48.
Neither the exchange of correspondence over
the period of some 10 months nor the meeting with its officials
prompted the municipality
into launching an investigation into the
circumstances pertaining to the respondent’s appointment, until
31 January 2019,
when, according to the Public Protector it resolved
that an external service provider should be appointed to investigate
the allegation
that there had been a transgression of the
municipality’s recruitment and selection policy. Notably, the
Municipal Manager
failed to mention or deal with any of this in his
affidavit. He did not even make mention of the resolution that was
taken in January
2019, nor did he take the Court into his confidence
in regard to the investigation which was launched pursuant thereto,
or what
the outcome thereof was. Once again, one must ask why this is
so.
49.
By
his own admission
[26]
however,
by the time the Municipal Manager responded to the Public Protector’s
notice in terms of s 7(9) of the Public Protector’s
Act
[27]
on 5 June 2019, the municipality was well ‘aware of the
problems relative to’ the respondent’s appointment, but
still elected nonetheless to do nothing but to await the outcome of
the Public Protector’s investigation. Thus, it allowed
a
further year and 3 months to elapse. This is hardly the behaviour
which is expected of a responsible organ of state. It is trite
that
just as in the case of the award of tenders and the conclusion of
procurement contracts, organs of state are required to investigate
any allegations of impropriety in relation to appointments of
personnel as soon as they become aware of them, and if they are
compelled to bring proceedings for the review thereof they must do so
as soon as is reasonably possible.
50.
In the circumstances, the averment that it
was only when the report of the Public Protector came out in October
2020 that the municipality
became aware of what happened does not
hold water. On its own version it ought reasonably to have become
aware of the disjunct
between the requirements listed in the
advertisements and those listed in the job description in March 2017,
or failing this during
the various engagements it had in
correspondence and meetings with the Public Protector between August
2017 and May 2018, or at
least by the time when it resolved early in
January 2019 to conduct an investigation. Even on its own version at
the very latest
it knew exactly what the problems were pertaining to
the respondent’s appointment by 5 June 2019. Despite this it
chose to
do nothing about reviewing the appointment until September
2020.
51.
Thus, in actual fact the delay in this
matter is not a period of some 9 months but one which extends over a
number of years, and
it is one that was clearly unreasonable and
egregious.
52.
In
considering whether it should nonetheless be overlooked the following
circumstances must be taken into account. In the first
place as far
as the nature of the irregularity which occurred is concerned, on the
available evidence it merely consisted of an
inadvertent failure to
properly comply with the terms of a municipal policy, rather than a
deliberate and wilful breach of a statutory
or constitutional
prescript. Although the policy was clearly binding on the
municipality, the circumstances are not such that one
is dealing with
a manifest and egregious unlawfulness in an appointment process, such
as one commonly finds in instances where
corruption or some form of
undue political influence or pressure is involved. At worst the
municipality simply ‘erroneously’
[28]
required applicants for the position to have a practical
qualification i.e to be registered with their professional regulatory
body, when this was not necessary in terms of the job description.
53.
Although this would understandably have
disqualified a number of candidates who would otherwise have sought
to apply for the position,
as far as the interests of the
municipality and those who it is meant to serve are concerned (its
ratepayers and consumers of its
services) the requirement of
professional registration was an advantage, not a hindrance. It
resulted in applications from candidates
who were not only possessed
of the necessary academic qualification, but also of the necessary
practical professional registration,
thereby ensuring that an
appointment could be made of a candidate who was qualified to
practice as an engineer. One would think
that this would be a vital
and elementary requirement for someone who is required to manage a
middle-sized municipality’s
sewer network.
54.
(To my mind, the same can be said about the
requirement that candidates should be conversant in 2 of the 3
official languages which
are spoken in the Western Cape. Whilst this
was not an actual requirement for the position, let alone a preferred
one, it can hardly
be disputed that having a manager who is
proficient in 2 languages in its employ, as opposed to only one,
would be an advantage
for the municipality and members of the public
it is meant to serve.) The real shortfall, if any, in the
requirements which were
listed in the advertisement is that
pertaining to the experience which was required i.e. 3 years, whereas
the job description required
10 years’ experience. But in this
respect the ‘lower’ standard would hardly have served to
disqualify potential
candidates and would have widened the pool
rather than to narrow it. And in any event, it is common cause that
the respondent in
fact had the requisite 10 years plus experience at
the time when he applied. I may point out that neither Van Rooi nor
the Public
Protector took issue with either of these requirements,
and the applicant has also rightly not sought to contend that the
appointment
process was vitiated because of them.
55.
In
the second place it should be noted that the finding by the Public
Protector that the respondent was not regularly appointed
because at
the time he was not registered with the Engineering Council, was
wrong. The policy provided that candidates could be
shortlisted even
though they were not in possession of the necessary minimum
requirements, provided they could be expected to meet
these within a
reasonable time.
[29]
As
previously pointed out, at the time when he applied for the position
the respondent’s registration was pending, and this
was
disclosed to the municipality and accepted by it. His registration
occurred on 22 March 2017, some 5 days
before
the letter containing the offer of employment was signed off by the
Municipal Manager and sent to him, and about a month before
he
formally accepted the offer. Thus, he was registered as an
engineering technician (albeit as a candidate), by the time of his
appointment. In addition, as I have already pointed out there is also
no suggestion that any form of corruption or undue influence
played
any part in the appointment process.
56.
In the third place, there is no question
about the respondent’s abilities and competence to do the work.
An assessment that
was carried out in 2019 at the direction of the
Public Protector confirmed this, and in the founding affidavit the
Municipal Manager
also confirmed that at the time of the launching of
the application in September 2020 the respondent’s performance
in the
job was satisfactory. The respondent legitimately and in good
faith applied for, and was awarded the position; having met the
advertised
requirements which the municipality set for it. He was a
meritorious and deserving candidate who scored the highest out of the
2 candidates who were qualified for the position, and he is clearly
an asset to the municipality as he has been performing his duties
in
an exemplary fashion to date. He left a position in the private
sector to take up this one and is currently in the process of
completing his B.Tech degree.
57.
In my view, were the delay to be overlooked
and the appointment of the respondent to be set aside at this stage
it would cause immense,
if not irreparable, harm to him and his
career and would severely prejudice him. He would have to search for
new employment at
a time when jobs are scarce, particularly in the
public sector, where budgetary constraints are the order of the day.
58.
At this point in time the respondent has
already spent 4 ½ successful years in the position. In my
view, setting aside his
appointment so late in the day (for the
purposes of this exercise I have assumed, without deciding, that
there is some merit in
the review), would also severely undermine the
underlying rationale of the principles pertaining to unnecessary and
unreasonable
delay in self-reviews by organs of state. It would
encourage dilatoriness on the part of organs of state and would
reward the applicant
for its lackadaisical attitude to its
constitutional responsibilities. It would also cause some degree of
prejudice and harm to
the municipality and those it is meant to
serve, in that the post would have to be re-advertised and filled
afresh, thereby possibly
compromising the delivery of sanitation
services to consumers in the municipality’s area of
jurisdiction.
59.
And last, but not least, given that the
complainant and the only qualifying challenger at the time, Van Rooi,
has sadly passed away
in the interim, it would in my view be somewhat
pointless and futile and hardly in the interests of those whom the
municipality
is meant to serve, to recommence the process afresh, on
the basis of a relatively minor instance of breach or non-compliance
with
a municipal policy. I point out that this is not a case of an
abusive, autocratic exercise of authority by a municipality or a
functionary employed by it. The meeting at which a shortlist of
candidates was drawn up was one at which not only municipal officials
were in attendance but also members of the relevant trade unions.
60.
In
supplementary heads of argument which the applicant filed it
contended that in the light of the decision in April this year of
the
SCA in
Brightwater,
[30]
given the peremptory terms of s 172(1)(a) of the Constitution the
Court was compelled to declare the appointment of the respondent
inconsistent with the Constitution and invalid to the extent thereof,
notwithstanding the delay, and the best that it could do
in terms of
affording him any just and equitable relief was to declare that his
rights to the date of the declaration i.e. those
rights which had
previously accrued to him as the date thereof, were preserved. It
submitted that the Court could not go beyond
that, by making any
Order in relation to any future employment rights, other than
suspending the declaration of invalidity pending
the filling of the
post afresh, as that would effectively invalidate any finding of
constitutional invalidity.
61.
In my view the applicant has misinterpreted
the ratio of the judgment in
Brightwater
and has failed to have regard for the fact that delay was not an
issue in that matter. The judgment dealt with the question of
whether, having declared a lease agreement constitutionally invalid a
Court was nonetheless entitled when fashioning a just and
equitable
remedy to hold that the lessee could exercise ‘future’
rights it would have had, but for the declaration.
The matter is
clearly distinguishable from the facts of this matter.
62.
In
both
Govan
Mbeki
as well as
Special
Investigating Unit,
which
were decided in April and June this year respectively,
[31]
the SCA reaffirmed that, save in instances of manifest unlawfulness
and clear inconsistency with the Constitution, a Court is entitled
to
refuse to entertain a legality review at the instance of an organ of
state, where there has been an egregious and unreasonable
delay. In
doing so it upheld the stance which was adopted by the Constitutional
Court in
Khumalo
.
Conclusion
63.
Consequently, in my view, having regard for
the factors referred to this is a matter where the delay cannot be
condoned and the
review must be dismissed.
64.
As far as costs are concerned these should
follow the result. In this regard the respondent was not only
justified in opposing the
application but has also incurred
considerable and unnecessary legal costs in doing so. Through no
fault of his own he has been
compelled to fight to keep his position,
notwithstanding that he won it fairly and on merit, and in my view
fairness and justice
dictates that he should be fully indemnified in
respect of the costs that he has incurred and should not just be
awarded costs
on the party-party scale.
65.
In the result, the application is dismissed
with costs, on the attorney-client scale.
M SHER
Judge of the High
Court
(Signature appended
digitally)
Appearances:
Applicant’s
counsel: S Rosenberg SC and CJ Quinn
Applicant’s
attorneys: Stadler & Swart Inc (George)
Respondent’s
counsel: CS Bosch
Respondent’s
attorneys: MacGregor Erasmus Inc (Cape Town)
[1]
Act
32 of 2000.
[2]
Promulgated
in terms of Schedule 2 thereof.
[3]
Act
3 of 2000.
[4]
In
para 7.5.2.1 of the report.
[5]
In
supplementary heads of argument which it filed the applicant warned,
with reference to the recent decision of the SCA in
BW
Brightwater Way Props (Pty) Ltd v Eastern Cape Development
Corporation
[2021] 47 ZASCA, that a declaration whereby the respondent’s
appointment was declared invalid should not be nullified by
making
an order which effectively upheld it, by granting the respondent
future rights in terms thereof. In effect therefore the
applicant
contended that the Court could not make an Order allowing the
respondent to continue in his position, subsequent to
a declaration
that his appointment was invalid, other than by suspending it for
the purpose of the readvertisement and filling
anew of the post. In
Brightwater
although a lease was invalidated by the Court a
quo
,
it held that notwithstanding its declaration in this regard the
lessee could continue to occupy the premises for the remainder
of
the lease period. The SCA held, with reference to the decisions in
Gijima
and
Asla,
that when formulating a just and equitable remedy, per s 172(1)(b)
of the Constitution, following upon a declaration of constitutional
invalidity in terms of s 172(1)(a), the most that a Court can do is
to preserve and uphold rights that previously accrued as
at the date
of the declaration (by limiting the retrospective operation of the
declaration of invalidity in terms of s 172(1)(b)(ii)),
and it
cannot seek to preserve or to continue ‘future’ rights
ie rights which would have accrued in the future but
for the
declaration of invalidity. Thus, in tender cases this commonly
translates into an Order whereby although the award of
the tender
will be declared constitutionally invalid in terms of s 172(1)(a)
and will be set aside, the court will allow the
contractor to be
paid for work performed to date of the Order, thereby preserving the
right to payment which accrued to the contractor
prior to the
declaration of invalidity.
[6]
State
Information Technology Agency SOC Ltd v Gijima Holdings (Pty) Ltd
2018
(2) SA 23 (CC).
[7]
The
basis for this appears to be that the State cannot in one and the
same breath be both the bearer of the obligation to give
effect to
the right to fair administrative action and the holder of such
right. Thus, as was indicated by Mabindla-Boqwana JA
in the recent
decision of the SCA in
Special
Investigating Unit and Another v Engineered Systems Solutions (Pty)
Ltd
([2021] ZASCA 90 (25 June 2021);
[2021] 2 All SA 700
(SCA);
para 25
(with
reference to comments that were made in
Gijima
at para 27) it appears that only private persons can lay claim to
such rights in terms of s 33 of the Constitution, not organs
of
state.
[8]
Buffalo
City Metropolitan Municipality v Asla Construction (Pty) Ltd
2019
(4) SA 331
(CC).
[9]
Id
,
para 6;
Special
Investigating Unit
n
7, para 27.
[10]
Id
,
Asla
para
49,
Special
Investigating Unit
para
28.
[11]
Associated
Institutions Pension Fund and Others v Van Zyl and Others
2005
(2) SA 302
(SCA) at para 46, as confirmed in
Khumalo
v MEC for Education, KwaZulu-Natal
2014
(5) SA 579
(CC) para 44.
[12]
Id
,
para 46.
[13]
Reported
sub
nom MEC Department of Education KwaZulu-Natal v Khumalo and Another
[2010]
ZALC 79; 2011 (1) BCLR 94 (LC).
[14]
Gqwetha
v Transkei Development Corporation Ltd & Ors
2006 (2) SA 603
(SCA) para 24;
Khumalo
para 49.
[15]
Govan
Mbeki Municipality v New Credit Solutions (Pty) Ltd
[2021]
2 All SA 700
(SCA),
2021 (4) SA 436
(SCA) para 35.
[16]
Note
7 para 29.
[17]
Khumalo
n
11 para 52.
[18]
Section
172(1)(b)(i).
[19]
Section
172(1)(b)(ii).
[20]
Asla
n
8 paras 54-56;
South
African National Roads Agency Limited v City of Cape Town
[2016] 4 All SA 332
(SCA);
2017 (1) SA 468
(SCA) para 81.
[21]
Asla
para
66.
[22]
Special
Investigating Unit
n
7, para 79.
[23]
This
is referred to as the
Gijima
principle, as enunciated in para 52 of the judgment.
[24]
Asla
n 8 para 71.
[25]
Member
of the Executive Council for Health, Eastern Cape and Another v
Kirland Investments (Pty) Limited t/a
Eye
&
Lazer
Institute
2014 (3) SA 481
(CC) para 82.
[26]
Vide
para
38 of the founding affidavit.
[27]
Act
23 of 1994.
[28]
For
the purposes of the judgment I have assumed (without deciding), as
the municipality contends, that in terms of its recruitment
policy
it was not at liberty to put ‘nice-to-have’ i.e
preferred requirements in its advertisements, as opposed to
essential i.e minimum requirements that were necessary, at least not
without distinguishing between them, thereby ensuring that
whereas
candidates who had the preferred qualifications could be attracted
those who did not would not be disqualified and the
candidate who
was ultimately appointed would not have been appointed unfairly.
[29]
Para
8.4.2 of the policy.
[30]
Note
5, a decision which was handed down on 19 April 2021.
[31]
Vide
notes
15 and 7.