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[2021] ZAWCHC 203
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Bontsa v Department of the Premier and Another (6450/2020) [2021] ZAWCHC 203 (15 October 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE
DIVISION, CAPE TOWN)
Case Number: 6450 / 2020
In the matter
between:
SANDILE BONTSA
Applicant
and
DEPARTMENT OF THE
PREMIER
First
Respondent
LIAAN VAN DER
MERWE
Second Respondent
Coram: Wille,
J
Date of Hearing:
4
th
of October 2021
Date of Judgment:
15
th
of October 2021
JUDGMENT
WILLE, J:
INTRODUCTION
[1]
This
is an opposed ‘review’ application of a very peculiar
nature. I say peculiar because the relief contended
for by the
applicant is, to say the least, difficult to discern and is
problematic. I accept that the applicant is unrepresented
and
remains so unrepresented. That having been said, no case has
been made out on the papers for any of the relief sought
by the
applicant.
[2]
Moreover,
in my view, there are several further insurmountable hurdles to the
application as progressed by the applicant.
To add to this, is
the fact that there is no indication by the applicant if indeed the
‘review’ portion of his application
is a review under the
provisions of the Promotion of Administrative Justice Act
[1]
or a legality review, under the common law.
[3]
The
applicant requests the following relief namely: ‘
a
mandamus, declaring the decisions null and void, an interdict, a
moratorium and further and/or alternative relief’
THE
PARTIES
[4]
The
applicant cites two respondents. The first respondent is
‘baldly’ cited as the Department of the Premier
[2]
.
The second respondent is merely cited by the recordal of her full
names. These parties are not in any manner further
described or
elaborated upon. This, apart from the listing of their names as
they appear on the Notice of Motion. The
second respondent is
also loosely referred to as the ‘Administrator’ in the
applicant’s founding affidavit.
Nothing more and nothing
less is said by way of description of the respondents to this
application.
THE
RELEVANT BACKROUND FACTS
[5]
In summary, the background facts are the following, namely: that
the applicant
applied for an employment position of that of an
‘Education Officer’ with the provincial Department of
Social Development
[3]
.
This at a place of safety, situated in Bonny-Town.
[6]
His application for this employment and the recruitment process was
facilitated by
the DOTP. The second respondent is employed by
the DOTP, and she facilitated the recruitment process and
accordingly,
inter
alia
,
therefore inter-acted with the shortlisted candidates for the vacant
post for which the applicant applied and sought employment.
[7]
On the 20
th
of November 2019, upon enquiry by the applicant, he was informed that
his application for his employment to the post, for which
he applied,
was unsuccessful. He directed this enquiry to the second
respondent.
[8]
No doubt, aggrieved by this decision, the applicant launched his
‘urgent application’
on the 5
th
of June 2020. After the filing of the customary answering
affidavits and the replying affidavits, this application came before
me for adjudication as an opposed review application
[4]
,
on the 4
th
of October 2021.
THE
RESPONDENTS’ POINTS IN LIMINE
[9]
Initially, the respondents’ advanced no less than (4) points
in
limine.
The first point raised in this connection was related to the issue of
urgency. Wisely, counsel for the respondents
effectively
abandoned any reliance on this issue immediately before the hearing
of the matter. This, since the applicant
remained unrepresented
and that the matter was in any event before court for my
adjudication.
[10]
The misjoinder and non-joinder points are well raised by the
respondents. I say this for
the following reasons, namely:
that the applicant applied to the ‘DSD’ for the
post of an educator and that the
applicant completely omitted to cite
the relevant executive authority in this connection, being the MEC
for Social Development
[5]
.
[11]
It is trite law that the test as to whether there has been a
misjoinder or a non-joinder is whether
the subject party has a direct
and substantial interest in the subject matter of the litigation,
which may prejudice the party,
that has not been so joined to the
matter to be adjudicated upon
[6]
.
[12]
It was obligatory and incumbent upon the applicant to cite the
executive authority of the department
concerned as the nominal
defendant or respondent.
[7]
This much is trite. The employer for the DSD is the Western Cape
Provincial Minister for the Department of Social Development.
The applicant omitted to cite the relevant executive authority for
the relief that he seeks. As a matter of logic, the DOTP
has
less to do with the appointment for the post for which the applicant
applied. As alluded to earlier, the DOTP merely
facilitated the
recruitment process, which was limited to an administrative and
supportive function.
[13]
The second
in
limine
point
goes to an argument about the violation of the time limits imposed in
terms of PAJA. This in turn, is inextricably limited
to the
final
in
limine
point, namely the non-compliance with rule 53 of the court rules.
[8]
Even if I were to accept that this review application was in essence
in the form of a legality review, no explanation is
advanced in
connection for the reasons occasioned for the delay in the launching
of this application. This since the 20
th
of November 2019.
[14]
As mentioned, the precise nature of the relief sought by the
applicant is vague and I dare say,
also somewhat embarrassing.
This, at best for the applicant. If the application as
presented, is a review application
in terms of which PAJA finds
application, then in that event, such review proceedings are to be
launched without unreasonable delay
and in any event, by no later
than (180) days after becoming aware of the impugned decision.
[15]
On the applicant’s own version, he became aware of the decision
adverse to him on the 20
th
of November 2019. His application was launched on the 5
th
of June 2020, which was well outside of the prescribed time limits.
The application has also been launched absent any discrete
application for the condonation of these time limits, albeit under
PAJA, or under a strict formulation of a legality review.
No
explanation whatsoever is given for the applicant’s
unreasonable delay.
[16]
Further, the court rules specifically regulate and prescribe the
procedure to be followed in
connection with a review application.
Rule 53 (1) (b) stipulates as follows:
‘…
as
the case may be, to dispatch within 15 days after receipt of the
notice of motion, to the registrar the record of proceedings
sought
to be corrected or set aside, together with such reasons as he is by
law required or desires to give or make, and to notify
the applicant
that he has done so’
[17]
This rule has not been complied with by the applicant.
Moreover, as the entire application
was directed to the incorrect
party, it follows as a matter of logic, that the first respondent
would in any event, as a matter
of law, not have been able to comply
with the provisions of Rule 53 (1)(b) of the court rules.
CONCLUSION
AND ORDER
[18]
It is for these reasons, that it is not necessary for me at all, to
deal in any manner with the
‘merits’ of the application
launched at the instance of the applicant. The
in
limine
points discussed above, are well taken and are dispositive of the
entire application.
[19]
In the result the following order is granted, namely:
1.
That
the application is dismissed.
2.
That
the applicant is liable for the costs of and incidental to the
application on the scale as between party and party, as taxed
or
agreed.
E.
D. WILLE
Judge
of the High Court
Western
Cape Division
[1]
Act,
3 of 2000 (‘PAJA’)
[2]
The
‘DOTP’
[3]
The
‘DSO’
[4]
My
difficulties in this connection having been mentioned earlier in my
judgment.
[5]
The
member of the Executive Committee in the Province.
[6]
Gordon
v Department of Health, KwaZulu-Natal
2008 (6) SA 522 (SCA).
[7]
Section
2
(1) of the
State Liability Act, 20 of 1957
.
[8]
The
Uniform Rules of Court.