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2024
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[2024] ZAFSHC 5
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Dikoko v Tswelopele Local Municpality and Others (3675/2023) [2024] ZAFSHC 5 (8 January 2024)
IN THE HIGH COURT
OF SOUTH AFRICA,
FREE STATE
DIVISION, BLOEMFONTEIN
Reportable: NO
Of
Interest to other Judges: NO
Circulate
to Magistrates: NO
Case No: 3675/2023
In the matter between:
BOITSHOKO
PERCIVAL DIKOKO
Applicant
and
TSWELOPELE
MUNICIPALITY
1
st
Respondent
THE
ACTING MUNICIPAL MANAGER
2
nd
Respondent
LEBOHANG
SHADRACK MALOKASE
3rd
Respondent
HEARD
ON:
05 October 2023
JUDGMENT
BY
:
MHLAMBI, J
DELIVERED
ON:
08
JANUARY 2024
[1]
On 31 July 2022, the first respondent’s position of Director of
Technical Services was advertised
but, due to legislative amendments,
was re-advertised on 29 January 2023. The applicant was one of ten
persons who applied for
the position and one of four candidates who
made it to the shortlist. On 31 May 2023, the first respondent
accepted the recommendation
of the Selection Committee and appointed
the third respondent, as the successful candidate, to the position of
Director of Technical
Services with effect from 1 June 2023. All the
unsuccessful candidates were informed of the outcome of the
interviews.
[2]
The applicant, aggrieved by the outcome of the interviews, seeks an
order as follows:
“
(a)
Ordering the First Respondent to disclose and make available to the
Applicant the documentation listed in annexure” B”
hereto;
(b) Setting aside the
appointment of the Third Respondent as Technical Service Director of
the First Respondent;
(c) Cost of the
application on a punitive scale;
(d) Further and
alternative relief.”
[3]
The documents sought by the applicant are
the following:
3.1.
Copy of the approved 2022/2023 organizational structure/organogram;
3.2.
List of the applicants;
3.3.
A section 14(2) screening process report;
3.4.
Municipal council resolution approving the selection panel and the
shortlisted candidates;
3.5.
Competency assessment results;
3.6.
Minutes of the shortlisting meeting;
3.7.
Minutes of the interviews, including the scoring of each candidate;
3.8.
Recommendations of the selection panel as submitted to the municipal
council;
3.9.
Municipal council resolution approving the appointment;
3.10.
recommendations of the executive mayor or the executive committee to
the municipal council;
3.11.
Curriculum vitae, application form together with declarations, as
well as proof of qualifications of the successful candidate;
3.12.
Any and all other documents relied upon by the successful candidate.
[4]
The applicant maintained that he was entitled to
the documentation and needed the information in terms of
the
provisions of section 11 of the Promotion of Access to Information
Act, 20 of 2000 (PAIA).
[1]
He needed to place this evidence before the court.
[2]
However, on being alerted to the fact that the provisions of PAIA did
not allow any reliance on its provisions for accessing records
in
pursuit of litigation after the commencement of proceedings, the
applicant stated in his replying affidavit that the question
whether
he acted in breach of section 7 of PAIA had become moot as the
respondents had attached the requested documents to their
answering
affidavits, save for the third respondent’s competency report
and the panellists’ individual scoresheets.
[3]
[5]
As brief background, the applicant served as the first
respondent’s Director of Technical Services for a
period of ten
years before his contract came to an end. The third respondent served
at the time under him as a junior officer and
technician with a level
T14/1 job description.
[4]
The
latter, according to the former, was neither qualified to be
shortlisted for the interviews nor appointed to the position.
[5]
The level required for middle management was level T16.
[6]
The applicant contended that the third respondent’s appointment
was irregular and unlawful as he was not qualified for the
position
in which he was appointed.
[7]
The applicant stated that he was convinced and had reason to believe
that the appointment of the third respondent was done
improperly/unlawfully
and that the scoring was manipulated to favour
him. He, the applicant, was advised that there was clear evidence of
corruption
if proven and the act of falsely representing to the mayor
and the executive council that the third respondent scored the
highest
marks, may constitute a criminal offence of fraud.
[8]
[6]
The respondent’s main submissions are that
the applicant’s reliance on the provisions of PAIA
is bad in
law; that he failed to disclose a cause of action for the setting
aside of the third respondent’s appointment and
his assertion
that the third respondent misled the selection panel, is a dispute
incapable of being resolved in motion proceedings.
In his heads of
argument, the applicant only sought an order
[9]
setting
aside the third respondent’s appointment in terms of paragraph
(b) of the notice of motion with costs on an attorney
and own client
scale. He contended that the third respondent failed to deal with the
allegations in the founding affidavit that
he did not qualify for the
position advertised and that such allegations were met with a bare
denial.
[7]
The respondents countered the argument that the applicant’s
breach of section 7 of PAIA had become
moot by describing the
applicant’s act as cynical and untenable as the applicant still
continued to assert that the competence
report and the panellists’
score sheets were still outstanding despite his failure to amend the
notice of motion. They
contended that section 7 of PAIA
prohibited reliance on the statute for the purpose of requesting
documents in the pursuit of criminal
or civil proceedings.
Furthermore, the applicant’s concession that he attempted to
place reliance on the provisions of the
PAIA could not be sustained
in law. The relief sought to compel the production of the documents
must fail, it was contended.
[8] It
was contended furthermore that he applicant, despite filing a sparse
founding affidavit in which it was
indicated that upon receipt of the
requested documents, evidence would be placed before the court to
establish the third respondent’s
alleged unlawful appointment,
the founding affidavit was never supplemented even though the
requested documents were provided.
The founding affidavit, as it
stands, did not provide evidence upon which the court could grant
final relief.
[9]
The applicant no longer seeks the relief contained in prayer one of
the notice of motion as he regards this
point moot now that the
documents he had requested had been provided. The only relief he
seeks is the one contained in the second
prayer together with costs.
The applicant appears not to be interested any longer in presenting
the evidence that he obtained from
the documents provided by the
respondents before the court. Can he now seek the setting aside of
the third respondent’s appointment
without presenting evidence
to the court or can he merely rely on the advice by third parties
that fraud was committed? Surely
not.
[10]
On a perusal of the founding affidavit, it is clear to me that
the sole purpose of the application was to access information
to be
able to proceed with legal steps against the respondents; hence the
applicant’s attempted employment of the PAIA. This
step was,
however, not proceeded with even though the applicant was provided
with information. Rule 6 of the Uniform Rules of Court
provides that
every application must be brought on notice of motion supported by an
affidavit as to the facts upon which the applicant
relies for relief.
A litigant must make out its case in its founding affidavit.
[10]
It is impermissible for a plaintiff to plead a particular case and
seek to establish a different case at the trial. It is
equally
not permissible for the trial court to have recourse to issues
falling outside the pleadings when deciding a case.
[11]
[11]
It is settled law that the purpose of pleadings is to define
the issues for the parties and the court. In application
proceedings,
the affidavits do not only constitute evidence, but they also fulfil
the purpose of pleadings. They must set out the
cause of action in
unequivocal terms to enable the respondent to know what case to meet.
This is the reason why an applicant is
never permitted to change
colours and plead a new cause of action in a replying
affidavit.
[12]
The
applicant has failed dismally to set out facts to justify the relief
sought, namely, the setting aside of the third respondent’s
appointment.
[12]
The respondent correctly pointed out that the applicant failed
to disclose what cause of action he relied upon. He neither
relied on
PAIA nor the provisions of the Promotion of Just Administrative Act
(PAJA)
[13]
as he failed to
identify a review ground under section 6 of the latter Act. The
applicant sought the granting of a final relief
but his papers fell
deplorably short of disclosing a cause of action.
[14]
Relying
on
Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and
Tourism and Others,
[15]
it
was contended that the applicant had to identify both the facts upon
which they based their cause of action and the legal basis
of their
cause of action.
[13]
In protesting that he had disclosed a cause of action,
[16]
the applicant maintained, in his replying affidavit, that the third
respondent did not have work-related experience in middle management
or project management as required by the advertisement. The third
respondent’s appointment process was flawed and based on
a
false CV.
[17]
He attached a
confirmatory affidavit by the third respondent’s former office
manager, Alphonso van der Merwe, who stated
that the third respondent
had never been a project manager on any of the former employer’s
assignments that he was engaged
in. His qualifications and experience
were not sufficient to fulfil the role at that time.
[18]
[14]
The respondents filed an application for the late delivery of
a supplementary affidavit to respond to what they regarded
as new
matters which had been advanced for the first time in the replying
affidavit. These referred to Mr Van der Merwe’s
confirmatory
affidavit, the allegations of misrepresentations and false contents
of the third respondent’s CV and, having
previously occupied a
Tier Level T14/1, that the third respondent could never have obtained
middle management experience in such
a position.
[19]
The respondents were of the view that, had the applicant
particularised his case in that manner in the founding affidavit, it
would have fully been addressed in the answering affidavit. The
applicant never took umbrage at the notice of motion and
supplementary
affidavit except in open court where it was opposed
and, in oral argument, the court was requested to dismiss it.
[15]
In the supplementary affidavit, the third respondent denied
having been previously employed by the first respondent
at a Tier
Level 14/1. The categorisation of employees into tier levels applied
only to permanent employees. He joined the first
respondent in 2018
on a fixed term contract and not as a permanent employee.
[20]
The decision to convert this position to permanent status was only
taken by the first respondent on 29 June 2023 after his permanent
appointment on 1 June 2023.
[21]
In 2018, on his appointment as PMU Technician, the first respondent
had conceded that he had the requisite minimum of five years’
experience in project management in a managerial position.
[22]
Besides, project management experience at a managerial level was
already a requirement when he was employed in 2018. His appointment
in 2018, unlike an appointment to a similar position presently, had
not been categorised under a tier level.
[23]
The applicant was misguided when he asserted that he was previously
employed at T14/1.
[16]
The third respondent disputed Mr Van der Merwe’s
statements and took umbrage at the applicant’s litigation
style
of employing ambush tactics.
[24]
According to the third respondent, the applicant appeared not to
understand the requirements of the employment advertisement. The
advertisement, it was alleged, made it clear that what was sought was
work-related experience as a project manager and not the
professional
accreditation of a project manager.
[25]
During
his tenure at Aurecon, the applicant was seconded to various
companies such as Assmang (Pty) Limited, Bloemspruit Airforce
Base
Complex and Hoopstad Waste Treatment Plant to provide project
management services.
[26]
He is
uncertain of Mr Van der Merwe’s motivations as to deny such
facts, but such conduct seeks to be deprecated.
[27]
[17] In his
opposition in the oral argument, the applicant contended that there
was no new evidence in the replying affidavit.
The respondents failed
to deal with paragraph 10 of his founding affidavit in their
answering affidavit and his CV, despite demand,
was only attached to
the answering affidavit. The applicant’s complaint relating to
paragraphs 10 and 11 of the founding
affidavit, was dealt with
following the manner they were structured in the papers. I am not
impressed with the manner the applicant
approached the condonation
application and how the additional evidence was presented in the
replying affidavit. He never filed
papers in opposition of the
condonation application nor stated that he stood to suffer any
prejudice were this application to be
granted. It is crystal clear
that the supplementary affidavit was necessary to enable the
respondents to cure the prejudice that
these matters were advanced
for the first time in reply. Consequently, I grant the condonation
application and admit the supplementary
affidavit.
[18] In my view,
the application is without merit and falls to be dismissed.
[19] In the
result, the following order is made:
Order:
1.
The respondents’ condonation
application is granted with costs.
2.
The main application is dismissed with
costs.
_________________
MHLAMBI,
J
On
behalf of the Applicant: Adv. J Lubbe SC
Instructed
by:
Finger
Attorneys
4
Captain Proctor Street
Westdene
Bloemfontein
On
behalf of the respondent: Adv. AE Ayayee
Instructed
by:
Rampai Attorneys
48
General Hertzog Street
Dan
Pienaar
Bloemfontein
[1]
Paras
16 and 18 of the FA.
[2]
Para
20 of the FA.
[3]
Para
2.3.
[4]
Para
9 of the FA
[5]
Para
10 of the FA.
[6]
Para
10 of the FA
[7]
Para
17 of the FA.
[8]
Para
20 of the FA.
[9]
1989
(4) SA 1055
(O) at 1059.
[10]
My
Vote Counts NPC v Speaker of the National Assembly and others 2016
(1) SA 132 (CC)
.
[11]
Minister
of Safety and Security v Slabbert
[2010]
2 All SA 474
(SCA).
[12]
Molusi
v Voges NO 2015 3 ALL SA 131 (SCA).
[13]
[13]
Act
3 of 2000.
[14]
Paras
35-37 of the AA.
[15]
2004
(4) SA 490 (CC).
[16]
Para
2.4 of the RA.
[17]
Para
9 of the RA.
[18]
Para
4 of annexure “PPD 4”.
[19]
Para
10 of the Supplementary affidavit.
[20]
Paras
13 and 14 of the Supplementary affidavit.
[21]
Para
16 of the Supplementary affidavit.
[22]
Para
17 of the Supplementary Affidavit.
[23]
Para
19 of the Supplementary affidavit.
[24]
Para
22 of the Supplementary Affidavit.
[25]
Para
24 of the Supplementary Affidavit.
[26]
Paras
28-30 of the Supplementary Affidavit.
[27]
Para
31 of the Supplementary Affidavit.