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[2024] ZAKZPHC 4
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Isimangaliso Wetland Park Authority v Sibiya and Others (16706/2022P) [2024] ZAKZPHC 4 (30 January 2024)
FLYNOTES:
ADMINISTRATIVE –
Self-review
–
Delay –
Organ
of State established to manage wetland park – Decision to
convert fixed-term contracts of four respondents to
permanent
employment – Delay in this case in excess of four years and
eight months – Prejudicial to respondents
and offends
principle of finality – Explanation for delay not full and
not reasonable – Matter does not appear
to involve serious
breach of any constitutional duty – Applicant not able to
clearly establish illegality of impugned
decision – Does not
have reasonable prospects of success on merits of review –
Application dismissed.
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
no:
16706/2022P
In
the matter between:
ISIMANGALISO
WETLAND PARK AUTHORITY
APPLICANT
and
SIZO
SIBIYA
FIRST RESPONDENT
JABULANI PHUMASILWE
NGUBANE
SECOND RESPONDENT
CAIPHUS ERNEST
KHUMALO
THIRD RESPONDENT
SIMANGALISO QHAMUKILE
MNTAMBO
FOURTH RESPONDENT
Coram
:
Mossop J
Heard
:
22 January 2024
Delivered
:
30 January 2024
ORDER
The
following order is granted
:
The
application is dismissed with costs.
JUDGMENT
MOSSOP
J
:
[1]
The Isimangaliso Wetland
Park in Zululand is one of this country’s most beautiful
natural parks, rich in its biodiversity
and unique in the ecosystems
that it supports.
It
is, indeed, deserving of its name, for
isimangaliso
means
‘a miracle’ in isiZulu.
[1]
[2]
The applicant is an organ
of State established to manage and control this natural jewel, which
is a World Heritage site. The four
respondents are employees of the
applicant. Each of the respondents were initially employed by the
applicant on a fixed term contract.
[2]
At some stage during 2018, and the applicant cannot be more specific
than to state the year, a decision was apparently taken by
the
applicant’s Board of Directors (the Board) that the fixed term
contracts of members of the applicant’s Executive
Staff
Component (ESC)
[3]
should be
converted to contracts of permanent employment. The applicant has
described this decision as ‘the impugned decision’
in its
founding affidavit and I shall do likewise. As a consequence, the
first respondent’s fixed term contract of employment
was
converted to a contract of permanent employment on 20 March 2018.
Thereafter, the fixed term contracts of employment of the
second,
third and fourth respondents were converted to contracts of permanent
employment on 1 August 2019, 1 July 2019 and 15 February
2021
respectively.
[3]
The applicant now
believes that the impugned decision was invalid. In its notice of
motion, it consequently seeks a declaratory
order to this effect. It
also seeks an order that the permanent appointments of the four
respondents be reviewed and set aside.
It finally seeks the
suspension of the declaration of invalidity of the impugned decision
for a period of six months from the date
of any order granted by this
court. The notice of motion states that the purpose of this
suspension is to enable the applicant
to take ‘corrective
action’. It was not entirely clear what this is intended to
mean and it is not explained in the
founding affidavit. I asked Mr
Cele, who appears for the applicant, what was intended by this. From
the bar, he indicated that
the applicant intended to conduct
performance reviews of the four respondents to decide whether or not
they should be awarded fixed
term contracts of employment after their
permanent employment is set aside by the court.
[4]
Mr Cele confirmed that the four respondents would remain employed by
the applicant throughout the six-month period of suspension.
I am not
confident that this will be case, as I shall explain later in this
judgment.
[4]
It should be mentioned at this juncture that only the first
respondent
has delivered a notice of intention to oppose and only he
has delivered an answering affidavit.
[5]
Because it is an organ of
State, the applicant may not rely on the provisions of the Promotion
of Administrative Justice Act 3 of
2000 (PAJA) in seeking to review
the impugned decision.
[5]
It has
recognised this and has brought its review application premised upon
the principle of legality.
[6]
In seeking the relief
that it claims, the applicant submits that the impugned decision and
the subsequent conversion of the various
employment contracts of the
respondents contravenes the provisions of the World Heritage
Convention Act 49 of 1999 (the Act) and
the Regulations.
[6]
The applicant contends, further, that the Regulations, when read with
the Act, clearly specify that appointments to the ESC of
the
applicant are to be made on a contract basis or for a period to be
determined by the Chief Executive Officer (CEO) of the applicant
and
that any appointment contrary to these prescripts is invalid. It is
also contended that both the Board of the applicant and
the CEO lack
the power to convert fixed term contracts of members of the ESC to
permanent or indefinite employment appointments.
[7]
As with most things in
life, litigation such as the present must have a beginning and an
end. There are, however, no prescribed
time periods within which a
legality review must be commenced, unlike a review brought in terms
of PAJA.
[7]
All that is required
in a legality review is that it
must
be initiated without undue delay. The touchstone remains
reasonableness when considering whether there has been an
unacceptable
delay in commencing such proceedings.
[8]
This is a point that has been taken by the first respondent in his
answering affidavit: he contends that the applicant has delayed
for
four years and has then brought its review application without any
explanation for that delay. This point is not taken as a
point in
limine but it would perhaps be prudent to consider it first.
[8]
I
commence by considering the test to be applied when assessing whether
there has been an undue delay. In
Buffalo
City Metropolitan Municipality v Asla Construction (Pty) Limited
,
[9]
Theron J affirmed that the test to be applied is the two step test
initially postulated in
Gqwetha
v Transkei Development Corporation Ltd and others
,
[10]
and reaffirmed in
Khumalo
and another v MEC for Education, KwaZulu-Natal,
[11]
namely
that:
‘
Firstly,
it must be determined whether the delay is unreasonable or
undue. This is a factual enquiry upon which a value judgment
is made,
having regard to the circumstances of the matter. Secondly, if the
delay is unreasonable, the question becomes whether
the court's
discretion should nevertheless be exercised to overlook the delay to
entertain the application
.’
[12]
Any
explanation offered for a delay must cover the whole period of the
delay.
[13]
[9]
In
Altech
,
[14]
Ponnan JA reaffirmed that:
‘
It
is a long-standing rule that a legality review must be initiated
without undue delay and that courts have the power (as part
of their
inherent jurisdiction to regulate their own proceedings) to either
overlook the delay or refuse a review application in
the face of an
undue delay.’
[10]
The
requirement that legality reviews be brought without delay was
further explained in
Merafong
City v AngloGold Ashanti Limited
,
[15]
where Cameron J stated that:
‘
The
rule against delay in instituting review exists for good reason: to
curb the potential prejudice that would ensue if the lawfulness
of
the decision remains uncertain. Protracted delays could give rise to
calamitous effects. Not just for those who rely upon the
decision but
also for the efficient functioning of the decision-making body
itself.’
[11]
On how the
reasonableness of a delay is to be assessed, Plasket JA in
Valor
IT v Premier, North West Province and others
[16]
indicated that:
‘
Whether
a delay is unreasonable is a factual issue that involves the making
of a value judgment. Whether, in the event of the
delay being
found to be unreasonable, condonation should be granted involves a
“factual, multi-factor and context-sensitive”
enquiry in
which a range of factors — the length of the delay, the reasons
for it, the prejudice to the parties that
it may cause, the fullness
of the explanation, the prospects of success on the merits —
are all considered and weighed before
a discretion is exercised one
way or the other
.
’
(Footnotes omitted.)
[12]
While
the court has a discretion to refuse a review because of an
unacceptable delay, if the decision about which complaint is made
is
patently unlawful, this may in turn dictate that the delay be
overlooked and that the review be granted.
The
requirement to bring review proceedings without undue delay is to
ensure that there is finality in those proceedings.
The
Constitutional Court has held that there is a ‘strong public
interest in both certainty and finality’.
[17]
[13]
Significantly, in
Khumalo
,
Skweyiya J acknowledged that excessive delays may cause prejudice to
the court that is tasked with hearing such review application
when he
observed that:
‘…
it
is important to understand that the passage of a considerable length
of time may weaken the ability of a court to assess an instance
of
unlawfulness on the facts. The clarity and accuracy of
decision-makers' memories are bound to decline with time. Documents
and evidence may be lost, or destroyed when no longer required to
be kept in archives. Thus the very purpose of a court
undertaking
the review is potentially undermined where, at the cause
of a lengthy delay, its ability to evaluate fully an allegation of
illegality
is impaired
.’
[18]
[14]
The very difficulty anticipated by Skweyiya J manifests itself in
this matter. The decision
that permitted the conversion of the fixed
term contracts of employment of the respondents was allegedly taken
by the Board in
2018. The applicant is unable to state the date of
the Board meeting at which the decision was taken. If minutes were
kept of such
a meeting, they have been lost. It is, however,
remarkable in this age of digital documentation that there is no
other recordal
of when the meeting was held, such as copies of emails
advising Board members of the date of the meeting or copies of the
agenda
for the meeting circulated to Board members.
[15]
If the Board meeting was, indeed, held in 2018, it is likely that the
impugned decision
must have been taken in the first three months of
that year as the fixed term employment contract of the first
respondent was converted
to a permanent employment contract on 20
March 2018. That conversion could only have occurred if the impugned
decision had already
been taken. This application was issued on 30
November 2022 and was served on the first respondent a week later.
The delay is therefore
a period in excess of the four years, as
mentioned by the first respondent in his answering affidavit: it is,
in fact, in excess
of 4 years and eight months.
[16]
The deponent to the applicant’s founding affidavit is the
applicant’s present
Chief Executive Officer, Mr Sibusiso
Bukhosini (Mr Bukhosini). Mr Bukhosini does not disclose in the
founding affidavit when he
assumed that position, but it is apparent
from allegations contained in the answering affidavit, which have not
been specifically
denied by Mr Bukhosini, that he was not so employed
in 2018. None of the Board members have deposed to affidavits, other
than Professor
Antonia Nzama (Professor Nzama), who was a Board
member at the time of the impugned decision having been taken and who
is presently
the chairperson of the Board. However, when the
application papers were issued and served, Professor Nzama’s
affidavit was
referred to but was not attached. It has subsequently
been delivered together with the applicant’s replying affidavit
but
at the time that the first respondent was required to produce his
answering affidavit, he did not have it and he rightly took the
point
that virtually everything deposed to by Mr Bukhosini was, as a
consequence, hearsay. It is difficult to disagree with that.
I note
in passing that Professor Nzama’s affidavit only makes mention
of her having read the founding affidavit of Mr Bukhosini
and does
not mention her having read his replying affidavit, with both her
affidavit and the replying affidavit being commissioned
on the same
day, 19 July 2023.
[17]
Is there any explanation for the delay to be found in the founding
affidavit or is the
first respondent correct in his assertion that no
explanation has been provided? The founding affidavit, in which an
explanation
for the apparent delay should be found, is a lengthy
document comprising some 32 pages. It is replete with lengthy
extracts from
legislation said to be applicable to the issues in
dispute (which legislation is also attached as an annexure to the
founding affidavit)
but it blithely skips over the delay in bringing
the review, as if the author of the founding affidavit did not
appreciate that
the issue needed to be comprehensively addressed in
that document. So brief, and so terse, is the applicant’s
explanation
for the delay that it can profitably be quoted in full:
‘
7.19
Subsequently (sic) to the current Board term commencing in March
2020, it was suggested to the Board that the 2018
Board decision may
not be enforceable due to the failure to comply with the WHCA and the
Regulations in converting contract appointments
to permanent
appointments as well as making new appointments on a permanent basis.
7.20
As a result thereof, on or about the year 2021, I approached and
requested the Board committee on HR, Social
and Ethics to seek legal
advice on how the applicant can rescind the 2018 Board decision in
order to have the Executives (sic)
Manager appointments to be in
accordance with the Regulations.
7.21
Soon thereafter, a legal opinion was sought from our attorneys of
record and the services of counsel were
enlisted to provide legal
opinion on possible ways to rescind the impugned board decision. The
opinion was only received in March
2022 which recommended that the
applicant should approach the above Honourable court to review the
impugned decision and to set
it aside, hence the matter is before
this Honourable Court.’
[18]
These are the only
allegations in the founding affidavit that could be interpreted as
constituting an explanation for what appears,
on the face of it, to
be an inordinate delay in seeking the review of the impugned
decision. The vagueness of the explanation is
troubling: w
ho
held the view on the impugned decision, when that view was formed and
when precisely it was conveyed to the Board is not explicitly
stated
by the applicant.
[19]
It
is trite that an applicant must make out its case in its founding
affidavit and may not do so in its replying affidavit, but
this is
precisely what the applicant has done,
[19]
for
greater detail of the delay is, to an extent, provided in the
replying affidavit. I mention these additional facts while being
acutely aware of the principle stated in the preceding sentence and
being further mindful of fact that because the new information
is
contained in the replying affidavit, the first respondent has not had
the opportunity of commenting upon it. In the replying
affidavit, Mr Bhukosini now states that he first became aware
‘sometime during the year 2021’ that there may be a
difficulty with the impugned decision. He also repeats that he
consequently asked ‘the Board Committee on HR, Social and
Ethics’ to obtain legal advice and further repeats that the
legal advice was only received during March 2022. The Board then
took
a decision on 28 April 2022 to review the impugned decision. In early
May 2022, attorneys were instructed. On 24 June 2022
the counsel
instructed by the attorneys called for further information, which was
sent to him on 27 June 2022. Counsel then took
an acting appointment
at the Durban Magistrates’ Court and was so engaged until
August 2022. On 23 September 2022, a query
was sent to counsel
inquiring how the preparation of the application papers was
progressing. As a consequence, a draft founding
affidavit was
forwarded by counsel to the applicant’s attorneys on 27
September 2022. Mr Bhukosini explains that he was then
‘engaged
in other matters’ and could not review the founding affidavit.
He eventually did so, made some amendments
to it and forwarded it to
the applicant’s attorneys on or about 6 November 2022. The
application was then launched on 30
November 2022. All of this should
have appeared in the founding affidavit, but did not. Mr Bukhosini
concludes thus:
‘
I
contend that a reasonable explanation has been provided and that it
was not an undue delay as the Applicant had acted expeditiously
once
it became aware of the unlawfulness and invalidity of the impugned
2018 Board decision. I hereby request that under the principal
of
legality, the delay be overlooked.’
[20]
I regret that I
cannot agree with this conclusion. What has been provided is not a
full explanation for the entire period of the
delay nor is it a
reasonable and satisfactory explanation. In both the founding and the
replying affidavits, the explanation ignores
the first three years of
the period after the taking of the impugned decision. The initial
explanation in the founding affidavit,
such as it is, is
characterised by unacceptable vagueness. Mr Cele submitted in
argument that more information was acquired by
the applicant after
the answering affidavit had been received and that information was
accordingly placed in the replying affidavit.
It is difficult to
understand how that could be so. By the time the application was
launched, all the events later reported on
in the replying affidavit
had already occurred and must have been known to the applicant when
that the founding affidavit was brought
into existence.
[21]
The expanded version
of the explanation for the delay contained in the replying affidavit
also contradicts the initial version contained
in the founding
affidavit. Mr Bukhosini does not explicitly state in the founding
affidavit that he is the person who came to the
conclusion on the
unlawfulness of the impugned decision and then advised the Board
accordingly, but the impression is that it was
he who did so. I
sought clarity from Mr Cele on this point and he confirmed that it
was indeed Mr Bukhosini who had advised the
Board. That being the
case, Mr Bukhosini has offered two different explanations for when he
came to that view: in the founding
affidavit he stated that he became
aware of the alleged unlawfulness of the impugned decision subsequent
to the current Board’s
term of office commencing in March 2020,
whilst in the replying affidavit he states that he came to this
conclusion in 2021.
[22]
Applying the test in
Khumalo
,
the first step must be answered in the affirmative, namely that there
has been an excessive and unreasonable delay in the bringing
of this
review and i
n my view, the first respondent is correct
in his assertion that the applicant has advanced no reasons in its
founding affidavit
for the delay.
[23]
I turn
now to consider whether the delay should be overlooked, being the
second step in the
Khumalo
test.
In doing so, I bear in mind the dicta of Meyer JA in
Golden
Core Trade and Invest (Pty) Ltd v Merafong City Local Municipality
and another
,
[20]
where
he stated the following:
‘
Whether
a delay should be overlooked does not and should not entail a
determination of the merits of the review or collateral challenge.
The merits of the challenge are to be weighed on the following basis:
If the delay is to be overlooked, is there a challenge that
warrants
the attention of the court? In other words, whether there is a
serious question to be decided. To decide the merits assumes
the very
jurisdiction that is yet to be determined. And more, it inevitably
skews the weighing of factors that
Khumalo
requires.’
[24]
The proper starting point is to consider the nature of the impugned
decision. It is essentially
a decision by the Board about the form
that the respondents’ employment with it should take. The
applicant submits that permanent
employment is not possible by virtue
of the wording of the Act and the Regulations. In rebuffing this, the
first respondent has
relied heavily on the provisions of s 13(1)
(o)
of the Act which reads as follows:
‘
13.
(1) In the case where an Authority controls one or more World
Heritage Sites, the Minister may, by notice in the
Gazette
,
give some or all of the following powers to an Authority over one or
more specified World Heritage Sites, namely to –
…
(o)
employ persons or entities on a
permanent or temporary basis…’
[25]
This, so the first
respondent contends, is the end of the matter as it is therefore
within the remit of the applicant to make permanent
appointments, as
it has done in respect of the respondents. The applicant, however,
argues that no evidence has been put up that
demonstrates that the
Minister has granted the applicant that power. The power is,
according to the wording of s 13(1)
(o)
,
to be conferred by notice in the
Government
Gazette
and
no such
Government
Gazette
has
been placed before the court, so the applicant argues. That argument
is, however, open to doubt. Before the court are the Regulations,
which have been published in the
Government
Gazette
.
[21]
Regulation 11 is of direct relevance. Regulation 11(2) reads as
follows:
‘
(2)
Persons shall be appointed to the Executive
Staff Component by the Board upon the recommendation of
the Chief
Executive Officer in accordance with the Act on a contract basis
or
otherwise
for such period as the Chief Executive Officer may determine,
including, without limitation, on a temporary basis or pursuant to
an
agency or secondment arrangement.’ (Emphasis added.)
[26]
The meaning of the
phrase ‘on a contract basis’ must mean a fixed term
contract as for it to simply mean that everyone
must be appointed on
the strength of a contract is to state the obvious. The phrase
‘or otherwise’ means:
‘…
not
the thing just referred to or is the opposite of that thing referred
to.’
[22]
The
opposite of a fixed term contract can only be a contract with no
fixed term, in other words, a permanent contract of employment.
That
this must be so may be gleaned from the provisions of regulation
11(6) and the annexure referred to therein, which states:
‘
The
provisions of and the directives, rules and policies made under the
Public Service Act, 1994 (Proclamation 103 of 1994) shall
not apply
to the Executive Staff Component, but the conditions of employment
and remuneration of the members shall be as set out
in Annexure 2 as
amended by regulation from time to time by the Minister with the
concurrence of the Minister of Finance.’
Annexure
2 states, in part, as follows:
‘
Subject
to Section 27 of the Constitution and other applicable law, the
service conditions of employees of the Authority shall be
regulated
by written contract and such contractual measures may deal, without
limitation, with the following:
1.1.
Probation periods not exceeding 6 months.
1.2.
Medical examinations, reference checks and other applicable
background information.
1.3.
Whether the appointment is permanent or temporary…’
[27]
The
power to permanently employ has thus been granted by the Minister and
has been published in the
Government
Gazette
.
It matters not that a specific notice that only deals with this
aspect has not been issued and that the permission is granted
in the
Regulations. On the merits of the application, it appears to me that
this is not a matter where, if the delay in bringing
the review is
overlooked, a serious challenge that warrants the attention of the
court is thereby raised.
[28]
There are other
disquieting aspects about the applicant’s case. The realisation
was reached by the Board that the conversion
of the fixed term
contracts may be invalid sometime after March 2020. Notwithstanding
this apparent realisation, the fourth respondent’s
fixed term
contract was converted to full time employment on 15 February 2021.
It appears that the applicant blew hot and cold:
it believed that the
impugned decision would not pass legal muster, yet it continued to
act in accordance with it. This is gravely
prejudicial conduct
towards the fourth respondent. Why was this done in the light of that
apparent realisation? There is no explanation
tendered by the
applicant for this in any of its affidavits.
[29]
Mr Saks, who appears
for the first respondent, drew attention to the provisions of section
15(3) of the Act, which provides as follows:
‘
The
Minister may review decisions, actions and policies of the Board.’
There
was, thus, a mechanism that the applicant could have invoked to have
its decision critically evaluated by the Minister. It
made no attempt
to do so.
[30]
Moreover,
it appears to me that Mr Bhukosini overlooks something significant in
his submissions: the impugned decision was the applicant’s
own
decision and was taken for reasons of which it must have been aware.
The reason why the impugned decision was taken was thus
always within
its own knowledge. It did not require the legal opinion of another to
galvanize itself into acting. A similar argument
was advanced in
Asla
Construction (Pty) Limited v Buffalo City Metropolitan Municipality
and another.
[23]
In referring to this matter, I am mindful of the fact that it dealt
with a review brought in terms of PAJA, but I can see no reason
why
the logic of the judgment should not also apply to legality
reviews.
[24]
In that matter,
Swain JA stated as follows:
‘
The
contention of the respondent that the time period only commenced
running once it became aware of the unlawful administrative
action is
untenable. The issue of whether knowledge of the
reviewable irregularities in the decision sought to be reviewed
was required before this period commenced running, was decided by
this court in
Aurecon
South Africa (Pty) Ltd v Cape Town City
2016
(2) SA 199
(SCA) ([2015] ZASCA 209) para 16, in the following
terms:
“
The
decision challenged by the City and the reasons therefor were its own
and were always within its knowledge. Section 7(1) unambiguously
refers to the date on which the reasons for administrative action
became known or ought reasonably to have become known to the
party
seeking its judicial review. The plain wording of these provisions
simply does not support the meaning ascribed to them by
the court a
quo, ie that the application must be launched within 180 days after
the party seeking review became aware that the
administrative action
in issue was tainted by irregularity. That interpretation would
automatically entitle every aggrieved applicant
to an unqualified
right to institute judicial review only upon gaining knowledge that a
decision (and its underlying reasons),
of which he or she had been
aware all along, was tainted by irregularity, whenever that might be.
This result is untenable as it
disregards the potential prejudice to
the respondent (the appellant here) and the public interest in the
finality of administrative
decisions and the exercise of
administrative functions.”
’
[25]
[31]
The delay has,
without question, occasioned prejudice to the respondents and it
offends the principle of finality. The first respondent,
being the
first of the respondents to have his employment terms altered, can
only have believed the issue of his employment was
finalised given
the length of time before these proceedings were brought. If the
application is to be granted, his employment,
which must be regarded
by him as being entirely secure, is placed at serious risk. I
mentioned earlier that I had reservations
about whether the
respondents would remain in the employ of the applicant if the relief
claimed in the notice of motion is granted.
The notice of motion
seeks a declaration that the impugned decision taken by the Board was
invalid and is to be set aside but that
the declaration is, however,
to be suspended for six months. However, in sub-paragraphs 1.2 to 1.5
of the notice of motion, the
applicant seeks to review and set aside
each of the contracts of permanent employment of the four
respondents. Those orders are
not to be suspended: it is only the
declaration of invalidity of the impugned decision that is to be
suspended. The first respondent
will thus be rendered unemployed as
his fixed term contract has long since ended through the effluxion of
time. The potential prejudice
is therefore tangible.
[32]
The
applicant conceived of the plan to convert the employment contracts
of the respondents and carried that plan out. It knew why
that plan
was implemented but has thereafter reposed in a catatonic like state.
It now suggests that its lengthy period of inactivity
should be
disregarded on the flimsiest of explanations and that it should be
allowed to act in a fashion that could cause substantial
prejudice to
the respondents. Notwithstanding that the applicant has dwelt on the
matter for several years, it has never once discussed
its misgivings
about the validity of what occurred with the first respondent. He
makes that point repeatedly in his answering affidavit.
As his
employer, the first respondent was entitled to believe that the
applicant would behave in a fair manner towards him
[26]
and after satisfying itself that it had complied with its own
internal prescripts.
[27]
The
same applies to the other respondents. It seems to me that the
applicant has not done so. In my view, the matter does not appear
to
involve a serious breach of any constitutional duty. I am fortified
in this view by the fact that the applicant has not been
able to
clearly establish the illegality of the impugned decision and does
not have reasonable prospects of success on the merits
of the review.
[33]
Ponnan
JA stated in
Altech
[28]
that:
‘
The
objective of state self-review should be to promote open, responsive
and accountable government. The conduct of the City renders
the delay
so unreasonable that it cannot be condoned without turning a blind
eye to its duty to act in a manner that promotes reliance,
accountability and rationality, and that is not legally and
constitutionally unconscionable. Here the delay is stark and the
egregious conduct on the part of the City even starker. The City has
a “higher duty to respect the law”. It is not
“an
indigent and bewildered litigant, adrift in a sea of litigious
uncertainty, to whom the courts must extend a procedure-circumventing
lifeline”.
’
(Footnotes
omitted.)
[34]
These words apply
with equal measure to the applicant. In the circumstances, I
accordingly grant the following order:
The
application is dismissed with costs.
MOSSOP
J
APPEARANCES
Counsel
for the applicants:
Mr E
S Cele
Instructed
by:
Mandla
Ntuli Incorporated
Unit
05
70
Dollar Drive
Richards
Bay
Care
of:
Yashica
Chetty and Associates
Suite
365
Langalibalele
Street
Pietermaritzburg
Counsel
for the respondents:
Mr D
J Saks
Instructed
by
Redfern
and Findlay Attorneys
24
Montrose Park Boulevard
Victoria
Country Club Estate
Montrose
Pietermaritzburg
Date
of argument:
22
January 2024
Date
of judgment:
30
January 2024
[1]
Google
Translate:
https://translate.google.com/?sl=auto&tl=en&text=isimangaliso&op=translate
.
[2]
The first respondent’s contract was for a period of five
years.
[3]
In the definitions section of the
World Heritage Convention Act 49
of 1999
, the term ‘Executive Staff Component’ is defined
by giving it ‘the meaning given to it in Chapter III’
of
the Act. It appears, in essence, that it is a reference to the
management cohort of the applicant.
[4]
The permanent employment contract relating to the first respondent
appears to be comprised of his fixed term contract of employment
to
which is attached a letter containing further terms. That letter
contains the following clause:
‘
Your
employment will be performance based. The Authority will set the
performance targets in line with your key performance indicators
and
set the basis of measurement and evaluation. Performance appraisals
will be conducted and any non-performance in the agreed
key
performance indicator targets, (sic) will result in disciplinary
measures being taken against you which may result in termination
of
your employment.’
The
permanent contracts of employment for the other respondents contain
similar clauses. Why six months should now be required
for the
purpose indicated by Mr Cele, when the first respondent has been
employed permanently for nearly six years, is not apparent,
nor is
it attractive.
[5]
State
Information Technology Agency SOC Ltd v Gijima Holdings (Pty)
Ltd
[2017]
ZACC 40
;
2018
(2) SA 23
(CC).
[6]
Regulations in connection with the Greater St Lucia Wetland Park, GN
R1193,
GG
21779
,
24
November 2000 (‘the Regulations’).
[7]
A
period of 180-days is set by s 7(1) of PAJA, which may be extended
under s 9 of that Act.
[8]
Altech
Radio Holdings (Pty) Limited and others v Tshwane City
[2020]
ZASCA 122; 2021 (3) SA 25 (SCA) (‘
Altech’)
para
18.
[9]
Buffalo
City Metropolitan Municipality v Asla Construction (Pty) Limited
[2019]
ZACC 15
;
2019 (4) SA 331
(CC) (‘
Asla
(CC)
’
).
[10]
Gqwetha
v Transkei Development Corporation Ltd and others
2006
(2) SA 603 (SCA); [2006] 3 All SA 245 (SCA).
[11]
Khumalo
and another v MEC for Education, KwaZulu-Natal
[2013]
ZACC 49
;
2014 (5) SA 579
(CC);
2014 (3) BCLR 333
(CC) (‘
Khumalo
’
).
[12]
Asla
(CC)
para
48
[13]
Ibid
para
52.
[14]
Altech
para
18.
[15]
Merafong
City v AngloGold Ashanti Limited
[2016]
ZACC 35
;
2017 (2) SA 211
(CC);
2017 (2) BCLR 182
(CC) para 73.
[16]
Valor
IT v Premier, North West Province and others
[2020] ZASCA
62
;
2021
(1) SA 42
(SCA);
[2020]
3 All SA 397
(SCA)
para 30.
[17]
Khumalo
para
47.
[18]
Ibid
para
48.
[19]
Commissioner
for the South African Revenue Services v Moloto and others
[2022]
ZAGPPHC 832; [2023] 1 All SA 607 (GP) para 51.
[20]
Golden
Core Trade and Invest (Pty) Ltd v Merafong City Local Municipality
and another
[2023]
ZASCA 126
;
[2023] 4 All SA 589
(SCA) p
ara
51.
[21]
GN R1193,
GG
21779, 24 November 2000.
[22]
Collins
On-line Dictionary:
https://www.collinsdictionary.com/dictionary/english/or-otherwise-and-otherwise
.
[23]
Asla
Construction (Pty) Limited v Buffalo City Metropolitan Municipality
[2017]
ZASCA 23
;
[2017] 2 All SA 677
(SCA);
2017 (6) SA 360
(SCA) para 7
(‘
Asla
(SCA)
’
).
[24]
See the obiter dictum by Theron J in
Asla
(CC)
fn
39.
[25]
Asla
(SCA)
para
7. The decision in
Asla
(SCA)
was
approved by the Constitutional Court in
Cape
Town City v Aurecon SA (Pty) Ltd
[2017]
ZACC 5
;
2017 (4) SA 223
(CC)
paras
40-44.
[26]
Khumalo
para
62.
[27]
Minister
of Health and another NO v New Clicks South Africa (Pty) Ltd and
others (Treatment Action Campaign and another as amici
curiae)
[2005]
ZACC 14
;
2006
(2) SA 311
(CC)
paras 152-155;
City
of Tshwane Metropolitan Municipality v RPM Bricks (Pty) Ltd
[2007]
ZASCA 28
;
2008
(3) SA 1
(SCA)
para 12.
[28]
Altech
para
71.