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[2024] ZAKZPHC 38
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Isimangaliso Wetland Park Authority v Sibiya and Others (16706/2022P) [2024] ZAKZPHC 38 (16 April 2024)
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
:
16 April 2024
Delivered
:
16 April 2024
ORDER
The
following order is granted
:
The application for leave
to appeal is dismissed with costs.
JUDGMENT
MOSSOP
J
:
[1]
This is an ex tempore judgment.
[2]
The applicant seeks leave to appeal against a judgment that I
delivered
on 30 January 2024. The application for leave to appeal is
opposed by the first respondent, who is the only respondent who
opposed
the application when it was initially argued on 22 January
2024.
[3]
In its notice of motion, the applicant sought an order declaring
invalid
a decision taken by its Board of Directors (the Board) to
convert the fixed term contracts of employment of the four
respondents
to contracts of permanent employment. After hearing
argument and reserving judgment, I dismissed the application with
costs.
[4]
The facts of the matter must be briefly considered. The
applicant
employed the four respondents on fixed term contracts.
Having done so, the Board resolved on an undisclosed date in 2018 to
convert
those contracts of employment to full time employment. The
date upon which this decision was taken is not known with any
precision
because the minutes that relate to the meeting at which the
Board took the decision have been lost. The first of the respondents
to have his contract of employment converted was the first respondent
and this occurred on 20 March 2018. The contracts of the
other three
respondents were converted on 1 August 2019, 1 July 2019 and 15
February 2021 respectively.
[5]
The Board, either in 2020 or in 2021, then came to the view that it
was
not entitled to effect such a conversion and resolved to bring a
legality review to set aside the conversion of the first respondent’s
contract of employment and those of the other respondents. The
legality review was ultimately launched on 30 November 2022. It
is
that application that I dismissed.
[6]
In resisting the relief claimed by the applicant, the first
respondent,
inter alia, took the point that there was an undue delay
in bringing the application. The applicant provided an extremely
brief
and unsatisfactory explanation for that delay in its founding
affidavit. The explanation was so brief that it was capable of being
quoted in full in the judgment that I delivered without rendering the
judgment prolix. In reply, further particularity was provided
by the
applicant. It is trite, however, that an applicant must make its case
in its founding affidavit, but this was not done in
this instance.
[7]
The further particularity that was provided in the replying affidavit
merely sprinkled new facts into the period already dealt with by the
deponent to the founding affidavit, Mr Sibusiso Bukhosini (Mr
Bukhosini). No new information was forthcoming regarding the period
of three years from the date of the decision taken by the applicant’s
Board to the date of the decision to bring the legality review. The
applicant states that Mr Bukhosini was not employed over that
period
and thus could not realistically be expected to explain the
applicant’s indolence over that period.
[8]
It
appears to me that this is a confused way of approaching the issue
for it seems to present Mr Bukhosini as the applicant in the
matter.
He is not. He is a witness with limited knowledge of what went before
him. This is not his application. It is the application
of the
applicant. The applicant is required to provide a full explanation
for the period of the delay. There is no obligation on
Mr Bukhosini
to do that. If the person chosen to depose to the founding affidavit
cannot give this evidence, then another person
must be found who can.
I am fortified in this view by the decision in
City
of Cape Town v Aurecon South Africa (Pty) Ltd
,
[1]
where the Constitutional Court stated that:
‘
The
distinction that the City attempts to draw between what is within its
own knowledge and what is within the knowledge of its
committees is
superficial. It is common cause that the BEC and the BAC are
committees mandated by the City for purposes of the
tender
procurement process. These committees form part of an internal
arrangement by the City. Accordingly, it may reasonably be
expected
that all information regarding the tender process which is within the
knowledge of the BAC or BEC, may be deemed to be
within the City’s
knowledge. In my view, that is a weak attempt by the City to deny
knowledge of what it ought reasonably
to have known.’
[9]
For there
can be no doubt that a full explanation must be given. In
Buffalo
City Metropolitan Municipality v Asla Construction (Pty) Limited
,
[2]
the Constitutional Court
held that:
‘
If
there is an explanation for the delay, the explanation must cover the
entirety of the delay.’
It
is not open for a deponent to merely explain a portion of the delay
because that it is all that he has personal knowledge of
and then
argue that the whole period of the delay should be considered as
having been satisfactorily established. Significantly,
the
Constitutional Court went on to state in
Asla
, after the
extract referred to above, that:
‘
But,
as was held in
Gijima
,
where there is no explanation for the delay, the delay will
necessarily be unreasonable.’
[3]
That
is the position in this matter. No explanation has been provided for
a delay of several years. The delay is therefore unreasonable.
[10]
The
heads of argument prepared by Mr Naidoo SC’s junior, Mr Cele,
prior to Mr Naidoo’s involvement in the matter, and
which heads
of argument were relied upon by Mr Naidoo, referred to the matter of
Swifambo
Rail Leasing (Pty) Ltd v Passenger Rail Agency of South Africa
.
[4]
The facts of that matter were that malfeasance and the
concealment of that malfeasance were purposefully concealed from its
board of directors. This led to a delay of three years in the
instituting of the review, which delay was condoned. I assume that
the reference to this matter was to establish that a period of three
years may not in itself constitute an excessive delay because
in
Swifambo
the delay was overlooked. But there are facts that distinguish that
matter from this matter. Firstly, the delay in this matter
is much
longer. Secondly, an explanation was provided in
Swifambo
that established both that malfeasance and concealment had occurred.
In this matter, there is nothing similar because there is
simply no
explanation offered at all and there is certainly no suggestion of
malfeasance. And thirdly, condonation for the late
delivery of the
review was sought in
Swifambo
.
That is not the case in this matter where, as mentioned in my
judgment, it appears that the applicant seemingly
did
not appreciate that the reasons for the delay needed to be
comprehensively addressed in the founding affidavit. No thought was
given to the fact that the review may be out of time.
[11]
Once Mr Bhukosini offered facts in respect of which he had personal
knowledge, it was again
apparent that there was no great haste on the
part of the applicant to bring the review before the courts. On his
own version,
Mr Bhukosini suggested to the Board that the decision to
convert the employment contracts:
‘
may
not be enforceable due to failure to comply with the WHCA and the
Regulations …’
When
this was suggested is, again, not precisely revealed, but that
statement just quoted appears in the context of a sentence that
makes
reference to the term of the Board commencing in March 2020. The
review application was issued on 30 November 2022, two years
and
eight months later.
[12]
Section
17(1) of the
Superior
Courts Act, 10 of 2013 (the Act)
regulates
applications for leave to appeal from a decision of a High Court. It
provides as follows:
‘
Leave
to appeal may only be given where the judge or judges concerned are
of the opinion that –
(
a
)(i)
the appeal would have a reasonable prospect of success; or
(ii)
there is some other compelling reason why the appeal
should be heard, including conflicting judgments on the matter
under
consideration;
(b)
the decision sought on appeal does not
fall within the ambit of section 16(2)(a); and
(c)
where the decision sought to be appealed
does not dispose of all the issues in the case, the appeal would lead
to a just and prompt
resolution of the real issues between the
parties.'
[13]
Prior to
the enactment of the Act, the applicable test in an application for
leave to appeal was whether there were reasonable prospects
that an
appeal court may come to a different conclusion than that arrived at
by the lower court. The enactment of the Act has changed
that test
and has significantly raised the threshold for the granting of leave
to appeal.
[5]
The use of the
word ‘would’ in the Act indicates that there must be a
measure of certainty that another court will
differ from the court
whose judgment is sought to be appealed against.
[14]
Leave
to appeal should therefore only be granted where a court is of the
opinion that an appeal would have a reasonable prospect
of success,
and which prospects are not too remote.
[6]
As
was stated by Schippers JA in
MEC
for Health, Eastern Cape v Mkhitha and Another
[7]
:
‘
An
applicant for leave to appeal must convince the court on proper
grounds that there is a reasonable prospect or realistic chance
of
success on appeal. A mere possibility of success, an arguable
case or one that is not hopeless, is not enough. There must
be a
sound, rational basis to conclude that there is a reasonable prospect
of success on appeal.’
[15]
I have read
the notice of application for leave to appeal and the applicant’s
extensive heads of argument and I have listened
carefully to both
counsel this morning. I remain of the view that the delay in bringing
this application was unreasonable and the
prospect of another court
finding this not to be the case on the known facts of this matter is
remote.
In
coming to this view, I take cognisance of the following observation
by the Constitutional Court in
Cape
Town City v Aurecon SA (Pty) Ltd
,
[8]
where it stated that if the irregularities discovered
had:
‘…
unearthed
manifestations of corruption, collusion or fraud in the tender
process, this court might look less askance in condoning
the delay.
The interests of clean governance would require judicial
intervention.’
[9]
[16]
I
acknowledge that this is not a matter involving a tender. There is,
however, no suggestion of there not being clean governance
in this
matter. 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. I
do not lose sight of
this.
What
the Board decided to do in this matter was not infected with
dishonesty and it therefore cannot be regarded as patently unlawful
conduct, as set out in my judgment.
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.
[10]
[17]
In
Khumalo
and Another v Member of the Executive Council for Education: KwaZulu
Natal
,
[11]
Skweyiya J, whilst acknowledging the indisputable existence of the
delay rule, stated that courts nevertheless have a discretion
to
overlook a delay where appropriate and that:
'[A]
court should be slow to allow procedural obstacles to prevent it from
looking into a challenge to the lawfulness of an exercise
of public
power. But that does not mean that the Constitution has dispensed
with the basic procedural requirement that review proceedings
are to
be brought without undue delay or with a court's discretion to
overlook a delay.'
[12]
[18]
As to whether an unreasonable delay
should be condoned, the Constitutional Court has also observed that:
‘…
it
is equally a feature of the rule of law that undue delay should not
be tolerated. Delay can prejudice the respondent, weaken
the ability
of a court to consider the merits of a review, and undermine the
public interest in bringing certainty and finality
to administrative
action. A court should therefore exhibit vigilance, consideration and
propriety before overlooking a late review
... .'
[13]
(Footnotes
omitted.)
[19]
In
Merafong
City Local Municipality v AngloGold Ashanti Limited
,
[14]
the Constitutional Court reiterated 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.'
[15]
[20]
Mr Saks,
who appears for the first respondent, drew my attention to the
following extract from the matter of
Transnet
SOC
Ltd v Tipp-Con (Pty) Ltd and Others
,
[16]
where
the court stated that:
‘
This
is a cynical self-review. The purpose of an organ of state's
self-review should be to promote open, responsive, and
accountable governance. Transnet is required to promote these goals
through its actions. Given the prejudice suffered by Tipp-Con,
the nature of Transnet’s complaints, the fact that the
irregularities were not egregious, and the unconscionable conduct
of
Transnet, the unreasonable delay cannot be overlooked.’
[21]
Those factors are to be found in this matter. I remain
unpersuaded that another court
would come to a different conclusion
on whether the delay was unreasonable and whether it should, in the
circumstances, be condoned.
The prejudice to the respondents is
manifest and substantial.
[22]
In the circumstances, I grant the following order:
1.
The application for leave to appeal is dismissed with costs.
MOSSOP
J
APPEARANCES
Counsel
for the applicants:
Mr M
Naidoo SC with 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
[1]
Cape
Town City v Aurecon SA (Pty) Ltd
[2017]
ZACC 5
;
2017
(4) SA 223
(CC)
para 36.
[2]
Buffalo
City Metropolitan Municipality v Asla Construction (Pty) Limited
[2019] ZACC 15
;
2019 (4) SA 331
(CC) para 52.
[3]
Infra, para 52
[4]
Swifambo
Rail Leasing (Pty) Ltd v Passenger Rail Agency of South Africa
[2018]
ZASCA 167; 2020 (1) SA 76 (SCA).
[5]
Public
Protector of South Africa v Speaker of the National Assembly and
Others
[2022] ZAWCHC 222 para 14.
[6]
Ramakatsa
and Others v African National Congress and Another
[2021]
JOL 49993
(SCA)
para [10]
[7]
MEC
for Health, Eastern Cape v Mkhitha and Another
[2016] ZASCA 176 para 17.
[8]
Cape
Town City v Aurecon SA (Pty) Ltd
[2017]
ZACC 5
;
2017
(4) SA 223
(CC).
[9]
Ibid
para 50.
[10]
Khumalo
and another v MEC for Education, KwaZulu-Natal
[2013]
ZACC 49
;
2014 (5) SA 579
(CC);
2014 (3) BCLR 333
(CC)
para
47.
[11]
Khumalo
and Another v Member of the Executive Council for Education: KwaZulu
Natal
[2013]
ZACC 49
;
2014
(3) BCLR 333
(CC);
(2014) 35 ILJ 613 (CC);
2014
(5) SA 579
(CC).
[12]
Ibid
para 45.
[13]
Department
of Transport and Others v Tasima (Pty) Limited
[2016]
ZACC 39
;
2017
(1) BCLR 1
(CC);
2017
(2) SA 622
(CC)
para 160.
[14]
Merafong
City Local Municipality v AngloGold Ashanti Limited
[2016]
ZACC 35; 2017 (2) BCLR 182 (CC); 2017 (2) SA 211 (CC).
[15]
Ibid para 73.
[16]
Transnet
SOC
Ltd v Tipp-Con (Pty) Ltd and Others
[2024]
ZASCA 12 para 57.