About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Bhisho
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Bhisho
>>
2022
>>
[2022] ZAECBHC 27
|
|
Gqokoma v Member of the Executive Council for the Department of Education, Eastern Cape Provincial Government and Another (755/2021) [2022] ZAECBHC 27 (27 September 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION – BHISHO
REPOTABLE/NOT
REPORTABLE
Case
No: 755/2021
In
the matter between:
BUKIWE
EUDORIA
GQOKOMA
Applicant
and
MEMBER
OF THE EXECUTIVE COUNCIL FOR THE
DEPARTMENT
OF EDUCATION, EASTERN CAPE
PROVINCIAL
GOVERNMENT
First Respondent
MARIA
BESTER
Second Respondent
JUDGMENT
DA
SILVA AJ:
A.
Relief sought
[1]
In this application, the applicant seeks an order,
inter alia
:
1.1
declaring invalid the recommendation dated 25 November 2019 of the
chairperson of the interview panel for
the appointment of the second
respondent to the position of Deputy Principal: Bhisho Primary
School;
1.2
declaring the applicant as a successful candidate to the position of
Deputy Principal: Bhisho Primary School;
1.3
directing the first respondent (the MEC for Education: Eastern Cape
(“the MEC”) to do all things
necessary to implement the
recommendations of the interview panel for the appointment of the
applicant to the position of Deputy
Principal: Bhisho Primary School;
and
1.4 an order
of costs.
B.
Applicant’s case
[2]
In support of the application, the applicant has averred that she was
a master teacher
at Bhisho Primary School. Before 11 October 2019,
she applied for the advertised post of Deputy Principal: Bhisho
Primary School.
The applicant was shortlisted and attended the
interview together with the other candidates who had been
shortlisted. The applicant
alleges that she was the highest scoring
candidate. The panellists recommended that the applicant be appointed
to the position
of Deputy Principal: Bhisho Primary School.
[3]
However, the Principal of the school, who was not to be involved in
the selection
process, and the chairperson of the interview panel
favoured the second respondent, who obtained lesser points than the
applicant.
This culminated in the chairperson of the interview panel
signing a different recommendation letter, recommending that the
second
respondent be appointed.
[4]
The applicant contends that the chairperson’s recommendation of
the second respondent
is without a legal or sound basis, is
fraudulent and thus unlawful and illegal. According to the applicant,
the chairperson did
not have the power to unilaterally veto the
majority decision of the panel and substitute same with his own.
[5]
The court asked Mr
Poswa
, who appeared for the applicant, to
identify the cause of action in seeking the declarator. Mr
Poswa’s
response was that the applicant’s cause of action was based
on section 33 of the Constitution and not the Promotion of
Administrative
Justice Act, 2000 (Act 3 of 2000) (PAJA). This much is
also evident from paragraph 10 of the replying affidavit where the
applicant
avers as follows:
“
.
. . The cause of action is premised on an allegation of a violation
or threatened violation of my right to just administrative
action as
entrenched in section 33 of the Constitutional of the Republic of
South Africa, Act No. 108 0f 1996”.
[6]
The applicant, in reply, further contends that the recommendation of
the chairperson,
as adumbrated above, amounts to administrative
action that is unlawful, unreasonable and procedurally unfair.
C.
First Respondent’s grounds of opposition
[7]
Mr
Malunga
, who appeared for the first respondent, has raised
various points
in
limine,
namely:
7.1
non-compliance with section 2 of the State Liability Act, 2011 (Act
14 of 2011), in that the applicant ought
to have cited the head of
the Department of Education: Eastern Cape as he has the power to
appoint an educator in terms of the
Employment of Educators Act 1998
(Act 76 of 1998; and
7.2
lack of jurisdiction in that the applicant’s cause of action is
premised on an unfair labour practice.
[8]
On the merits, the first respondent contends that during the
deliberation from the
recruitment process various irregularities
arose which culminated in the abandonment of the process without a
candidate being embarked
for the position. The nature of the
irregularity is that the panellists could not agree on the suitable
candidate to be appointed.
D.
Application of the law to the facts
[9]
In this matter, I deem it not necessary to deal with the first point
in limine,
i.e. non joinder of the HOD, especially if regard
is had to the nature of this judgment. It is trite law that the
applicant must
stand and fall by her cause of action as articulated
in her founding papers. The applicant avers that her cause of action
is section
33 of the Constitution. Section 33 provides:
“
Everyone
has the right to administrative action that is lawful, reasonable and
procedurally fair. Everyone whose rights have been
adversely affected
by an administrative action has the right to be given written
reasons”.
[10]
The national legislation that has been enacted to give effect to
section 33 of the Constitution
is the PAJA. Section 1 of the PAJA
defines an administrative decision to mean any decision or any
failure to take a decision by
an organ of state, when exercising a
power in terms of the constitution or exercising a public power or
performing a public function
in terms of any legislation which
adversely affects the rights of any person and which has a direct,
external legal effect.
[11]
Thus, in so far as the applicant has premised her cause of action on
section 33 of the constitution,
the question to be answered is
whether the conduct complained of by the applicant was an
administrative action.
[12]
In
Gcaba
v Minister for Safety and Security & Others
[1]
Van der Westhuizen, writing for the majority stated:
“
64.
Generally, employment and labour relationship issues do not amount to
administrative action within the meaning of
PAJA. This is recognised
by the Constitution. Section 23 regulates the employment relationship
between employer and employee and
guarantees the right to fair labour
practices. The ordinary thrust of section 33 is to deal with the
relationship between the State
as bureaucracy and citizens and
guarantees the right to lawful, reasonable and procedurally fair
administrative action. Section
33 does not regulate the relationship
between the State as employer and its workers. When a grievance is
raised by an employee
relating to the conduct of the State as
employer and it has few or no direct implications or consequences for
other citizens, it
does not constitute administrative action.
65. In
this regard the reasoning of Murphy AJ in
SAPU
is persuasive
.
The distinction drawn in that decision in relation to tender
contracting processes and employment seems correct. For purposes of
constitutional interpretation, there are material differences between
tender processes and employment. One is that the Constitution
regulates the employment relationship expressly in section 23, which
is does not do for procurement (although section 217(1) of
the
Constitution does provide that procurement must be fair, equitable,
transparent, competitive and cost-effective). Another is
that the
employment relationship is different from the contractual
relationships which underpin procurement. The court concluded
that
the employment decision at issue in
SAPU
was not
administrative action. This does not mean that employees have no
protection. Employment is not a bargain of equals, but
a relationship
of demand. Since the 1980s in South Africa, the Legislature has
realised that leaving the regulation of employment
purely within the
realm of contract law could foster injustice; therefore the
relationship is regulated carefully through the LRA.
Section 23 is an
express constitutional recognition of the special status of
employment relationships and the need for legal regulation
outside
the law of contract.
66. In
Chirwa
Ngcobo J found that the decision to dismiss Ms
Chirwa
did not amount to administrative action. He held that whether an
employer is regarded as “public” or “private”
cannot determine whether its conduct is administrative action or an
unfair labour practice. Similarly, the failure to promote and
appoint
Mr
Gcaba
appears to be a quintessential labour-related issue,
based on the right to fair labour practices, almost as clearly as an
unfair
dismissal. Its impact is felt mainly by Mr
Gcaba
and
has little or no direct consequence for any other citizens.
67.
This view is consistent with the judgment of Skweyiya J in
Chirwa,
who did not decide this issue, but indicated a leaning in this
direction. It furthermore does not contradict the unanimous judgment
of this Court in
Fredericks,
which left the issue open. There
was no dispute about whether the decision at the centre of the
dispute was administrative action.
68.
Accordingly, the failure to promote and appoint the applicant was not
administrative action. If his case proceeded
in the High Court, he
would have been destined to fail for not making out the case with
which he approached this Court, namely
an application to review what
he regarded as administrative action.”
[2]
[13]
In light of the
Gcaba
judgment the decision not to recommend
and appoint the applicant, is not an administrative decision. The
decision is a quintessential
labour related issue that has few or no
direct consequences for citizens apart from the applicant herself.
[14]
On the issue of jurisdiction, Van der Westhuizen had this to say:
“
75.
Jurisdiction is determined on the basis of the pleadings, as Langa CJ
held in
Chirwa
,
supra
and
not the substantive merits of the case. If Mr
Gcaba’s
case were heard by the High Court, he
would have failed for not being able to make out a case for the
relief he sought, namely review
of an administrative decision. In the
event of the Court’s jurisdiction being challenged at the
outset (
in limine
),
the applicant’s pleadings are the determining factor. They
contain the legal basis of the claim under which the applicant
has
chosen to invoke the Court’s competence. While the pleadings –
including in motion proceedings, not only the formal
terminology of
the notice of motion, but also the contents of the supporting
affidavits – must be interpreted to established
what the legal
basis of the applicant’s claim is, it is not for the court to
say that the facts asserted by the applicant
would also sustain
another claim, cognisable only in another court. If however the
pleadings, properly interpreted, established
that the applicant is
asserting a claim under the LRA, one that is to be determined
exclusively by the Labour Court, the High Court
would lack
jurisdiction. An applicant like Mr
Gcaba
who is unable to plead facts that sustain a cause of administrative
action that is cognisable by the High Court, should thus approach
the
Labour Court”.
[15]
In view of the above, the applicant has failed to establish that the
decisions complained of
are “administrative actions”.
That having been said, the decision not to appoint the applicant is
more of a labour
related issue which is founded on the provisions of
section 185 read with section 186(2)(a) of the Labour Relations Act,
1995 (Act
66 of 1995).
[3]
[16]
The following order is thus made:
“
The
application is dismissed with costs”.
AM
DA SILVA
Acting
Judge of the High Court
Appearances
:
Counsel
for Applicant:
Adv SG Poswa
East London
Instructed
by:
Messrs Bacela Bukula & Assoc.
King Williams Town
Counsel
for First Respondent:
Adv SY Malunga
East London
Instructed
by:
Messrs State Attorneys
c/o Shared Legal
Services
Office of the Premier
King Williams Town
Date
heard:
18 August 2022
Date
delivered:
27 September 2022
[1]
[2009]
12 BLLR 1145
(CC), para [64].
[2]
See
also
NDPP
& Another v Tshavhungwa & Another; Tshavhungwa v NDPP
(2010)
ILJ 81 (SCA).
[3]
“
Promotion”
was defined in
Mashegoane
v University of the North
[2007] ZALC 53
;
[1998]
1 BLLR 73
(LC) as being elevated or
appointed
to a position that carries greater authority and status that the
current position an employee is in.