Summary of Judgment

1. Introduction

This judgment concerned three separate applications for judicial review heard together and disposed of in a single judgment because they raised materially similar facts, arguments, and legal issues. The proceedings were brought in the High Court of South Africa, Gauteng Division, Pretoria, and were framed as applications to review and set aside a decision taken by the Director-General of the Department of International Relations and Cooperation.

The applicants were Ms Malebo Kwena Elsie Maema, Mr Richard Sibusiso Skhosana, and Ms Raoaga Itumeleng Lethoko, each of whom was employed by the Department of International Relations and Cooperation and was posted to South African embassies abroad. The respondents were the Minister of International Relations and Cooperation, the Department of International Relations and Cooperation, and the Director-General of the Department.

The procedural history relevant to the merits was that the Director-General initially notified the applicants during 2019 that they would return to Head Office at the end of their four-year postings, later approved extensions to their terms of duty in early December 2019, and then, within days, withdrew those approvals. The applicants sought to challenge the withdrawal decision as reviewable administrative action (or, alternatively, reviewable under the principle of legality).

The general subject-matter of the dispute was the legal characterisation of the Director-General’s decisions relating to the applicants’ overseas postings, and whether the withdrawal of the previously approved extensions was susceptible to judicial review under administrative-law principles (including the doctrine of functus officio) or whether the matter fell to be determined as a contractual/employment issue governed by the original transfer letters and the employment relationship.

2. Material Facts

In 2015, all three applicants, as employees of the Department, were transferred to South African embassies abroad, namely to Vietnam, India, and Algeria. The transfers were governed by transfer letters signed by the Director-General and each applicant during November 2015, setting out the applicable terms and conditions.

The material and largely common-cause terms included that the duration of each transfer would be four years, commencing on 9 December 2015 and terminating on 15 December 2019. The letters also recorded that, under current policy, it was the Department’s intention that a term of duty would be for four years, while reserving a right to adjust the period if necessary. The letters further indicated that, at the end of the term, at least three months’ notice would be given confirming transfer back to Head Office, and that the transfer conditions could not be guaranteed for the entire duration of the term of duty.

On 15 August 2019, each applicant received written notification from the Director-General that they would be transferred back to Head Office with effect from 15 December 2019. In November 2019, heads of the respective embassies made written submissions to the Director-General seeking approval to extend each applicant’s term of duty to 30 June 2020, motivated on the basis of operational needs at the missions.

On 3 December 2019, the Director-General approved the extension requests by signing the submissions. The approved extensions were, however, only granted until 31 March 2020, consistent with a recommendation from the Chief Director: Human Resources.

On 6 December 2019, at a meeting of the Special Director-General’s Forum (which the applicants did not attend), it was resolved that approvals for extensions (including those concerning the applicants) should be recalled and resubmitted for reconsideration and review on a case-by-case basis. The reason recorded for this resolution was that the extensions were contrary to a policy adopted by the Director-General’s Forum that extensions should be granted only in exceptional circumstances because they generated tensions, were highly subjective, and affected the rotation system. It was also noted that there might be legal implications in revising approvals that had already been communicated.

Following this, a submission was made by the Deputy Director: Human Resources Placement requesting the Director-General to review the prior approvals granted to the applicants and others. The submission relied on financial grounds and did not refer to the policy considerations raised at the 6 December 2019 meeting. On 11 December 2019, the Director-General approved the request to recall the earlier approvals. On 12 December 2019, the applicants were informed that the extensions had been reviewed and withdrawn, and that they were to return to Head Office on 15 December 2019, in line with the transfer letters and the earlier notice of 15 August 2019. Due to late notice, two applicants’ terms of duty were nevertheless extended to 31 December 2019.

The applicants alleged, and the respondents did not seriously deny, that they became aware of the Director-General’s 3 December 2019 decision to extend their terms of duty prior to the 6 December 2019 forum meeting. In particular, on or about 5 December 2019, documentation signed by the Director-General was forwarded to two applicants by email from other departmental officials, and the third applicant was advised telephonically by a departmental official.

By the date of the hearing, all three applicants had returned to Head Office in South Africa and resumed employment with the Department. The judgment treated the above facts as largely common cause and focused on their legal significance rather than evidentiary disputes.

3. Legal Issues

The central legal question was the proper legal characterisation of the Director-General’s decisions, namely the decision on 3 December 2019 to approve extensions of the applicants’ overseas terms of duty, and the later decision on 11–12 December 2019 to review and withdraw those approvals.

A related question was whether the Director-General, having approved the extensions, was legally precluded from withdrawing them on the basis that he had become functus officio, as the applicants contended. This required determination of whether the decisions constituted administrative action under the Promotion of Administrative Justice Act 3 of 2000 (PAJA) (or, failing that, whether they were reviewable under the principle of legality), or whether they were instead decisions taken in an employment/contractual capacity and therefore to be resolved within the contractual framework of the transfer letters.

The dispute was therefore primarily about law and legal classification, and secondarily about the application of law to the common-cause facts, particularly the contractual consequences of the Director-General’s initial approval and subsequent withdrawal, and whether any contractual variation or new agreement came into existence as a result of the 3 December 2019 approval.

4. Court’s Reasoning

The court identified that the dispute turned on whether the Director-General’s decisions were the exercise of a public power/public function amounting to administrative action, or whether they were decisions taken in the context of the employment relationship and contractual arrangements governing foreign postings.

In approaching that characterisation exercise, the court relied on Constitutional Court authority recognising the difficulty of determining when conduct by an organ of state is administrative action in the context of employment matters. The court referred to the reasoning in Chirwa v Transnet Ltd and Others and Gcaba v Minister for Safety and Security, which distinguish between the exercise of public power in general and conduct that qualifies as administrative action, especially in labour and employment disputes involving public sector employees.

Applying those principles, the court held that the Director-General’s decisions in this matter were quintessentially labour-related. The applicants’ terms of duty were described as contractual in nature, and the decisions to extend and then revoke the extensions were not characterised as the implementation of legislation. The court also considered the impact of the decisions and held that, as in the relevant constitutional jurisprudence, these decisions had few or no direct consequences for the general public beyond the applicants themselves.

Having concluded that the decisions were not administrative action, the court treated the matter as turning on the contractual position created by the transfer letters and whether those contractual terms had been amended or replaced. The court posed the question whether the terms of the transfer letters were ever amended to provide for an extension of the applicants’ terms of duty.

The court answered this question in the negative. It held that, even if the 3 December 2019 approval were regarded as a final and unconditional decision (a proposition the court stated was debatable, noting that at least one approval required further consultation with the Department’s human resources division), there was no agreement concluded between the Director-General and the applicants that amended the original transfer letters or constituted a new agreement. The court therefore treated the approvals as insufficient, on the facts as presented, to alter the contractual end-date established in the 2015 transfer letters and confirmed in the August 2019 notice.

On that basis, the court found there was no foundation to set aside the Director-General’s decision of 11 December 2019 to withdraw the earlier approval. The absence of a contractual amendment meant that the Department was entitled to hold the applicants to the original terms governing the end of their foreign postings, and the review relief sought could not succeed.

5. Outcome and Relief

The court dismissed all three applications. It ordered that the applicants in each matter pay the costs of their respective applications.

Cases Cited

Chirwa v Transnet Ltd and Others [2007] ZACC 23; 2008 (4) SA 367 (CC).

Gcaba v Minister for Safety and Security 2010 (1) SA 238 (CC).

Legislation Cited

Promotion of Administrative Justice Act 3 of 2000.

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The court held that the Director-General’s decisions to approve and later withdraw the extensions of the applicants’ overseas terms of duty were labour-related and contractual in nature and did not constitute administrative action for purposes of PAJA. The court further held that the applicants’ transfer letters were not amended, and no new agreement extending their terms of duty was concluded. In consequence, there was no basis to set aside the Director-General’s withdrawal of the earlier approvals, and the review applications were dismissed with costs.

LEGAL PRINCIPLES

The judgment applied the principle that determining whether conduct by a public official constitutes the exercise of a public power amounting to administrative action is context-sensitive and may be difficult, particularly in the sphere of public-sector employment.

It applied the Constitutional Court’s approach in employment-related disputes that decisions which are quintessentially labour-related, grounded in the contractual employment relationship, not involving the implementation of legislation, and having limited public impact beyond the affected employee, do not ordinarily constitute administrative action under PAJA.

It further applied the contractual principle (as utilised on the facts of this matter) that an employer’s internal approval or intention to extend a term does not, without more, alter contractual rights and obligations unless there is a concluded agreement amending the existing contract or constituting a new contract on the amended terms.