Mkumatela v Nelson Mandela Metropolitan Municipality and Another (454/2008) [2009] ZASCA 137; 2010 (4) BCLR 347 (SCA) ; [2010] 2 All SA 132 (SCA); (2010) 31 ILJ 76 (SCA) ; [2010] 2 BLLR 115 (SCA) (6 November 2009)

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[2009] ZASCA 137
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Mkumatela v Nelson Mandela Metropolitan Municipality and Another (454/2008) [2009] ZASCA 137; 2010 (4) BCLR 347 (SCA) ; [2010] 2 All SA 132 (SCA); (2010) 31 ILJ 76 (SCA) ; [2010] 2 BLLR 115 (SCA) (6 November 2009)

THE
SUPREME COURT OF APPEAL
REPUBLIC
OF SOUTH AFRICA
JUDGMENT
Case number: 454/2008
In the matter between:
TSHEDISO MKUMATELA APPELLANT
and
THE NELSON MANDELA
METROPOLITAN MUNICIPALITY FIRST RESPONDENT
S V P MAFONGOSI SECOND RESPONDENT
Neutral citation:
Mkumatela v The
Nelson Mandela Metropolitan Municipality
(454/2008)
[2009] ZASCA 137
(6 November 2009)
CORAM: Navsa, Brand, Maya JJA
et
Hurt, Tshiqi AJJA
HEARD: 8 September 2009
DELIVERED: 6 November 2009
SUMMARY
: Review application
brought in High Court under Promotion of Administrative Justice Act 3
of 2000 (PAJA) in matter concerning
labour relationship between organ
of State and employee – held that conduct complained of does not
constitute 'administrative
action' as contemplated by PAJA.
ORDER
On appeal from
: High Court
Port Elizabeth (Revelas J sitting as court of first instance)
The appeal is dismissed with costs, including the costs
of two counsel.
JUDGMENT
BRAND JA
(Navsa, Maya
JJA
et
Hurt, Tshiqi
AJJA concurring)
[1] This appeal has its origin in an unsuccessful review
application by the appellant against the first respondent
municipality
in its capacity as his employer. It raises preliminary
issues which have engaged our superior courts with perturbing
regularity
in the recent past. They relate to the review jurisdiction
of the High Court in disputes arising from labour relations;
purportedly
implicating both the Labour Relations Act 66 of 1995
(‘the LRA’) and the Promotion of Administrative Justice Act 3 of
2000
(‘PAJA’).
[2] By contrast with the technical intricacies of these
preliminary issues, the background facts can be stated with
refreshing simplicity.
The appellant was employed by the respondent
municipality when he applied for the position of assistant manager:
waste operations
which, for him, would have been a promotion. He was
short-listed as one of four candidates to be interviewed by an
appointment
committee. The composition of the committee complied with
the prescriptions of the municipality’s Recruitment Selection and
Placement
Policy. In line with the policy document, it comprised of
the manager of the respondent’s waste management unit, Ms Zamxaka,
a representative of the Human Resources Unit, Mr Jamda, a
representative of the Employment Equity Officer and one
representative
each of the two in-house trade unions. According to
the explicit directions of the policy document, the last mentioned
three representatives
had observer status only. Voting rights were
thus restricted to Ms Zamxaka and Mr Jamda.
[3] As it happened, however, the two members with voting
rights could not agree on which candidate they should recommend to
the
municipal manager, who had been entrusted with the ultimate
responsibility to make the appointment. Ms Zamxaka awarded the
appellant
her highest score. Mr Jamda’s preferred candidate, on the
other hand, was the second respondent, Mr S V P Mafongosi. Ms Zamxaka

then proposed that a recommendation should be made on the basis of
the aggregate score awarded by Mr Jamda and herself. On this
basis
the appellant’s score would be 83,5 as opposed to Mr Mafongosi’s
78. But her proposal was not accepted. What happened
instead was that
the three members of the committee with no more than observer status
were asked to reveal their scores. From these
it became apparent that
all three of them supported Mr Mafongosi. The ‘majority’ vote
thus arrived at was then used as the
basis for a recommendation to
the municipal manager. The recommendation was, however, accompanied
by a covering letter informing
the municipal manager of how the
recommendation had actually come about, including the fact that the
two committee members with
voting rights could not agree and that the
issue had been decided effectively by the scores of those who had no
right to score.
Despite these shortcomings, the municipal manager
nonetheless appointed Mr Mafongosi.
[4] In the event, the appellant brought a review
application in the Port Elizabeth High Court for an order that the
appointment
of Mr Mafongosi – whom he joined as the second
respondent – be set aside and that the appointment process for the
position
in contention be started anew. Apart from other lesser
complaints, the appellant's main ground of objection against the
recommendation
which led to the appointment of his rival was that it
was procedurally flawed in that the prescriptions of the
municipality's own
policy document had not been followed. Departing
from this premise, he contended that he had been deprived of his
fundamental right
to administrative action which is lawful,
reasonable and procedurally fair, as promised in s 33 of the
Constitution.
[5] Mr Mafongosi did not oppose the application. He
chose to abide the decision of the court. The municipality, on the
other hand,
opposed the application. Apart from its opposition on the
merits, it also raised two points
in limine
.
First, that the High Court had no jurisdiction to hear the matter in
that, in terms of the LRA, it fell within the exclusive domain
of the
Labour Court. Secondly, that the appellant’s case, on a proper
analysis, constituted a review application under PAJA,
which was not
competent since the procedure complained of did not amount to
‘administrative action' as contemplated by the latter
Act.
[6] As to the merits, the municipality conceded that the
Appointment Committee had deviated from the procedure prescribed by
the
policy document when it allowed its recommendation to be swayed
by those who had observation status only. Nonetheless, so the
municipality
contended, the deviation did not affect the validity of
Mr Mafongosi’s appointment, essentially for three reasons. First,
because
the policy document constituted no more than a guide.
Secondly, because the deviation did not constitute a material
departure from
the letter and spirit of these guidelines. Thirdly,
because the final decision to appoint had not been taken by the
Appointment
Committee, but by the municipal manager who was fully
aware of the flaws in the recommendation process when he exercised
his independent
discretion in favour of Mr Mafongosi.
[7] The court a quo (Revelas J) considered the two
points
in limine
and
found them both wanting. As to the merits, on the other hand, the
court was essentially persuaded by the municipality’s answers.
In
consequence, the review application was dismissed with costs. The
appeal against that judgment is with the leave of the court
a quo.
[8] In this court the municipality again relied on the
same two points
in limine
as
in the court a quo. The contention that the High Court had no
jurisdiction was squarely based on the decision of the Constitutional

Court in
Chirwa v Transnet Ltd
[2007] ZACC 23
;
2008 (4) SA 367
(CC); where the majority of the court essentially
decided, so the contention went, that, in terms of the LRA, the
determination
of disputes arising from labour and employment
relations are in principle reserved for the exclusive jurisdiction of
the specialised
labour tribunals created by that Act.
[9] The court a quo found the answer to this contention
in the earlier decision by the Constitutional Court in
Fredericks
v MEC for Education and Training, Eastern Cape
[2001] ZACC 6
;
2002
(2) SA 693
(CC), which Skweyiya J, writing for the majority in
Chirwa,
found
distinguishable from that case (paras 56-61). Skweyiya J’s
explanation of the distinction must be understood against the

background of the fact that Mrs Chirwa's allegation that her
employer’s decision to dismiss her was reviewable under the
provisions
of PAJA, rested, inter alia, on the contention that the
decision maker had ‘failed to comply with the mandatory provisions
of
items 8 and 9 of Sch 8 to the . . . LRA'. .
In this light Skweyiya J said the following (in paras
56, 58 and 61):
‘
The applicants [in
Fredericks
]
challenged the refusal of their applications [for voluntary
retrenchment packages] on the grounds that it infringed their rights

under s 9 (the right to equality) and s 33 (right to just
administrative action) of the Constitution.
. . .
Fredericks
(supra)
is
distinguishable from the present case. Notably the applicants in
Fredericks
expressly disavowed any reliance on s 23(1) of the Constitution,
which entrenches the right to a fair labour practice. Nor
did the
claimants in
Fredericks
rely on the fair labour practice provisions of the LRA or any other
provision of the LRA . . . . Ms Chirwa's complaint
is
that Mr Smith [the decision-maker] "failed to comply with the
mandatory provisions of items 8 and 9 of Sch 8 to the LRA."
. .
. Thus, unlike in
Fredericks
,
the applicant here expressly relies upon those provisions of the LRA
which deal with unfair dismissals.'
[10] Departing from the distinction thus formulated, the
court a quo found that the present case falls on the
Fredericks
side of what it perceived to be the divide between that case and
Chirwa
, on the basis
that the appellant, as in
Fredericks
,
and unlike in
Chirwa
,
did not rely on any provision of the LRA, but founded his case
squarely on s 33 of the Constitution read with the provisions
of
PAJA. It is true, so the court a quo further held, that the appellant
would be entitled to formulate a cause of action with
reference to
s 186(2)(a) of the LRA on the basis that the municipality had
committed an unfair labour practice in not ‘promoting’
him. But,
so the court further held, purportedly, in accordance with
Fredericks
read with
Chirwa
, the
appellant had a choice as to which court he wanted to approach.
[11] Not unexpectedly, the argument in this court again
turned largely on what has, since
Chirwa
,
become the stock debate in matters of this kind, namely, whether the
court a quo was right in placing the dispute on the
Fredericks
side of the dividing
line
(see eg also
Makambi v MEC for Education,
Eastern Cape
[2008] ZASCA 61
;
2008 (5) SA 449
(SCA)). But
since we have heard argument in this matter, the train has moved on.
What happened in the meantime is that the Constitutional
Court has
delivered its judgment in
Gcaba v Minister of
Safety and Security
[2009] ZACC 26.
And in
the light of
Gcaba
,
as I see it, the municipality must succeed on
the basis of its second point in limine, namely that its impugned
conduct does not
constitute 'administrative action' as contemplated
by s 33 of the Constitution and the provisions of PAJA.
[12] The
Gcaba
case, like the present, also resulted from the appellant's frustrated
expectations of promotion. Mr Gcaba was employed by the South
African
Police Services. He occupied the position of station commander,
Grahamstown. When the post was upgraded, he applied, was
short-listed
and went through the interview proceedings. He was, however, not
appointed. In consequence, he approached the High
Court with an
application to review the decision not to promote him. The High Court
held, on the basis of the Constitutional Court's
decision in
Chirwa,
that it lacked jurisdiction to entertain the
application as it related to an employment matter. In the result, the
review application
was dismissed with costs. The appeal to the
Constitutional Court was unsuccessful; in essence, because it was
held that the decision
not to promote Mr Gcaba did not constitute
administrative action as contemplated in PAJA and that it was
therefore not reviewable
under that Act. The reasons for this
decision appear to be encapsulated in the following statements by Van
der Westhuizen J (in
para 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 [of the Constitution] 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 [of the
Constitution] 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.'
[13] And (in para 66):
'In
Chirwa
Ngcobo J found [at paras 142 and 150] 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.'
[14] In the court a quo, Revelas J found that the
conduct complained of by the appellant did indeed constitute
administrative action
reviewable under PAJA. The reasons for this
finding, she stated as follows:
'In my view [the municipality]
cannot argue that promoting its employees does not constitute
administrative action. It is an organ
of state and in promoting
employees, it exercises a public power and it performs a public
function in doing so. It clearly performs
an administrative act when
acting in terms of its policies and implementing them'
[15] As I see it, this line of reasoning cannot survive
the judgment of the Constitutional Court in
Gcaba.
In fact, it is in direct conflict with
the views expressed by Van der Westhuizen J. In short, I can see no
basis on which this matter
can be distinguished from
Gcaba
on the facts. As in
Gcaba
,
the appellant's complaint also concerns a failure to promote, which
Van der Westhuizen J regarded as 'a quintessential labour-related

issue, based on the right to fair labour practices'. What Revelas J
found to be significant considerations as to why the impugned
conduct
constituted 'administrative action', was that the municipality is (a)
an organ of state which (b) performs a public function
in promoting
its employees. Van der Westhuizen, on the other hand, believed that
these considerations were of no consequence. In
fact, this appears to
form the very basis on which
Gcaba
was decided (see also
The National Director of
Public Prosecutions v Tshavungwa
[2009] ZASCA
136
para 22). This leads me to the conclusion that,
since the conduct complained of by the appellant did not constitute
administrative
action, the review application was rightly dismissed
on that ground alone. This renders it unnecessary to consider any of
the other
issues raised on appeal, including those relating to the
merits of the impugned decision.
[16] The appeal is dismissed with costs, including the
costs of two counsel.
……………………
.
F D J BRAND
JUDGE OF APPEAL
Counsel For Appellant:
A
BEYLEVELD
B
HARTLE
Instructed
by: RANDELL-OSWALD INC
PORT
ELIZABETH
Correspondents: CLAUDE
REID INC
BLOEMFONTEIN
For
Respondent: G GOOSEN SC
R B WADE
Instructed
By: CHRIS BAKER & ASSOCIATES
PORT
ELIZABETH
Correspondents: McINTYRE
& VAN DER POST
BLOEMFONTEIN