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[2019] ZALMPPHC 59
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Mphasha v MEC of Provincial Treasury and Another (1205/2018) [2019] ZALMPPHC 59 (13 December 2019)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO
DIVISION, POLOKWANE)
(1)
REPORTABLE:
YES
/NO
(2)
OF
INTEREST TO OTHER JUDGES: YES/
NO
(3)
REVISED
CASE NO: 1205/2018
13/12/2019
In
the matter between:
MATOME
JOHANNES MPHASHA
APPLICANT
and
MEC
OF PROVINCIAL TREASURY
FIRST RESPONDENT
MEC
OF CO-OPERATIVE GOVERNANCE,
SECOND RESPONDENT
HUMAN SETTLEMENT &-TRADITIONAL
AFFAIRS
JUDGMENT
MAKGOBA
JP
[1]
In
this application the Applicant has launched a review application in
terms of the provisions of the Promotion of Administrative
Justice
Act 3 of 2000 ("PAJA") read with Rule 53 of the Uniform
Rules of Court, wherein he seeks relief in the following
terms:
1.1.
Reviewing and setting aside the decision
taken by the First Respondent on 17 March 2017 not to approve the
counter offer made to
the Applicant by the Second Respondent.
1.2.
Substituting the decision of the First
Respondent not to approve the counter offer, with the following -
"The counter offer made to the
Applicant is approved with retrospective effect from 01 March 2017".
[2]
Essentially
the Applicant approaches this Court to review and set aside a
decision made by the First ·Respondent. The Applicant
relies
on PAJA as his basis to review and set aside the decision made by the
First Respondent on 17 March 2017. There is however
no reference to
which part of PAJA the Applicant relies on in bringing this
application. The decision which the Applicant seeks
to be reviewed
and set aside is that of the First Respondent not to approve a
counter offer request made by the Second Respondent.
The said counter
offer is borne out of an employment offer made by a third party to
the Applicant. The application is opposed by
the First Respondent.
The Second Respondent abides the decision of the Court.
Factual Background
[3]
The
Applicant is the employee of the Second Respondent. At some stage he
applied for a position of Deputy Director: Performance
Management
Development System in the Eastern Cape Provincial Government. He was
successful in such application and was advised
accordingly on the 23
January 2017. The Applicant then tendered his resignation to the
Second Respondent. The Second Respondent
made a counter offer to the
Applicant in order to retain him. By reason of the said counter offer
the Applicant declined to take
the position offered to him by the
Eastern Cape Provincial Government.
[4]
On
the 3 March 2017 the Second Respondent made a request to the Head of
Department ("HOD") of the First Respondent ("Provincial
Treasury") to approve the counter offer made to the Applicant.
On 17 March 201? the HOD of the First Respondent responded
as
follows:
"COUNTER OFFER ON THE
POST OF DIRECTOR: HUMAN RESOURCE PLANNING PROVISIONING: 2016/17
FINANCIAL YEAR
The above matter refers.
In terms of provincial Personnel Management
Framework (PPMF) issued in 2016 section 5.3 which indicates that "A
successful
application for a
same
level or higher level post will be
viewed
as a
career
choice rather than an opportunity to negotiate
a
counter offer, therefore PSR V.
C.
3
should not be applied to retain a person who has made
a
career choice"
It is on the above mentioned
basis
that the department
is
disapproved to implement the counter
offer. The department should continue with recruitment process to
fill the advertised post
as
planned."
The effect of the aforesaid correspondence is
that the Second Respondent's counter offer to the Applicant was
disapproved by the
First Respondent. This correspondence is Annexure
MJM8 to the Applicant's founding affidavit.
[5]
It
is clear from the reading of the aforementioned Provincial Personnel
Management Framework document (Annexure GP02 to the First
Respondent's answering affidavit) that section 5.3 thereof was not
correctly quoted in the correspondence of the First Respondent
HOD.
Section 5.3 of the document provides for something else, namely
"Approval of Departmenta.1 Human
Resource Management Annual Plans"
and
not counter offers. The correct section relevant to the matter at
issue herein is section 5.13.
For the sake of convenience I set out the
contents of section 5.13 which read as follows:
"5.13.
Awarding of higher salary
notches in terms of PSR V.C.3
A successful application for
a
same
level or higher level post will
be viewed
as a
career
choice rather than opportunity to negotiate
a
counter offer, therefore Public
Service Regulation, Part V.C.3 should not be applied to retain a
person who made a career choice"
The error is noted but same will not have any
effect on the issues to be adjudicated in this application.
[6]
On
24 March 2017 the Second Respondent wrote to the Applicant and
advised that the First Respondent had disapproved the counter
offer.
A letter to this effect is annexure MJM7 to the Applicant's founding
affidavit. The letter contains the reasons given by
the HOD of the
First Respondent for disapproving the counter offer. The Applicant
was therefore provided with the reasons for disapproval
of the
counter offer as contained in Annexure MJM8' that is the
correspondence from the HOD of First Respondent to the Second
Respondent.
[7]
It
can be accepted that the Applicant was advised of the disapproval of
the counter offer and the reasons thereof on 24 March 2017
as per
Annexures MJM7 and MJM8 to the founding affidavit. The Applicant
instituted the present application proceedings on 22 February
2018.
Grounds of Review
[8]
The
grounds of review relied upon by the Applicant in terms of PAJA are
the following:
8.1.
That
the HOD of First Respondent took into account irrelevant
considerations in not approving the counter offer sought by the
Second
Respondent.
Further, that the decision taken is not
rationally connected to the information that was before the HOD and
the reasons for the
decision given by him.
8.2.
That
the decision taken by the HOD not to approve the counter offer was so
unreasonable that no reasonable person would have taken
it.
Points
in
Limine
[9]
The First Respondent has raised the following two points in
limine
and submits that same should dispose of the dispute without
considering the merits of the case:
9.1.
That there was undue delay in bringing
the application and the Applicant failed to bring an application for
condonation as required
by PAJA upon which the Applicant relies for
the application.
9.2.
The Second leg deals with whether the
matter should be before the High Court and not the CCMA, Bargaining
Council or Labour Court
as directed by the
Labour Relations Act 66 of
1995
.
[10]
The Applicant concedes that he became
aware of the First Respondent's decision on 24 March 2017. It is
common cause that the present
review proceedings were instituted on
22 February 2018, almost eleven months after the Applicant became
aware of the decision and
reasons thereof as contained in Annexures
MJM7 and MJM8 to the founding affidavit.
[11]
Section 7(1)
of PAJA provides that any
proceedings for judicial review in terms of
section 6(1)
must be
instituted without unreasonable delay and not later than 180 days
after the date on which the person concerned was informed
of the
administrative action, and or became aware of the action and the
reasons for it, or might have been expected to have become
aware of
the action and the reasons.
[12]
In terms of
section 9
of PAJA the period
may be extended for a fixed period by agreement between the parties
or, failing such agreement, by a Court on
application by the person
or administrator concerned. Such an application may be granted where
the interests of justice so require.
It is common cause that in this
matter the Applicant has not brought an application for an extension
of the period in terms of
section 9
or at the very least a request
for an opportunity to make one.
[13] It is trite that
the Court is only empowered to entertain review application if the
interest of justice
dictates an extension in terms of
section 9.
Absent such extension the Court has no authority to entertain the
review application
[1]
.
In the case of
Mostert
NO v The Registrar of Pension Funds
[2]
at paragraph 35-37 the following
observation was made:
"[35] It
follows in my view that where it appears to the Court on the papers
that there has been
a
manifest
delay and that the proceedings might not have been instituted within
the period of 180 days, it will be entitled to raise
the point itself
as such
a
delay will be
unreasonable per se and the Court will not have the power to review.
As was said in Camps Bay Rate Payers and Residence
Association the
applicant should be given an opportunity to deliver a further
affidavit to explain the apparent delay, or apply
for an extension in
terms of
section 9.
It will, of course been titled not to do so and
to argue the matter on the papers as they stand.
[36]
This
brings me to the question whether the Court a quo erred in allowing
the Minister to raise the point when he had not done so
in his
papers. Where it appears from the applicant's papers that there had
been a delay of more than 180 days, and there is no
application for
an extension of the period, a respondent is in my view entitled to
raise the point in argument that the Court has
no power to hear the
review. This is not raising a defence - it is a submission that, on
the applicant's own papers, the Court
has no power to entertain the
review. If the Court is entitled to raise the point mero motu then
there can be no reason why the
respondent should not be allowed to
raise it. It was in any event dealt with by both parties in their
heads of argument, and the
appellant elected not to seek leave to
file a further affidavit.
[37]
I
do not agree with the submission that the time bar in
s
7(1)
is the
same
as a
special defence of prescription.
Section 17(1)
of the
Prescription Act 68 of 1969
provides that
a
Court shall not of its own motion
take notice of prescription. Sub-section (2) provides that
a
party to litigation who invokes
prescription shall do
so
in
the relevant document filed of record. There is no similar provision
in PAJA. Where the proceedings were not instituted within
the periods
specified ins 7(1)
a
Court
as
no
power to hear the review".
[14]
In the present application it is common
cause that the Applicant has failed to bring the application within
180 days provided for
in terms of
section 7(1)
of PAJA. Accordingly
this Court has no power to hear the review application.
[15]
The First Respondent contends that this
Court has no jurisdiction to entertain the dispute in this
application. It contends that
the Applicant's case is essentially a
request for promotion to a higher position in terms of the counter
offer which was made but
on account of the First Respondent's
disapproval, not implemented. The Applicant is of the view that the
failure to implement the
counter offer was unfair and that the Court
should find such conduct unfair and unreasonable and grant him relief
by promoting
him.
[16]
The Applicant in its founding affidavit
relies on PAJA and the Constitution of South Africa to obtain the
relief he seeks. The relevant
section the Applicant can rely upon in
the Constitution would be section 23(1) which deals with the right to
fair labour practices.
Disputes concerning alleged unfair labour
practices relating to failure to appoint, and / or promote an
employee must be referred
to the CCMA and
I
or Bargaining Council for
conciliation and arbitration in accordance with the provisions of the
Labour Relations Act
("the LRA"). The Applicant in the
present case seeks a declaratory order from this Court in terms of
which he will be
promoted by the Second Respondent.
[17]
I agree with the submission made by
Counsel for the First Respondent that the problem the Applicant has
is if he wants to rely on
PAJA (as he does) he must first consider
the provisions of
section 7(2)(a)
and (b) of PAJA. In terms of these
sections the right to seek judicial review may be deferred until the
aggrieved person has exhausted
remedies available to it in terms of
governing legislation. Since the Applicant in the present case
effectively seeks a promotion
the governing legislation which the
Applicant ought to rely on is the LRA, which directly regulates the
right to fair labour practices.
In
SANU v
Minister of Defence and Others
[3]
it was said that:
"Where legislation is
enacted to give effect to a Constitutional right, a litigant may not
bypass the legislation and rely
directly on the Constitution without
challenging that legislation
as
falling short of the
Constitutional standard".
[18]
I am of the view that the Applicant, as
a matter of principle, cannot approach this Court to have his
promotional issue determined
and can only approach the CCMA or the
appropriate Bargaining Council in terms of the dispute resolution
provision provided for
in the LRA. The Supreme Court of Appeal in
South African Maritime Safety
Authority v McKenzie
[4]
reiterated that the LRA was enacted
to give effect to the labour rights guaranteed in terms of section 24
of the Constitution. It
also confirmed that section 185 of the LRA is
one of the most important rights flowing from the Constitutional
guarantee of fair
labour practices.
[19]
The two points in
limine
raised by the First Respondent are
upheld. On these grounds the application is dismissed with costs.
Merits
[20]
For the sake of completeness I proceed
to deal with the merits of the case. Even on the merits the Applicant
has failed to make
out a case for the relief sought.
[21]
The issue is whether the disapproval of
the counter offer made to the Applicant by the Second Respondent is
irrational and / or
unreasonable as alleged by the Applicant. From
the onset it should be noted that in his founding papers the
Applicant did not fully
set out the grounds on which it is alleged
that the conduct of the First Respondent in disapproving the counter
offer was irrational
and/ or unreasonable.
[22]
The First Respondent in its answering
affidavit has explicitly set out the reasons why the counter offer
was disapproved. According
to the First Respondent is has a duty to
approve all new positions within the Province due to excessive salary
expenditures. The
Limpopo Province has for the past few years
incurred a much higher salary bill than the rest of the provinces in
South Africa.
One of the major causes of this was as a result of
various departments in the Province making illogical counter offers
to employees
that do not make any financial sense and / or where such
offers are without merit. Effectively there is excessive expenditure
with
little to no value. The First Respondent has effectively had to
assume the role of watchdog on counter offers and new appointments
to
prevent the system from being abused.
[23]
The Limpopo Provincial Government
accordingly developed the Provincial Personnel Management Framework
(Annexure GP02 to the answering
affidavit) with the Provincial
Treasury as the custodian, the purpose of which was to guide
Provincial departments and Public Entities
in the reduction of
personnel costs across the Province.
[24]
In the present case the Second
Respondent has taken steps to appoint the Applicant in a higher
position based on the counter offer.
The position which the Second
Respondent seeks to offer the Applicant is level 11 position whereas
the Applicant is currently on
level 9. According to the First
Respondent the Applicant does not currently possess the requisite
skills to move to a level 11
position. Even by virtue of the
existence of a vacancy (as alleged by the Applicant in his affidavit)
the Applicant cannot expect
to be automatically appointed in such a
position.
[25]
In the light of the aforesaid reasons
furnished by the First Respondent, I am of the view that the First
Respondent applied its
mind to the request for a counter offer to be
made and a proper decision was taken not to authorize it. The
decision was purely
based on paragraph or section 5.13 of the
Provincial Personnel Management Framework which state that a
successful application for
a same level or higher level post will be
viewed as a career choice rather than an opportunity to negotiate a
counter offer, therefore
Public Service Regulation, Part V.C.3 should
not be applied to retain a person who has made a career choice. In my
view, the First
Respondent's conduct was rational and reasonable in
the circumstances of this case.
[26]
The application is dismissed with costs.
EM MAKGOBA
JUDGE PRESIDENT OF THE
HIGH COURT, LIMPOPO
DIVISION, POLOKWANE
APPEARANCES
Heard
on
: 11 December 2019
Judgment delivered on
: 13
December 2019
For
the Applicant
: Adv. L Nkwana
Instructed
: Maboku Mangena Attorneys
For
the First Respondent
: Adv. P Verveen
Instructed
: State Attorney
[1]
Opposition to Urban Tolling Alliance & Others v The South
African National Roads Agency Ltd & Others [2013]4 All SA
639(SCA)
[2]
986
[2017] ZASCA 108
(15 September 2017
[3]
[2007] 28 IU 1909 (CC) at para 51
[4]
[2010] 5 BLR 488
(SCA)