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[2019] ZAKZPHC 4
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MEC for the Department of Co-operative Governance and Traditional Affairs v Nkandla Local Municipality and Others (5369/18P, 5370/18P) [2019] ZAKZPHC 4; (2019) 40 ILJ 996 (KZP); [2019] 3 All SA 772 (KZP) (21 February 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE NO. 5369/18P
In
the matter between:
THE MEC FOR THE DEPARTMENT OF
CO-OPERATIVE GOVERNANCE AND TRADITIONAL AFFAIRS
APPLICANT
and
THE NKANDLA LOCAL MUNICIPALITY
FIRST
RESPONDENT
THE COUNCIL OF NKANDLA
MUNICIPALITY
SECOND
RESPONDENT
PHILEMON PHILANI SIBIYA
THIRD
RESPONDENT
CASE NO. 5370/18P
In
the matter between:
THE MEC FOR THE DEPARTMENT OF
CO-OPERATIVE GOVERNANCE AND TRADITIONAL AFFAIRS
APPLICANT
and
THE MTHONJANENI MUNICIPALITY
FIRST
RESPONDENT
THE
COUNCIL OF MTHONJANENI
MUNICIPALITY
SECOND
RESPONDENT
LANGELIHLE SIPHIWOKUHLE JILI
THIRD
RESPONDENT
Coram:
Koen J
Heard:
26 November 2018 and 7 February 2019.
Delivered:
21 February 2019.
O R D E R
The following order is granted in each
of the above applications:
(a)
The appointment of the third respondent as municipal manager of the
first respondent by
second respondent is declared to be invalid and
null and void for not being in compliance with the provisions of
s
54A(3)
of the
Local Government: Municipal Systems Act 32 of 2000
and
the regulations issued thereunder.
(b)
The setting aside of the third respondent’s appointment
pursuant to the order in sub-paragraph
(a) above shall not operate
retrospectively to the date the third respondent was appointed but
shall take effect from the date
of this order.
(c)
The respondents jointly and severally, one or more paying the others
to be absolved,
are directed to pay the costs of the application,
such costs to include that consequent upon the employment of senior
counsel.
J
U D G M E N T
Koen
J
Introduction
[1]
The applicant claims identical relief in the two applications
referred to in the heading
to this judgment, in respect of the
appointment of the municipal managers to the Nkandla and Mthonjaneni
municipalities respectively.
The relief is:
‘
(a)
That the appointment of Third Respondent as the Municipal Manager of
the First Respondent
[1]
by the
Second Respondent
[2]
is declared
to be invalid and is hereby set aside as null and void
ab
initio.
(b)
That First Respondent (together with any Respondent who opposes this
application) pays the costs of the application.
(c)
Further or alternative relief’.
It
is convenient to deal with both applications in one judgment as the
issues arising in the two applications are in many respects
similar.
Where the factual circumstances differ it will be indicated.
[2]
In each instance the applicant relies on the provisions of
s
54(A)(8)
[3]
of the Local Government: Municipal Systems Act 32 of 2000 (‘the
Systems Act’) in applying to have the third respondent’s
appointment declared invalid and set aside as null and void
ab
initio.
The legal basis for
such relief is that the first respondent does not have the power and
authority to appoint a municipal manager
in contravention of s 54A(3)
of the Systems Act. It is alleged in each application that the first
respondent exceeded its powers
[4]
in appointing the third respondent as the third respondent as a
matter of fact does not have the prescribed five years relevant
experience at senior management level specified by item 2 of Annexure
B to the 2014 regulations to the Systems Act.
[5]
Legislative
framework
[3]
The provisions of s 54A of the Systems Act must be viewed in the
greater constitutional
and legislative context.
[4]
Section 151 of the Constitution of the Republic of South Africa,
1996, (‘the
Constitution’) provides that local government
is autonomous and has executive and legislative power to govern local
government
affairs, subject to national and provincial monitoring and
support legislation as provided in the Constitution.
[6]
In re: Certification of the
Constitution of the Republic of South Africa 1996
[7]
confirmed that provincial government must supervise, monitor and
support local government.
[5]
The Systems Act provides for municipal managers to head the
administration of municipalities.
[8]
Section 54A provides for the appointment of these municipal managers.
Section 54A(1) requires that every municipal council must
appoint a
municipal manager as head of the administration of that municipal
council.
[6]
Section 54A(2) provides that a person appointed as a municipal
manager ‘must
at least have the skills, expertise, competence
and qualifications as prescribed’. The skills, expertise,
competence and
qualifications as prescribed pursuant to s 54A(2) are
contained in the ‘Regulations on Appointment and Conditions of
Employment
of Senior Managers 2014’. They include
inter
alia
five years of relevant
experience for a municipal manager (as specified in item 2
[9]
of Annexure B to the regulations).
[7]
Provision is however made in s 54A(10) of the Systems Act that a
municipality may
in special circumstances and on good cause shown
apply to the Minister
[10]
to waive any of the requirements contained in subsection (2) if it is
unable to attract a suitable candidate. The section reads:
[11]
‘
A
municipal council may, in special circumstances and on good cause
shown, apply in writing to the Minister to waive any of the
requirements listed in subsection (2) if it is unable to attract
suitable candidates.’
[8]
Section 54A(3) provides that:
‘
A
decision to appoint a person as municipal manager, and any contract
concluded between the municipal council and that person in
consequence of the decision, is null and void if-
(a)
The person appointed does not have the prescribed skills, expertise,
competencies or qualifications;
(b)
The appointment was otherwise made in contravention of this Act.’
[9]
The applicant’s constitutionally mandated role of supervision
in regard to the
appointment of municipal managers is expressly
provided for in s 54A(8) which provides:
‘
If
a person is appointed as municipal manager in contravention of this
section, the MEC for local government must, within 14 days
of
receiving the information provided for in subsection (7),
[12]
take appropriate steps to enforce compliance by the municipal council
with this section, which may include an application to a
court for a
declaratory order on the validity of the appointment, or any other
legal action against the municipal council.’
[10]
Section 54A(9) provides that where an MEC for local government fails
to take appropriate steps
as contemplated in subsection (8) then the
Minister may take the steps contemplated in that subsection.
[13]
The
basis of the applicant’s claims
[11]
In respect of the appointment of each municipal manager the applicant
alleges in the respective
founding affidavits, with reference to
relevant correspondence annexed thereto, that the third respondent as
a matter of fact does
not have the required five years’ senior
management experience; specifically in the case of:
(a)
the Nkandla municipality, that the third respondent only had one year
and one month’s relevant experience;
(b)
the Mthonjaneni municipality, that the third respondent only had some
two years and four months’ relevant experience.
[12]
The applicant’s claim in each application is firmly founded in
s 54A(8) read with s 54A(2)
and (3), to give effect to the principle
of legality. The principle of legality is of course not a
self-standing discreet ground
for review but a founding principle of
our Constitution.
[14]
The applicant seeks to ensure that the respective first respondents
act within their powers and that they do not exercise their
powers
unconstitutionally.
The
third respondents’ lack of experience
[13]
In regard to the Nkandla municipality, the third respondent’s
lack of experience was not
disputed. If anything the lack of such
experience was admitted, at least impliedly, by the conduct of the
respondents. When confronted
with the lack of experience on the part
of the third respondent, application was made to the Minister
[15]
for a relaxation of the requirement.
[16]
The attitude taken was not that such an application was not required,
as the third respondent indeed has the required experience.
In the
communication from the Minister dated 14 July 2017 refusing to relax
the experience requirement, the Minister recorded that
there were 23
applicants for the position of municipal manager, and that 8 of those
met the required qualifications and experience.
[14]
In regard to the Mthonjaneni municipality, the third respondent’s
lack of relevant experience
was not disputed seriously either.
Instead the gravamen of the matter was said to be whether the
requirement of 5 years relevant
experience was peremptory or merely
directory. This argument was formulated in the founding affidavit by
posing a number of rhetorical
questions. It was rightly not persisted
with in oral argument. The requirement of five years’ relevant
experience is plainly
peremptory. Any experience less than that
prescribed will be inadequate unless specifically waived on
application to the Minister
in exceptional circumstances. The fact
that there is a provision providing that the Minister may grant a
specific waiver in exceptional
circumstances does not make the
requirement, insofar as it concerns municipalities and the applicant
directory only. The municipalities
and the applicant have no
discretion in the matter. That is clear from the wording of s 54A and
the relevant regulations. Absent
the relevant experience, or a waiver
thereof (or a successful court challenge to the refusal to grant such
a waiver by the Minister),
5 years’ senior management level
experience is required. Apart from this challenge that the
requirement was not peremptory,
no serious challenge was raised in
the papers that the third respondent did not have the required
experience. That disqualified
him from appointment. The third
respondent’s lack of prescribed experience is accordingly
established.
The
jurisdiction of this Court
[17]
[15]
In each application, the primary defence raised is that the High
Court has no jurisdiction to
entertain the applications because the
issue raised is ‘quintessentially’ a labour matter in
respect of which the Labour
Court exercises exclusive jurisdiction.
The applicant’s response thereto is that the application is one
in terms of s 54A(8),
that the issue is not an employment matter but
a matter of whether the first respondent has exercised its powers
legally, and accordingly
that the High Court does have the requisite
jurisdiction.
[16]
The High Court would generally have jurisdiction to enforce a right
such as that contained in
s 54A(8) expressly accorded to the
applicant in the exercise of her constitutional functions. The issue
more specifically is whether
the High Court has been deprived of that
jurisdiction, which it would be if the Labour Court has been vested
with exclusive jurisdiction
to adjudicate the exercise of that right.
[17]
The jurisdiction of the Labour Court is dealt with in the Labour
Relations Act 66 of 1995 (the
’LRA’).
[18]
Section 157 of the LRA provides:
‘
(1)
Subject to the Constitution and section 173, and except where
this
Act
provides
otherwise, the Labour Court has exclusive jurisdiction in respect of
all
matters that elsewhere in terms of
this
Act
or
in terms of any other law are to be determined by the Labour Court.
(my underlining)
(2)
The Labour Court has concurrent jurisdiction with the High Court in
respect of any alleged or threatened violation of any fundamental
right entrenched in Chapter 2 of the Constitution of the Republic of
South Africa, 1996, and arising from—
(
a
)
employment and from labour relations;
(
b
)
any
dispute
over the constitutionality of any executive or
administrative act or conduct, or any threatened executive or
administrative act
or conduct, by the State in its capacity as an
employer; and
(
c
)
the application of any law for the administration of which the
Minister
is
responsible..
[18]
[19]
Section 158 of the LRA provides:
‘
(1)
The Labour Court may—
(
a
)
make any appropriate order, including—
(i)
the grant of urgent interim relief;
(ii)
an interdict;
(iii)
an order directing the performance of any particular act which order,
when implemented, will remedy a wrong and give effect
to the primary
objects of
this Act
;
(iv)
a declaratory order;
……
(
h
)
review any decision taken or any act performed by the State in its
capacity as employer, on such grounds as are permissible in
law;
(
i
)
…
(
j
)
deal with all matters necessary or incidental to performing its
functions in terms of
this
Act
or
any other law.’
[20]
In considering the jurisdiction of this Court, I am mindful of the
comments in
Chirwa
v Transnet Ltd and others
[19]
that the objective in the LRA was to
‘establish the Labour Court and Labour Appeal Court as superior
courts, with exclusive
jurisdiction to decide matters arising from
the LRA’. In
Motor
Industries Staff Association v Macun
NO
[20]
Navsa J elaborated as follows:
‘
The
Labour Court and Labour Appeal Court were designed as specialist
courts that would be steeped in workplace issues and be best
able to
deal with complaints relating to labour practices and collective
bargaining. Put differently, the Labour and Labour Appeal
Courts are
best placed to deal with matters arising out of the LRA. Forum
shopping is to be discouraged. When the Constitution
prescribes
legislation in promotion of specific constitutional values and
objectives then, in general terms, that legislation is
the point of
entry rather than the Constitutional provision itself.’
[21]
As a statement of general principle the dicta in the preceding
paragraph are no doubt correct.
But ultimately every case must be
assessed on its own facts.
[22]
Apart from contending that the relief claimed by the applicant will,
as a consequence of the
grant thereof, impact on the third
respondent’s employment and hence is ‘quintessentially’
a ‘labour matter’
[21]
the respondents have relied on s 158(1)(
h
),
as being a provision ‘elsewhere in terms of this Act’ as
contemplated in s 157(1) of the LRA which, it is argued,
confers
exclusive jurisdiction on the Labour Court.
[22]
[23]
In
Gcaba v Minister for
Safety and Security
[23]
it was held that where a court’s jurisdiction is challenged
in
limine
at the outset, the
pleadings and, in motion proceedings, also the contents of the
supporting affidavits, must be interpreted ‘to
establish what
the legal basis of the applicant’s claim is.’ If,
‘properly interpreted’, that enquiry establishes
that the
applicant is asserting a claim within the exclusive jurisdiction of
the Labour Court, then the High Court would lack jurisdiction.
[24]
Since
Gcaba
,
my judgment in
Valuline CC
and others v Minister of Labour and others
[24]
was subjected to scrutiny
[25]
in
Macun
,
which in turn was followed in
South
African Municipal Workers Union and others v Mokgatla and others
.
[26]
[25]
In
Macun
Navsa JA commented that
‘
[18]
… The Constitutional court has put it beyond doubt that the
primary objective of [the Labour Relations] Act was to establish
a
comprehensive legislative framework regulating labour relations. An
allied objective expressly stated in the preamble to the
LRA was to
“Establish the Labour Court and Labour Appeal Court as superior
courts, with exclusive jurisdiction to
decide
matters arising from the [LRA].”
[emphasis
in original text]
[Accordingly]
in
Chirwa
, Ngcobo J indicated that in the light of what is set
out above, section 157(2) has to be narrowly construed and that it
should
be confined to issues where a party relies directly on the
provisions of the Bill of Rights.
[23]
… The powers and functions of the Labour Court set out in
section 158 of the LRA may, depending on the power, be exercised
both
in respect of its exclusive jurisdiction, as provided for in section
157(1), or in respect of its concurrent jurisdiction
with the high
court, as provided for in section 157(2). So, for example, an
interdict as provided for in section 158(1) or a declaratory
order,
may issue in respect of a purely labour related matter or in respect
of a case brought before the labour court premised
on the alleged or
threatened violation of a right entrenched in Chapter 2 of the
Constitution.
The provisions of section 158(1)(
g
)
on their own are not decisive. In the present case the question that
should rightly be asked is whether the basis of the challenge
to the
decision
to extend the collective agreement
is one that arises
out of the LRA. The obvious answer is that it does.’
(my
emphasis)
[26]
It is against that background that s 54A(8) of the Systems Act is
significant. It firstly vests
the applicant with the required
locus
standi
to take appropriate
steps where a municipal manager is appointed in contravention of s
54A. The applicant accordingly need not establish
some interest in
the litigation, such as a rate payer in that municipality, or a
non-governmental interest group would have to
establish.
[27]
The applicant can simply invoke s 54A(8). Secondly, s 54A(8) provides
for the legal process that the applicant ultimately
[28]
may wish to pursue as part of the steps considered ‘appropriate’,
if other interventions fail, namely an application
to court. Thirdly,
it prescribes the remedy the applicant may claim, namely a
declaratory order as to the validity of the municipal
manager’s
appointment, which will entail reviewing
[29]
the decision of the municipal council. But most importantly s 54A
provides the legal right and hence the basis of the challenge
to the
decision to appoint the third respondent, which, if established,
gives rise to the remedy. It provides the basis for a challenge
to a
municipal manager’s appointment, namely whether the second
respondent had acted within its constitutional powers.
[27]
The present challenge therefore does not arise out of the LRA, but
from the provisions of the
Systems Act. All that the applicant seeks
to do, in carrying out her supervisory role, is to prevent unlawful
conduct by the municipalities,
specifically the appointment of
persons as municipal managers if they do not have the required
experience. It is a right not arising
from the LRA. The issue raised
is not one where specific remedies provided for in the LRA, such as
conciliation and the like, or
the rights flowing from an unfair
labour practice might arise and should be available to the respective
third respondents. The
basis of the challenge is found squarely
within the provisions of s 54A of the Systems Act and it is confined
to the lawfulness
of the respective first respondent’s
decisions, taken by their respective councils, to select the
respective third respondents
as their municipal managers.
[28]
As was stated by Lowe J in
Mawonga
and another v Walter Sisulu Local Municipality and others
[30]
in regard to a similar jurisdictional challenge in an application to
impeach the appointment of a municipal manager, the argument
that the
High Court lacks jurisdiction ‘…misses the fundamental
point that what Applicant seeks to do is challenge
a decision which
he contends was statutory and procedurally flawed – a legality
issue… it seems to me that the jurisdiction
argument surely
overlooks that the essence of this matter, as pleaded, is a legality
(procedural) review which stands on its own
regardless that this led
to a dismissal.’
[29]
In
Gcaba supra
[31]
it was held that:
‘
[T]
he
LRA does not intend to destroy causes of action or remedies and s 157
should not be interpreted to do so. Where a remedy lies
in the High
Court, s 157(2) cannot be read to mean that it no longer lies there
and should not be read to mean as much. Where the
judgment of
Ngcobo J in
Chirwa
speaks of a court for labour and employment disputes, it refers to
labour- and employment-related disputes for which the LRA creates
specific remedies. It does not mean that all other remedies which
might lie in other courts, like the High Court and Equality Court,
can no longer be adjudicated by those courts. If only the Labour
Court could deal with disputes arising out of all employment
relations, remedies would be wiped out, because the Labour Court
(being a creature of statute with only selected remedies and powers)
does not have the power to deal with the common-law or other
statutory remedies.
’
[30]
Subsequent to
Chirwa
the SCA, in slightly different circumstances, but nevertheless
significantly found in
Makhanya
v University of Zululand
[32]
that:
‘
..
the claim is for the enforcement of the common law right of a
contracting party to exact performance of the contract. We know
this
because that is what it says in the particulars of claim. Whether the
claim is a good one or bad one is immaterial. Nor may
a court thwart
the pursuit of the claim by denying access to a forum that has been
provided by law. A claim of that kind clearly
falls within the
ordinary power of the High Court that is derived from the
Constitution and the jurisdictional objection should
have failed’.
[31]
Post the above decisions, this issue received further attention in
Macun
, which in turn was considered in
Mokgatla
. The
issue for determination in that appeal was whether the High Court and
the Labour Courts have concurrent jurisdiction in respect
of disputes
emanating from s 158(1)(
e
) of the LRA. The judgment of the
court
a quo
had declared unlawful and consequently set aside
the suspension and expulsion of the respondents from their membership
and employment
with the first appellant, the court
a quo
having dismissed a special plea that it lacked jurisdiction to
consider the application by the respondents for their reinstatement
to SAMWU.
[32]
Dambuza JA held (references omitted):
[33]
‘
[14]
In
Macun
this court lamented the persistent attempts by practitioners to
fashion cases to suit their clients' choice of forum. Navsa
JA emphasised
that s 157(2) must be narrowly construed in the
light of the primary objectives of the LRA to establish a
comprehensive framework
regulating labour relations. In relation to s
158(1)
(g)
the learned judge found that the relevant question in determining
whether the Labour Court's jurisdiction was exclusive depended
on
whether it was a review of the exercise of a power under the LRA. In
other words, did the case fall within s 158(1)
(g)
?
If so, the Labour Court's jurisdiction was exclusive. The same
principle is applicable here. If the case falls within s
158(1)
(e)
(i),
as it does, then the jurisdiction of the Labour Court is exclusive.
The decision in
Macun
is therefore decisive of the outcome of this appeal. There is no
reason to differentiate between one ground of jurisdiction under
s
158(1) and another.
[15]
In
this case the respondents specifically pleaded in their application
before the court a quo that the appellants should have complied
with
the relevant clauses of SAMWU's constitution. Therefore, the basis
upon which the High Court's jurisdiction was challenged
is expressly
provided for in s 158(1)
(e)
(i)
of the LRA. The disavowal by the respondents, during argument,
of any reliance on the LRA is irrelevant. As the Constitutional
Court
held in
Gcaba
,
jurisdiction is determined on the basis of the pleadings.
Consequently the appeal must succeed
.’
[33]
I would obviously be bound by the
ratio
in
Mokgatla
.
The statement that there is no reason to differentiate between one
ground of jurisdiction under s 158(1) and another insofar as
it
results in the jurisdiction of the Labour Court being exclusive, is
relied upon by the respondents in support of their argument,
that
having regard to the provisions of s 158(1)(
h
),
this Court in the present matter, as it involves a review of a
‘decision taken or any act performed by the State in its
capacity as employer on such grounds as are permissible in law’,
also does not have jurisdiction. They contend that the issue
is
whether the present applications fall within s 158(1)(
h
)
because if they do, then there ‘is no reason to differentiate
between one ground of jurisdiction under s 158(1) and another’
for ‘then the jurisdiction of the Labour Court is exclusive.’
They argue that s 158(1)(
h
)
must not be confined only to a review by an employer which the Labour
Appeal Court endorsed in
Merafong
City Council v SAMWU
[34]
and that an application for an order that the third respondent’s
appointment be declared invalid and set aside as null and
void
ab
initio
does not fall
outside the parameters of subparagraph (
h
).
[34]
I however respectfully do not understand the reason for the decision
in
Macun
to be that if a case falls within one of the grounds
in s 158 of the LRA (s 158(1)
(g)
in the case of
Macun
)
in respect of which the Labours Court’s jurisdiction is found
to be exclusive, that the same principle would always necessarily
apply in respect of all other ‘grounds’ in s 158 of the
LRA (s 158(1)
(e)
(i) in
Mokgatla
) simply because there
is ‘no reason to differentiate between one ground of
jurisdiction under s 158(1) and another’.
If that was so then
the question would simply be whether the remedy claimed is one
falling within the wording of one of the subcategories
of s 158(1) of
the LRA, in the present applications, s 158(1)
(h)
.
[35]
On the facts in
Mokgatla
, having regard to the basis for the
challenge, the statement by Dambuza JA was no doubt correct in
drawing an analogy with the
ratio decidendi
in
Macun
.
In both instances the basis for the challenge arose from the
provisions of the LRA. But insofar as what the learned judge said
is
sought to be extended further to a situation catered for by s
158(1)
(h)
but not arising from the provisions of the LRA,
although it might result in the termination of appointment as
municipal manager,
her
dictum
is with respect sought to be
taken too far by the respondents. The statement of the learned judge
of appeal would further, in any
event, be
obiter
and not
binding on this Court.
[36]
As said by Navsa JA in
Macun
‘(the) provisions of s 158(1)(
g
)
on their own are not decisive... the question that should
rightly be asked is whether the basis of the challenge
[35]
… is one that arises out of the LRA. In
Macun
and
Mokgatla
the basis of the challenge did arise from the LRA. On the facts in
Mokgatla
it was correct that ‘[there was] no reason to differentiate
between one ground of jurisdiction under s 158(1) and another’
in respect of the ‘ground’ in s 158(1)(
e
)(i)
discussed by that Court and which it compared to the ‘ground’
in s 158(1)(
g
)
in the case of
Macun
.
The statement by Dambuza JA must with respect, be seen in the factual
context that presented itself in
Mokgotla
when compared to
Macun
.
But that is not the position in the present applications.
[37]
In
Macun
Navsa JA correctly, with respect, pointed out that the ‘provisions
of s 158(1)(
g
)
on their own are not decisive’.
[36]
Similarly in the present matter the provisions of s 158(1)(
h
)
‘on their own are not decisive’. The important
consideration is that the basis of the challenge does not arise from
the LRA, but from the Systems Act in regard to alleged unlawful
conduct by the first and second respondents in appointing the third
respondents as municipal managers. To adopt the language in
Macun,
adapted to this judgment, ‘to answer the question’, i.e.
whether the challenge arises from the provisions of the LRA,
‘the
obvious answer is that it does’ not.
[38]
But even if it was to be construed that the exclusive jurisdiction
conferred on the Labour Court
in s 157(1) in respect of ‘all
matters that elsewhere in terms of this Act…are to be
determined by the Labour Court’
would include all the types of
disputes as set out in s 158(1)(
b
) to (
j
), especially
subsection (
h
), ‘regardless of the basis for the
challenge’, then it appears on a strict construction that the
present dispute does
not fall within subsection (
h
).
[39]
Section 158(1)(
h
)
deals with the review of any decision of the State ‘in its
capacity as employer’. It presupposes a proper lawful
employment of the employee. If lawfully employed, some decision
arising thereafter in its ‘capacity’ as employer relating
to decisions taken in that capacity, might have to be reviewed in the
Labour Court. A challenge to the lawfulness or constitutionality
of
the actual employment is something else. One can understand that once
there is a proper and lawful employment that matters arising
thereafter would arise in the context of the capacity of the State as
employer of the particular employee. Matters such as the
termination
of that contract of employment, which are quintessentially labour
matters, affect issues arising from the LRA, or to
which mechanisms
provided for in the LRA, such as, for example, arbitration and
conciliation and considerations of fairness
[37]
would apply.
[38]
In those instances the jurisdiction of the Labour Court will be
exclusive. But where the challenge is a constitutional one concerning
whether minimum legal pre-requisites determined by the Systems
Act,
[39]
and the regulations thereunder, for a valid employment to arise were
adhered to, the challenge to the decision to employ does not
concern
a decision of the State in its capacity as employer of the employee.
[40]
This Court accordingly has jurisdiction, because the ‘basis of
the challenge to the decision’
is not founded on the provisions
of the LRA.
The
further grounds of opposition
[41]
Further defences raised include that s 54A(8) required the present
application to be brought
‘within fourteen days of receiving
the information about the third respondent’s appointment as
municipal manager’
and that this was not done. Further it was
contended that PAJA
[40]
applied to the review and hence that the applications had to have
been ‘… instituted without unreasonable delay and
not
later than 180 days …’,
[41]
and further, in the alternative, that being a legality challenge
outside PAJA it had to be brought within a reasonable time, although
no specific period has been set by the Constitutional Court,
[42]
and that this did not happen. These challenges must be viewed against
the principle that organs of state have a higher duty to
pursue legal
remedies expeditiously due to s 237 of the Constitution that ‘[all]
constitutional obligations must be performed
diligently and without
delay’.
[43]
Specifically underlying the notion of delay is the jurisprudence that
applications for review should be instituted timeously to
promote
certainty.
[44]
[42]
In conclusion the respondents submitted that if I found the
applications meritorious, a just
and equitable remedy in terms of s
172 of the Constitution should be granted suspending the declaration
of invalidity and preserving
the status
quo
for a period of
time until each municipality has devised an appropriate manner in
which it will rectify the illegality.
[43]
I deal with the arguments relating to the aforesaid
seriatim
.
Delay
The fourteen day time period in s
54A(8)
[44]
The unreported judgment of Ntshangase J in
Inkatha
Freedom Party v Mthembu Abaqulusi Municipal Council
para
19
[45]
is advanced by the respondents as authority for the proposition that
the fourteen day time frame referred to in s 54A(8) requires
that any
court application must be brought within fourteen days after the MEC
receives the information in subsection 54A(7).
[45]
That judgment and a follow up thereto by Lopes J in
MEC
for KwaZulu-Natal of The Department of Co-operative Governance and
Traditional Affairs v The Inkatha Freedom Party and Vusumuzi
Joseph
Mthembu and eight others
[46]
were considered by Henriques J in
The
MEC for KwaZulu-Natal for Co-operative Governance and Traditional
Affairs v The Ntambanana Municipality and another
.
[47]
She commented on the fact that the judgment by Ntshangase J, which
was the subject matter of a petition to the SCA, referred to
the
provisions of s 54A(8) requiring the applicant to ‘take
appropriate steps to enforce compliance by the Municipal Council’
which ‘may include an application to a court for a declaratory
order’, and concluded that the words ‘appropriate
steps’
must be interpreted broadly. She concluded that ‘the
appropriate steps’ are not restricted to an application
to
court for a declaratory order. She furthermore concluded, in the
light of the provisions of Chapter 3 of the Constitution especially
s
40 and s 41 which promote the spirit of co-operative governance
between the various levels of government, that an interpretation
which would require an application to be made within fourteen days of
receipt of the information in s 54A(7) without exhausting
alternative
means to resolve the issues, would fly in the face of those
constitutional provisions.
[46]
Henriques J also referred to s 139 of the Constitution which provides
for provincial intervention
in local government in ‘extreme
cases’
[48]
and to the obligation provincial government has to supervise the
affairs of local government and to intervene when things go awry.
[49]
[47]
I concur with the conclusion of Henriques J and her reasoning. The
applications are not time
barred by the provisions of s 54A(8) of the
Systems Act.
Is
it a PAJA review?
[48]
A preliminary issue to consider is the principle of subsidiarity.
This principle, based inter
alia on
SANDU
v Minister of Defence
[50]
requires that the PAJA with its time limit of 180 days ‘must be
applied where it is applicable’
[51]
before reliance can be placed on the safety net function of the
principle of legality as a ground of review.
[52]
The decision in
My Vote
Counts
[53]
has resoundingly endorsed the subsidiarity theory, the difference
between the majority and minority judgments lying only in whether
on
the facts in that case it found application. It is therefore beyond
doubt that
‘…
where
a litigant seeks to enforce the rights to administrative justice,
resort must first be had to the PAJA. Only where the validity
of the
PAJA (or other original legislation) is challenged may the s 33
rights be invoked directly. Moreover, only in circumstances
where the
conduct does not amount to administrative action, and provided the
PAJA is not found to be inconsistent with s 33 of
the Constitution,
may resort be had to the principle of legality as a safety net to
ensure that the conduct does not escape constitutional
scrutiny.’
[54]
[49]
What is set forth in paragraph 48 above represents the present state
of our law. The subsidiarity
theory apparently originates from a
Roman Catholic social doctrine.
[55]
A detailed discussion thereof falls beyond the scope of this
judgement. It has however been discussed extensively by AJ van der
Walt in his article titled ‘Normative Pluralism and Anarchy:
Reflections on the 2007 Term.’
[56]
He articulated the first subsidiary principle, based on
SANDU
v Minister of Defence,
as
requiring a litigant to rely on the actual legislation when
confronting a constitutional right, rather than circumventing the
legislation in favour of a direct application of a constitutional
provision, with the proviso that the constitutional provision
may be
invoked where such legislation is challenged for inconsistency in
terms of the Constitution.
[57]
The principle also seeks to give effect to s 39(2) of the
Constitution which requires the Courts to give effect to legislation
enacted by the legislature pursuant to, and within the limits of,
constitutional responsibilities. That flows from the founding
value
of legality as a norm in paragraph 1
(c)
of the Constitution. That is probably what I had in mind but might
not have articulated sufficiently carefully when I stated in
Valuline
(supra)
that it was
irrelevant to determine whether PAJA was applicable. Mr Dickson SC
for the applicants might also have had that notion
in mind when
preferring not to describe the present applications as reviews but
rather as applications for declaratory orders –
because the
applications are based on legislation, i.e. the express provisions of
s 54A(8) of the Systems Act. It is that legislation
which is sought
to be given effect to.
[58]
In what follows I shall nevertheless first proceed on the basis that
the relief pursued in the applications is aimed at administrative
justice, and consider whether PAJA would apply.
[50]
Whether the PAJA applies depends on whether the action sought to be
reviewed amounts to ‘administrative
action’ as defined in
the PAJA. That definition is not without problems. The appointment of
each of the third respondents
arises from a decision of the council
of each municipality pursuant to s 54A(1) of the Systems Act. This
must be contrasted
to for example the appointment of other employees
of municipalities who are appointed by the municipal manager in the
exercise
of his duties, which would amount to administrative
action. The appointment of a municipal manager involves the exercise
of executive powers or functions of the municipal councils. The
exercise of ‘executive powers or functions of the municipal
council’ is expressly excluded in terms of paragraph (cc) from
the definition of ‘administrative action’.
[59]
The PAJA accordingly does not apply.
[60]
I am in any event not persuaded that an ‘administrative action’
as defined is involved.
[61]
Accordingly, the 180 day limitation in s 7 of PAJA does not apply.
The applicant correctly had not pursued any application for
condonation.
Were
the applications brought within a reasonable time?
[51]
In
Khumalo
[62]
Skweyiya J explained the principle as follows:
‘
[It]
is based on sound judicial policy that includes an understanding of
the strong public interest in both certainty and finality.
People may
base their actions on the assumption of lawfulness of a particular
decision and the undoing of the decision threatens
a myriad of
consequent actions.’
[52]
Traditionally our courts have followed a two stage approach:
(a)
Is the delay unreasonable and undue; and
(b)
Are there reasons to overlook the delay and exercise its discretion
in entering the review.
[63]
The enquiry in this respect should not be ‘evaluated in a
vacuum but must be assessed with its potential to prejudice the
affected parties and having regard to the possible consequences of
setting aside the impugned decision.’
[64]
[53]
The decision of the Constitutional Court in
State
Information Technology Agency Soc Ltd v Gijima Holdings (Pty) Ltd
[65]
not only has significance insofar as it determined that a review by
an organ of its own decisions is to be founded on the principle
of
legality and not in terms of the PAJA. It also contains materially
important comments in regard to what constitutes reasonable
delay.
[66]
In that matter a contract, which had been awarded without a
competitive bidding process, was sought to be set aside many years
later. The court concluded that the case was brought late and that
there was no reason to overlook the delay in terms of the merits
of
the case. Nevertheless it was prepared to decide the merits in
finding that the contract was awarded illegally, and fashioned
an
appropriate remedy in terms of s 172(1)(b) of the Constitution.
[54]
It has been cautioned that such an approach holds the risk of
‘collapsing the inquiry of
delay into the merits of the
case.’
[67]
One obviously always has to be alive to the danger of collapsing the
inquiry of delay into the merits of the case, but the enquiry
into
delay cannot be divorced from the right involved, the relief claimed
and sought to be achieved, and the extent to which that
relief can be
modified to ensure that it is just and equitable, as s 172(1)(b)
requires.
[55]
In the present applications the right invoked is a very important
one, namely to ensure that
municipalities act lawfully. That is a
right at the very foundation of our Constitution. The relief claimed
is that the appointment
of the third respondents be ‘…declared
to be invalid and … set aside as null and void
ab
initio
.’ During
argument, and following submissions by the respondents aimed at
ensuring administrative certainty in relation to
past administrative
acts that have been performed by the third respondents should their
appointment be set aside, as in
AllPay
,
[68]
the applicant accepted that pursuant to s 172(1)(b) of the
Constitution, the retrospective effect of any declaration of
invalidity
of the third respondents’ appointment should be
limited to the date of this judgment (the respondents indeed
contended for
an even later date to give them time to make
arrangements relating to the termination of the third respondent’s
services).
In my view the terms of such modified relief, recognising
the nature of the right to be protected but also reflecting what is
just
and equitable, are important to keep in mind when considering
the effect of any delay.
[56]
The facts relevant to considering the question of delays are as set
out below.
[57]
In the Nkandla municipality matter the relevant chronology is as
follows:
(a)
The third respondent was appointed on 24 January 2017;
(b)
The applicant was informed of the decision to appoint the third
respondent on 26 January 2017;
(c)
On 13 February 2017 a letter was addressed to the mayor of the first
respondent requesting certain information and documentation
regarding
the appointment of the third respondent;
(d)
On 7 March 2017 a letter was addressed to the mayor informing the
first respondent that the appointment of the third respondent
was not
in compliance with the regulations as he lacked five years’
experience at senior management level, as he only had
one year and
one months’ experience as Director Community Services at local
municipality level. It was also pointed out that
his remuneration was
above the permissible pay package;
(e)
On 23 May 2017 the first respondent applied to the Minister for a
waiver of the relevant experience requirement stating that
the third
respondent meets all the other requirements for the position ‘except
for the number of years in senior management’.
(f)
On 14 September 2017 the Minister informed the first respondent that
the application for waiver was declined. The Minister pointed
out
that there were 23 applicants and 8 met the required minimum
experience;
(g)
On 10 November 2017 the acting deputy director general of the
applicant’s department addressed a letter to the first
respondent demanding that the respondents take remedial action;
(h)
On 21 November 2017 the mayor of the first respondent advised that
they were awaiting a legal opinion;
(i)
On 4 January 2018 the acting DDG of the applicant again wrote to the
first respondent requesting an update on what remedial
action was
taken. No response was received;
(j)
The present application was launched on 11 May 2018.
(k)
The third respondent had in the interim assumed and continued in
office as municipal manager performing the functions as a municipal
manager.
[58]
In the Mthonjaneni municipality matter the relevant chronology is as
follows:
(a)
The third respondent was appointed on 19 December 2016;
(b)
The applicant was informed of the decision to appoint the third
respondent on 20 December 2016;
(c)
In an internal departmental submission to the applicant, annexed to
the founding affidavit as an annexure, dated 20 January
2017, it was
pointed out that:
‘
Mr
P.P. Sibiya’s [third respondent’s] work experience is as
follows:
Senior
Manager: SCM at Umlalazi Municipality for a period of 9 months
Chief
Financial Officer at Nkandla Municipality for a period of 2 years;
and
Deputy
Chief Financial Officer at Ulundi Municipality for a period of 2
years and 8 months.
He
therefore does
not
meet the experience criteria stipulated in
the Regulations’;
(d)
Pursuant to that submission the applicant on 20 January 2017
addressed a letter to the mayor of the first respondent pointing
out
the third respondent’s lack of five years’ relevant
experience at senior management level and requesting to be
advised of
the remedial action to be taken in order to rectify the matter. A
letter to similar effect was also addressed to the
minister on that
day;
(e)
The first respondent then advised the applicant that it would be
engaging the Minister in terms of s 54A(10) of the Systems
Act in
order to waive the experience requirement. Although this was not
formally admitted in the answering affidavit, it is the
more probable
in the light of the contents of various letters sent and annexed to
the replying affidavit;
[69]
(f)
On 9 July 2017 the acting head of the applicant’s department
addressed a letter to the mayor of the first respondent referring
to
letters written on numerous occasions to the municipality that
remedial action be taken to which no response had been received.
It
was further pointed out that all decisions by the third respondent
would be
ultra vires
;
(g)
On 19 July 2017 the mayor replied advising that a legal opinion was
sought and was awaited regarding the issue of the third
respondent’s
lack of experience disqualifying him from appointment and indicating
that the opinion would be tabled at the
next council meeting on 29
August 2017 where after he would revert;
(h)
On 21 November 2017 a further letter was addressed to the
municipality advising that the matter remains outstanding, that it
was understood that application had been made to the Minister for a
waiver, and requesting a copy of that application;
(i)
On 29 November 2017 a copy of Circular 15 of 2017 guiding how an
application for a waiver to the Minister must be submitted,
was sent
by the applicant’s department to the first respondent;
(j)
On 24 January 2018 a letter was addressed by the acting DDG of the
applicant’s department to the first respondent’s
mayor
advising that the first respondent would be required to take steps to
regularise the matter;
(k)
On 26 January 2018 officials of the applicant met with officials of
the municipality at the latter’s offices and again
the
appointment of the third respondent in contravention of the
legislation was discussed and the municipality was advised to apply
for a waiver to rectify the situation;
(l)
The application was brought on 11 May 2018 after no further action
had been taken by the respondents.
[59]
What is reasonable will depend on the facts of each case. Apart from
simply complaining that
the application was brought ‘late’
and that the respondents have conducted themselves on the basis that
the third respondent
has occupied the position of municipal manager
in the meantime, the respondents have not pointed to any further
prejudice. Although
there were some delays, allowance should be made
for administrative bureaucracy not always proceeding with lightning
alacrity.
Although there were delays they were not unreasonable. The
correspondence and time frames rather suggest that the applicant in a
spirit of co-operation allowed considerable latitude to the
respondents to address the lack of the third respondent’s
relevant
experience, and when they eventually failed to do so despite
reminders, the applicant ultimately had to resort to court
applications
as a last resort. The applicant might be well advised to
offer less latitude in future where the conduct complained of is
unlawful
conduct. However I am not persuaded that the applicant
should be non-suited for the indulgences she did extend. Having
regard to
the injunction to promote a spirit of co-operative
governance, the delays were not unreasonable.
[60]
Effect should be given to the important constitutional right of
lawful administrative action
at local government level in the terms
to be granted below.
A
just and equitable remedy
[61]
This aspect has already been touched on briefly above.
[62]
The finding that the third respondent in each instance did not
satisfy the minimum requirements
relating to experience, accordingly
that their appointment was not in accordance with the provisions of
the Systems Act, unauthorised
and unlawful because it exceeded the
authority of that Act, makes it a constitutional matter as
contemplated in s 172 of the Constitution.
Section 172(1)(b) of the
Constitution requires in relation to such conduct that a court
‘
may
make any order that is just and equitable, including -
(i)
an order limiting the retrospective effect of the declaration of
invalidity and;
(ii)
an order suspending the declaration of invalidity for any period and
on any conditions to allow the competent authority to
correct the
defect.’
[63]
The respondents asked, if I found that that the applications were
meritorious, to suspend the
declaration of invalidity and preserve
the status
quo
for a period of time until the first
respondents have devised appropriate manners in which to rectify the
illegality.
[64]
The respondents submitted that there are no interests of third
parties which will be effected
if the status
quo
was preserved and no
identifiable prejudice to the applicant or the public at large.
[70]
I am not persuaded that no interests of third parties might be
affected. I would expect that the third respondent in each instance
might have taken many decisions on behalf of the respective
municipalities including, as alleged, the appointment of some senior
officials. This would also no doubt include contracts and other
dealings with outside third parties. Such third parties have
not been
identified. If so advised these third parties can mount whatever
challenge they may wish to raise in respect of their
dealings with
the respective municipalities in subsequent proceedings. There are
however various administrative decisions taken
by the third
respondents which if set aside ab initio from the date of their
appointment will throw the administration of the respective
first
respondents into disarray. It is important that those, in the
interest of administrative certainty, not be disturbed and
that they
remain intact.
[65]
As the appointments were unlawful when they were made I am not
disposed to direct that the declaration
of invalidity be suspended.
The appointments were unlawful when made. The setting aside of the
third respondents’ appointments
pursuant to such finding of
invalidity should however not operate retrospectively to the date the
appointments were made. I am
however also not disposed to considering
allowing any further time beyond the date of this judgment ‘until
the municipality
has devised an appropriate manner in which it will
rectify the illegality’.
[71]
The third respondents’ appointment is unlawful and there is no
cogent reason why the setting aside of the third respondents’
appointment should not apply from the date that this order is issued.
An acting municipal manager can be appointed to fill any
void arising
from the operation of the orders I grant.
Costs
[66]
There is no reason why the costs of the applications should not
follow the result. Both sides
employed senior counsel, which was
reasonable.
Order
[67]
The order I grant in each application is as follows:
(a)
The appointment of the third respondent as municipal manager of the
first respondent by
second respondent is declared to be invalid and
null and void for not being in compliance with the provisions of
S
54A(3)
of the
Local Government: Municipal Systems Act No 32 of 2000
and the regulations issued thereunder.
(b)
The setting aside of the third respondent’s appointment
pursuant to the order in sub-paragraph
(a) above shall not operate
retrospectively to the date the third respondent was appointed but
shall take effect from the date
of this order.
(c)
The respondents jointly and severally, one or more paying the others
to be absolved,
are directed to pay the costs of the application,
such costs to include that consequent upon the employment of senior
counsel.
__________________
Koen J
Appearances
For
the Applicant:
MR A J DICKSON SC
Instructed
by:
THABETHE CEBEKHULU ATTORONEYS
Ref.:
Mr Cebekhulu C.20
Tel.:
033 – 342 4275
For
the Respondent’s
MR T G MADONSELA SC with M N T XULU
Instructed
by:
BUTHELEZI MTSHALI MZULWINI INC
Ref.:
MTHO 1.28/ZM
Tel.:
031 201 5541
c/o
GOVINDSAMY NDZINGI & GOVENDER (GNG) INC
Tel.:
033 345 3427/9
[1]
The respective municipalities.
[2]
The respective municipal councils.
[3]
The provisions of
s 54A
were declared to be unconstitutional in
South
African Municipal Workers Union v Minister of Co-operative
Governance and Traditional Affairs
[2017] ZACC 7:
2017 (5) BCLR 641
(CC). That declaration was however
suspended for a period of 24 months, which period runs from 9 March
2017. The provisions
of
s 54A
accordingly still apply and more
importantly applied at the time of the appointment of the third
respondents.
[4]
Pharmaceutical Manufacturers’
Association of SA and another: In re Ex parte President of the RSA
and others
[2000] ZACC 1
;
2000 (2) SA 674
(CC) confirmed that any exercise of public power, as in the present
instance, must be within the confines of the law and that
a court is
entitled, relying on the principle of legality, to review the
exercise by a functionary of public power. This principle
applies to
the exercise of all public power and is not limited to the narrow
realm of administrative action only –see
Judicial
Service Commission v Cape Bar Council
[2012]
ZASCA 115
;
2013 (1) SA 170
(SCA);
[2013]
1 All SA 40 (SCA).
[5]
‘
Local Government Regulations
on Appointment and Conditions of Employment of Senior Managers’,
GN R21,
GG
37245, 17 January 2014.
[6]
See also s 151(3), 154, 155(6) and
155(6) and (7) of the Constitution.
[7]
1996 (4) SA 744
(CC) para 366 to 374.
[8]
See s 54A(1).
[9]
Item 2 (which is set out
in a table format in the regulations) may be summarized as follows:
An individual applying for the post
of Municipal Manager needs to
have the following in order to qualify for the position:
(a)
A ‘Bachelor Degree in Public Administration / Political
Sciences / Social Sciences / Law; or equivalent’;
(b)
the following work related experience, 5 years’ relevant
‘experience at a
senior management level
and have
proven successful institutional transformation within public or
private sector’;
(c)
the successful candidate must possess the following knowledge or
skills: ‘advanced knowledge and understanding of relevant
policy and legislation; advanced understanding of institutional
governance systems and performance management; advanced
understanding
of council operations and delegation of powers; good
governance; audit and risk management establishment and
functionality; and
budget and finance management.’
‘
Senior
management level’
is defined in annexure B dealing with the MINIMUM
COMPETENCY
REQUIREMENTS
FOR
SENIOR
MANAGERS as ‘ …
a
management
level
associated
with
persons
in
senior
management
positions
responsible
for
supervising
staff
in
middle
management
positions,
and includes –
(a)
the
municipal
manager
of
a
municipality
or
the
chief
executive
officer
of
a
municipal
entity;
(b)
any
manager
directly
accountable
to
-
(i)
the
municipal
manager,
in
the
case
of
a
municipality;
or
(ii)
the
chief
executive
officer,
in
the
case
of
a
municipality;
or
(c)
a
person
that
occupied
a
position
in
a
management
level
substantially
similar
to
senior
management
level, outside the local
government sphere;
'work-related
experience'
means
the
expertise
of
a
person
or
skills
attained
by
a
person
whether
in
the course of formal or informal employment’.
[10]
The Minister designated in the
Systems Act is the Minister of Local Government and Traditional
Affairs.
[11]
The wording of this subsection would
suggest that such a waiver must be sought before an appointment is
made. In both matters
an application for a waiver was only suggested
and sought after the appointment was made. For the purposes of this
judgement
I shall assume without deciding the issue that a
subsequent application for a waiver as part of ‘the
appropriate steps
that may be taken’ would be competent.
[12]
Section 54A(7) requires
that a municipal council must within fourteen days inform the MEC
for local government of the appointment
process and outcome, as may
be prescribed and that the MEC for local government must, within
fourteen days of receipt of the
information aforesaid submit a copy
thereof to the Minister responsible for local government.
[13]
Henriques J in
MEC
for Co-operative Government and Traditional Affairs v Imbabazane
Municipality and Others
(Case No 5238/12, unreported, KwaZulu-Natal High Court,
Pietermaritzburg, dated 24 March 2017) and
MEC
for Co-operative Government and Traditional Affairs v Ntambanana
Municipality and Another
(unreported, Case No 8793/13, KwaZulu-Natal High Court,
Pietermaritzburg dated 30 May 2014) reiterated that this is a specie
of the power of intervention provided for in s139 of the
Constitution. This is necessarily so because of s 155 of the
Constitution
and s 139 being the only means of intervention - see
also
Johannesburg
Municipality v Gauteng Development Tribunal
2010 (6) SA 182
(CC) at paras 44 and 64 to 66 and N Steytler and J
De Visser
Local Government
Law of South Africa
(October 2018 – Issue 11).
[14]
Chaskalson CJ in
Minister
of Home Affairs v National Institute for Crime Prevention and the
Reintegration of Offenders (NICRO) and others
[2004] ZACC 10
;
2005
(3) SA 280
(CC) said that the legality principle infuses all our law
and does not mean that it is a right enforceable on its own. At para
21 it was held that: ‘
The
values enunciated in s 1 of the Constitution are of fundamental
importance. They inform and give substance to all the provisions
of
the Constitution. They do not, however, give rise to discrete and
enforceable rights in themselves. This is clear not only
from the
language of s 1 itself, but also from the way the Constitution
is structured and in particular the provisions of
ch 2 which
contains the Bill of Rights
.’
[15]
In this case, ‘Minister’
is defined in s 1 of the Systems Act as the ‘Minister
responsible for local government’;
this position is currently
held by the Hon Dr
Zweli
Mkhize (previously and at the relevant time the Hon Mr D van Rooyen)
as the Minister for the Department of Cooperative Governance
and
Traditional Affairs (CoGTA).
[16]
In terms of s 54A(10) quoted earlier
in this judgment.
[17]
This was the primary ground of
objection pursued in argument. As in
Mawonga
and another v Walter Sisulu Local Municipality and others
[2018] ZAECGHC
142;
[2019] 2 BLLR 196
Lowe
J held at para 18 that this issue ‘is central to the ability
to pronounce upon the remaining merit issue’.
[18]
In
Chirwa
v Transnet Limited and others
[2007] ZACC 23
;
2008 (3) BCLR 251
(CC);
2008 (4) SA 367
(CC) it was held that s
157(2) does not confer concurrent jurisdiction on the High Court,
but confers concurrent jurisdiction
on the Labour Court where the
High Court has jurisdiction, i.e. those matters that arise out of
the Bill of Rights with respect
to employment and labour relations.
See also
Grootboom v
National Prosecuting Authority and another
2014 (1) BCLR 65 (CC); 2014 (2) SA 68 (CC).
[19]
[2007] ZACC 23
;
2008 (4) SA 367
(CC);
2008 (3) BCLR
251
(CC) para 123.
[20]
[2015] ZASCA 190
;
2016 (5) SA 76
(SCA);
[2016] 3 BLLR 284
(SCA) para 20.
[21]
This was the language used in
Gcaba
v Minister for Safety and Security
2010
(1) SA 238
(CC) which concerned
the review of a failure
to promote a police official to a promotion post. On that basis it
was held not to be administrative action.
Generally employment and
labour relationship issues do not amount to administrative action
within the meaning of PAJA –
see
Minister
of Defence and others v Xulu
[2018] ZASCA 65
;
2018
(6) SA 460
(SCA)
.
[22]
I shall return to the provisions of s
158(1)(h) below.
[23]
2010 (1) SA 238
(CC) para 75.
[24]
[2013] ZAKZPHC 9; 2013 (5) BCLR 589
(KZP); 2013 (4) SA 326 (KZP).
[25]
My judgment in
Valuline
n24 was not subjected to an appeal.
[26]
[2016] ZASCA 24; [2016] 2 All SA 451
(SCA); 2016 (5) SA 89 (SCA).
[27]
The requirements to
establish own interest standing in a legality challenge was dealt
with in the judgment of Cameron J in
Giant
Concerts CC v Rinaldo Investments (Pty) Limited and others
2013
(3) BCLR 251
(CC) where he said “hence, where a litigant acts
slowly in his or her own interest, there is no broad or unqualified
capacity
to litigate against illegalities. Something more must be
shown.”
[28]
I say ‘ultimately’ having
regard to the provisions of s 41 of the Constitution and the
provisions of the
Intergovernmental Relations Framework Act 13 of
2005
.
[29]
Mr Dickson SC for the applicant
preferred to avoid the use of the word ‘review’ and
argued that it was simply an application
for a declaratory order. In
my view nothing turns on the use of the word ‘review’,
which I believe it is.
[30]
Mawonga
n17 paras 26 and 31. The learned judge considered and for reasons
given in his judgment correctly, with respect, concluded that
the
decision in
Mpele v
Municipality Council of the Lesedi and Others
[2018]
ZALCJHB 383;
[2018]
12 BLLR 1192
(LC)
was
distinguishable.
[31]
Gcaba
n21 para 73.
[32]
2010 (1) SA 62
(SCA) para 95, see
also paras 11 to 13.
[33]
Mokgatla
n26.
[34]
2016 (37) (ILJ) 1857 (LAC); [2016]
8
BLLR
758
(LAC)
para 39.
[35]
In that matter to the decision to
extend the collective agreement.
[36]
Macun
n19 para 23.
[37]
Steenkamp v Edcon
2016 (3) SA 251
(CC) para 49. The case concerned the retrenchment of
employees and the LRA not expressly conferring a right to be
dismissed lawfully,
with Cameron J commenting that the absence of
such an express provision ‘must be understood to have been
absorbed into
the statute’s fairness protections’.
[38]
In
Kweyama
v National Commissioner, Correctional Services,
unreported,
Case No. 13535/16, KwaZulu-Natal Local Division, Durban, dated 24
August 2017, the ‘act performed by the State’
was the
dismissal of the applicant. There can be no doubt that disputes
arising
stante
employment or in respect of the dismissal of an employee by the
State, arise in the context of the ‘State in its capacity
as
employer’. Olsen J commented as follows: ‘[37] This case
falls directly under
s 158(1)(h)
of the
Labour Relations Act. This
court is being asked to review a decision taken or an act performed
by the State in its capacity as employer. The action is the
dismissal of the applicant. Applying the test set out
immediately above, the answer must be that this court is being asked
to exercise a power with respect to a matter within the exclusive
jurisdiction of the Labour Court; unless, because the case
is about
a right entrenched in Chapter 2 of the Constitution, the High and
Labour courts would both have jurisdiction under s
157(2) of the
LRA. The only non-labour Chapter 2 rights asserted by the applicant
are those protected by PAJA. I have already
found that her case does
not concern PAJA.’ Similarly where the issue is whether a
policeman claims he should have been
promoted, but he was
unsuccessful with his application, as in
Gcaba
v Minister for Safety and Security
n21.
[39]
Section 1 of the Systems Act, as
common with statutes, defines ‘this Act’ as including
‘any regulations made
in terms of section 120’.
[40]
The
Promotion of Administrative
Justice Act 3 of 2000
.
[41]
Section 7
of PAJA.
[42]
City of Cape Town v Aurecon South
Africa (Pty) Ltd
2017 (4) SA 223
(CC)
note 30; M de Beer ‘A New Role for the principle of Legality
in Administrative Law:
State
Information Technology Agency Ltd v Gijima Holdings (Pty) Ltd
’
by M de Beer
(2018) 135(4)
SALJ
613
at 625.
[43]
Khumalo and another v Member of
the Executive Council for Education: KwaZulu-Natal
2014 (5) SA 579
(CC) paras 46 to 48.
[44]
Merafong City Municipality v
AngloGold Ashanti Ltd
2017
(2) SA 211
(CC) para 73.
[45]
Unreported,
Case
No. 4539/2013, KwaZulu-Natal High Court, Pietermaritzburg, dated 30
August 2013.
[46]
MEC for KwaZulu-Natal of the
Department of Co-operative Governance and Traditional Affairs v
Inkatha Freedom Party and others
[2013]
ZAKZPHC 62, which is dated on 13 November 2017.
[47]
Unreported,
Case
No. 8793/2013P, KwaZulu-Natal High Court, Pietermaritzburg, dated 30
May 2014.
[48]
MEC for Local Government, Housing
and Traditional Affairs v Utrecht Municipal Council and others
2007
(3) SA 436 (N).
[49]
Premier, Western Cape
and others v Oefferberg District Municipality and others
2011 (4) SA 441
(SCA) para 1.
[50]
South African National Defence
Union v Minister of Defence and others
[2007] ZACC 10, 2007 (5) SA 400 (CC).
[51]
C Hoexter
Administrative
Law in South Africa
2ed
(2012) at 134. See the comment on that statement in M Murcott and W
Van der Westhuizen ‘The Ebb and Flow of the Application
of the
Principle of Subsidiarity – Critical Reflections on
Motau
and
My Vote Counts
(2015) 7
Constitutional
Court Review
43 at 49.
This is in line with the decision in
Minister
of Health and another NO v New Clicks South Africa (Pty) Ltd South
Africa (Pty) Ltd and others
2006 (2) SA 311 (CC).
[52]
New Clicks
n46 para 97.
[53]
My Vote Counts NPC v Speaker of
the National Assembly and others
2016 (1) SA 132
(CC).
[54]
Murcott and Van der Westhuizen n46 at
49.
[55]
See generally Murcott and Van der
Westhuizen n46
.
[56]
(2008) 1
Constitutional
Court Review
77.
[57]
‘
Murcott and Van der Westhuizen
n46 at 47 to 48. See also
Mazibuko
and others v City of Johannesburg and others
2010 (4) SA 1
(CC) para 73.
[58]
In
Minister
of Defence and another v Xulu (supra)
Wallis JA referred to there possibly being a specie of review that
falls under neither PAJA nor the principle of legality but
brought
on the basis of unconscionable state conduct. I venture no further
than to suggest that it might be that a claim based
on
s 54A(8)
falls into the third category, just as presumably instances such as
that in
KwaZulu-Natal Joint
Liaison Committee v MEC, Department of Education, KwaZulu-Natal and
others
2013 (4) SA 262
(CC);
2013 (6) BCLR 615
(CC)
(‘KZN
JLC’) does.
[59]
Section 1
of PAJA.
[60]
The facts in
Notyawa
v Makana Municipality
[2017] All SA 533
(ECG) is distinguishable. Alternatively I
respectfully disagree with the conclusion reached in that judgment.
[61]
Gcaba
at para 64. No administrative action was involved in the present
matter. See the abbreviated definition and consolidated definition
provided by Nugent JA in
Grey’s
Marine Hout Bay (Pty) Limited and others v Minister of Public Works
and others
[2005] ZASCA
43
;
2005 (6) SA 313
(SCA) para 21.
[62]
Khumalo
n43
para 47.
[63]
See for example
Gqwetha
v Transkei Development Corporation Ltd
2006 (2) SA 603
(SCA);
[2006]
3 All SA 245
(SCA)
paras
24 and 31.
[64]
Khumalo
n43 para 52, see also
Wolgroeiers
Afslaers (Edms) (Bpk) v Munisipaliteit van Kaapstad
1978 (1) SA 13
(A)
and
State
Information Technology Agency Soc Ltd v Gijima Holdings (Pty) Ltd
[2016]
ZASCA 143
;
[2016] 4 All SA 842
(SCA);
2017
(2) SA 63
(SCA) para 22ffg.
[65]
Gijima
n66.
[66]
De Beer n42 at 626ff.
[67]
De Beer n42 at 627.
[68]
AllPay
Consolidated Investment Holdings (Pty) Ltd and others v Chief
Executive Officer of the South African Social Security Agency
and
others (Corruption Watch and another as
amici
curiae
)
2014
(4) SA 179
(CC); 2014
(1)
BCLR
1
(CC).
[69]
The respondents complain that the
applicant cannot make out a case in reply, which is of course trite
law. However, the allegation
that the respondents had advised that
the Minister would be engaged pursuant to
s 54A(10)
was not
challenged in a manner to give rise to a
bona
fide
dispute of fact. The
content of the answer is also more probable with such an
interpretation.
[70]
Bengwenyama Minerals
(Pty) Limited and others v Genorah Resources (Pty) Limited and
others
2011 (4) SA 113
(CC) paras 84 – 87 and
My
Vote Counts v Minister of Justice and Correctional Services and
another
[2018] ZACC 17
;
2018 (5) SA 380
(CC);
2018 (8) BCLR 893
(CC) paras
83 – 84 and 89.
[71]
This is what the respondents
contended for relying on
Tronox
KZN Sands (Pty) Ltd v KwaZulu-Natal Planning and Development Appeals
Tribunal
2016 (3) SA 160
(CC);
2016
(4) BCLR 469
(CC)
and
Johannesburg Metropolitan
Municipality v Gauteng Tribunal and others
2010 (6) SA 182
(CC).