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[2018] ZALMPPHC 35
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Mabata v Member of the Executive Council Safety, Security and Liason Limpopo and Another (1264/2017) [2018] ZALMPPHC 35 (30 May 2018)
REPUBLIC
OF SOUTH AFRICA
THE
HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
CASE NO:
1264/2017
In
the matter between:
MASHUDU
JANE
MABATA
APPLICANT
And
MEMBER OF THE EXECUTIVE COUNCIL
SAFETY, SECURITY AND LIASON
LIMPOPO
1
ST
RESPONDENT
HEAD OF DEPARTMENT:
SAFETY, SECURITY AND
LIASON
2
ND
RESPONDENT
JUDGMENT
SEMENYA
J:
1.
T
he
resolution of the dispute between the parties in this application
revolves around the enquiry into whether the issues raised
are to be
dealt with in terms of the Labour Relations Act 66 of 1996 (the LRA),
as submitted by the respondents, or in terms of
the Promotion of
Administrative Justice Act 3 of 2000 (the PAJA), as contended by the
applicants. Put in another way, whether this
court has jurisdiction
to hear the matter or whether the applicant should have approached
the CCMA.
2.
The authors,
Iain
Currie & Johan de Waal in their handbook, The Bill of Rights,
fifth edition on page 518 paragraph 23.7
stated the following:
“
LABOUR LAW
AND THE
PROMOTION OF ADMINISTRATIVE JUSTICE ACT
…
A
difficult issue that has emerged since the establishment by PAJA of a
statutory administrative justice regime is the relationship
between
that regime and the LRA. The first is that
s145
of the LRA provides
for judicial review by the Labour Courts of decisions of the CCMA on
a limited number of grounds. But if the
CCMA acts as an
‘administrator’ in terms of PAJA – its decision
will be susceptible to judicial review in terms
of
s6
of PAJA.
Judicial review under PAJA is the province of the High Courts (and
designated magistrates’ courts) and the list
of grounds of
review in s6 of the Act is more extensive than the grounds in s145 of
the LRA.
The
second area of difficulty is encountered when the decision by an
employer in the field of labour relations also amounts to
administrative action. A dismissal of employees by a public body is a
good example. Ordinarily, an enquiry into the validity of
the
dismissal decisions is the province of the CCMA and the Labour
Courts. However, PAJA’s mechanism for judicial review
of
administrative action on the grounds for legality, procedural
fairness and reasonableness may well provide an alternative path
for
litigants aggrieved by a labour – relations decision that
happens also to qualify as administrative action.
3.
The
applicant launched this application in two parts. In Part A, she
seeks an interim order in terms of which the respondents are
interdicted from re-advertising and filling a position of Director:
Promotion of Safety. The said order will be of force and effect
until
the issues raised in Part B are resolved.
4.
The salient facts in this application are that the applicant, who is
defining herself only as a civil servant, without specifying
the
government department she belongs to, applied for a post of Director:
Promotion of Safety as advertised by the respondents’
department. She was shortlisted and invited for an interview. The
developments that took place after the interviews made her believe
that she was recommended for the post. Whilst waiting to hear from
the department, she was surprised when she found out in a newspaper
article that the same post has been re-advertised.
5.
The application for an interdict is brought under the applicant’s
belief that the action or decision of the MEC (the 1
st
respondent) contravenes the provisions of PAJA and stand to be set
aside on that basis.
6.
The applicant states that upon learning about the re-advertisement of
the post, she requested the respondents to furnish her
with
information that led to the decision to do so. She only received a
document she referred to as the Memorandum for Recommendations
after
an uphill battle.
7.
According to the applicant, it was noted on the said memorandum that
the panel which consisted of seven members considered her
to be
highly appointable. Her appointment was recommended by the
Chief Director: Corporate Services and one Mr Maenetja,
the Chief
Financial Officer whose names does not appear on the list of
the panelist as furnished by the applicant.
8.
The applicant states further that it appears from the said memorandum
that the second respondent (the HOD) recommended her, but
added that
‘there were anomalies during the shortlisting process and
requested to be released from the process.’ According
to the
applicant the statement made by the HOD is the reason why the first
respondent decided not to appoint her. She avers that
the fact that
the memorandum was prepared by the Director: Human Resources
Management alone is an indication that the recruitment
processes were
compliant with the Public Service Regulations stipulations.
9.
In opposing the application, the respondents deemed it necessary to
deal first with the issues raised in Part A and to defer
the issues
in Part B to the review application. In the answering affidavit the
respondents aver firstly, that the issues raised
by the applicant are
labour related and should be dealt with in terms of the LRA and not
in the High Court. It was submitted that
the Labour Court has
exclusive jurisdiction in such matters as provided for in section
157(1) read with section 186(2) of the LRA.
Secondly, that the
applicant failed to satisfy the requirements laid down in
Setlogelo
v Setlogelo
1914 AD 221
being:-
a.
Prima
facie
right;
b.
a
well-grounded apprehension of irreparable harm if the interim relief
is not granted and the ultimate relief is eventually granted;
c.
a
balance of convenience in favour of the granting of the interin
relief; and
d.
the
absence of any other satisfactory remedy.
10.
With
regard to jurisdictional issues, the respondent contended that the
applicant’s main complaint is that she was treated
unfairly by
the respondent’s failure to appoint her despite the fact that
the panel has regarded her as being highly appointable.
It was
submitted that the LRA provides remedies in such situations and that
the high Court has no concurrent jurisdiction.
11.
The first respondent states that the mere fact that the applicant has
been recommended by the panel does not give her a substantive
right
to be appointed as the decision to do so falls squarely within the
domain of the employer. The respondent submits further
that the
applicant has no
prima
facie
right that has been infringed for the same reasons, also that the she
has been furnished with reasons why she was not appointed
to the
position.
12.
According to the first respondent, the applicant failed to show that
she has no alternative remedy as the Bargaining Council
provides
mechanisms that cater for an applicant who is aggrieved by the
decision of the employer not to appoint her, more so that
the
applicant in this case is employed within the civil service.
13.
With regard to the requirement that the applicant must show that she
stands to suffer irreparable harm should she not be appointed
to the
position, the first respondent contents that the applicant failed to
allege facts from which the court can find that such
harm can be
reasonably apprehended.
14.
The first respondent dispute the applicant’s allegation that
the balance of convenience favour the granting of an interdict
in
that, among other reasons, the review application has no prospects of
success. The first respondent refers to a number of instances
in
which the Public Service Regulations were not complied with during
recruitment processes which are not disputed by the applicant.
15.
During argument, it was contended on behalf of the applicant that the
application is founded on PAJA and not on the LRA. It
was maintained
that
the
grievance
lies on the fact that the respondents failed to afford the applicant
an opportunity to make representations before the
decision to
re-advertise was taken. Further that the applicant was not informed
about the outcome of the recruitment process before
the position was
readvertised.
16.
It is my view that the determination of the issue of jurisdiction is
to be made on the basis of an analysis of the facts as
alleged by the
applicant in the founding affidavit. The label that the applicant
himself or herself attaches to the action is therefore
immaterial.
This view is in line with what was stated in the Constitutional Court
case of
Fraser
v ABSA Bank LTD (National Director of Public Prosecutions as Amicus
Curiae)
[2006] ZACC 24
;
2007 (3) BCLR 219
(2007) (3) SA 484
(CC).
It was held that:
“
An issue
does not become a constitutional matter merely because an applicant
calls it one. The other side of the coin is, however,
that an
applicant could raise a constitutional matter, even though the
argument advanced as to why an issue is a constitutional
matter, or
what the constitutional implications of the issue are, may be flawed.
The acknowledgement by this Court that an issue
is a constitutional
matter, furthermore, does not have the result in finding on the
merits of the matter in favour of the applicant
who raised it.”
17.
The respondents submitted, correctly so in my view, that the main
issues in this application fall within the ambit of the LRA.
It is
evident from the founding affidavit that her main complaint lies in
the fact that the first respondent failed to appoint
her despite of
the recommendation by the panelists.
18.
It cannot be correct that the respondents failed to furnish her with
the reasons for the decision taken. Those reasons are attached
to the
founding affidavit by the applicant herself in the form of the
Memorandum of Recommendations. Furthermore, the respondents
substantiated the reasons why it is alleged that the recruitment
procedures were not done correctly. It appears that although about
57
people applied for the post, only three people, and among then, only
one person suited the requirement of the position to be
filled.
19.
I can safely assume that the applicant somehow accepted the reasons
furnished by the applicant that the procedures were flawed.
This is
in view of the fact that the applicant limited her argument to the
respondents’ failure to afford her an opportunity
to make
submissions before the decision to readvertise was taken. I am of the
view that the applicant is resorting to PAJA simply
because she is
aware that she may not have succeeded had she decided to bring an
application under LRA. This is what the Constitutional
Court referred
to as forum shopping in a number of related cases.
20.
In addressing the issue of concurrent jurisdiction of the High Court
and the Labour Court, the Constitutional Court as follows
in
Gcaba
v Minister of Safety and Security
2010 (1) SA 238
(CC) at 64:
“
Generally,
employment and labour relationship issues do not amount to
administrative action within the meaning of PAJA. This is
recognized
by the Constitution. Section 23 regulates the employment relationship
between employer and employee and guarantees the
right to fair labour
practices. The ordinary thrust of section 33 is to deal with the
relationship between the state as bureaucracy
and citizens and
guarantees the right to lawful, reasonable and procedurally fair
administrative action.”
At paragraph 68 the court held that:
“
Accordingly,
the failure to promote and appoint the applicant was not an
administrative action.”
21.
I
have already stated that I agree with the respondents that the issues
raised by the applicant, a civil servant, are labour related.
Notwithstanding the argument raised on behalf of the applicant that
the issues falls under PAJA, the main complaint is that the
respondents filed to appoint her despite the fact that the panel
recommended her. These are the issues that should be dealt with
in
terms of the LRA and mechanisms provided therein. The right to be
given an opportunity to make representation under the circumstances
of this case alone cannot establish jurisdiction under PAJA.
22.
This brings me to the question whether the applicant satisfied the
requirements laid down in Setlogelo. It follows from what
I have
stated above that it cannot be correct that the applicant is without
an alternative remedy. The LRA provides remedies in
this regard. The
applicant may approach the Bargaining Council if she so wish. I
further agree with the respondents that the balance
of convenience do
not favour the applicant. It is required that proper procedures
should be followed whenever an appointment to
fill a vacant post is
to be made. The application for an interdict cannot succeed both on
the issue of jurisdiction and the merits
23.
It is ordered:
The application is dismissed.
There is no order
as to costs.
SEMENYA
MV
JUDGE OF THE HIGH
COURT; LIMPOPO DIVISION
APPEARANCES
FOR THE PLAINTIFF
: MOBOKU MANGENA ATTORNEYS
INSTRUCTED BY
: ADV: NKOANA L.A
FOR THE DEFENDANT: MR.
A MASEKOAMENG
INSTRUCTED BY
: STATE ATTORNEYS
DATE OF HEARING
: 19 MARCH 2018
DATE OF JUDGEMENT: 30
MAY 2018