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[2018] ZALMPPHC 42
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Maswanganyi v HOD Department of Basic Education, Limpopo and Others (7237/2017) [2018] ZALMPPHC 42 (10 August 2018)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
CASE
NO: 7237/2017
DIKELEDI
PRECIOUS
MASWANGANYI
APPLICANT
And
HOD: DEPARTMENT OF BASIC EDUCATION,
LIMPOPO
1
ST
RESPONDENT
MEC OF THE DEPARTMENT OF
BASIC
EDUCATION,
LIMPOPO
2
ND
RESPONDENT
DEPARTMENT
OF EDUCATION, LIMPOPO
3
RD
RESPONDENT
SGB,
GIYANI COMPREHENSIVE
SCHOOL
4
TH
RESPONDENT
SGB, KHWEZU PRIMARY
SCHOOL
5
TH
RESPONDENT
JUDGMENT
SEMENYA J:
[1]
The applicant in this matter is an educator in the employ of the 3
rd
respondent. She is currently employed at Khwezu Primary School within
Mopani District and has been working there for the past 23
years.
[2]
The applicant applied for three posts of HOD (Head of Department),
for Khwezu Primary School (Khwezu), Giyani Comprehensive
Primary
School (Giyani Comprehensive) and Khomosani Primary School
(Khomisani) as advertised by the Department of Basic Education,
Limpopo Province. She was interviewed and scored position 1 in all
three posts. It is common cause that the panel recommended the
applicant for the Khwezu post. The 3
rd
respondent recommended to the 1
st
respondent, the appointment of the 6
th
respondent, who was scored No.3 during the interviews, for Giyani
Comprehensive.
[3]
After the recommendations, the applicant requested the 3
rd
respondent to furnish her with the reasons for the decision made. It
is common cause that the reasons furnished were that the 6
th
respondent was recommended for the Giyani Comprehensive because the
applicant was already recommended for Khwezu. The applicant
was
aggrieved by the decision taken. She is of the view that the
respondents should have asked her to choose the school that she
prefer to work at, as she scored position 1 in all three schools. She
thereupon instructed her attorney to request the 2
nd
respondent to verse the appointment of the 6
th
respondent and/or transfer her to Khwezu and to appoint her
(applicant) to Giyani Comprehensive. The 2
nd
respondent was given 30 days to do so.
[4]
Pursuant to the 2
nd
respondent’s failure to respond to the applicant’s
request, the applicant launched this application in terms of section
6(2)(g) of the Promotion of Administrative Justice Act 3 of 2000
(PAJA). She alleges that her rights as entrenched in section 33
of
the Constitution of the Republic of South Africa, 1996 .were
violated. She further alleges that her right to freedom of trade,
occupation and promotion as protected in section 22 of the
Constitution were also violated.
[5]
According to the applicant section 6(2)(g) of PAJA is applicable in
that the 1
st
and 2nd respondents failed to reverse the appointment of the 6
th
respondent and to appoint her at Giyani Comprehensive, which she
states, amounts to failure to take a decision which is reviewable
in
terms of this section.
[6]
The 1
st
,
2
nd
and 3
rd
respondents’ ground of opposition are firstly that the
applicant cannot claim that she was successful in the Giyani
Comprehensive
interview in view of the fact that the panel did not
recommend her for appointment at that school. Secondly, that, by
applying
for the Khwezu post, the applicant availed herself for
appointment there, and therefore she cannot blame the respondents for
appointing
her on the basis of the recommendations of the panel. It
is also the respondents’ belief that the applicant does not
have
the right to instruct them to appoint her at Giyani
Comprehensive according to her personal preferences.
[7]
On the 1
st
,
2
nd
and 3
rd
respondent’s failure to reverse the appointment of the 6
th
respondent and to transfer her to Khwezu as a ground of review in
terms of section 6 of PAJA, the respondents stated that there
is no
lawful reason that compels them to transfer the 6
th
respondent to Khwezu as she was not recommended and appointed in that
post.
[8]
Section 6(1) and (2) (g) of PAJA provides that:
“
(1)
Any
person may institute proceedings in a court or tribunal for the
judicial review of an administrative action.
(2)
a court or tribunal has the power to judicially review an
administrative action if-
…
(g)
the action concerned consists of a failure to take a decision.”
[9] PAJA is the product of section 33
of the Constitution which provides as follows:
“
Everyone
has the right to administrative action that is lawful, reasonable and
procedurally fair.”
[10] In
The Premier, Province of
Mpumalanga and Another v Executive Committee of the Association of
Governing Bodies of State Aided Schools:
Eastern Transvaal
1999 (2)
SA 91
(CC) at 41
the court held that:
“
In
determining what constitutes procedural fairness in a given case, a
court should be slow to impose obligations upon government
which will
inhibit its ability to make and implement policy effectively (a
principle well recognized in our common law and that
of other
countries).
”
[11] I deem it necessary to determine
whether the conduct complained of is an administrative action before
I could deal with the
issue of whether the said conduct is reviewable
on the ground relied upon by the applicant. In
Gcaba v Minister of
Safety and Security and Others
2010 (1) SA 238
(CC)
at paragraph
64 (Gcaba), the Constitutional Court stated that:
“
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 the citizens and
guarantees the right to lawful, reasonable and procedurally fair
administrative action. Section 33 does not
regulate the relationship
between the state as employer and its workers. When a grievance is
raised by an employee relating to
the conduct of the state as
employer and it has few or no direct implications or consequences for
other citizens, it does not constitute
administrative action.”
[12]
In bringing the decision in Gcaba within the ambit of this case, the
applicant contends that the respondent’s failure
to respond to
his attorney’s request to reverse the appointment of the 6
th
respondent amounts to a failure to make a decision as envisaged in
section 6(2) (g). The applicant wanted the respondents to appoint
her
in the Comprehensive School after the said reversal of the 6
th
respondent’s appointment. There is no doubt that the decision
to reverse the recommendations would have direct implications
on the
6
th
respondent.
[13]
However the matter does not end there. At paragraph 68 of Gcaba, the
CC held that the failure to appoint or promote the applicant
in that
case was not an administrative action.
[14]
The respondents submitted that there are no legal grounds for the
setting aside of the 6
th
respondent’s recommendation for appointment to Giyani
Comprehensive. It was contended on the respondent’s behalf that
the applicant has no quarrel with the procedures followed during the
shortlisting and the interviews. She is also satisfied with
the
ratings of the panel. The respondents contend further that the
applicant is not imputing any bias or malice on the part
of the
respondents. The submission is that the applicant is satisfied that
the procedure followed in that regard was fair. I agree
with this
submission.
[15]
It is not the applicant’s case that she brought her preferences
in respect of the three posts to the respondents’
attention
when she completed the application form. Nowhere in her founding
affidavit does she allege that she informed the respondents
that she
would prefer to be recommended for the Giyani Comprehensive School
post as it is closer to her home and that it will give
her the
opportunity for change as she has been employed at Khwezu for some
years. The applicant is further not alleging that the
respondents had
reason to believe that she was not interested in the Khwezu post. I
therefore agree with the respondents’
contention that the
applicant created an impression that she is interested in an
appointment at Khwezu, by applying for the post.
She therefore cannot
complain when the panel recommended her to a post that she has
applied for.
[16]
The applicant places reliance on section 6(2) (g) of PAJA. The issue
is whether the respondents’ failure to reverse the
appointment
of the 6
th
respondent amounts unfair reviewable administrative action in the
form of failure to make a decision as envisaged in the section.
I
agree with the respondents that the decision to reverse the
recommendation and or the appointment of the 6
th
respondent and to appoint the applicant in the Giyani Comprehensive
School on the grounds raised by the applicant would have been
unlawful. The same would apply to the decision to transfer the 6
th
respondent to Khwezu.
[17]
It appears from the founding affidavit that the applicant’s
main complaint is that she was not appointed at the school
of her
preference. I find her reliance on section 6 of PAJA to be misguided
and opportunistic. As already stated, the Constitutional
Court in
Gcaba has ruled that failure to appoint or promote is not an
administrative act. She was bound to follow the procedures
laid down
in the Labour Relations Act as it appears that her complaint is that
her promotion opportunities have been prejudiced,
the allegations
that I do not agree with.
[18] With reference to The Premier,
Mpumalanga, I find that it was crucial for the department to fill the
vacancies in order to
ensure the smooth running of the schools. It
could not have been possible to appoint the applicant on all three
posts or at a school
of her choice in the absence of a clear
indication on her part in that regard. In any event, it is my view
that her personal reasons
and choices cannot override the need to
ensure that the administration of schools and the interests of the
children.
[19]
I find that the applicant cannot succeed, both on the merits and on
the fact that her complaint does not fall within the ambit
of PAJA.
[20]
I have decided not to order the applicant to pay the costs in line
with the decision in Biowatch Trust v Registra Genetic
Resources and Others
2009 (6) SA 323
(CC).
[21] It is ordered:
The application is dismissed.
M.V
SEMENYA
JUDGE PRESIDENT OF THE
HIGH COURT, LIMPOPO DIVISION.
APPEARANCES
ATTORNEYS FOR THE
APPLICANT
:
MG MABUNDA ATT
COUNSEL FOR THE
APPLICANT
:
ATTORNEY FOR THE
RESPONDENT
:
STATE ATTORNEY
COUNSEL FOR THE
RESPONDENT
:
ADV. U.B MAKUYA
DATE OF
HEARING
:
17 MAY 2018
DATE OF
JUDGMENT
:
10 AUGUST 2018