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[2007] ZASCA 75
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Minister of Defence and Others v Dunn (131/06) [2007] ZASCA 75; [2008] 2 All SA 14 (SCA); 2007 (6) SA 52 (SCA); (2007) 28 ILJ 2223 (SCA) (31 May 2007)
Links to summary
THE
SUPREME COURT OF APPEAL
OF SOUTH AFRICA
CASE NO: 131/06
Reportable
In the matter between
MINISTER OF DEFENCE
...............................
1
st
Appellant
CHIEF OF THE SOUTH
AFRICAN NATIONAL
DEFENCE FORCE
...............................
2
nd
Appellant
SECRETARY OF DEFENCE
...............................
3
rd
Appellant
and
LH DUNN
...............................
Respondent
Coram
: HARMS, BRAND, LEWIS,
CACHALIA, JJA and THERON AJA
Heard:
10 MAY 2007
Delivered: 31 May 2007
Summary:
Appeal against decision that appointment of person to
post in SANDF was reviewable under
Promotion of Administrative
Justice Act 3 of 2000
; grounds for review not established by the
respondent - appeal upheld: order that person not promoted be paid
salary he would have
received had he been promoted impermissible.
Neutral
citation: This case may be cited as Minister of Defence v Dunn [2007]
SCA 75 (RSA) .
JUDGMENT
LEWIS JA
[1] Captain Louis Dunn, the respondent, applied unsuccessfully for a
promotion to a newly created position in the South African National
Defence Force (the SANDF). He brought an application to review the
decision of the appellants in the Pretoria High Court. In this
he was
successful. Van Rooyen AJ found that the decision made by the
respondents to appoint Brigadier General Coetzee to the position
and
not to promote Dunn was flawed in several respects. In spite of this
he did not set aside Coetzee’s appointment, but instead
awarded
Dunn damages under s 8 of the Promotion of Administrative Justice Act
3 of 2000 (PAJA). In effect Dunn was awarded the salary
that he would
have received had he been promoted, and was also awarded punitive
costs, the appellants being ordered to pay costs
on an attorney
client scale. (Dunn’s claim to set aside the decision to
appoint Coetzee was not pursued before this court since
there was no
cross-appeal.) The judgment of the high court is reported.
1
The court refused leave to appeal against its decision. The appeal to
this court is with its leave.
[2] The background to the application to the high court is this.
Captain Dunn is a lawyer. He holds the degrees of B Juris (1972),
LLB
(1975), a further undergraduate degree in political science (1991)
and a master’s degree in law (1993). He qualified as
an
attorney and was admitted to practice in 1979. He practised law for a
short period and then joined the SANDF in 1986 where he
was employed
as a legal officer in the Navy until 1994. He left for a period of
two years to work for the Legal Aid Board as an administration
officer. In May 1996 he was reappointed as a senior legal officer in
the Navy and attained the rank of Captain (SA Navy) (equivalent
to a
Colonel in the army) in 1999. That rank is on post-level 12 within
the SANDF.
[3] During 2002 a new position was created by the SANDF: director,
anti-fraud. It was classified as a level 13 post, above that of
Dunn
on level 12. Calls for nominations were made. Dunn saw the post
advertised and asked the Chief of the Navy, Vice Admiral Retief,
to
nominate him for what was in effect a promotion. Retief did so. There
were other contenders for the position, including Colonel
Jansen van
Vuuren and Brigadier General Coetzee. Coetzee also has legal
qualifications and practical legal experience. Coetzee was
already at
post-level 13. He was appointed to the post director: anti-fraud.
Dunn joined him as a respondent in the court below but
he did not
participate, and as I have said, Dunn has withdrawn his claim for the
setting aside of Coetzee’s appointment.
The legal grounds for review
[4] Dunn’s application for review was based on a number of
grounds, all of which assume that the decision of the Minister of
Defence, the first appellant, to appoint Coetzee and not to promote
Dunn constituted administrative action as contemplated by PAJA.
That
is not contested by the parties and was assumed to be so by the court
below. It should be borne in mind, however, that administrative
action is defined in PAJA as a decision taken which ‘
adversely
affects
the rights of any person and which has a direct, external
legal effect’.
2
The justification for regarding the appointment of a person to a post
as administrative action, even though it cannot be said to
adversely
affect the ‘right’ of a person who is non-suited, is to
be found, inter alia, in
Grey’s Marine Hout Bay (Pty) Ltd v
Minister of Public Works
3
where Nugent JA said that while PAJA’s definition of
administrative action refers to decisions that ‘adversely
affect
the
rights
of any person’ (my emphasis), the
literal meaning cannot have been intended by the legislature. The
qualification, he said,
was ‘probably intended to convey’
that the decision ‘has the capacity to affect legal rights’.
4
[5] The procedure preceding and underlying the decision of the
Minister, and which resulted in the recommendation to appoint Coetzee
to the post of director: anti-fraud, was alleged to be procedurally
flawed and unfair, in contravention of s 3(1) and ss 6(2)(a)(i),
(b),
(c), (e)(iv) and (f)(i) of PAJA. Section 3(1) requires that
administrative action which ‘materially and adversely affects
the rights or legitimate expectations of any person must be
procedurally fair’. Section 6(a)(i) provides for judicial
review
if the administrator who took the administrative action was
not authorized to do so. Section 6(b) deals with the failure to
comply
with a mandatory and material procedure laid down by an
empowering provision; s 6(c) provides for review where the action was
procedurally
unfair; s 6(e)(iv) deals with action taken ‘because
of the unauthorized or unwarranted dictates of another person or
body’;
and s 6(f)(i) provides for review where the action
contravenes a law or is not authorized by the empowering provision.
The appointment and promotion procedures of the SANDF
[6] Before turning to whether the decision not to appoint Dunn was in
violation of any of the provisions of PAJA, thus warranting
judicial
review, it is necessary to examine the procedures of the SANDF for
the appointment and promotion of personnel. These are
reflected in
two documents. The first is the Department of Defence Instruction
Senior Management Services (SMS-DODI). The appellants
contend that
this document is not relevant since it came into operation only when
signed by the Secretary of Defence on 13 September
2002, after the
dispute arose. Dunn contends that its implementation date is 1
January 2001. Nothing, in my view, turns on whether
the procedures
set out in SMS-DODI were applicable and it is not necessary to decide
when it became operative. In any event Dunn
conceded at the hearing
of the appeal that other personnel guidelines, reflected in the
second document, were operative at the time
the decision was taken.
[7] These are referred to as the ‘Interim Measures for the
Appointment and/or Promotion of Top Officers . . .’ (the
Interim
Measures). They are dated 1 July 2002. The procedures set out
are stated to be mandatory for all divisions within the Department
of
Defence. The purpose of the Interim Measures was to ‘establish
procedures in respect of the appointment and the promotion
of
officers to the rank of Colonel and higher’. The appellants
contend that the procedures in the appointment of Coetzee, rather
than Dunn, were those contained in the Interim Measures. These
require a formal placement process. A ‘seminar’ is held
to determine whether posts should be created or filled. Nominations
of persons to fill the posts are then invited from service and
divisional chiefs. The nominated candidates, if they have provided
the information required about themselves, are then considered
by the
members present at the seminar. The Interim Measures also provide for
an informal ad hoc placement for posts on the rank of
Colonel and
higher. The appellants do not rely on the informal procedures.
The process followed
[8] The annual seminar in question in this case was held on 29 August
2002. The Chief of the Navy, Retief, attended the seminar and
confirmed his nomination of Dunn to the post of director: anti-fraud.
The Secretary of Defence, the third appellant, decided, however,
that
this post should be referred to and considered by a separate, special
placement board. The reasons for this included the sensitivity
and
importance of the post and the fact that it was newly-created. The
special placement board comprised Mr T E Motumi, Chief of
Policy and
Planning in the Defence Secretariat, who acted as chairman of the
board and who deposed to the answering affidavit; the
Inspector-General of the Department of Defence, Major General
Ramlakan; the Chief of the Human Resources Centre, Major General
Shoke;
Major General Pitso, representing Defence Intelligence; and
Brigadier General Luck who acted as secretary to the special
placement
board.
[9] Shortly after the seminar was held Luck asked Motumi whether he
should arrange interviews with the candidates by the special
placement board. Motumi asked him to do so. Luck then telephoned the
candidates, including Dunn, and requested them to be available
for
interviews by the board. There is a dispute about the dates in this
regard. Motumi maintains that the special placement board
met on 2
September and that Dunn was asked for his curriculum vitae, and
telephoned on 30 August immediately after the seminar was
held. Dunn
avers that he was asked for his curriculum vitae on 6 September and
phoned by Luck on that date, and that the special
placement board met
on 9 September. The difference between the parties as to the dates is
in my view of no significance: first, bearing
in mind that these are
motion proceedings, the version of the respondents in the court below
(the appellants) is to be accepted (subject
to the usual rules); and
second, Dunn concedes that the placement board did indeed meet.
[10] The invitation to an interview, says Dunn, created a legitimate
expectation that he would be given a hearing. But on 2 September
(on
the appellants’ version) Luck again telephoned Dunn and told
him there would be no interview. He gave no reason to Dunn.
Motumi
had decided, it transpired, that there was no need to hold interviews
because the placement board had sufficient information
about the
candidates available to it.
[11] The minutes of the special placement board meeting reflect that
it recommended to the Chief of the SANDF that if there were
to be no
promotion, Coetzee should be appointed to the post (he was already on
level 13), but that if there were to be a promotion
Colonel Jansen
van Vuuren ought to be promoted. The minutes also reflect that Dunn
was considered and indeed preferred by one member
of the board. Luck
said that the meeting took about four hours. He took notes on his
laptop computer. The members of the special
placement board debated
each candidate and relied on their curricula vitae. After he had
compiled the minutes he handed them to Motumi.
They were signed by
Motumi, the Chief of the SANDF and the Secretary of Defence. Luck had
no reason to keep the minutes: they were
sent to the registry for
safekeeping. When the minutes could not be found during the course of
the proceedings, Luck retrieved the
document from his computer and
printed it out. There is no suggestion that the printout is not
authentic.
[12] In due course Luck sent the recommendations of the seminar and
of the special placement board to the Minister via the office
of the
Secretary of Defence. The Minister approved the appointment of
Coetzee on 13 September. The letter sent to the Minister by
the Chief
of the SANDF recommending the numerous appointments in the SANDF was
dated only ‘September’ with no day specified.
It referred
only to the ‘annual placement and transfer seminar’ held
on 29 August 2002, and not to the special placement
board meeting
held on 2 September. Much was made by Dunn of the omission of the
exact date and the failure to mention the meeting
of the special
placement board. I shall revert to the issue.
[13] Dunn learned of Coetzee’s appointment on reading a general
bulletin about SANDF appointments and promotions. He was aggrieved.
In December 2002 he requested the Minister to provide reasons for his
non-promotion. These were provided by the State Attorney in
March
2003.
Reasons afforded for the appointment of Coetzee rather than the
promotion of Dunn
[14] The letter setting out the reasons points out, first, that the
appointment was made in terms of the Interim Measures. It denies,
secondly, that Dunn had any legitimate expectation that he be
interviewed in the light of the invitation extended by Luck and
subsequently
cancelled. Dunn, it states, was considered for the post
together with three other candidates. The curricula vitae of all the
candidates
were ‘scrutinised’ and points were awarded to
each candidate in respect of a number of factors. These included
knowledge,
analytical skills, numerical skills, security clearances,
other training and development, managerial experience and promotional
requirements.
Each candidate’s curriculum vitae was ‘fully
comprehensive’, hence the decision not to interview them. The
letter
states ‘After taking into consideration all the
information at the Board’s disposal the candidate found to be
most suitable
for this position was then recommended’.
[15] It is noted at this point that in the course of the proceedings
that ensued, Dunn discovered that the curriculum vitae that
he had
submitted had literally come apart. Letters of reference that he had
attached were missing when papers were supplied to him.
From this he
inferred that his curriculum vitae had not been properly considered.
The application for review
[16] Not satisfied with the reasons given for Coetzee’s
appointment, Dunn brought the application for review, claiming the
setting aside of the decision to appoint Coetzee, alternatively
compensation under s 8(1)(c)(ii)(bb) of PAJA. As I have indicated
the
Pretoria High Court, finding that the decision of the Minister to
appoint Coetzee was flawed in several respects, declined to
set the
decision aside but ordered the SANDF to pay Dunn the salary he would
have received had he been promoted to the post of director:
anti-fraud on level 13.
[17] As counsel for the appellants point out, the judgment of the
court below is not a model of clarity. There appear to be several
findings on some of the PAJA grounds of review.
5
I shall deal only with the main grounds of review and findings of the
court below.
Fairness and transparency
[18] Dunn contends, and the court found, that the procedure followed
by the SANDF, and on which the decision of the Minister was
based,
was neither transparent nor fair. The allegations made in support of
this argument are based on the chronology of events.
Dunn points out
that the undated September letter (discovered by him fortuitously
during the course of the court proceedings) followed
on the general
seminar held on 29 August 2002, and that the appointment of Coetzee
is recommended in that letter without reference
to the special
placement board. It will be recalled that that letter to the Chief of
the SANDF referred to numerous recommendations
as to appointments and
promotions, but refers only to the seminar on 29 August. From this
Dunn infers that the decision to recommend
the appointment of Coetzee
was made at the general meeting and not by the special placement
board. The consequence of this, it is
argued, is that Dunn was not
considered for the post at all since his papers were not before the
seminar. The court found that on
this basis the decision was neither
transparent nor fair.
6
[19] The finding ignores certain undisputed facts. It is not denied
that Motumi convened a special placement board for the one post,
and
that four candidates were considered. Dunn expected to be
interviewed. He claims in this regard a legitimate expectation to
have
been heard. If the decision to appoint Coetzee had been made on
29 August then Dunn could certainly not have had an expectation that
he would be given an oral hearing by the special placement board.
Moreover, the entire rigmarole of setting up a special board for
a
new and sensitive post, and extending invitations to be interviewed
to the four candidates, would have been an elaborate sham.
[20] One would have to disregard the minutes (admittedly unsigned) of
the special placement board and the evidence of Motumi and
Luck, and
conclude that their version is a dishonest fabrication, in order to
reach the conclusion that the special placement board
did not sit and
did not consider the information before it. There is no suggestion
that the minutes of the meeting of the board were
not authentic.
Accordingly Dunn’s inference as to when the decision was made
must be rejected as must the finding based upon
it that the procedure
was not transparent or fair.
[21] The other grounds on which Dunn contends that the Minister’s
decision is reviewable are based on the premiss that the
special
placement board did meet and consider Dunn’s application for
promotion. The attack is thus levelled in the alternative
at that
procedure.
Meeting the requirements of the SANDF appointment and promotions
procedures: s 3 of PAJA
[22] Although the court below appeared to consider that the SMS-DODI
was applicable at the relevant time, Dunn concedes that the
Interim
Measures did apply. And the court indeed found that since the
appellants had invoked the formal placement procedures set
out in the
Interim Measures, Dunn had acquired certain rights under them which
had been breached.
7
These included the right to participate in the selection process,
that the process be properly applied and the right to uniform
treatment
of candidates in the process. The process required also
that proper submissions should be made to the board and that the
personal
profile of each candidate be evaluated by the board. The
evidence of Motumi, supported by the documents already referred to,
indicates
that the requirements laid down in the Interim Measures
were fulfilled.
[23] The high court’s finding that the appellants had not met
the requirements of the Interim Measures, and thus acted in breach
of
s 3 of PAJA,
8
is accordingly also based on the assumption that the appellants were
conspiring against Dunn and fabricating their evidence. There
is, as
I have said, nothing to support this assumption, and the contention
that there was dishonest conduct on the part of the appellants
and
those involved in the procedures could not have been based solely on
the papers. If fraud were in issue the court should have
referred the
matter to oral evidence or trial. But there is nothing in the papers
themselves to controvert the evidence of Motumi
and Luck, and the
finding on this basis is rejected.
Section 6 irregularities
[24] Dunn’s contention that the procedures of the special
placement board are reviewable under s 6 of PAJA overlap to a
considerable
extent with the contentions already traversed in
relation to the infractions of s 3. The high court nonetheless found
that the whole
process of appointment made on the recommendation of
the special placement board was fraught with irregularities and
defects, infringing
a number of the provisions of s 6.
9
Sections 6(2)(a)(i) and 6(2)(b) were violated, the court found,
because the mandatory procedures under the Interim Measures had not
been followed: there was a deviation from the standard procedure.
Appointments and promotions had to be made by a full, formal seminar.
There was no provision (other than informal procedures not relied on
by the appellants), it concluded, for a separate placement board
for
one post only. The seminar was functus officio after it had convened
on 29 August and no further meetings were permitted.
[25] The appellants contend, however, that the Chief of the SANDF has
the prerogative to make appointments and promotions. This flows
from
s 8 of the Defence Act 44 of 1957, in force at the time, read with
reg 13. Section 8(2) provided that ‘The Chief of the
Defence
Force shall be the principal adviser to the Minister on any military,
operational and administrative matter’ within
his competence.
These included the performance of all staff functions (s 8(g)).
Regulation 13 to the Defence Act provides:
‘
The
Minister or an officer authorised thereto by him or her may subject
to the other provisions of this Regulation and provided that
a
suitable vacancy exists, promote any officer on grounds of his or her
efficiency, qualifications and seniority.’
[26] The appellants argue that the statutory authority vests
significant powers in the Minister and the Chief of the SANDF. The
Interim
Measures are no more than policy documents and thus do not
fetter their discretion. Whether or not that is so, in my view a
reading
of the measures does not show that a separate placement board
was not permitted. The reasons advanced by Motumi for having a
special
board, comprising the senior officers concerned with the
position, to consider a significant and new post are plausible. Dunn
does
not show, in any event, quite how the Interim Measures were
infringed: he does not point to any passage that requires the same
board
to consider all appointments. Indeed, the Interim Measures
themselves indicate that there should be different seminars for
different
rank levels. There was thus no infringement of s 6(2)(a)(i)
nor (b) and no need to decide what the status of the Interim Measures
was nor whether the Chief of the SANDF or the Minister could permit
deviation from them. This conclusion applies also to the complaint
under s 6(2)(f)(i) that there had not been compliance with the
empowering provision.
The legitimate expectation that there be an interview
[27] The high court also found an infringement of s 6(2)(c) of PAJA
in that Dunn, having been invited to an interview, had a legitimate
expectation that he be heard (interviewed) by the placement board.
10
It is to be noted that s 3 of PAJA does not afford a right to ‘appear
in person’ before a decision is taken. The decision-maker
may,
in order to give effect to procedurally fair administrative action,
afford a person who will be affected the opportunity to
be heard in
person. Even where that is not the case, the audi principle
nonetheless applies: a person in respect of whom administrative
action is to be taken is entitled to a hearing and to make
representations. But Dunn was not denied that opportunity. He placed
information
about himself before the special placement board and
according to Motumi and Luck it was considered. Although he contends
that not
all of that information was before the special placement
board (because annexures to his curriculum vitae had become
detached), there
is nothing to suggest that the board did not have
sufficient information available and that he was not ‘heard’.
[28] Dunn’s contention that his legitimate expectation to be
heard was thwarted by the cancellation of the interview was accepted
by the high court on the basis argued by Dunn, that the race between
him and Coetzee was so close that ‘an appointment could
have
been made at the flip of a coin’.
11
The court declined to infer from this that an interview would not
then have made any difference saying that the ‘alleged equality
. . . contributed to making an interview an imperative’.
[29] The contention that Dunn and Coetzee were ranked as equal is
without foundation. The minutes, as I have already said, show that
if
a promotion were to be made then Jansen van Vuuren was the majority
of the board’s recommendation, and if an appointment
not
involving promotion were to be made then Coetzee was the preferred
candidate.
[30] That is not an answer, however, to the assertion that Dunn had a
legitimate expectation to an interview. Dunn’s argument
in this
respect is that the telephone call from Luck inviting him to an
interview created the expectation that he be given the opportunity
to
place his credentials before the board in person. He argues that the
fact that the Interim Measures do not expressly provide for
an
interview is irrelevant. He was entitled to be treated lawfully and
fairly in terms of s 33 of the Constitution. Thus, he contends,
where
the circumstances demonstrate a reasonable selection process cannot
take place without interviews, the selection board must
hold
interviews. The circumstances he refers to are the fact that
initially Motumi thought the interviews were necessary; the evidence
of an expert (an industrial psychologist) that interviews were
required in this kind of selection process; and the arbitrary
decision
by Motumi to cancel because of the bulk of the information
to be considered.
[31] In
South African Veterinary Council v Szymanski
12
Cameron JA approved the requirements relating to the legitimacy of an
expectation explained by Heher J in
National Director of Public
Prosecutions v Phillips
.
13
The law, said Heher J, does not protect every expectation. It
protects those that are legitimate. To meet this criterion, the
representation
made by the functionary concerned must be ‘clear,
unambiguous and devoid of relevant qualification’.
14
This requirement protects public functionaries against the risk that
their ‘unwitting ambiguous statements may create legitimate
expectations’. Heher J added that it is always open to those
who rely on such statements to obtain clarification. Second, the
expectation must be reasonable. Third, it must have been introduced
by the decision-maker. And fourth, the representation must be
one
which it is competent for the decision-maker to make.
[32] In
President of the Republic of South Africa v Rugby Football
Union
15
the court said that meeting the requirement of reasonableness depends
not only on the expectation in the mind of the person relying
on it
but also on whether ‘viewed objectively such expectation is, in
a legal sense, legitimate.’ In my view, Dunn’s
claim to a
legitimate expectation fails on the reasonableness requirement. There
was no representation that he was the likely candidate
for the post.
There was only an invitation to attend an interview (which could give
rise to no more than a procedural expectation
of an oral hearing): at
most the invitation might amount to a representation that an
interview might be of benefit. But it is equally
likely that it would
not have advanced Dunn’s cause. There is nothing to show that
anything would have turned on that interview.
16
None of the candidates was interviewed. There was no unequal
treatment. And, as I have said, there is no requirement that
interviews
be conducted. Nor was there evidence of a regular practice
of holding interviews by the seminars or placement boards, a further
factor
referred to by Corbett CJ in
Administrator, Transvaal v
Traub
,
17
and approved by the Constitutional Court in
President of the RSA
.
18
There was no need, in order for the decision to be made, to have an
oral hearing.
19
[33] Accordingly, I consider that there was no basis at all for the
decision of the Minister to be reviewed. I shall, however, deal
with
the remedy granted by the court below because I consider it important
that there be clarity as to when compensation under s
8 of PAJA
should be awarded. Even if there had been a reviewable irregularity
in the decision to appoint Dunn, was an award of what
is in effect a
salary promotion for the rest of his career in the SANDF permissible?
The order that Dunn be paid the salary of a rear admiral on level
13
[34] The high court considered that it would not be in the interests
of justice to order that the appointment of Coetzee to the post
be
set aside: ‘Coetzee did no wrong’.
20
There is no cross appeal against this finding and Dunn, as I have
said, does not persist in his request that the decision be set
aside.
[35] Instead, the court ordered the Department of Defence, in terms
of s 8(1)(c)(ii)(bb) of PAJA, to ensure that Dunn
‘
receives
the same salary and benefits, dated back to 1 October 2002 with
interest calculated at 11% per annum that he would have received
had
he been promoted to the level 13 post of Rear Admiral (Junior Grade)
on 1 October 2002. The Department of Defence is entitled
to give
effect to this order by granting applicant protective promotion as
provided for in the Public Service Act.’
21
[36] Section 8(1)(c)(ii)(bb) provides that a court in proceedings for
judicial review may,
in exceptional circumstances
(my
emphasis), direct ‘the administrator or any other party to the
proceedings to pay compensation’. The exceptional
circumstances
that the high court found were ‘the absence of respect for
imperative procedure; the insouciance displayed towards
mandatory
departmental policy and procedure; the secretive manner in which
Coetzee’s selection and appointment took place;
the selective
manner in which the record was furnished; the disingenuous
explanation for not proceeding with the interview . . .;
the various
versions proffered for the procedure that was followed and the
conflict between such versions and the documents pertaining
to them;
the prejudice which Dunn suffered’.
22
[37] The criticism of the way in which documents were furnished
during the course of the proceedings is warranted, but it does not
affect the decision itself. It is a matter that should be dealt with
by an appropriate costs order. Apart from the prejudice to Dunn,
to
which I shall return, the other reasons advanced have no basis in
fact as discussed, and are not grounds for review under PAJA.
[38] That leaves the question as to prejudice caused to Dunn. The
court considered that that prejudice lay in the ‘absence
of
administrative action that complies with the rule of law and fairness
in reaching that decision [to appoint Coetzee]’.
23
But it also said that ‘the prejudice does not lie in the
result
of the appointment procedure
’ (my emphasis)
24
since non-promotion is always a possibility where there are competing
candidates for a position. If that is so, what prejudice did
Dunn
suffer as a consequence of the decision to appoint Coetzee? None was
shown by Dunn to exist.
[39] Even if there were exceptional circumstances, it is
impermissible for a court to substitute its own decision – in
this
case to give Dunn an effective promotion in the Defence Force –
for that of the Minister.
25
It is the Minister, in terms of the Defence Act, who has the power to
make appointments and promotions.
[40] If it is a monetary award that Dunn wanted then he should have
proved some loss. But he did not. Compensation was accordingly
not
justifiable even had the administrative action complained of been
reviewable.
26
The appeal must therefore succeed: the decision to appoint Coetzee
rather than to promote Dunn was not reviewable, and the order
of the
court as to the payment of compensation was impermissible.
Costs
[41] The high court ordered that the appellants pay punitive costs,
on the attorney client scale, because of their behaviour during
the
course of the appointment procedure and because they had failed to
provide important documents during the course of the litigation.
There is no warrant for ordering such costs on the basis of the
alleged bad behaviour in the appointment process. The appellants
were
not as efficient in the running of the procedure as they should have
been, but deliberate misconduct and dishonesty were not
proved. There
is, however, some merit in the argument that the appellants provided
documents selectively in the course of the application
and that Dunn
had to go to great lengths to extract information from them. These
are set out in the reported judgment of the court
below.
27
In my view, therefore, the appellants should not be allowed to
recover costs in the application proceedings, although they are fully
entitled to costs on appeal.
[42] The following order is made:
1 The appeal is upheld with costs, including those occasioned by the
employment of two counsel.
2 The order of the court below is set aside and replaced with:
‘
The application is dismissed.’
C H Lewis
Judge of Appeal
Concur:
Harms ADP
Brand JA
Cachalia JA
Theron AJA
1
2006
(2) SA 107 (T).
2
Section
1.
3
2005
(6) SCA 313 (SCA).
4
Para
23. See also
Bullock NO v Provincial
Government, North West Province
2004
(5) SA 262
(SCA) para 19 which dealt with the position before the
enactment of PAJA, and
Kiva v Minister
of Correctional Services
ECD case
1453/04 of 27 July 2006 para 28, unreported, but referred to by Cora
Hoexter
Administrative Law in South
Africa
(2007) p 204. See generally the
discussion by Hoexter pp 202-204.
5
See
for example paras 28 and 40.
6
Para
15.
7
Para
25.
8
Para
27.
9
Para
28.
10
Para
40.
11
Para
28.
12
2003
(4) SA 42
(SCA) paras 19 and 20.
13
2002
(4) SA 60
(W) para 28.
14
The
quotation comes from De Smith, Woolf and Jowell
Judicial
Review of Administrative Action
5 ed
(1995) para 8-055.
15
2000
(1) SA 1
(CC) para 216.
16
See
Hoexter op cit p 381, referring to Isabeau Southwood ‘Legitimate
Expectation: A Case of Paradigm Lost’ (1998) 13
SA
Public Law
197. Southwood argues that
where the benefit expected is a hearing, there is no point to it
unless some other benefit is expected
to flow from the hearing.
17
[1989] ZASCA 90
;
1989
(4) SA 731
(A) at 756I.
18
Above
para 212.
19
President
of the RSA
above para 216.
20
Para
42.
21
Public
Service Act, 1994 (Proclamation 103 of 1994). The concept of
‘protective promotion’ is not to be found in that
Act
but in the Public Service Staff Code which was repealed before 2002.
22
Para
42.
23
Para
41.
24
Para
41.
25
See
SA Veterinary Council v Szymanski
2003 (4) SA 42
(SCA) (discussed above) paras 14
and 15.
26
Dunn
did not claim constitutional damages under s 38 of the Constitution,
which have been awarded in cases where there has been
unfair
administrative action, and actual financial loss shown, such as
Modderfontein Squatters, Greater Benoni
City Council v Modderklip Boerdery (Pty) Ltd
2004
(6) SA 40
(SCA) and
MEC, Department of
Welfare, Eastern Cape v Kate
[2006] ZASCA 49
;
2006 (4)
SA 478
(SCA).
See Hoexter op cit pp 503ff.
27
Paras
6-10.