1
IN THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION, CAPE TOWN
REPORTABLE
Case Number: 1931/2023
In the matter between:
MELVIN MOODLEY Applicant
and
THE PUBLIC SERVICE COMMISSION First Respondent
MEMBER OF THE EXECUTIVE COUNCIL,
WESTERN CAPE DEPARTMENT OF HEALTH Second Respondent
MINISTER OF PUBLIC SERVICE AND ADMINISTRATION Third Respondent
ANITA PARBHOO Fourth Respondent
Heard: 7, 8 and 31 May 2024
Judgment: 3 June 2024
JUDGMENT
Handed down by email to the parties on 3 June 2024
2
1 Two issues of some considerable public importance arise in this matter (in
respect of which there is no direct authority of which the four counsel who
appeared at the hearing of the matter and I are aware and could find):
1.1 Whether the findings and recommendations of the Public Service
Commission (the first respondent) are binding on the executive
authority to whom they are directed.
1.2 Whether the requirement of certain years of “ experience at a senior
managerial level” for entry into Levels 14 to 16 of what is known as the
Senior Management Service of the Public Service (defined in the next
paragraph) means, for applicants who are employees in the Public
Service, the requisite years of experience at any of Levels 13 to 16 of
the Public Service, or whether those years of experience at a senior
managerial level can be obtained elsewhere.
2 The Public Service (“the Public Service”) is defined as follows in section 8(1) of
the Public Service Act 103 of 1994 (“the PSA”):
“The public service shall consist of persons who are employed –
(a) in posts on the establishment of departments; and
(b) additional to the establishment of departments.
3 “department” is defined in in section 1 of the PSA to mean:
“a national department, a national government component, the Office of a Premier, a
provincial department or a provincial government component;”
4 The Senior Management Service of the Public Service (“ the SMS ”) was
established in respect of senior managers at Levels 13 to 16 of the Public
3
Service. In other words, members of the SMS were those employed at Levels
13 to 16 of the Public Service.
5 On 3 March 2017, and in terms of section 3(2) of the PSA, the Minister for
Public Service and Administration (“ the Minister ”) issued the amended
“Directive on Compulsory Capacity Development, Mandatory Training Days and
Minimum Entry Requirements for SMS” with effect from 1 April 2017 (“the
Directive”). In paragraph 10.2 thereof it is recorded:
“The table below reflects minimum years of experience as an entry requirement into
the SMS:
SMS Level Relevant experience (wef 1 April 2015)
Entry (level 13) 5 years of experience at a middle/senior managerial level
Level 14 5 years of experience at a senior managerial level
Level 15 8-10 years of experience at a senior managerial level
Level 16 8-10 years of experience a t a senior managerial level (at least 3
years of which must be with any organ of State as defined in
the Constitution Act 108 of 1996)”
6 Key to this matter is what is meant in the Directive by “ experience at a senior
managerial level”.
7 Paragraph 16 of the Directive provides as follows:
“Request for deviation in respect to any part of this Directive may only be
considered by the Minister for Public Service and Administration provided that
such a request, citing the reasons therein, is in writing and signed by the relevant
Executive Authority.”
8 The post of Chief Executive Officer (CEO) of the Red Cross War Memorial
Childrens’ Hospital in Cape Town (“the Post”) was advertised on 23 June 2021
(“the Advertisement ”). The Post is a level 14 post, i.e. part of the SMS.
4
Numerous persons applied. Two of them were the applicant, Dr Melvin Moodley
(“Dr Moodley”), and the fourth respondent, Dr Anita Parbhoo (“ Dr Parbhoo”).
Dr Moodley occupied a Level 14 post, i.e. a post in the SMS. Dr Parbhoo
occupied a Level 12 post, i.e. a post which is not in the SMS. Level 12 is the
highest level of the middle management of the Public Service, one below the
level at which the SMS starts.
9 The Advertisement listed various requirements. The one material to this
application is “at least 5 year[s] of experience at a senior managerial level”. The
requirements in the Advertisement read as follows (underling added by me):
“An undergraduate qualification (NQF 7) in Health/Social Science or related field as
recognized by SAQA with at least 5 year of experience at a senior managerial level.
Pre-entry Certificate for the Senior Management Services (Candidates not in
possession of this entry requirement can still apply but are requested to register for
the course and complete as such as no appointment can be made in the absence
thereof. The course is available at the National School of Governance (NSG) under
the name Certificate for entry into SMS …
Experience:
Applicants should have a proven, extensive track record in all major aspects of
health facility, health service and resources management. Proven extensive
management experience of health services.
….
Competencies (knowledge/skills):
Proven skills and abilities in the financial and human resources management of a
health service. General strategic management, project management and capacity
to draft and assess operational policies. Good interpersonal skills and self -
awareness. Computer literacy (MS Word, Excel, PowerPoint, internet and email).
Ability to communicate in at least two of the three official languages of the Western
Cape. Knowledge and understanding of Health Systems. Knowledge of financial
and people management. Proven experience in the provision and management of
health services. Proven leadership capabilities.
….
NOTICE TO ALL
Candidates may be subjected to a competency test … As directed by the
Department of Public Service and Administration, applicants must note that further
checks will be conducted once they are shortlisted and that their appointment is
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subject to positive outcomes on these checks, which include security clearance,
qualification verification, criminal records and previous employment.”
10 The only contentious requirement in the Advertisement for the purposes of this
application, is that of “at least 5 year [s] of experience at a senior managerial
level”..
11 The genesis thereof is the requirement in paragraph 10.2 of the Directive
quoted above that applicants for Level 14 SMS posts must have at least “5 years
of experience at a senior managerial level”.
12 Both Dr Moodley and Dr Parbhoo were shortlisted and interviewed. Dr Parbhoo
was appointed to the Post by the second respondent, the Member of The
Executive Council, Western Cape Department of Health (“the MEC”).
13 Dr Moodley lodged a grievance: the essence of the grievance for the purposes
of this application was that Dr Parbhoo did not have “ 5 years of experience at a
senior managerial level” as required by the Directive. Dr Moodley’s case confirmed
and emphasised in oral argument is that “5 years of experience at a senior managerial
level” means:
13.1 For any applicants from the public sector, five years of experience at
Levels 13 to 16 in the Public Service.1
13.2 For applicants from the private sector, five years of experience at an
equivalent level.
1 Mrs Moodley, who appeared for applicant , deliberately used the wording “Levels 13 to 16 in the Public
Service” as opposed to “in the SMS” in articulating applicant’s case in oral argument. In my view this is
a distinction without a difference.
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14 On 11 November 2021, the MEC rejected the grievance in writing to Dr
Moodley. On 15 December 2021, the MEC further explained in writing to Dr
Moodley the rejection of the grievance inter alia as follows:
“The CEO post in question is graded at a level 14 and requires 5 years of
experience at a senior managerial level. It does not dictate that this experience
should be as part of the SMS in Public Service ... It is thus fair to assume that
when considering what senior managerial experience is, that a selection panel
would consider the complexity and functions performed and whether it would
be regarded as above that of managerial experience so to make it senior
managerial experience.”
15 The grievance was escalated to the Public Service Commission (“ the PSC ”).
The legal framework under which the PSC operates and grievances are made
and investigated is considered below.
16 The PSC communicated in a letter to the MEC dated 24 June 2022 (“ the PSC
Letter”) that:
“The claim that Dr Parbhoo has no senior managerial experience is found to be
without merit and this part of the grievance is unsubstantiated.
The shortlisting of Dr Parbhoo for the Chief Executive Officer (level 14) post is
not in accordance with the explicit provisions of the [Directive]. This part of the
grievance is found to be substantiated. The deviation clause was not utilized by
the department and renders the appointment irregular.”
17 The PSC produced a report dated 6 June 2022 on the investigation of Dr
Moodley’s grievance (“ the PSC Report”). In essence the PSC Report is a
much more detailed exposition of what is contained in the PSC Letter, with the
same conclusions, as well as containing material as to other aspects.
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18 On 12 August 2022, the MEC communicated to the PSC that she disagreed
that the shortlisting and appointment of Dr Parbhoo was irregular. On that same
date she advised Dr Moodley of this and further communicated that she
disagrees with Dr Moodley’s contention that the appointment of Dr Parbhoo
was unlawful and stands to be set aside. She stated further that “… t he
shortlisting, and eventual appointment of Dr Parbhoo as CEO of Red Cross War Memorial
Children’s Hospital were not irregular, and I will, for the reasons set out in the enclosed
correspondence, not be approaching a Court to have same set aside.” This
correspondence from the MEC to the PSC was in fact not attached and Dr
Moodley only had sight of it later, but it was the PSC Report referred to above.
19 The PSC subsequently aligned itself with the position adopted by the MEC. In a
counter-application, it sought the setting aside of the PSC Report , findings and
recommendations (prayer 1) and the Directive (prayers 4 and 5). Prayers 2 and
3 concerned declarations as to Dr Parbhoo qualifying for the requirements of
the Post and that her appointment was valid. During the course of oral
argument, Mr Tshetlo, who appeared for the PSC together with Ms Mashiane,
informed me that the relief in prayers 2 to 5 of the counter -application was
abandoned by the PSC , prayers 2 and 3 not being necessary and the PSC
being in agreement with applicant’s view on prayers 4 and 5. Mr Tshetlo further
informed me in oral argument that, although not stated as such in the Notice of
Counter-Application, prayer 1 of the counter -application is in fact conditional on
the PSC Report, findings and recommendations being found to be binding.
20 Dr Moodley seeks various relief, including that the shortlisting and appointment
of Dr Parbhoo for and to the Post be set aside on review in terms of the
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Promotion of Administrative Justice Act 3 of 2000 (‘PAJA’) or the principle of
legality. One of his main contentions is that the requirement in paragraph 10.2
of the Directive that Level 14 SMS posts require “ 5 years of experience at a senior
managerial level ” means five years at Levels 1 3 to 16 of the Public Service for
applicants from the public sector.
21 The third respondent did not participate in the matter and Dr Parbhoo delivered
a Notice of Intention to Abide.
22 Core to this matter are the following two issues:
22.1 What is meant by “ senior managerial level”, this being the key phrase in
the requirement in paragraph 10.2 of the Directive that Level 14 SMS
posts require “5 years of experience at a senior managerial level”.
22.2 Whether the findings and recommendations of the PSC are binding (in
this instance, on the MEC.
23 The other main points are the question of jurisdiction and whether the decision
of the MEC was administrative action. Both the first and second respondent
raised a lack of jurisdiction of this Court to hear this matter. First respondent
abandoned this point. Second respondent persisted with it as well as the
administrative action point.
24 There were some other issues which were raised by the parties which were
abandoned during oral argument. For example, prayer 1.2 of the application in
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convention, prayers 2 to 5 of the counter -application and Dr Moodley’s
challenge to the authority of the PSC to bring the counter-application.
25 The following is not in issue: the Advertisement for the Post, the recruitment
and selection process, the Directive as it currently reads and whether or not Dr
Parbhoo fulfils the requirements of “5 years of experience at a senior managerial level ”
if applicant’s argument fails.
26 In the above respects, Dr Moodley, the PSC and the MEC produced a record of
over 1100 pages, more than 540 of which are the actual affidavits themselves,
excluding annexures.
The relief sought
27 Dr Moodley seeks the following relief in terms of his (fourth amended) notice of
motion:
“1. In accordance with the provisions of uniform Rule 53 and the principle of
legality and/or the Promotion of Administrative Justice Act 3 of 2000, reviewing
and setting aside of:
1.1 the first respondent’s (the PSC) decision that the fourth respondent does
have experience at a senior managerial level;
1.2 the second respondent’s (the MEC) decision to not abide by the findings
of the PSC that the appointment of the fourth respondent was irregular;
and
1.3 the decision to shortlist and appoint the fourth respondent into the post
of Chief Executive Officer: Red Cross War Memorial Children’s Hospital
(the Red Cross Post)
on the basis that the aforementioned decisions (in paragraphs 1.1 to 1.3) are
arbitrary, irrational and unlawful.
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2. Declaring that:
2.1. the failure by the PSC to take remedial action having found that the
fourth respondent’s appointment into the Red Cross Post was irregular, is
unlawful and contrary to its Constitutional mandate.
2.2. in terms of section 196(4)(a) to (f)(iii), read with section 195(1)(a) to (i)
of the Constitution, the PSC is obligated to set aside irregularities or take
remedial action to rectify irregularities or take remedial action to rectify
irregularities it finds in the public service in the scope of discharging its
obligations and duties as set out in the Constitution read with the Public
Service Act, 1994 and the Public Service Commission Act, 46 of 1997.
2.3. the MEC is bound by the PSC’s finding that the fourth respondent’s
appointment into the Red Cross Post was irregular until such time as a
court of law pronounces otherwise.
3. Directing the second respondent to, within 30 days from the date of this order,
appoint the applicant into the post of Chief Executive Officer: Red Cross War
Memorial Children’s Hospital and that such appointment shall run
retrospectively as from 1 July 2021.
4. In the alternative to paragraph 3 above, directing the second respondent to,
within 30 days from the date of this order:
4.1. inform the applicant of her decision as to the acceptance or rejection of
the selection panel’s recommendation to alternatively to the fourth
respondent, appoint him into the post of Chief Executive Officer: Red
Cross War Memorial Children’s Hospital; and
4.2. in the event of her rejecting the selection panel’s aforesaid
recommendation, to, simultaneously, inform the applicant of her reasons
for rejecting the recommendation.
5. Directing that in terms of prayer 4 above, in the event of the second
respondent appointing the applicant, the applicant’s appointment shall run
retrospectively as of 1 July 2021.
6. Directing the PSC to pay the costs of this application on an attorney and client
scale, including the cost of counsel.
7. In the alternative to paragraph 4 above, directing the PSC and the MEC to pay
the costs of this application on an attorney and client scale, including the cost
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of two counsel where so employed, jointly and severally, the one paying the
other to be absolved; and
8. Granting such further and alternative relief as the Court deems fit.”
28 As mentioned, d uring oral argument applicant abandoned the relief sought in
prayer 1.2 of the Amended Notice of Motion.
29 In my view, the above relief depends on the determination of th ese main
issues: (1) jurisdiction ; (2) whether administrative action as defined in PAJA is
involved; (3) whether the PSC’s findings and recommendations are binding and
(4) the meaning of experience at a senior managerial level in the Directive.
30 Dr Moodley does not seek to impugn the entire recruitment and shortlisting
process, but rather the result thereof, insofar as Dr Parbhoo was shortlisted and
appointed to the Post, and seeks his own retrospective appointment in her
stead, which would effectively be a substitution by the Court.
31 The MEC and PSC oppose the relief sought by Dr Moodley. The PSC also
brought a counter-application, under the principle of legality and under PAJA ,
for the following relief:
“1. The PSC’s investigative report, findings and recommendation dated 6 June
2022, are hereby set aside.
2. It is declared that Dr Parbhoo qualified for the requirements of the
advertisement for Chief Executive Officer at Red Cross War Memorial
Children’s Hospital, Rondebosch (Reference Number RXH4-2021).
3. It is declared that Dr Parbhoo’s permanent appointment as Chief Executive
Officer at Red Cross War Memorial Children’s Hospital is lawful and valid.
12
4. The Department of Public Service and Administration’s (“DPSA”) Amended
Directive on Compulsory Capacity Development, Mandatory Training Days
and Minimum Entry Requirements for Members of the Senior Management
Service dated 6 March 2017 (“the Directive”) is hereby reviewed and
declared unlawful.
5. The declaration of unlawfulness in paragraph 4 above be suspended for a
period of 12 months pending remittal of the Directive to the DPSA for
reconsideration.
6. No order as to costs, save in the event of opposition of the PSC’s
counterapplication.”
32 As mentioned, in oral argument the relief in prayers 2 to 5 of the counter -
application was abandoned by the PSC and the relief in prayer 1 thereof was
clarified by the PSC to be conditional on the PSC Report, findings and
recommendations being binding.
PAJA and the principle of legality
33 The MEC argued that the decision of the MEC sought to be impugned in this
matter is not administrative action as defined in section 1 of PAJA. The
definition of ‘administrative action’ in PAJA is as follows:
“ ‘administrative action’ means any decision taken, or any failure to take a decision,
by –
(a) an organ of state, when –
(i) exercising a power in terms of the Constitution or a provincial
constitution; or
(ii) exercising a public power or performing a public function in terms of any
legislation; or
(b) a natural or juristic person, other than an organ of state, when exercising a
public power or performing a public function in terms of an empowering
provision,
which adversely affects the rights of any person and which has a direct, external
legal effect, but does not include … ” [The exclusions are not quoted because I do
not consider them to be relevant].
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34 It appears to me that four basic requirements emerge from this definition for
conduct to be administrative action, namely (1) a decision (or a failure to take a
decision) by an organ of state ; (2) exercising a constitutional power or a public
power; (3) which adversely affects the rights of any person and (4) which has a
direct, external legal effect.
35 There is no dispute that factor (1) above is satisfied. In my view, the decision of
the MEC to appoint Dr Parbhoo and her decision in respect of the grievance
arising therefrom does constitute the exercise of a public power ( Chirwa v
Transnet Limited and Others 2008 (4) SA 367 (CC) at paragraph 138) , which
means that factor (2) above would be satisfied. Further, were it to be
reviewable as contended for by Dr Moodley (notably on the question of material
error of law), it would affect the fundamental right of Dr Moodley to
administrative justice , thereby satisfying requirement (3) above (whether the
case is good or not is irrelevant to this enquiry).
36 The main aspect of contention seemed to distil in argument as to whether factor
(4) above was satisfied (a direct, external legal effect). Mr De Villiers -Jansen,
who appeared for the MEC, submitted that, because what was involved was a
decision in a labour context, then that decision could not be administrative
action for the purposes of PAJA. I am of the view that the absolute terms in
which this submission is made is not supported by the authority. What the
Constitutional Court held ( in Gcaba v Minister f or Safety and Security and
Others 2010 (1) SA 238 (CC) at paragraphs 64 to 66) was that it is ‘ generally’
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the case that employment and labour relationship issues do not amount to
administrative action within the meaning of PAJA because they do not have
direct implications or consequences for other persons (underlining added):
[64] Generally, employment and labour relationship issues do not amount to
administrative action within the meaning of PAJA. This is recognised 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. 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 ...
[66] In Chirwa Ngcobo J found that the decision to dismiss Ms Chirwa did not
amount to administrative action. He held that whether an employer is regarded as
“public” or “private” cannot determine whether its conduct is administrative action
or an unfair labour practice. Similarly, the failure to promote and appoint Mr Gcaba
appears to be a quintessential labour-related issue, based on the right to fair labour
practices, almost as clearly as an unfair dismissal. Its impact is felt mainly by Mr
Gcaba and has little or no direct consequence for any other citizens.
37 As mention ed and deal t with elsewhere herein, the main legal issues on the
merits in this matter are , in my view, of public importance and therefore they
have a direct, external legal effect (Gcaba v Minister for Safety and Security and
Others 2010 (1) SA 238 (CC) at para 64), relating as it does at its core, to the
interpretation of the Directive in regard to entry into the SMS and whether or not
the findings and recommendations of the PSC are binding on executive
authorities.
38 The result is that factor (4) above is, in my view, also satisfied and
administrative action is involved in this matter.
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39 If I am wrong in this respect, the question arises whether the action/conduct of
the MEC and the PSC, being the exercise of public power, is in any event
subject to the principle of legality which allows for judicial review where that
action/conduct, even if not administrative action in terms of PAJA, was
materially influenced by an error of law. As held in Premier of the Western
Cape and Others v Overberg District Municipality and Others 2011 (4) SA 441
(SCA) (underling added by me):
“[37] The long and the short of all this is the finding that, because of the error in its
interpretation of s 139(4), the cabinet failed to consider less drastic means, other than
to dissolve the council, to meet the desired end of an approved budget. Counsel for
the appellants conceded that the impugned decision cannot survive this finding. I
believe the concession was rightly made. It is true that the decision constituted
executive action, as opposed to administrative action. In consequence it is not
judicially reviewable under the provisions of the Promotion of Administrative Justice
Act (PAJA). Yet, this does not shield the decision from a challenge on the basis of
illegality.
[38] This is so because it has by now become settled law that the constitutional
principle of legality governs the exercise of all public power, rather than the narrower
realm of administrative action as defined in PAJA. And in President of the Republic of
South Africa v South African Rugby Football Union the Constitutional Court pertinently
held that the principle of legality requires the holder of executive power not to
misconstrue that power. As I see it, it follows that in the circumstances the impugned
decision of the cabinet offended the principle of legality, because it directly resulted
from the cabinet misconstruing its powers under s 139(4) of the Constitution. Stated
slightly differently: by deciding to dissolve the council without considering a more
appropriate remedy, the cabinet, in my view, offended the provisions of s 41(1) of the
Constitution which requires all spheres of Government to respect the constitutional
status, powers and functions of Government in other spheres and ‘not [to] assume any
power or function except those conferred on them in terms of the Constitution’. It
follows that in my view the High Court was right in setting the impugned decision aside
on the basis of illegality.”
40 In my view, therefore, the MEC’s decisions are subject to review, in accordance
with the principle of legality (and under PAJA).
Jurisdiction
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41 In its heads of argument, the PSC recorded that it did not persist with the point
in limine in regard to jurisdiction. This was confirmed in oral argument by its
counsel, Mr Tshetlo.
42 The MEC, represented by Mr De Villiers -Jansen, persisted in averring an
absence of the jurisdiction of this Court.
43 The fact that the consideration and determination of the validity of decisions in
a labour context may be reserved to the Labour Court (whether in respect of
review or otherwise) does not mean that any particular decision is not
reviewable by this court. The real question is whether this court is deprived of
jurisdiction to consider and determine the review at issue in this matter by
operation of section 157 of the Labour Relations Act 66 of 1995 (“the LRA”).
44 Section 157 of the LRA provides as follows:
“157. Jurisdiction of Labour Court
(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.
(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.”
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45 In Chirwa (in the judgment per Skweyiya J, concurred in by a majority of the
Court), it was held as follows:
[54] The authorities that have attempted to grapple with this provision have come
to conflicting interpretations. Keeping in mind the aim of the LRA to be a one -stop
shop dispute resolution structure in the employment sphere, it is not difficult to see
that the concurrent jurisdiction provided for in section 157(2) of the LRA is meant to
extend the jurisdiction of the Labour Court to employment matters that implicate
constitutional rights. However, this cannot be seen as derogating from the
jurisdiction of the High Court in constitutional matters, assigned to it by section 169
of the Constitution, unless it can be shown that a particular matter falls into the
exclusive jurisdiction of the Labour Court.
46 It was found in Chirwa (in the judgment of Ngcobo J, also concurred in by a
majority of the Court ) that the High Court retains jurisdiction where a party
relies directly on the provisions of the Bill of Rights (I have underlined the
portion of the extract below in which this is held):
[123] While section 157(2) remains on the statute book, it must be construed in the
light of the primary objectives of the LRA. The first is to establish a comprehensive
framework of law governing the labour and employment relations between
employers and employees in all sectors. The other is the objective to establish the
Labour Court and Labour Appeal Court as superior courts, with exclusive jurisdiction
to decide matters arising from the LRA. In my view the only way to reconcile the
provisions of section 157(2) and harmonise them with those of section 157(1) and
the primary objects of the LRA, is to give section 157(2) a narrow meaning. The
application of section 157(2) must be confined to those instances, if any, where a
party relies directly on the provisions of the Bill of Rights …
[124] Where, as here, an employee alleges non -compliance with provisions of the
LRA, the employee must seek the remedy in the LRA. The employee cannot, as the
applicant seeks to do, avoid the dispute resolution mechanisms provided for in the
LRA by alleging a violation of a constitutional right in the Bill of Rights. It could not
have been the intention of the legislature to allow an employee to raise what is
essentially a labour dispute under the LRA as a constitutional issue under the
provisions of s ection 157(2). To hold otherwise would frustrate the primary objects
of the LRA and permit an astute litigant to bypass the dispute resolution provisions of
the LRA. This would inevitably give rise to forum shopping simply because it is
convenient to do so or as the applicant alleges, convenient in this case “for practical
considerations”. What is in essence a labour dispute as envisaged in the LRA should
not be labelled a violation of a constitutional right in the Bill of Rights simply because
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the issues raised could also support a conclusion that the conduct of the employer
amounts to a violation of a right entrenched in the Constitution.
47 In Gcaba it was held as follows:
“[72] Therefore, s 157(2) should not be understood to extend the jurisdiction of the High
Court to determine issues which (as contemplated by s 157(1)) have been expressly
conferred upon the Labour Court by the LRA. Rather, it should be interpreted to mean
that the Labour Court will be able to determine constitutional issues which arise before
it, in the specific jurisdictional areas which have been created for it by the LRA, and
which are covered by s157(2)(a), (b) and (c).
[73] Furthermore, the 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.”
48 The right to administrative justice is a right enshrined in section 33 of the Bill of
Rights of the Constitution:
33. Just administrative action
(1) Everyone has the right to administrative action that is lawful, reasonable
and procedurally fair.
49 Applicant relies on th is right to administrative justice as well as the right to
equality before the law and the equal protection and benefit of the law provided
for in section 9(1) of the Constitution. His case concerns in the main the
allegations that the appointment of Dr Parbhoo is irregular, including that a
material error of law was made insofar as the Directive is concerned. The
merits of that case are explored below. For jurisdictional purposes, all that is
19
required is that the case is presented on the basis of these constitutional rights.
Whether the case has merit or not is irrelevant to this enquiry as to jurisdiction:
In Makhanya v University of Zululand 2010 (1) SA 62 (SCA) at paragraph 71
(approved in Baloyi v Public Protector 2022 (3) SA 321 (CC) at paragraph 40) it
was held that when a party bringing a claim “… says that the claim is to enforce a right
derived from the Constitution, then, as a fact, that is the claim. That the claim might be a bad
claim is beside the point.”
50 I am therefore of the view that this Court has jurisdiction to hear this matter.
51 A further basis for this conclusion is to be found in Steenkamp and Others v
Edcon Ltd 2016 (3) SA 251 (CC) , a case in which the issue of unlawfulness as
opposed to fairness in the context of dismissals, was considered. The
Constitutional Court recognised (at paragraphs 112 to 116) that the LRA
provided for remedies in respect of an unfair dismissal but not for an unlawful
dismissal.
52 Applicant does not rely on the provisions of the LRA and contends that the
impugned decision was unlawful.
53 I am therefore of the view that this Court has jurisdiction to hear this matter.
Interpretation
54 Owing to the important part it plays in this matter, despite it having become
settled, the law on interpretation will be considered . In Natal Joint Municipal
20
Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) , the SCA held
as follows (footnotes omitted):2
“Interpretation is the process of attributing meaning to the words used in a
document, be it legislation, some other statutory instrument, or contract, having
regard to the context provided by reading the particular provision or provisions in
the light of the document as a whole and the circumstances attendant upon its
coming into existence. Whatever the nature of the document, consideration must
be given to the language used in the light of the ordinary rules of grammar and
syntax; the context in which the provision appears; the apparent purpose to which
it is directed, and the material known to those responsible for its production.
Where more than one meaning is possible each possibility must be weighed in the
light of all these factors. The process is objective not subjective. A sensible
meaning is to be preferred to one that leads to insensible or unbusinesslike results
or undermines the apparent purpose of the document. Judges must be alert to,
and guard against, the temptation to substitute what they regard as reasonable,
sensible or business -like for the words actually used. To do so in regard to a
statute or statutory instrument is to cross the divide between interpretation and
legislation. In a contractual context it is to make a contract for the parties other
than the one they in fact made. The ‘inevitable point of departure is the language
of the provision itself’ , read in context and having regard to the purpose of the
provision and the background to the preparation and production of the
document”.
55 Accordingly, while the words used are the starting point, they are not the end
point. As Wallis JA explained: “ Most words can bear several different meanings or
shades of meaning and to try to ascertain their meaning in the abstract, divorced from the
2 Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) (Endumeni) at
paras 18 to 19ff. See also Zeeman v De Wet en Andere NNO 2012 (6) SA 1 (SCA) at para 14;
North East Finance (Pty) Ltd v Standard Bank of South Africa Ltd 2013 (5) SA 1 (SCA) at paras 24
and 25, where the court perhaps takes a more subjective approach: ‘The court asked to construe a
contract must ascertain what the parties intended their contract to mean. That requires a
consideration of the words used by them and the contract as a whole, and, whether or not there is
any possible ambiguity in their meaning, the court must consider the factual matrix (or context) in
which the contract was concluded.’; Bothma-Batho Transport (Edms) Bpk v S Bothma & Seun
Transport (Edms) Bpk 2014 (2) SA 494 (SCA) at paras 10–12, where the court quotes para 18 of
Endumeni with approval and holds at para 12: ‘Whilst the starting point remains the words of the
document, which are the only relevant medium through which the parties have expressed their
contractual intentions, the process of interpretation does not stop at a perceived literal meaning of
those words, but considers them in the light of all relevant and admissible context, including the
circumstances in which the document came into being. The former distinction between permissible
background and surrounding circumstances, never very clear, has fallen away. Interpretation is no
longer a process that occurs in stages but is “essentially one unitary exercise”.’
21
broad context of their use, is an unhelpful exercise. ” 3 Or, as held in Novartis v Maphil
2016 (1) SA 518 (SCA) para 28: “Words without context mean nothing. ” 4 Words
must be read in the light of context including the textual context, the broader
legal context, and the factual context. They must, as far as possible, be read
consistently with the document’s purpose.
56 One of the principles to be gleaned from Endumeni is that where two possible
interpretations arise, prefer ence lies with the interpretation that is more
commercially sensible (or “business-like”). A business-like interpretation that is
inconsistent with the actual wording of the document must be jettisoned.5
57 Further, the Constitutional Court (in Cool Ideas 1186 CC v Hubbard and
Another 2014 (4) SA 474 (CC) at para 28 ) held that the fundamental tenet of
statutory interpretation is that the words in the statute must be given their
ordinary grammatical meaning, unless doing so would lead to an absurdity.6
58 Endumeni is expressed in terms of wide ambit: “Interpretation is the process of
attributing meaning to the words used in a document, be it legislation, some other statutory
instrument, or contract …”. It refers specifically to contracts and statutory
instruments. Its principles have also been held to apply to wills. 7 In my view,
3 Endumeni at para 25.
4 See also Department of Land Affairs and Others v Goedgelegen Tropical Fruits (Pty) Ltd 2007 (6)
SA 199 (CC) para 53 (“Although the text is often the starting point of any statutory construction, the
meaning it bears must pay due regard to context. This is so even when the ordinary meaning of the
provision to be construed is clear and unambiguous.”)
5 GPC Developments CC and others v Uys and another [2017] 4 All SA 14 (WCC) at para 36
6 Diener NO v Minister of Justice and Correctional Services and Others 2019 (2) BCLR 214 (CC) at
para 37 and the authorities referred to in footnote 20
7 BOE Trust Ltd 2013 (3) SA 236 (SCA) para 30
22
while the Directive and Rules referred to below are none of these, I see no
reason in principle why this generally accepted approach to interpretation
should not be applied to it (and the other documents relevant to this matter) and
further am of the view that it is encompassed in the wide ambit in which the
principles in Endumeni were stated.
Whether the conclusions in the PSC Letter and PSC Report are binding
59 This is the first of what I consider to be the two material issues on the merits of
the matter.
60 The word “ conclusions” is used advertently in the above heading, in order to
avoid any perception of an inclination one way or the other insofar as the
terminology in the legislation, regulations and other governmental documents
referred to below.
61 The question presently under consideration is what the effect is of the findings
and recommendations of the PSC in the PSC Letter and PSC Report. This is
material because if, as contended by applicants, those conclusions are binding
on the MEC, she could not have legally departed from them and the fact that
she did do so would then be unlawful and susceptible to being set aside on
review.
23
62 Mrs Moodley, who appeared for Dr Moodley, relied heavily on the following
dictum from Merafong City Local Municipality v AngloGold Ashanti Limited 2017
(2) SA 211 (CC) at paragraph 41:
“The import of Oudekraal and Kirland was that government cannot simply ignore
an apparently binding ruling or decision on the basis that it is invalid. The validity
of the decision has to be tested in appropriate proceedings. And the sole power
to pronounce that the decision is defective, and therefore invalid, lies with the
courts. Government itself has no authority to invalidate or ignore the decision. It
remains legally effective until properly set aside.”
63 Core to that dictum for the purposes of this matter is that the ruling or decision
must be binding (hence my underlining of that word in the above dictum).
64 To answer this question for the purposes of this matter requires an analysis of
the applicable legislation, regulations and governmental documents. This will
be done by starting at the highest level and working down.
(1) The Constitution of the Republic of South Africa, 1996 (“the
Constitution”)
65 The point of departure is the Constitution. The PSC was established in terms of
section 196 of the Constitution . The purpose of the Commission is to promote
the constitutionally enshrined democratic principles and values of the Public
Service by investigating, researching, monitoring, evaluating, communicating
and reporting on public administration.
66 Section 195 of the Constitution sets out the basic values and principles which
govern public administration, which include the following:
24
“(1) Public administration must be governed by the democratic values and
principles enshrined in the Constitution, including the following principles:
(a) A high standard of professional ethics must be promoted and
maintained.
(b) Efficient, economic and effective use of resources must be promoted.
(c) Public administration must be development-oriented.
(d) Services must be provided impartially, fairly, equitably and without
bias.
(e) People’s needs must be responded to, and the public must be
encouraged to participate in policy-making.
(f) Public administration must be accountable.
(g) Transparency must be fostered by providing the public with timely,
accessible and accurate information.
(h) Good human -resource management and career -development
practices, to maximise human potential, must be cultivated.
(i) Public administration must be broadly representative of the South
African people, with employment and personnel management
practices based on ability, objectivity, fairness, and the need to
redress the imbalances of the past to achieve broad representation.”
67 Section 196(4) of the Constitution is the empowering provision in respect of the
PSC. It provides as follows (I have underlined the parts of the extract which I
consider to be most pertinent):
“(4) The powers and functions of the Commission are-
(a) to promote the values and principles set out in section 195,
throughout the public service;
(b) to investigate, monitor and evaluate the organisation and
administration, and the personnel practices, of the public service;
(c) to propose measures to ensure effective and efficient performance
within the public service;
(d) to give directions aimed at ensuring that personnel procedures
relating to recruitment, transfers, promotions and dismissals comply
with the values and principles set out in section 195;
(e) to report in respect of its activities and the performance of its
functions, including any finding it may make and directions and
advice it may give, and to provide an evaluation of the extent to
which the values and principles set out in section 195 are complied
with;
(f) either of its own accord or on receipt of any complaint-
(i) to investigate and evaluate the application of personnel and
public administration practices, and to report to the relevant
executive authority and legislature;
25
(ii) to investigate grievances of employees in the public service
concerning official acts or omissions, and recommend
appropriate remedies;
(iii) to monitor and investigate adherence to applicable procedures
in the public service; and
(iv) to advise national and provincial organs of state regarding
personnel practices in the public service, including those
relating to the recruitment, appointment, transfer, discharge
and other aspects of the careers of employees in the public
service; and
(g) to exercise or perform the additional powers or functions prescribed
by an Act of Parliament.
68 There is no direct authority which counsel the parties and I have found as to
whether anything done in terms of section s196(4)(f)(ii) is binding. However,
instructive and persuasive guidance is to be found in Certification of the
Amended Text of the Constitution of the Republic of South Africa 1997 (1)
BCLR 1 (CC) . The essence thereof is that the Constitutional Court compared
the provisions in respect of the PSC in the Interim Constitution with those in the
amended text of the Final Constitution and observed that, insofar as the
provision relevant to this matter is concerned, the former established power of
the PSC with binding effect while the latter did not (I have underlined the part of
the extract which I consider to be most pertinent):
[184] Under the IC the powers of the national PSC are governed by IC 210(1) which
provides that:
“The Commission shall be competent -
(a) to make recommendations, give directions and conduct enquiries with regard to -
(i) the organisation and administration of departments and the public service;
(ii) the conditions of service of members of the public service and matters related
thereto;
(iii) personnel practices in the public service, appointments, promotions, transfers,
discharge and other career incidents of members of the public service and
matters in connection with the employment of personnel;
(iv) the promotion of efficiency and effectiveness in departments and the public
service; and
(v) a code of conduct applicable to members of the public service …;
26
IC 210(3) makes it clear that directions or recommendations given by the PSC have to
be implemented by those to whom they are directed unless treasury approval is not
obtained for any resultant expenditure or the President rejects the direction or
recommendation. The PSC therefore enjoys considerable powers over the public
service. It can control the size of any establishment within the public service,
determine conditions of service and job descriptions, and give directions concerning
appointments, transfers and dismissals.
…
[188] The role of the single PSC under the AT is therefore far less significant than it is
under the IC. Under the IC the directions and recommendations of the PSC are
effectively peremptory. Under the AT its powers, while important, are largely
concerned with investigation and reporting. The hands-on control of the public service
has been removed from the PSC and given, effectively, to the national and provincial
executives. The exercise of those powers by each executive is now subject to
monitoring by the single PSC. In relation to provincial government AT 197(4) makes it
clear that it is the provincial governments that are responsible for the recruitment,
appointment, promotion, transfer and dismissal of members of the public service in
their administration, all within a framework of uniform norms and standards applying
to the public service.
69 Similar persuasion and considerations appear from Premier, Western Cape v
President of the RSA 1999 3 SA 657 (CC) at para 24 (I have underlined part of
the extract which I consider to be most pertinent):
“[24] The 1996 Constitution certified by this Court changed these provisions. It
requires that there be a single Public Service Commission for the Republic, consisting
of fourteen commissioners, five of whom have to be recommended by the National
Assembly. The remaining nine are to be appointed on the basis that one
commissioner for each province will be nominated by the Premier of that province.
The powers of the Public Service Commission are different to the powers of the
commissions which existed under the interim Constitution. The new Public Service
Commission has less control over the public service than its predecessors. It is
empowered to conduct investigations, make reports and generally to promote those
values and principles of the public service identified in the Constitution. It has to
report to the National Assembly and also to provincial legislatures in respect of its
activities in a province. It is entitled to investigate complaints and to monitor the
performance of the public service, but it is only empowered to give directions aimed
at:
“... ensuring that personnel procedures relating to recruitment, transfers,
promotions and dismissals comply with the values and principles set out in
section 195 [of the Constitution].”
27
The Constitution does not say how such directions are to be implemented, but as that
issue does not arise in the present proceedings, there is no need to deal with it.”
70 I have underlined s ection 196 (4)(d) and section 196(f)(ii) above because of
their material relevance to this matter. I believe that the wording and import of
those provisions is not a matter of difficulty, especially in the context of, and
because of, their contrasting terminology, and with the guidance of the two
Constitutional Court Judgments quoted above:
70.1 As identified in Premier, Western Cape , section 196(4)(d) provides for
“directions aimed at ensuring that personnel procedures relating to recruitment,
transfers, promotions and dismissals comply with the values and principles set out in
section 195.”
70.2 Two features are immediately apparent: (1) directions are involved; and
(2) at a general level.
70.3 In my view, these directions could be argued to be binding (mindful of
the fact that that is not an issue to be decided, but I mention it for the
purposes of contrast with the applicable provision, section 196(4)(f)(ii)
dealt with below).
70.4 Section 196(4)(f)(ii), on the other hand, contains very different wording,
providing for the PSC “to investigate grievances of employees in the public service
concerning official acts or omissions, and recommend appropriate remedies .” Two
features are immediately apparent from this provision, in contrast to that
contained in section 196(4)(d) : (1) recommendations are involved; and
(2) in respect of specific grievances of specific persons.
28
71 Had the word binding preceded the word recommendation, it could have made
it binding. But it does not so precede. That does not preclude the provision from
being interpreted to be read to include it, on the principles of interpretation
considered above , but it is, in my view, a factor counting against such an
interpretation.
72 There are, however, in my view, numerous considerations militating against
such an interpretation:
72.1 The absence of the word binding in section 196(4)(f)(ii).
72.2 The contrast with the wording in section 196(4)(b), namely directions.
72.3 Standard dictionar y definitions such as that in the Concise Oxford
English Dictionary 2011 which defines recommendation as ‘put forward
with approval as being suitable for a purpose’, ‘advise as a course of
action’ and ‘advise to do something’.
72.4 In other words, ‘recommend’ does not normally connote something
binding, but rather a suggestion, advice or guidance . For example, a
recommended retail price.
72.5 The analogous situation of the Public Protector whom the Constitution
does clothe with the power to take and enforce binding remedial action
(South African Broadcasting Corporation SOC Ltd v Democratic Alliance
2016 (2) SA 522 (SCA) at paragraphs 45 to 52). Section 182 of the
29
Constitution provides as follows (I have underlined parts of the extract
which I consider to be of material relevance to this matter):
(1) The Public Protector has the power, as regulated by national legislation –
(a) to investigate any conduct in state affairs, or in the public
administration in any sphere of government, that is alleged or
suspected to be improper or to result in any impropriety or prejudice;
(b) to report on that conduct; and
(c) to take appropriate remedial action.
(2) The Public Protector has the additional powers and functions prescribed by
national legislation.
72.6 The provisions of the PSA referred to below.
73 In my view, therefore, section 196(4)(f)(ii), does not empower the PSC to make
binding decisions in respect of grievances such as those of Dr Moodley.
74 Dr Moodley made much of Khumalo v MEC for Education, Kwazulu -Natal 2014
5 SA 579 (CC) in which the following was held at paragraphs 35 and 36 (the
emphasis is that of his counsel):
“[35] Section 195 provides for a number of important values to guide decision-makers in
the context of public -sector employment. When, as in this case, a responsible
functionary is enlightened of a potential irregularity, s 195 lays a compelling basis
for the founding of a duty on the functionary to investigate and, if need be, to
correct any unlawfulness through the appropriate avenues. This duty is founded,
inter alia, in the emphasis on accountability and transparency in s 195(1)(f) and (g)
and the requirement of a high standard of professional ethics in s 195(1)(a).Read
in the light of the founding value of the rule of law in s 1(c) of the Constitution,
these provisions found not only standing in a public functionary who seeks to
review through a court process a decision of its own department, but indeed they
found an obligation to act to correct the unlawfulness, within the boundaries of
the law and the interests of justice.
[36] Public functionaries, as the arms of the state, are further vested with the
responsibility, in terms of s 7(2) of the Constitution, to 'respect, protect, promote
and fulfil the rights in the Bill of Rights'. As bearers of this duty, and in performing
their functions in the public interest, public functionaries must, where faced
with an irregularity in the public administration, in the context of employment
30
or otherwise, seek to redress it. This is the responsibility carried by those in the
public sector as part of the privilege of serving the citizenry who invest their trust
and taxes in the public administration.”
75 In my view, this does not take the matter any further because the conclusions I
come to on the merits of this matter mean that there was not anything unlawful
for the PSC or the MEC to take action to set aside.
76 I am of the view that the PSC Report dated 6 June 2022 and the PSC Letter to
the MEC dated 24 June 2022 to the effect that the appointment of Dr Parbhoo
was irregular, is not binding.
77 That in turn means that the decision of the MEC not to follow the PSC Letter
and the PSC Report is not unlawful for that reason.
78 My views expressed above are reinforced by a consideration of the various
other aspects below.
(2) The Public Service Act 103 of 1994
79 The provisions of the PSA appear to me to be faithful to the above provisions of
the Constitution and do not disturb my views expressed above. On the contrary,
I believe that they reinforce them.
80 The mandate of the Act is to inter alia provide for the organisation and
administration of the public service of South Africa , the regulation of the
31
conditions of employment, terms of office, discipline, retirement and discharge
of members of the public service, and matters connected therewith.
81 Section 3 of the PSA sets out the functions of the Minister of Public Service and
Administration (“the Minister”) as follows:
“Functions of Minister and executive authorities
(1) The Minister is responsible for establishing norms and standards relating to-
(a) the functions of the public service;
(b) the organisational structures and establishments of departments and other
organisational and governance arrangements in the public service;
(c) the conditions of service and other employment practices for employees;
(d) labour relations in the public service;
(e) health and wellness of employees;
(f) information management in the public service;
(g) electronic government;
(h) integrity, ethics, conduct and anti-corruption in the public service; and
(i) transformation, reform, innovation and any other matter to improve the
effectiveness and efficiency of the public service and its service delivery to
the public.
(2) The Minister shall give effect to subsection (1) by making regulations,
determinations and directives, and by performing any other acts provided for in
this Act.”
82 Section 5(8) of the PSA provides (I have underlined the parts of the extract
which I consider to be most pertinent):
“(a) The Commission may investigate compliance with this Act and may issue
directions contemplated in section 196(4)(d) of the Constitution in order to
ensure compliance with this Act and in order to provide advice to promote
sound public administration.
(b) If the Commission issues a direction contemplated in paragraph (a), the
relevant executive authority or head of department, as the case may be, shall
implement the direction as soon as possible after receipt of the written
communication conveying the direction but, in any event, within 60 days
after the date of such receipt.”
83 The words shall implement indicate an obligation on executive authorities to
implement directions relevant to them contemplated in section 196(4)(d) (i.e.
32
they are peremptory – whether this is intra vires the Constitution is not an issue
in this matter ). Executive authorities are defined in section 1 of the PSA to
include an applicable Member of Executive Council, such as the MEC in the
instant matter. This is further reinforced by the fact that section 5(8), while
referring to directions to provide advice, nonetheless provides that the direction
shall be implemented.
84 The aforegoing is, as with the Constitution, to be contrasted with the provisions
of the PSA relating to grievances which provide for recommendations and no
obligation to implement them in the case of grievances. The relevant provisions
are in section 35 (I have underlined the word recommend in section 35(2)):
“(1) For the purposes of asserting the right to have a grievance concerning an
official act or omission investigated and considered by the Commission—
(a) an employee may lodge that grievance with the relevant executive
authority under the prescribed circumstances, on the prescribed
conditions and in the prescribed manner; and
(b) if that grievance is not resolved to the satisfaction of the employee, that
executive authority shall submit the grievance to the Commission in the
prescribed manner and within the prescribed period.
(2) After the Commission has investigated and considered any such grievance, the
Commission may recommend that the relevant executive authority acts in
terms of a particular provision or particular provisions of this Act or any other
law if, having regard to the circumstances of the case, the Commission
considers it appropriate to make such a recommendation.”
85 Accordingly, as I mentioned above, the provisions of the PSA appear to me to
be faithful to the above provisions of the Constitution and do not disturb my
views expressed above. On the contrary, I believe that they reinforce them.
(3) The PSA Regulations
33
86 I have mentioned section 3(2) above which empowers the Minister to make
regulations. Similarly, section 41 of the PSA provides as follows:
“(1) Subject to the Labour Relations Act and any collective agreement, the
Minister may make regulations regarding-
(a) any matter required or permitted by this Act to be prescribed; (b) any
matter referred to in section 3(1), including, but not limited to-
(i) the allocation, transfer and abolition of functions in terms of
section 3(4) and the staff performing such functions;
(ii) employment additional to the establishment and restrictions on
the employment of persons, other than permanently or for fixed
periods or specific tasks, in the public service as a whole;
(iii) the appointment of unpaid voluntary workers who are not
employees and their functions;
(iv) the co -ordination of work in a department or between two or
more departments;
(v) a code of conduct for employees;
(vi) the disclosure of financial interests by all employees or particular
categories of employees and the monitoring of such interests;
and
(vii) the position of employees not absorbed into a post upon its re -
grading;
(c) the reporting on and assessment of compliance with this Act and the
review for appropriateness and effectiveness of any regulations,
determinations and directives made under this Act;
(d) the designation or establishment of one or more authorities vested
with the power to authorise a deviation from any regulation under
justifiable circumstances, including the power to authorise such
deviation with retrospective effect for purposes of ensuring equality;
and
(e) any ancillary or incidental administrative or procedural matter that it is
necessary to prescribe for the proper implementation or
administration of this Act.
(2) Different regulations may be made to suit the varying requirements of
particular departments or divisions of departments, of particular categories
of employees or of particular kinds of employment in the public service.
(3) The Minister may issue directives which are not inconsistent with this Act to
elucidate or supplement any regulation.”
34
87 Section 86 of the PSA regulations provides as follows:
“The Minister may issue directives on the desired managerial and leadership
competencies of members of the SMS and the selection processes for the filling of
SMS posts.”
88 The provisions of the PSA regulations do not undermine the position set out
above. Nor could they do so as that would conflict with the Constitution and
national legislation.
(4) The Grievance Rules
89 Section G of the Rules for dealing with grievances of employees provides as
follows:
“1. Once the Commission has received all the information from the executing
authority, it must within 30 days consider such grievance and inform the
executing authority of its recommendation and the reasons for its decision in
writing.
2. On receipt of the Commission’s recommendation, the executing authority
must, within five days, inform the employee and the Commission of his or her
decision in writing.”
90 Rules 15 of the PSC Rules on Referral and Investigation of Grievances of
Employees in Public Service provides as follows:
“(1) The Commission must after investigating a grievance, communicate the
outcome thereof in writing to the executive authority.
(2) Communication of the outcome must be through a letter containing the
following:
…
(c) the findings of the Commission and reasons therefor, which must
include the applicable law and prescripts; and
(d) recommendations, where this is applicable.
(3) The executive authority to whom a recommendation has been made must,
within 10 days of receipt of the Commission’s letter, provide the Commission
35
with comment indicating whether or not the executive authority is going to
implement recommendations made by the Commission .
91 Rule 19(1) of the same Rules provides as follows:
“The Commission must issue its findings and make recommendations in respect of
a grievance investigation to the executive authority, who must within 10 days of
receipt of the findings and recommendations notify the Commission whether or
not the executive authority is going to implement the recommendations made by
the Commission.”
92 Mrs Moodley contends that there is a distinction between findings and
recommendations in Rule 15 and also in Rule 19(1) above. She further
contends that this means that findings are binding on the executive authority
concerned (in the instant case, the MEC).
93 In my view, this is incorrect because it is not provided as such anywhere and,
more importantly, would be in conflict with the scope of the empowering
provisions of the Constitution and of the PSA dealt with above.
94 In the premise, I am of the view that the effect of the conclusion of the PSC in
the PSC Letter and PSC Report that the appointment of Dr Parbhoo is irregular
is not binding on the MEC.
95 The consequence of this is that the application in convention does not succeed
on this point and the relief sought in prayer 1 of the counter -application falls
away.
The meaning of “5 years of experience at a senior managerial level”
36
96 In my view this is the second key aspect on the merits of this matter.
97 Mrs Moodley emphasised in oral argument that the applicant’s case does not
extend to a consideration of whether or not Dr Parbhoo’s experience satisfied
the requirement of 5 years of experience at a senior managerial level if the meaning of
that phrase is as contended for by the PSC and the MEC, dealt with below.
98 Mrs Moodley contended that all senior managers in the Public Service are in
the SMS. While this may be so, it does not mean that experience at the level of
a senior manager cannot be obtained elsewhere, both in respect of employees
of the Public Service and those employed elsewhere – that depends on what
the core phrase in this matter means. In this respect, the PSC pointed out that
the Public Service Middle Management Competency Framework records
material overlap between the services and competencies of the middle
management and the SMS forming part of the Public Service. The
competencies are generic in nature and apply to all occupations on salary
levels 11 and 12, which contain management/supervisory type tasks. Although
a large number of the occupations on levels 11 and 12 comprise positions of
“technical specialist”, they also have supervisory and management tasks
inherent to their job content and may possess experience a t a senior
managerial level (not gained in the SMS) that may render them eligible for entry
into the SMS at a level higher than Level 13, provided they can demonstrate
the requisite minimum years of experience and qualifications.
37
99 Mrs Moodley contended that the wording of the Directive was changed from
being a member of the SMS to “5 years of experience at a senior managerial level ”
only in order to cater for applicants from the private sector, and not from the
public sector ( the Public Service , as defined (quoted above), is a narrower
concept). Further to this, she contended that these words, for the purpose of
Public Service employees, mean only experience at Levels 13 to 16 of the
Public Service (I see that as being the same as the SMS, but M rs Moodley
emphasised in oral argument that she preferred that wording). In other words,
applicants from the Public Sector had to have that experience for the purposes
of applications for posts at Level 14 and above, and therefore there is no
distinction between that experience and “experience at a senior managerial level ”.
On the other hand, in respect of applicants from the private sector, Mrs
Moodley submitted that the words “experience at a senior managerial level ” mean
experience at a n equivalent senior managerial level outside of the Public
Service.
100 Owing to its core importance, I asked Mrs Moodley to state in oral argument
applicant’s case as to what “5 years of experience at a senior managerial level” means.
She answered as follows:
100.1 For any applicants from the public sector [she expressly stated that this
was not limited to the Public Service], five years of experience at Levels
13 to 16 in the Public Service [she explained that she deliberately used
these words instead of ‘the SMS’, but I see this as a distinction without
a difference].
38
100.2 For applicants from the private sector, five years of experience at an
equivalent level.
101 The sole purpose, Mrs Moodley submitted, of the use of the words “experience at
a senior managerial level ” instead of experience in the SMS as previously had
been the case, was to allow for applicants from the private sector to apply. I
consider this to be a faulty premise at odds with the overall context , which is
dealt with below.
102 It is necessary to interpret the words “experience at a senior managerial level ” in the
Directive and, in doing so, to consider the context in which they were produced.
As will be attempted to be demonstrated below, I consider that context to be of
significant importance.
103 The Directive was issued by the Minister in accordance with section 3(2) of the
PSA, which provides as follows:
“The Minister shall give effect to subsection (1) by making regulations,
determinations and directives, and by performing any other acts provided for in this
Act.”
104 Similarly, section 41(3) of the PSA provides as follows:
“The Minister may issue directives which are not inconsistent with this Act to
elucidate or supplement any regulation.”
105 The Minister accordingly had the power to issue the Directive.
39
106 Being a Level 14 post, paragraph 10.2 of the Directive requires “5 years of
experience at a senior managerial level ”. The relevant part of paragraph 10.2 reads
as follows (I have underlined in bold the wording directly relevant to this matter .
The other bolded extracts are in bold in the Directive itself):
“The table below reflects minimum years of experience as an entry requirement
into the SMS:
SMS Level Relevant experience (wef 1 April 2015)
Entry (level 13) 5 years of experience at a middle/senior managerial level
Level 14 5 years of experience at a senior managerial level
Level 15 8-10 years of experience at a senior managerial level
Level 16 8-10 years of experience a t a senior managerial level (at least 3
years of which must be with any organ of State as defined in
the Constitution Act 108 of 1996)”
107 The question is whether “5 years of experience at a senior managerial level ” means,
for the purposes of applicants who are employees in the public sector, five
years’ experience at Levels 13 to 16 of the Public Service, as contended for by
the applicant, or whether it could include equivalent experience elsewhere (in
the Public Service, private sector or elsewhere, such as organs of state not
forming part of the Public Service). In the former event, the appointment would
be irregular because it is common cause that Dr Parbhoo did not have five
years’ experience at Levels 13 to 16 of the Public Service . In the latter event it
would not be irregular on this basis . As mentioned above, Mrs Moodley
emphasised that her contention is that “ 5 years of experience at a senior managerial
level” means:
107.1 For any applicants from the public sector, five years of experience at
Levels 13 to 16 in the Public Service.
40
107.2 For applicants from the private sector, five years of experience at an
equivalent level.
108 The criterion in the above sub -paragraph does not apply to middle managers in
the Public Service who are not from the private sector and who are excluded
per se from applying for posts at Levels 14 to 16.
109 The law on interpretation of documents dealt with above is equally and most
pertinently applicable to this section. Various factors in regard to the
interpretation of “experience at a senior managerial level ” in the Directive will be
considered below. The actual relevant wording of the Directive will be
considered first and thereafter various contextual aspects , with neither
predominating, as required by the authority.
(1) The wording per se
110 The effect of what applicant is contending is that “5 years of experience at a senior
managerial level” means “5 years at Levels 13 to 16 of the Public Service for public sector
employees, and 5 years of experience at a n equivalent managerial level for private sector
applicants”. What immediately springs to mind is the fact that this is not what
was provided for in the Directive, when it could easily have so provided, if that
was what was intended. Rather, in my view, applicant’s interpretation requires
one to extract and divine from the words used in the Directive extended and
differential meanings for different classes of persons. This is, in my view, a
factor which, while not a bar to applicant’s interpretation, does tell against it.
41
(2) Applicants not in the Public Service or private sector
111 As mentioned, applicant argued that the purpose of the change in the Directive
of the requirement from being a member of the SMS to being experience at a
senior managerial level was to widen the opportunity to persons from the
private sector to apply and not to widen it for applicants from the public sector.
112 A problem that arises with this and the meaning of the phrase in issue
contended for by applicant (mentioned a number of times above) , is the
position of applicants who are neither members of the Public Service nor the
private sector, in other words applicants who are public sector employees not
forming part of the Public Service (such as employees of organs of state – see
the definition thereof set out below – not forming part of the Public Service , the
definition of which is set out above). The question is where they fit in on
applicant’s interpretation. On my understanding thereof, they do not fit in at all
because they cannot qualify as they are not members of the Public Service or
in the private sector.
113 This means that there could be a perfectly qualified applicant from the public
sector who is not a member of the Public Service, as defined – more qualified
than an y of the private sector applicant s in a particular instance – who is
disqualified for that reason alone . That appears to me to be a somewhat
arbitrary treatment of that category of persons , especially in comparison with
private sector applicants.
42
(3) “Organ of state” and “Public Service”
114 The Directive refers to “ organ of state" as defined in the Constitution. It is
defined therein to mean:
“(a) any department of state or administration in the national, provincial or
local sphere of government; or
(b) any other functionary or institution –
(i) exercising a power or performing a function in terms of the
Constitution or a provincial constitution; or
(ii) exercising a public power or performing a public function in terms of
any legislation, but does not include a court or a judicial officer;”
115 The definition of the “ Public Service ” has been quoted above. It is to be
appreciated that the defined concept of an “ organ of state” overlaps in part
with what is provided for in the defined concept of the “ Public Service ”.
However, the concept of an “ organ of state”, in particular in (b) of the
definition, goes beyond that which is provided for in the concept of the “ Public
Service”.
116 It therefore appears to me to be incongruous to interpret “5 years of experience at a
senior managerial level” to mean five years at Levels 13 to 16 of the Public Service
for applicants who are public sector employees and experience at an equivalent
managerial level outside of the Public Service in respect of applicants from the
private sector, as submitted by Mrs Moodley. I do not see anything which
prevents experience at an equivalent managerial level in an organ of state from
satisfying the criterion. Further, the wording in paragraph 10.2 of the Directive
in respect of applications for Level 16 posts (“ 8-10 years of experience a t a senior
managerial level (at least 3 years of which must be with any organ of State …”)
contemplates that three years of experience must be with “any organ of State ”
43
which, in my view, means that the remaining five to seven years can be from
somewhere else and is not limited to Levels 13 to 16 of the Public Service.
117 This, too, in my view is against the interpretation contended for by the
applicant.
(4) The introduction of the Directive and its amendment
118 The Directive was originally introduced on 1 April 2015. It was amended on 1
April 2016 and further amended on 3 March 2017 into its current form. In the
covering letter from the Director -General of the Department of Public Service
and Administration (“ the DPSA”) dated 6 March 2017 to all heads of national
and provincial departments in regard to the latest version of the Directive, it was
recorded, inter alia, as follows (underlining added by me):
“2. Following the initial implementation of the Directive, challenges with regard to
the recruitment of Heads of Department that specifically required that five (5)
of the 8 -10 minimum years of experience required for entry into a post of a
HOD or DG must be as a member of the SMS in the Public Service. This was
amended with effect from 1 April 2016 to reflect that experience must be as a
senior manager within any organ of state. However, there were still challenges
with regards to the area concerning minimum entry requirements for Heads of
Department. In response to such and noting the impact of required
amendments, the following amendment was enacted ensuring Cabinet
concurrence on 7 December 2016.
2.1 The number of years of experience for a Head of Department will now reflect,
8-10 at a senior managerial level of which at least three (3) years’ experience
must be within any organ of State as defined in the Constitution, Act 108 of
1996, in order to widen the opportunity to attract individuals at that level.”
119 While the above explanation is targeted at Head of Department posts, it
pertains to the same terminology – experience at a senior managerial level – which
44
applies across the board from Level 13 to Level 16, including to Level 14 which
is in issue in this matter. What can therefore be derived from the explanation in
relation to the general context, genesis and purpose of these words is
instructive to the general context, genesis and purpose of the words experience
at a senior managerial level , and therefore to the consideration and determination
of this matter.
120 The PSC explained that f or the purposes of entry into the SMS, the Directive
has been amended twice and with each amendment the requirements for entry
have become less restrictive in order to promote a broader pool of candidates
and accommodate private sector candidates as well as candidates from the
public se ctor for recruitment purposes (in this latter respect , this includes the
objective of arresting the exodus of talent from the public sector) . Put another
way, this was to widen the opportunity for persons to apply for positions in the
SMS. The context behind this is considered further below. To this end, the
language in the Directive shifted from requiring SMS experience to experience
at a senior managerial level.
121 Mrs Moodley argued that the purpose of the change of the requirement in the
Directive from being a member of the SMS to being experience at a senior
managerial level was only to widen the opportunity for persons from the private
sector to apply and not to widen it for applicants from the public sector to
include applicants from middle management, other than for Level 13.
45
122 The explanation in the covering letter from the Director -General in respect of
the Directive, quoted above indicates, to me, that the wording experience at a
senior managerial level means something other than as a member of the SMS (or
at Levels 13 to 16) of the Public Service. Further in this regard:
122.1 The initial wording of the Directive “specifically required that five (5) of the 8 -
10 minimum years of experience required for entry into a post of a HOD or DG must
be as a member of the SMS in the Public Service.”
122.2 In the first amendment of the Directive in April 2016, this was changed
“to reflect that experience must be as a senior manager within any organ of state.”
122.3 This process contemplated and recognised a difference between the
specific requirement of experience “as a member of the SMS in the Public
Service” and experience “as a senior manager within any organ of state” , the
new terminology being to widen the pool of potential applicants.
122.4 That connotes that they mean something different , which they do , the
latter being wider, i.e. the pool for possible public sector applicants had
been widened by the first amendment of the Directive. Applicant’s
interpretation of the current wording of the Directive would , however,
have the surprising result that this widening was reversed to again
exclude members of organs of state which are not members of the
SMS (or those not at Levels 13 to 16 of the Public Service).
122.5 It further connotes that experience in the SMS (or at Levels 13 to 16 of
the Public Service) was already then not a requirement and that
experience in any organ of state would suffice.
46
122.6 This is further reinforced by the further amendment of the Directive into
its current form in March 2017 in which the requirement was changed
to: “The number of years of experience for a Head of Department will now reflect,
8-10 at a senior managerial level of which at least three (3) years’ experience must
be within any organ of State …”
122.7 Why I am of the view that this further reinforces the position is that
while “at least three (3) years’ experience must be within any organ of State”, the
balance is expressed in the more general phrase of 8 to 10 years’
“experience at a senior managerial level.” Were this more general phrase to
mean Levels 13 to 16 of the Public Service, it would constitute a
reversal of the process undertaken which was “in order to widen the
opportunity to attract individuals at that level.”
123 The PSC and the MEC explained the context of the Directive and its current
wording in this respect as being to attract as wide a pool of applicants for posts,
including from the private sector (as contended by Mrs Moodley), and to arrest
the exodus of talent from the public sector (as not contended by Mrs Moodley).
For example:
123.1 The Director: Employment Management of the DPSA (Ms Renel Singh
Dastaghir – “Ms Dastaghir”) explained as follows:
“Senior managerial experience is not linked to remuneration but linked to
relevant complexity of the role/s having [been] performed by a person who
has applied in line with the requirements of the advert and determination
of suitability is done on that basis. Remember recruitment is not confined
to internal public service but anyone can submit an application from the
public in favour of a post, hence the Directive reflects the experience
requirement as 5 years senior managerial and not 5 years SMS.”
47
And elsewhere:
“The Directive does not stipulate anyway that middle management or senior
management experience must be based on salary level as that would mean
that only public servants can apply. It is based on job complexity and the
work undertaken as provided for in the CV. As policy drafters we cannot
draft policy which is limited to persons only in the Public Service as
recruitment is an open process where persons can apply for public service
posts from any sector.”
123.2 Another example is the establishment of the Occupational Specific
Dispensation (“ the OSD ”) in respect of the Public Service in 2009,
explained by the PSC as follows: When the OSD was introduced, the
SMS fell away in certain categories. In the medical category this
included principal specialists, chief specialists and Chief Operating
Officer (COO) positions, amongst others, which were positions
previously graded at Levels 13 and 14 which, on becoming part of the
OSD, were delinked from the SMS and loaded on PERSAL (the public
sector’s human resource management system) at Level 12 at a
maximum, but which can be remunerated as high as Level 16. The
OSD resulted in there being medical professionals who had experience
at SMS Level 13 and above who were then classified at Level 12 but
earning salaries as high as Level 16. This did not diminish the
managerial experience gained. Relevant in this respect is that which is
set out above in regard to the Public Service Middle Management
Competency Framework which records material overlap between the
services and competencies of the middle management and the SMS
forming part of the Public Service , including in relation to
management/supervisory type tasks which are inherent in jobs resulting
48
in experience at a senior managerial level (not in the SMS) that may
render them eligible for entry into the SMS at a level higher than Level
13, provided they can demonstrate the requisite minimum years of
experience and qualifications.
123.3 The existence of this body of state employees under the OSD was a
matter of fact at the time of the original issue of the Directive and its
amendments. It would therefore be an existing contextual factor
relevant to its interpretation. The Public Service Regulations effective
from 1 August 2016 , specifically provided for the Minister to determine
an occupational specific dispensation for a specific occupational
category or categories that includes a unique salary scale, centrally
determined job grades and job descriptions and career progression
opportunities based on competencies, experience and performance.
123.4 The PSC further explained that five years’ experience at a senior
managerial level as opposed to five years in the SMS precisely gave
effect to section 8.2(4) of the SMS handbook which requires all
candidates to be measured against the same objective criteria and
against the same selection criteria by ensuring that all candidates from
within and outside the Public Service could be measured against the
same objective selection criteria. The SMS Handbook, the PSC’s
Toolkit on Recruitment and Selection and the Recruitment and
Selection Policy of the Western Cape Government do not state that the
experience required must be in the SMS.
49
123.5 The object of the amendments to the Directive was deliberate, namely
to widen the field of applicants. For this reason, experience at a senior
managerial level, if interpreted to mean solely experience in the SMS
(or Levels 13 to 16 of the Public Service) for applicants who are public
sector employees, would not further that deliberate intent.
123.6 The purpose of the Directive was not only to attract applicants from
outside of the Public Service, but also to assist in addressing the
exodus from the Public Service of skilled individuals and to attract
skilled individuals to the Public Service from other sectors. Self -
evidently, a requirement that applicants must have experience in the
SMS itself (or Levels 13 to 16 of the Public Service) undermines these
two purposes, save insofar as Level 13 is concerned in part which
allows for experience at a middle managerial level as well as at a
senior managerial level.
123.7 A further problem with Dr Moodley’s interpretation is that if experience
at a senior managerial level is to mean experience at Levels 13 to 16 of
the Public Service, then why should experience at a middle managerial
level not mean experience in the Middle Management of the Public
Service (which is officially recognised and in respect of which there is a
detailed Middle Management C ompetency Framework – “the MMCF”).
To me this is a problematic inconsistency which arises from Dr
Moodley’s approach.
123.8 The covering letter, quoted in part above, to the Directive when it was
distributed to all heads of national and provincial departments, made it
50
clear that the purpose was to move away from experience as a
member of the SMS being a requirement.
124 In my view , this demonstrates that membership of the SMS as a requirement
was departed from even prior to the Directive (i.e. in its previous forms) and
that it is a concept distinct and different from both “ experience at a senior
managerial level ” and “ experience as a senior manager within any organ of
state” as contemplated in the Directive in its current form.
125 This indicates to me that, taking into account the purpose of attracting talent
external to the Public Service and the purpose of not losing talent within the
Public Service (and the SMS), what is a more rigid criterion of minimum years
of service at Levels 13 to 16 of the Public Service for different levels, was not a
requirement.
126 Applicants argued that the approach of the PSC ( and the MEC) create s two
types of senior managers in the public sector: (1) those that are members of the
SMS; and ( 2) those who are level 12 and lower, but are subjectively chosen
using subjective criteria regardless of their job level. Applicant argues that the
effect of interpreting the term “ experience at a senior managerial level” in the
manner contemplated by the PSC and the MEC is that two types of senior
managers would be created in the public sector, rendering the SMS nugatory
and threatening the rights of the existing or known senior managers. I disagree:
On the interpretation of the PSC and the MEC, all applicants are to be judged
against their actual experience and not years in the SMS. That entering Levels
51
14 to 16 of the SMS does not require experience in the SMS (or at Levels 13 to
16 of the Public Service) has no effect on the SMS remaining in place. The
SMS is not, in my view, rendered nugatory.
127 Applicant, in attempting to interpret the meaning of senior managerial level ,
relies on previous recruitment and selection processes at the Metro TB Hospital
and Tygerberg Hospital as examples of the consistent manner in which the
term was interpreted (being, according to him, as interpreted by him) . In my
view, this approach to interpretation is inappropriate. For example, applicant
would have to satisfy the court that the same comparator is being used, which
he has not. For instance, in the case of the Metro TB Hospital, whilst the panel
decried the stringent nature of the Directive, which meant that a good candidate
would not qualify with the minimum requirements, the clear outcome in that
case was that the candidate did not meet the number of years of experience on
any interpretation, only being able to demonstrate two out of the five years of
middle/senior managerial level experience required. Further, and more
importantly from the perspective of the rules of interpretation, i n an interpretive
exercise, it is the context that leads to the wording adopted, and not the context
of how it is applied (which may be incorrect) , that is far more relevant.
Therefore, one can accept that the Directive may have been misinterpreted and
misapplied by various stakeholders over the years. The interpretive exercise
remains the exclusive remit of the courts.
52
128 In my view, the context, including the genesis and purpose of the current
wording of the Directive under consideration, constitutes weighty material
against the interpretation contended for by Dr Moodley.
(5) Further aspect s in regard to the wording in paragraph 10.2 of the
Directive
129 The wording of clause 10.2 is also, in my view, instructive on a material level.
130 The introductory line to the table containing the required levels of experience:
130.1 This reads: “The table below reflects minimum years of experience as an entry
requirement into the SMS:”
130.2 Were experience at a senior managerial level to mean only Levels 13 to 16
of the Public Service, then it would exclude private sector applicants for
the purpose of Levels 14 to 16, which is the opposite of the purpose of
the Directive. That is why Mrs Moodley was constrained to argue that
non-SMS experience was acceptable, but only for private sector
applicants, and to rely on different content to be given to the same
words for different categories of persons.
131 Further, were experience at a senior managerial level to mean only at Levels 13 to 16
of the Public Service for the purpose of applicants from the public sector, the
question then arises as to what experience at a middle managerial level for the
purposes of entry into Level 13 means. If it means experience in the Public
Service only, then it completely excludes private sector applicants without such
experience which runs contrary to the purpose of the Directive. We know that
53
not to be the case, even on Dr Moodley’s case. Bearing in mind that the only
difference from the wording experience at a senior managerial level is to replace
senior with middle, then if experience at a senior managerial level means only
experience at Levels 13 to 16 of the Public Service for applicants from the
public sector, I think that it would be a strain to suggest that experience at a
middle managerial level means experience outside of the Public Service for
applicants from the private sector. Indeed, I think that this militates in favour of
an interpretation that the wording refers to experience at a particular level
without limiting it to any place for the purposes of any particular category of
applicant.
132 Were the words experience at a senior managerial level to mean only experience at
Levels 13 to 16 of the Public Service for the purposes of applicants from the
Public Service, then it is difficult to understand why the Directive did not simply
provide as such.
133 The fact that for Level 16 it is provided that three years must be with any organ of
State, in contradistinction to the balance being able to be experience at a senior
managerial level , would result in the effect that, were experience at a senior
managerial level to mean experience at Levels 13 to 16 of the Public Service, all 8
to 10 years experience would have to be with an organ of State (the Public
Service being in respect of organs of State) as opposed to the only three years
stated to be expressly required.
54
134 The table under paragraph 10.2 of the Directive demonstrates that , to qualify
for entry into the SMS at Level 13, a candidate must either have 5 years’
experience at middle managerial or senior managerial level. Implicit in this
requirement, is the understanding that it is possible to already have experience
at a senior managerial level, prior to entry into the SMS.
(6) Conclusion on this aspect
135 In my view, experience at a senior managerial level does not mean, for the purposes
of applicants from the public sector , experience at Levels 13 to 16 of the Public
Service, and something else for certain other applicants. In my view it means
experience as a senior managerial level for all applicants. A s a result, my
conclusion is the MEC did not err in this regard and the shortlisting and
appointment of Dr Parbhoo for and to the Post is not irregular on this basis.
Conclusion on Main application
136 For the aforegoing reasons, it is my view that the relief sought in the main
application ought not to be granted.
137 As to costs, I agree with the following submissions made by Mrs Moodley:
137.1 That t his matter engages the Biowatch8 principle in which the
Constitutional Court held that “[O]rdinarily, if the government loses, it should
pay the costs of the other side, and if the government wins, each party should bear
8 Biowatch Trust v Registrar, Genetic Resources and Others 2009 (6) SA 232 (CC) at para 22
55
its own costs.” This relates to litigation against the government in which
litigants seek to assert a constitutional right (Affordable Medicines Trust
v Minister of Health 2006 3 SA 247 (CC) at para 138).
137.2 Linked to this is that this matter raises two aspects of general public
importance, as articulated above (Biowatch at paragraph 123) . Mr De
Villiers-Jansen contended that the effect of the decision in this matter
(or that of appeal court) would be l imited to Dr Moodley and Dr
Parbhoo. I disagree. The question as to the binding nature of the
findings and recommendation of the PSC is of wide import, as is that in
relation to the interpretation of the Directive.
137.3 While the rule is not inflexible and may be departed from in certain
instances, for example, frivolity of the litigation or other conduct on the
private litigant’s part, that deserves censure, 9 in my view this is not the
kind of case that warrants such censure , despite the applicant’s
language and accusations having been somewhat intemperate at
times. While not eliminating that factor, it is noted that the fact that a
litigant pursues litigation with vigour is not a relevant consideration
(Affordable Medicines at para 139).
138 In the premise, I am of the view that it would be appropriate for there to be no
order as to costs in respect of the main application.
The counter-application
9 Affordable Medicines Trust v Minister of Health 2006 3 SA 247 (CC) at para 138, Biowatch para 24.
56
139 As mentioned above, prayers 2 to 5 of the counter -application were abandoned
in oral argument by the PSC.
140 Mr Tshetlo further informed me in oral argument that, although not stated as
such in the Notice of Counter -Application, prayer 1 of the counter -application is
conditional on the PSC Report being binding. He explained that this was
because prayer 1 is only required in the event that the Court finds that the PSC
Report is binding because then, in order to consider the question of irregularity,
it would have to be set aside.
141 For the reasons set out above, I have come to the conclusion that the PSC
Report is not binding. Prayer 1 of the counter-application therefore falls away.
142 The counter-application therefore does not require further consideration , save
in respect of costs.
Costs of the counter-application
143 The competing costs order s in respect of the counter -application, in my view,
are whether first respondent should pay applicant’s costs or whether they are to
pay their own costs.
144 Insofar as prayers 1 to 3 of the counter-application are concerned:
57
144.1 As dealt with above, prayer 1 was conditional and fell away because of
first respondent’s success on the merits in the main application. I
consider this to be a largely neutral factor.
144.2 In respect of all of prayers 1 to 3, t here was a material overlap between
the counter -application and the issues determined in the main
application. Those issues have been decided against applicant in the
main application. They were issues which would not have required
much, if any, independent consideration for the purposes of the
counter-application. My view expressed above is that the Biowatch
principle/rule should apply despite applicant having been unsuccessful
in the main application , and that there be no order as to costs in the
main application. I am of the view that these are factors which are in
favour of the parties paying their own costs in respect of the counter
application.
144.3 Finally, M r Tshetlo, in communicating the PSC’s abandonment of
prayers 2 and 3 of the counter application, said that this was because
they were unnecessary (with which I agree). I am of the view that this is
a factor which is in favour of the applicant being awarded his costs in
respect of the counter application.
145 The balance of the main relevant aspects in the counter -application fall into
three categories:
145.1 Applicant disputed the authority of (1) the PSC’s deponent to have
deposed to the affidavits to the main application as well as (2) to
58
institute the counter -application on behalf of the PSC. These aspects
were a not insignificant aspect of the papers and written argument.
During oral argument, however, they were abandoned by applicant . I
am of the view that this is a factor which is in favour of the parties
paying their own costs in respect of the counter application.
145.2 The second category is that some major issues in the counter -
application w ould, in my view, have been decided against applicant.
The main item s in this respect are whether the counter -application
would have failed due to it having been brought out of time and whether
first respondent failed in complying with a statutory and constitutional
obligation to consult prior to bringing the application (I will de al with
these aspects briefly below). For this reason, I am of the view that this
is a factor which is in favour of the parties paying their own costs in
respect of the counter-application.
145.3 The third category relates to prayers 4 and 5 of the counter -application.
I am of the view that that relief would not have been granted had it not
been abandoned (I will deal with this aspect briefly below) and
therefore this is a factor which is in favour of the applicant being
awarded his costs in respect of the counter-application.
146 The three aspects which I said in the above paragraph would be de alt with
further will now be briefly considered.
(1) The timing of the counter application
59
147 Applicant alleges that the counter-application, being a review, whether in terms
of PAJA or the principle of legality, is out of time. This involves the exercise of a
broader discretion in the context of a legality review (Buffalo City Metropolitan
Municipality v Asla Construction (Pty) Ltd 2019 (4) SA 331 (CC) at paragraph
50).
148 In oral argument, applicant’s main complaint distilled to the assertion that the
PSC explained the period of delay from February 2022 to September 2022 but
did not explain the pr evious period from June 2021 . I disagree: The PSC
stated that i t was not until it engaged its current legal representatives with a
view to defending the main application, that the PSC became aware that a
material error of law informed the PSC Report. The counter -application was
launched within 180 days thereof. I am therefore of the view that the delay has
been reasonably explained.
149 For this reason, I am of the view that this is a factor which is not in favour of first
respondent paying the costs of the counter-application.
(2) Why the relief in prayers 4 and 5 would have been refused
150 This relief concerned the setting aside of the Directive and consequent relief
flowing therefrom.
151 The Directive and the issue thereof have already been dealt with in detail. The
Directive was issued in terms of section 3(2) of the PSA provides as follows:
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“The Minister shall give effect to subsection (1) by making regulations,
determinations and directives, and by performing any other acts provided for in this
Act.”
152 Section 5(2) of the PSA provides as follows:
“A determination or directive, or any withdrawal or amendment thereof, made or
issued by the Minister in terms of this Act shall take effect on the date of the
written communication conveying the making of the determination, the issuing of
the directive or the withdrawal or amendment thereof, unless expressly stated
otherwise in that communication, determination or directive.”
153 The basis for the PSC’s case for th e relief in prayers 4 and 5 of the counter -
application is that members of the SMS can only move up one level thereof at a
time which results in unfair differentiation between them and public servants
who are not members of the SMS as they can enter the SMS at a higher level.
The pertinent allegations in this regard in the founding papers in the counter -
application are as follows:
“256 More specifically, to the extent that such applicants seek to apply for a
position in the SMS, their only limitation to entry at any level, is the
candidates’ own ability to demonstrate the requisite years of experience at
a senior management level.
257 On the other hand, the progression and movement of public servants who
are existing members of the SMS is constrained by the Directive, to the
extent that it prohibits such candidates from skipping a promotional level
(i.e. a level 13 member of SMS cannot apply for a level 15 position, without
first progressing to a level 14 position, despite possessing the required
number of years of experience for such higher position).
258 This lacuna in the provisions of the Directive therefore results in the unfair
differentiation between members of the SMS and public servants who are
not SMS members.”
154 This argument therefore stands or falls on there being a provision in the
Directive to the effect that members of the SMS can only progress one level at
a time in the SMS.
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155 I have considered the Directive and have not been able to find a provision to
the aforesaid effect. The only candidates dealing with progression in the SMS
which I could identify are:
“10.5: Existing SMS members
10.5.1 Existing SMS members will be required to comply with all minimum
requirements to progress to higher levels within the SMS.”
And the part of clause 10.2 which reads as follows:
“An SMS member must demonstrate that she/he has validated his/her
competencies at their current performer level before progressing to a higher level
of SMS.”
156 I agree with Mrs Moodley that the Directive, including both of the above two
provisions thereof, do not have the effect contended for by the PSC (the PSC,
in oral argument, agreed with this) . On the contrary, in my view, the use of the
indefinite article in the extract from clause 10.2 and the words “progress to
higher levels” in clause 10.5.1 suggest the opposite.
157 Another consideration is that the Minister has the power to amend the Directive
– we have seen that this has already been done twice, and is referred to in
section 5(2) of the PSA quoted above. No explanation has been given for why
this was not done or attempted to be done in respect of the aspect under
consideration.
158 For these reasons I am of the view that the relief sought in prayers 4 and 5
would have been declined had it not been abandoned by the PSC and,
therefore, this is a factor which is in favour of the applicant being awarded his
costs in respect of the counter-application.
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(3) The allegation of a failure to consult
159 Applicant argued that, in terms of section 41 of the Constitution , the relief
sought in prayers 4 and 5 of the counter -application should be dismissed.
Section 41 provides as follows:
41. Principles of co-operative government and intergovernmental relations
(1) All spheres of government and all organs of state within each sphere
must –
(a) preserve the peace, national unity and the indivisibility of the
Republic;
(b) secure the well-being of the people of the Republic;
(c) provide effective, transparent, accountable and coherent
government for the Republic as a whole;
(d) be loyal to the Constitution, the Republic and its people;
(e) respect the constitutional status, institutions, powers and functions
of government in the other spheres;
(f) not assume any power or function except those conferred on them
in terms of the Constitution;
(g) exercise their powers and perform their functions in a manner that
does not encroach on the geographical, functional or institutional
integrity of government in another sphere; and
(h) co-operate with one another in mutual trust and good faith by –
(i) fostering friendly relations;
(ii) assisting and supporting one another;
(iii) informing one another of, and consulting one another on,
matters of common interest;
(iv) co-ordinating their actions and legislation with one another;
(v) adhering to agreed procedures; and
(vi) avoiding legal proceedings against one another.
(2) An Act of Parliament must –
(a) establish or provide for structures and institutions to promote and
facilitate intergovernmental relations; and
(b) provide for appropriate mechanisms and procedures to facilitate
settlement of intergovernmental disputes.
(3) An organ of state involved in an intergovernmental dispute must make
every reasonable effort to settle the dispute by means of mechanisms
and procedures provided for that purpose, and must exhaust all other
remedies before it approaches a court to resolve the dispute.
(4) If a court is not satisfied that the requirements of subsection (3) have
been met, it may refer a dispute back to the organs of state involved.”
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160 Applicant contends that there is no evidence that the PSC even consulted with
the DPSA and its Minister in regard to the Directive and the PSC’s problems
with it. It is to be remembered that it is the Minister who issued the Directive
and it was the Director-General who distributed it under the auspices of the
DPSA. I disagree with the contention in the first sentence of this paragraph:
there was correspondence dealing with and discussing the substance of the
core aspect of this matter ( experience at a senior managerial level ) involving
the DPSA and the PSC on the issue.
161 In any event, the point taken by applicant would in my view have failed on
another even more fundamental level : both Mr Tshet lo and Mr De Villiers -
Jansen pointed out that section 40(2) of the Constitution refers to government
in the national, provincial and local spheres which are said to be interdependent
and interrelated. The PSC, however, is an institution created in terms of
Chapter 10 of the Constitution. It does not form part of government as defined
for these purposes. Section 41(2) of the Constitution envisages an Act of
Parliament to inter alia facilitate intergovernmental disputes. This is the
Intergovernmental Relations Framework Act 13 of 2015 (“IRFA”). Section 2(1)
thereof provides that the statute applies to national, provincial and local
government. On the other hand, section 2(2) provides that the statute does not
apply to constitutionally independent institutions. Section 2(3) provides that an
organ of state may only participate in an intergovernmental structure if
specifically referred to in Chapter 2 of IRFA or if invited to participate. Neither of
these apply in the instant matter.
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162 I therefore think that applicant’s reliance on section 41 of the Constitution is not
well-founded and that this is a factor in favour of the parties paying their own
costs in respect of the counter-application.
Conclusion on the costs of the counter-application
163 While there were some issues of substance unique to the counter -application,
on balance, taking into account all of the above factors, I believe that it would
be appropriate were there to be no order as to the costs in the counter -
application.
Order
164 The following order is made:
1. The application in convention brought by the applicant is dismissed.
2. There shall be no order as to costs in respect of the application in convention.
3. In respect of the relief sought in the counter-application, it is recorded as follows:
3.1. Prayer 1 falls away flowing from the dismissal of the application in convention.
3.2. Prayers 2 to 5 were abandoned by first respondent.
4. There shall be no order as to costs in respect of the counter-application.
_________________
A Kantor
Acting Judge of the High Court
For the applicant Adv J Moodley
Instructed by J Naidoo Attorneys
J Naidoo
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For the respondent Adv R Tshetlo
Adv S Mashiane
Instructed by Cheadle Thompson & Haysom Inc
S Gaibie
For the 2nd respondent Adv E de Villiers-Jansen SC
Instructed by Office of the State Attorney
M Dyalivane