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2024
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[2024] ZALMPPHC 22
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Raliphada v Makhado Municipality and Others (8015/2023) [2024] ZALMPPHC 22; [2024] 2 All SA 490 (LP); [2024] 6 BLLR 626 (LP) (6 February 2024)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO
DIVISION, POLOKWANE)
CASE
NO: 8015/2023
(1)
REPORTABLE:
YES
/NO
(2)
OF INTEREST TO THE JUDGES:
YES
/NO
(3)
REVISED
DAT:
06/02/2024
SIGNATURE:
In
the matter between:
RALIPHADA
NDIAMBANI GODFREY
APPLICANT
and
MAKHADO
MUNICIPALITY
1
ST
RESPONDENT
COUNCIL:
MAKHADO MUNICIPALITY
2
ND
RESPONDENT
SPEAKER
OF COUNCIL:
MAKHADO
MUNICIPALITY
3
RD
RESPONDENT
CHIEF
WHIP OF COUNCIL:
MAKHADO
MUNICIPALITY
4
TH
RESPONDENT
MAYOR:
MAKHADO
MUNICIPALITY
5
TH
RESPONDENT
MUNICIPAL
MANAGER:
7
TH
RESPONDENT
MAKHADO
MUNICIPALITY
MEC:
COGTA LIMPOPO PROVINCE
8
TH
RESPONDENT
THANGAVHUELELO
M
9
TH
RESPONDENT
NEPHAWE
LT
10
TH
RESPONDENT
SAMWU:
MAKHADO BRANCH
11
TH
RESPONDENT
IMATU:
MAKHADO
BRANCH
12
TH
RESPONDENT
JUDGMENT
This
judgment is delivered electronically by way of dispatching same to
email addresses of the parties' legal representatives and
publishing
same on SAFLII. The date of delivery of this judgment is deemed to be
6 February 2024.
SIKHWARI
AJ
[1]
On 19 September 2023 this court, per Madam Justice Nude
Odendaal, granted an
interim interdict which was intended to operate
as a
rule nisi
and interim court order pending the hearing of
the review matter in Part B. The said order in Part A is not before
the court for
adjudication before me. This court is simply called
upon to adjudicate the review application in Part B. This ruling is
in respect
of the review matter. The court order of 19 September 2023
will fall away by operation of the law or lapse time.
[2]
The respondents contended that this court has no jurisdiction to
entertain the application
as the nature of the dispute falls within
the scope of labour law; and therefore, this matter should have been
referred to the
labour forums like Bargaining Council and / or the
Labour Court. The respondents submitted that the applicant's case is
about unfair
discrimination on the basis of his gender as pleaded in
his papers where it is said the applicant alleged that he was
overlooked
for the position of Chief Financial Officer of Makhado
Local Municipality simply because he is a man; and as such he should
have
invoked
section 6
(1) and
10
of the
Employment Equity Act 55 of
1998
, as amended which bestow jurisdiction at the CCMA or its
equivalent being the Bargaining Council. The respondents further
submitted
that the employment of employees is not an administrative
act which can be reviewed either under the principle of legality or
rationality
Respondents. To this extent, respondents relied on
section 7
(3) of the
Basic Conditions of Employment Act 75 of 1997
,
as amended. Respondents submitted that this is not a kind of a matter
where the Labour Court enjoys concurrent jurisdiction with
the High
Court. Respondents further relied on the case of
Gcaba v Minister
for Safety And Security and Others (CCT 64/08))
[2009] ZACC 26
(7
October
2009); 2010 (1) SA 238
(CC).
[3]
In the case of
Gcaba
(supra)
, at para 48 -57
,
the Constitutional Court held that:
“
[48] The respondents argue
that the applicant's claim is a labour matter which, by law, must be
adjudicated through the finely-tuned
mechanisms provided for in the
LRA. The applicant's initial conduct and his founding affidavit in
the High Court placed specific
reliance on his right to fair labour
practices under the LRA. On the basis of the principle confirmed in
Chirwa, the respondents
reiterated that the applicant was not
entitled to pursue additional causes of action or remedies under
PAJA.
[49]
Whilst the respondents accept that the power to appoint was one
exercised by an organ of state
in terms of the enabling provisions of
statute and regulations, they contend that such power is private in
nature and vests in
the employer. The respondents submit that a
decision by an employer whether or not to appoint an applicant for a
post is no different
from a decision to dismiss, or to change shift
arrangements.
[50]
Finally, the respondents contend that, as was held by the majority in
Chirwa, it could not have
been the intention of the legislature to
allow a litigant to engage in "forum shopping' particularly in
the light of the objects
of the LRA, and on a proper reading of
section 157(2)
of the LRA.
[51]
In order to evaluate and understand the divergent but arguable
approaches to the interpretation
of sections 23 and 33 of the
Constitution, section 157 of the LRA and the provisions related
thereto, it is useful to try to identify
a few general principles and
policy considerations which informed and have been informed by the
interpretations put forward in
Fedlife, Fredericks, Chirwa and other
cases.
[52]
First, it is undoubtedly correct that the same conduct may threaten
or violate different constitutional
rights and give rise to different
causes of action in law, often even to be pursued in different courts
or fora. It speaks for
itself that, for example, aggressive conduct
of a sexual nature in the workplace could constitute a criminal
offence, violate equality
legislation, breach a contract, give rise
to the actio iniuriarum in the law of delict and amount to an unfair
labour practice.
Areas of law are labelled or named for purposes of
systematic understanding and not necessarily on the basis of
fundamental reasons
for a separation. Therefore, rigid
compartmentalisation should be avoided.
[53]
It is, furthermore, generally accepted that human rights are
intrinsically interdependent, indivisible
and
inseparable. The constitutional and legal order is one
coherent system for the protection of rights and the
resolution of
disputes.
[54]
A related principle is that legislation must not be interpreted to
exclude or unduly limit remedies
for the enforcement of
constitutional rights.
[55]
However, another principle or policy consideration is that the
Constitution recognises the need
for specificity and specialisation
in a modern and complex society under the rule of law. Therefore, a
wide range of rights and
the respective areas of law in which they
apply are explicitly recognised in the Constitution. Different kinds
of relationships
between citizens and the state and citizens amongst
each other are dealt with in different provisions. The legislature is
sometimes
specifically mandated to create detailed legislation for a
particular area, like equality,
84
Just administrative
action (PAJA) and labour relations (LRA). Once a set of
carefully-crafted rules and structures has been created
for the
effective and speedy resolution of disputes and protection of rights
in a particular area of law, it is preferable to use
that particular
system. This was emphasised in Chirwa by both Skweyiya J and Ngcobo
J.85 If litigants are at liberty to relegate
the finely-tuned dispute
resolution structures created by the LRA, a dual system of law could
fester in cases of dismissal of employees.
[56]
Following from the previous points, forum shopping by litigants is
not desirable.
87
Once a litigant has chosen a particular
cause of action and system of remedies (for example, the structures
provided for by the
LRA) she or he should not be allowed to abandon
that cause as soon as a negative decision or event is encountered.
One may especially
not want litigants to "relegate" the LRA
dispensation because they do not "trust" its structures to
do justice
as much as the High Court could be trusted. After all, the
LRA structures were created for the very purpose of dealing with
labour
matters, as stated in the relevant parts of the two majority
judgments in Chirwa, referred to above.
[57]
Lastly in view of the perceived tensions between Chirwa and
Fredericks, it may be useful to keep
the essential meaning of and the
reasons behind the doctrine of precedent in mind. Often expressed in
the Latin maxim stare decisis
et non quieta movere (to stand by
decisions and not to disturb settled matters), it means that in the
interests of certainty, equality
before the law and the satisfaction
of legitimate expectations, a court is bound by the previous
decisions of a higher court and
by its own previous decisions in
similar matters."
[4]
The respondents have specifically relied on the conclusion of the
Court In the case
of
Gcaba
(supra)
at para
[75],
where the Constitutional Court concluded as follows:
"[75] Jurisdiction is
determined on the basis of the pleadings, as Langa CJ held in
Chirwa,116 and not the substantive merits
of the case. If Mr Gcaba's
case were heard by the High Court, he would have failed for not being
able to make out a case for the
relief he sought, namely review of an
administrative decision. In the event of the Court's jurisdiction
being challenged at the
outset (in limine), the applicant's pleadings
are the determining factor. They contain the legal basis of the claim
under which
the applicant has chosen to invoke the court's
competence. While the pleadings - including in motion proceedings,
not only the
formal terminology of the notice of motion, but also the
contents of the supporting affidavits - must be interpreted to
establish
what the legal basis of the applicant's claim is, it is not
for the court to say that the facts asserted by the applicant would
also sustain another claim, cognisable only in another court. If
however the pleadings, properly interpreted, establish that the
applicant is asserting a claim under the LRA, one that is to be
determined exclusively by the Labour Court, the High Court would
lack
jurisdiction. An applicant like Mr Gcaba, who is unable to plead
facts that sustain a cause of administrative action that
is
cognisable by the High Court, should thus approach the Labour Court".
[5]
In the case of
Chirwa v Transnet
, the dispute was more about
unfair dismissal. The dispute in Chirwa is distinguishable from the
issues in this case. (
See:
Chirwa v Transnet Limited and
Others (CCT 78106) (2007] ZACC 23
[2007] ZACC 23
; ;
2008 (4) SA 367
(CC);
2008 (3)
BCLR 251
(CC);
[2008] 2 BLLR 97
(CC) ; (2008) 29 ILJ 73 (CC) (28
November 2007)).
[6]
In the case of
Baloyi v Public Protector and Others (CCT03120)
[2020] ZACC 27
;
2021 (2) BCLR 101
(CC);
[2021] 4 BLLR 325
(CC);
(2021) 42 ILJ 961 (CC);
2022 (3) SA 321
(CC) (4 December 2020) at
para 15 and 16
, the Constitutional Court held the following on
applicable principles on jurisdiction between the Labour Court and
High Court:
"[15] At the outset, it must
be noted that, in principle, it would be in the interests of justice
to grant leave to appeal
in relation to Ms Baloyi's jurisdictional
challenge. The challenge raises an important constitutional issue,
which this Court has
yet to rule on. It is also readily apparent that
Ms Baloyi has reasonable prospects of success, taking into
consideration the dicta
from this Court weighing in her favour. In
Chirwa, the majority of this Court stated that "the jurisdiction
of the High Court
is not ousted simply because a dispute is one that
falls within the overall sphere of employment relations", which
directly
contradicts the rationale underpinning the High Court's
judgment and the respondents' submissions.
[16]
There are also several factors that weigh in favour of granting Ms
Baloyi leave to appeal directly
to this Court in relation to her
jurisdictional challenge. For example, the constitutional issue
raised by Ms Baloyi's jurisdictional
challenge has been answered by
the Supreme Court of Appeal on a number of occasions, but has not
been expressly addressed by this
Court. This Court therefore has the
benefit of judgments by the Supreme Court of Appeal on this issue."
[7]
The applicant's case on jurisdiction is that the Labour Court does
not have exclusive
jurisdiction in this matter. Applicants relied on
the case of
De Villiers v Head of Department, Education, Western
Cape Province (2010) 31 ILJ 1377 (LC) at para 14-19
, where it was
held that:
"[14] It is tempting to read
the Gcaba judgment to suggest that public sector employees may pursue
their employment related
grievances only through the processes
established by the LRA and other Jabour legislation, and that in this
respect at least, the
door to administrative review has finally and
irrevocably been closed to them. Such a reading would resonate with
the majority
judgments in Chirwa and their concerns with the
implications of the emergence of a dual system of law, the need to
prevent forum
shopping in labour disputes and the desire to treat
private and public sector workers equally.
[15] However, I do not understand
the judgment in
Gcaba
to suggest that the conduct of a state
employer can never be categorised as administrative action. To read
the judgment in this
manner would be to elevate a single factor in
the SARFU test to a determinative and overriding consideration,
something that the
Court in Gcaba does not expressly do. The wording
of the dictum quoted above regarding the relationship between
sections 23 and
33 of the Constitution clearly acknowledges the
existence of exceptions to the general rule, however limited those
might be.
[16] Nor do I think that the fact
that the impact of a decision made by a functionary is felt only by a
confined class of employee
(or, for that matter, as in the present
case, by a single employee) necessarily deprives a public sector
employee of a right of
review. As Prof Hoexter points out, the notion
of 'public impact' has traditionally been employed for the purpose of
establishing
whether, in relation to an apparently private body or
transaction, the power being exercised is a public power - a
necessary condition
for administrative action. She continues:
"It seems strange, then, that
the Constitutional Court should apply this factor of public impact to
a decision involving an
avowedly public power (given the reasoning of
Ngcobo J in Chirwa), and conclude from the absence of such impact
that the decision
is not administrative action.
[17]
Prof Hoexter refers to POPCRU v Minister of Correctional Services (No
1)
2008 (3) SA 91
(ECO) ("POPCRU”), where Plasket J was
faced with the question of whether the decision to dismiss
correctional services
officers constituted administrative action, in
circumstances where the power to dismiss was founded in statute.
8
It was argued that this function was not administrative action, since
it did not affect the public as a whole. Plasket J rejected
this
submission in the following terms:
“
In my view, the elusive
concept of public power is not limited to exercises of power that
impact on the public at large. Indeed,
many administrative acts do
not. The exercise of the power to arrest is a good example of
administrative action that would only
have a significant impact on
the arrestee and, perhaps, the complainant. Another example would be
a decision by the erstwhile Amnesty
Committee of the Truth and
Reconciliation Commission to grant a person amnesty from the civil
and criminal consequences of his
or her politically motivated crimes.
In these instances what makes the power involved a public power is
the fact that it has been
vested in a public functionary who is
required to exercise it in the public interest, and not in his or her
own private interest
or at his or her own whim."
In other words, many
incontrovertibly administrative actions do not have an impact on the
public, and very often it is only an individual
who is affected by
administrative action.
9
[18] Plasket J emphasised inter
alia that the fact that the power had a statutory basis was
significant, because it placed the existence
of public power largely,
if not completely, beyond contention
10
. Ultimately, an
important function of the courts was to ensure:
“
that when statutory powers
(and other public powers sourced in common law or in customary law)
are given in trust to public functionaries
for the purpose of
furthering the public interest, those public functionaries do not
abuse the trust reposed in them, remain within
the bounds of their
empowerment and exercise their powers reasonably and in a
procedurally fair manner."
11
As Prof Hoexter concludes:
“
ln a general sense, however,
every act of every public official has consequences for us all and
for the type of society we live
in. That is why we have
administrative law in the first place.''
12
[19] In summary: as a general rule,
conduct by the state in its capacity as an employer will generally
have no implications or consequences
for other citizens, and it will
therefore not constitute administrative action. Employment
related grievances by state employees
must be dealt with in terms of
the legislation that gives effect to the right to fair labour
practices, or any applicable collective
agreements concluded in terms
of that legislation. Departures from the general rule are justified
in appropriate cases. An assessment
must be conducted on a
case-by-case basis to determine whether such a departure is
warranted. The relevant factors in this determination
(following
SARFU) are the source and nature of the power being exercised (this
would ordinarily require a consideration of whether
the conduct was
rooted in contract or statute (see Cape Metropolitan Council v Metro
Inspection Services cc
2001 (3) SA 1013
(SCA)), whether it involves
the exercise of a public duty, how closely the power is related to
the implementation of legislation
(as opposed to a policy matter) and
the subject matter of the power. I venture to suggest that the
existence of any alternative
remedies may also be a relevant
consideration - this was a matter that clearly weighed with the Court
in both
Chirwa
and
Gcaba
, who it will be recalled, were
found to have had remedies available to them under the applicable
labour legislation.''
[8]
In the case of
Moerane and Another v Buffalo City Metropolitan
Municipality and Others (611/2017) [2017] ZAECGHC 126 (5 December
2017) at para
24-27
, Lowe J held that:
"[24] I am fully in agreement
with Mr Rorke SC that in so finding, the learned judges were applying
the principles laid down
in President of the Republic of South Africa
decided some 17 years ago. I agree that the same reasoning applies in
respect of so-called
"Section 56 Managers" such as First
Applicant. That the decision was taken by First Respondent's Council
does not change
the argument in my view. Essentially First
Respondent's decision of 29 February 2016, to appoint the First
Applicant as head of
Department, ahead of other prospective
candidates for the position, clearly fell within the meaning ascribed
to "administrative
action" in PAJA, the Council exercising
a public power which adversely affected the rights of other
prospective applicants
and which had direct, external legal effect,
and which constitutes an executive function.
[25]
I further agree that whilst the distinction between administrative
action and political or executive
action is sometimes difficult to
draw, that is most certainly not the case in this matter.
[26]
There was in this matter a public recruitment process, only one
applicant appointed thereafter
to the relevant position, being the
first applicant. The other prospective applicants failed and their
rights were clearly affected
by the decision, falling in my view
squarely within the definition of administrative action in PAJA.
[27]
It must be said, that I further agree with Respondents' argument that
had the decision been taken
by the City Manager, and had he had the
power to do so, the decision would surely have been "administrative
action" -
that the decision was taken by Council cannot in my
view distinguish the matter."
[9]
Applicant submitted that the principle on matters enjoying concurrent
jurisdiction
in
De Villiers
was not overturned on appeal
although the decision of the court a quo was overruled. Applicant
submitted that his case is distinguishable
from both
Gcaba
and
Chirwa
(supra).
[10]
This court is of the view that a legislation or principle ousting
jurisdiction of the High Court
to hear a particular dispute must say
so in no uncertain terms, or else jurisdiction of the high court will
always be assumed in
terms of its inherent powers.
Section 10
of the
Employment Equity Act 55 of 1998
, as amended, is the one which has
ousted the jurisdiction of the high court in certain type of matters
which ordinarily will fall
within the sphere of the High Court.
However, on proper scrutiny of the aforesaid
section 10
of EEA in the
context of this matter, it finds no application. The case of the
applicant is not only limited in the allegations
of unfair or gender
discrimination. That is one of the implied sources of complaint
amongst many. The gender issue is not even
the most prominent one.
The prominent complainant of the applicant is that the Council of
Makhado Local Municipality has failed
to implement the recommendation
of the panel on the suitable candidate for the position of the CFO
without rational explanation
or explanation at all in the
circumstances where the said Council had no right to do so; thereby
acting irrationally, unreasonably
and in conflict with the law. This
court agrees with the applicant that both
Chirwa
and
Gcaba
judgments are misplaced in this case.
[11]
This court is satisfied that it does have jurisdiction to hear the
review matter in Part B. In
the circumstances, the point in
limine
for the lack of jurisdiction stands to be dismissed. Costs will
follow the ruling in the merits of the main case.
[12]
The respondents contend that the decision not to appoint the
applicant is not an administrative
act; and it cannot therefore be
subjected to a review process under PAJA or
rule 53
or any ground of
review.
[13]
In the case of
Tshabalala v Council of the Maluti -A Phofung
Local Municipality and Another (1537/2022)
[2022] ZAFSHC 230
(19
September 2022), at para 12, 13, 14, 17 and 18
, the court held
that:
"[12] The
respondents contend that the applicant's remedy does not lie with
review in terms of PAJA. This
contention is premised on the view held
by the respondents that the functions of a Municipal Council are
excluded from the definition
of 'administrative action' in PAJA. The
respondents contend further that failure to appoint the applicant is
a quintessential labour
related issue and accordingly, so the
argument goes, on the strength of Gcaba v Minister of Safety and
Security[fil does not amount
to administrative action within the
meaning of PAJA.
[13]
The Court in President of the Republic of South Africa & Others v
South African Rugby Union
& Others (hereinafter referred so as
SARFU) held as follows:
"[141] In
s33
the adjective
'administrative' not 'executive' is used to qualify 'action'. This
suggests that the test for determining whether
conduct constitutes
'administrative action' is not the question whether the action
concerned is performed by a member of the executive
arm of
government. What matters is not so much the functionary as the
function. The question is whether the task itself is administrative
or not. It may well be, as contemplated in Fedsure, that some acts of
a legislature may constitute 'administrative action'. Similarly,
judicial officers may, from time to time, carry out administrative
tasks. The focus of the enquiry as to whether conduct is
'administrative
action' is not on the arm of government to which the
relevant actor belongs, but on the nature of the power he or she is
exercising.
[142] As we have seen,
one of the constitutional responsibilities of the President and
cabinet members in the national
sphere (and premiers of executive
councils in the provincial sphere) is to ensure the implementation of
legislation. This responsibility
is an administrative one, which is
justiciable, and will ordinarily constitute 'administrative action'
within the meaning of
s33.
Cabinet members have other constitutional
responsibilities as well. In particular, they have constitutional
responsibilities to
develop policy and to initiate legislation.
Action taken in carrying out these responsibilities cannot be
construed as being administrative
action for the purposes of
s33.
It
follows that some acts of members of the executive, in both the
national and provincial spheres of government will constitute
'administrative action' as contemplated ins33, but not all acts by
such members will do so.
[143] Determining
whether an action should be characterised as the implementation of
legislation, or the formulation
of policy may be difficult. It will,
as we have sad above, depend primarily upon the nature of power. A
series of considerations
may be relevant to deciding on which side of
the line a particular action falls. The source of power, though not
necessarily decisive,
is a relevant factor. So too is the nature of
the power, its subject matter, whether it involves the exercise of a
public duty,
and how closely it is related on one hand to policy
matters, which are not administrative, and on the other hand to the
implementation
of legislation, which is. while the subject matter of
a power is not relevant to determine whether constitutional review is
appropriate,
it is relevant to determine whether the exercise of the
power constitute administrative action for the purposes of
s33.
Difficult boundaries may have to be drawn in deciding what should and
what should not be characterized as administrative action
for the
purposes of
s33.
These will need to be drawn carefully in the light
of the provisions of the Constitution and the general constitutional
purpose
of an efficient, equitable and ethical public administration.
This can best be done on a case by case basis. "
[14]
PAJA simply excludes the executive powers and functions of the
Municipal Council and its legislative
functions. This means therefore
that non-executive functions of the Municipal Council are subject to
PAJA. The question is not
who took the decision but whether the task
itself is administrative or not as held in SARFU. The respondents
seem to espouse the
view that PAJA excludes the functions of the
Municipal Council in toto. In this way the view cannot be correct as
illustrated by
SARFU above. In Mlokothi v Amathole District
Municipality and Another, the court concluded that the appointment of
a Municipal
Manager was an 'administrative action'. By parity of
reasoning this should apply to the appointment of the applicant as
such appointment
ought to take place in terms s56 of the Municipal
Systems Act. I cannot see how it can be argued that the recruitment
and appointment
of the Director in casu can be seen as executive or
legislative in nature.
[17]
It is common cause that the applicant emerged as the highest scoring
candidate in the interview
as well as the competency test. The
applicant has a prima facie right as he seeks to assert his right to
a fair administrative
action. He does not seek a final interdict and
thus only has to establish a right though open to some doubt.
[18]
I decline to deal with the contention that the recruitment process
was vitiated by the alleged
irregularities for the simple reason that
the court which will be seized with the review application will be
better placed to adjudicate
the said issue. In my view, it appears
that the respondents had condoned some acts, by way of an
illustration, the Municipal Manager,
as chairperson of the selection
panel proceeded with the interview well being aware that the
timelines for the interview process
had not been complied with. In
his answering affidavit he proffers no explanation why this was done.
He was obliged to furnish
the Council with the report after
interviews. He is silent on why this was not done. He does not play
open cards with the court
as the Municipal Manager of the
respondents."
[14]
It is common cause that the Municipal Manager of Makhado Local
Municipality was the chairperson of the Selection Panel in this
present case. The recommendations of the Selection Panel in a letter
dated 12 May 2023 was communicated by the Municipal Manager
on his or
her official capacity as the chairperson of the Selection Panel.
Consequently, this court is of the view that the decision
to appoint
or not to appoint a senior manager or CFO of the Municipality in this
case is an administrative act which could be reviewed
and I or set
aside. Therefore, this court is competent to proceed to decide the
merits of the review application in Part B.
[15]
There are several common cause factors which,
inter alia
, are
that Makhado Local Municipality ("Municipality") had
advertised a permanent post of its Chief Financial Officer
("CFO").
The Selection Panel was composed by the Municipality Council in line
with the application legal compliance guidelines.
The applicant and
the eighth respondents were some of the candidates who applied for
the said post of the CFO; and they were both
shortlisted for
interviews by the Selection Panel. At the interview stage of the
process, the applicant was found to be suitable
for appointment by
the highest score of 86%. He was followed by the eighth respondent
who was also found to be suitable for appointment
by a score of 69%,
which was 17% below the score of the applicant. The next candidates
who obtained third position with 45% was
the ninth respondent. These
were the only three candidates who were found to be suitable for
appointment to the position of the
CFO. The other candidate who got
44% was one Mr TD Tshikundu, and he was found not to be suitable for
appointment.
[16]
The next stage of the process was the competency test where both the
applicant and eight respondents were both found to be
competent for
appointment in the position of the CFO of the Municipality. Mr LT
Nephawe, the ninth respondent, was found not to
be competent.
[17]
The purpose of the competence test was explained by the body which
conducted the said tests on behalf of the Municipality in
the
following terms:
"This assessment only relates
to the leading and core competencies required for the effective
performance of a senior manager
as outlined in Notice 583 of
Government Gazette 37245, 17 January 2014: Annexure 8 of "Local
Government: Municipal Systems
Act (32/2000): Local Government:
Regulations on appointment and conditions of employment of senior
managers" ("Competency
Framework'). It does not reflect the
functional competencies required for specific roles within the
Department. The implementation
of assessment results as contained in
this report must be implemented by the requirements of the Directive
on the use of competency-based
assessment for the Senior Manager
within the Municipality.
Please note that these results may
not be used for any other purposes unless the assessee consents
thereto."
[18]
It is further common cause that the eighth respondent had scored more
marks or points than the applicant in the competence
test stage of
the process though they were both found to be competent. The eighth
respondent holds a Masters' Degree in Business
Management which is an
NQF 8 academic qualification which is a requirement where a
Municipality has an annual budget of over R1
billion. This is the
case with Makhado Local Municipality. The applicant on the other hand
does not have the NQF 8 academic qualification.
[19]
It is further common cause that the applicant has been acting in the
position of the CFO at Makhado Local Municipality for
the period from
1 May 2018 to 31 October 2018 as well as from 1 November 2020 to date
of filing of the papers on September 2023;
and during that period the
Municipality obtained unqualified audits for 3 successive years as of
September 2023. The court does
knowledge of the state of the
applicant after the filing of the court papers. The insinuation by
the applicant is that he had brought
financial stability to the
Municipality whereas the eighth respondent has been occupying the
post of the CFO at Vhembe District
Municipality and that Municipality
never obtained an unqualified audit during her tenure of several
years.
[20]
The seventh respondent informed the Municipality that the position of
CFO must be a 5-yesr contract
one, as opposed to making it a
permanent one. This issue is now moot as it is common cause that by
operation of the law, the position
of the CFO is now a permanent one
in the Republic of South Africa.
[21]
After completing the selection process, the Selection Panel
recommended the applicant as the
suitable person for appointment as
the CFO of the Municipality. The said Selection Panel forwarded its
recommendation dated 12
May 2023 to the Council of the Municipality
and / or necessary structure(s) thereof
(See: letter of
recommendation dated 12 May 2023, at page 78 of Bundle 1).
[22]
The Selection Panel never said it was recommending both the applicant
and the eighth respondent.
The said panel was unequivocally clear
that the applicant is the most suitable candidate for appointment.
The only condition in
which the eighth respondent could be considered
it only in the event of the applicant the applicant could decline the
appointment.
It is common cause that this fact of the applicant
declining the recommendation has never occurred. Therefore, there
were no sound
or reasonable grounds for the Council of the
Municipality to bypass the applicant and appoint the eighth
respondent.
[23]
The ninth respondent was found not to be appointable after failing
the competency assessment
test and also performing poorly in the oral
I written interview in person. The proper context of the competency
assessment was
not to disqualify a candidate who otherwise passed all
earlier phases of the selection process. The context indicates that
the
competency assessment was actually intended to confirm the
competency of the suitable candidate, as opposed to excluding him or
her from the process or to create a super stand-alone stage of the
process.
[24]
On 30 August 2023, the Council of the Municipality took a decision in
terms of Item A.94.30.08.23
of the 175
th
Special Council
Meeting of Makhado Local Municipality for appointing Ms M
Thangavhuelelo (eighth respondent) as the Chief Financial
Officer of
Makhado Local Municipality. No reasons were furnished as to why the
recommendations of the Selection Panel are being
disregarded. These
are the material common cause factors.
[25]
The records filed by the respondents in terms of rule 53 (1) of the
uniform rules of this court
reveal that the Council appointed Ms M
Thangavhuelelo,
"who is a female candidate."
It is
not clear if the fact that the eighth respondent is a female
candidate has played a role or not in influencing the decision
of the
Council other than to simply mention in her gender; which is a matter
of common cause fact. It is further not clear if the
inclusion of the
words
"a female candidate"
was a repetition of the
description appearing in letter of recommendations from the Selection
Panel dated 12 May 2023 in which
genders of the three candidates,
(being applicant, eighth respondent and ninth respondent) were
mentioned on the right side of
their achievement results. This court
will not engage in a speculative process; and will accordingly not
take this issue further.
[26]
The record of the minutes of the Council meeting of 30 August 2023 do
not show any deliberations
by Council members on the need to appoint
a female candidate. The advertisement of the post did not mention
that it was seeking
a female candidate. The mentioning of the gender
of the candidate who is being appointed in total disregard of the
Selection Panel's
decision which had knowledge of the gender of all
the candidates and / or their respective scores on both the oral
interview and
the competency process is prejudicial to the applicant
and goes to the extent of acting arbitrarily on the part of the
Council
in disregard of the Municipal Systems Act and the
Constitution of the Republic of South Africa. It shows an inclination
on the
part of the Council of the Municipality to take a decision
they wish without observing principles of the law and fairness to the
parties as well as fairness of the process itself. It borders on
acting
ultra vires
simply because power to appoint a CFO has
been bestowed on Council.
[27]
The respondents' counsel submitted further that the fact that the
applicant was overlooked is
that he did not possess an NQF 8
qualification which is the equivalent of a masters' degree.
Applicant's counsel referred the court
to Regulations 15 and 16, as
amended by Regulations 10 and 11 of published in the Government
Gazette No 41996 of 26 October 2018,
of the Public Finance Management
Act which provides that the attainment of competency level within
time frame of 18 months must
be included in the performance agreement
for the employment of such an employee. Counsel of the respondents
submitted that the
amendment of the Regulation does not extend to
allow the grace period of 18 months to remedy the lack of NQF 8
qualification, but
could not provide authority to support his views.
I disagree with counsel of the respondents in this regard. The
original Regulations
were published in the Government Gazette No
29967 published on 15 June 2007; and amended by the one of 26 October
2018 as stated
above.
[28]
This court is of the view that the fact that the applicant did not
possess the NQF 8 academic
qualification is not a sound ground to
disregard the recommendations of the Selection Panel. If that was so,
then the Council should
have spelt it out on 30 August 2023 in the
minutes of the said meeting when the decision was taken. The
applicant still the window
period of 18 months from the date of his
appointment to acquire such a qualification.
[29]
The competency assessment stage is not a stand-alone criterion which
has the capacity to over-rule
the results of the previous stages like
shortlisting, oral or written (in person) interview in which the
applicant had excelled
by far. It is part of a broader process. The
competency assessment is intended to gave the competence of a
candidates who have
passed the interview stage and found to be
suitable for appointment. It is not intended to eliminate a candidate
who was found
to be suitable in the oral / written in person
interview such as the applicant in this case. The approach might have
been different
if that candidate was found to be not competent; which
is not the case in
casu
.
[30]
In my view, the applicant's application must succeed. Costs will
follow will follow the outcome
of the main application for review in
Part B; and such costs will include costs of two counsel where two
counsel were employed.
[31]
In the premises, I make the following order:
1.
That condonation for the late filing of answering affidavit by the
first, second,
third, fourth, fifth and sixth respondents is granted.
2.
That point in
limine
raised by the first, second, third,
fourth, fifth and sixth respondents on the court's lack of
jurisdiction to hear the review
application in Part B of the
application herein is dismissed.
3.
That the resolution of the Council of Makhado Local Municipality
(second respondent)
dated 30 August 2023 more particularly Item
A.94.30.08.23 of the 175
th
Special Council Meeting of
Makhado Local Municipality of appointing Ms M Thangavhuelelo (eighth
respondent) as the Chief Financial
Officer of Makhado Local
Municipality (first respondent) in disregard of the selection panel's
recommendations dated 12 May 2023
and not appointing Mr Ndiambani
Godfrey Raliphada (the applicant") as the Chief Financial
Officer of Makhado Local Municipality
as recommended is:
3.1.
declared to be unlawful, unreasonable, and procedurally unfair and in
contravention of Municipal
Systems Act 32 of 2000 and Constitution of
the Republic of South Africa,
3.2.
reviewed and set aside.
4.
That the first, second, third, fourth, fifth and sixth respondents
are ordered
to pay costs of the application on party and party scale
jointly and severally with the one paying the other to be absolved,
and
such costs must include costs of two counsel where two counsel
were employed.
MS
SIKHWARI
ACTING
JUDGE OF THE HIGH
COURT
OF SOUTH AFRICA,
LIMPOPO
DVISION, POLOKWANE
APPEARANCES:
For Applicant:
Adv J Roux SC
Instructed by:
Nemakonde M Inc Attorneys
For 1-6 Respondents:
Adv T Ngcukaitobi SC
Adv R Nelwamondo
Instructed by:
Makhuvha EM Attorneys
Date of Hearing:
1 December 2023
Date of Judgment:
6 February 2024