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[2024] ZAFSHC 303
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Head of Department: Free State Provincial Treasury v Member of the Executive Council for Finance (MEC): Free State Provincial Government and Others (990/2024) [2024] ZAFSHC 303 (3 October 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
FREE STATE DIVISION,
BLOEMFONTEIN
Reportable Yes/No
Case No:
990/2024
In
the matter between:
HEAD
OF DEPARTMENT: FREE STATE PROVINCIAL
TREASURY
Applicant
and
MEMBER
OF THE EXECUTIVE COUNCIL
FOR
FINANCE (MEC): FREE STATE
PROVINCIAL
GOVERNMENT
First
Respondent
PUBLIC
SERVICE COMMISSION (PSC)
Second
Respondent
PREMIER
OF THE FREE STATE
Third
Respondent
CORAM:
Hefer AJ
Heard
:
29 August 2024
Delivered:
03 October 2024
Summary:
ORDER
1.
The Applicant is granted leave to appeal
against the whole of the judgment and order dated
19
March 2024
to the Supreme Court of
Appeal.
2.
The costs of the application for leave to
appeal are costs in the appeal.
JUDGMENT
Hefer AJ
[1] The main
grounds relied upon in this application for leave to appeal against
an order in terms of which I dismissed an
urgent application for an
interim interdict, pending a review application which the applicant
intends to bring, relates principally
to ten aspects of the judgment
and order, being:
(i)
the Court’s finding that the pending
review and the anticipated disciplinary hearing against the applicant
constitutes an
alternative remedy;
(ii)
the
Court’s finding by following
Ithala
SOC Ltd v South African Reserve Bank Prudential Authority and
Others
[1]
(
Ithala
),
a judgment by a lower court, that the review constitutes a suitable
remedy under the circumstances wherein the Constitutional
Court on
more than one occasion followed a different approach;
(iii)
the Court’s failure to take into
consideration the second part of the recommendations which related to
the first respondent,
namely that the post must be re-advertised and
filled in accordance with prescribed requirements for filling all
vacancies in the
public service;
(iv)
the Court’s failure to appreciate the
applicant’s case involved rights guaranteed in the Bill of
Rights especially ss
33(1) and 10 of the Constitution;
(v)
the Court’s failure to consider the
applicant’s prospect of success of the review;
(vi)
the Court’s finding that the first
and third respondents are under no obligation to accept any of the
recommendations of the
second respondent, under the circumstances
wherein the evidence before the Court showed that the first and
second respondents not
only accepted the recommendations of the
second respondent, but they are already implementing them;
(vii)
the Court’s finding that the
applicant has not satisfied the alternative remedy and irreparable
harm requisites;
(viii)
the Court’s finding that the interim
relief sought by the applicant will not have the effect that the
applicant is trying
to achieve;
(ix)
the Court’s finding that the role of
the first respondent was only limited to declare the process to fill
the post of Director:
Fiscal Policy, a flawed process and regard it
as null and void; and
(x)
the Court’s finding on costs.
The Court’s
finding that the review and the anticipated disciplinary hearing
constitutes alternative remedy and failure to
consider prospect of
success on review:
[2]
Mr Molotsi, appearing for the applicant, referred me, as far as the
alternative remedy requisite is concerned, to the
matter of
Economic
Freedom Fighters v Gordhan and Others: Public Protector and Another v
Gordhan and Others
[2]
(
EFF-matter
),
where the Constitutional Court had the following to say about an
interim interdict:
‘
Turning
to the present matter, it should be borne in mind that both
applicants seek urgently to appeal an interim interdict, which
is
purely interlocutory in nature. An interim interdict is a
temporary order that aims to protect the rights of an Applicant,
pending the outcome of a main application or action. It attempts to
preserve or restore the
status
quo
until a final decision relating to the rights of the parties can be
made by the review court in the main application.’
[3]
[3] In my judgment
I have dealt with the facts pertaining to the
EFF-matter
and
indicated to what extent they are distinguishable from the present
matter. In particular, unfortunately for the applicant,
the
declaration by the first respondent to the effect that the process is
already held to be flawed, may have already affected
the reputation
and integrity of the applicant. That is in the past and will
continue until the report by the second respondent
had been set aside
on review. Even if the interim relief was granted, as sought by the
applicant, it would not have had the effect
which the applicant was
trying to achieve and motivated for by the applicant herself. The
implementation of the recommendations
pertaining to the first
respondent will not do away with how the reputation and integrity of
the applicant has been affected through
the report of the second
respondent up to date. As stated, the first respondent has already
declared the process to fill the post
of Director: Fiscal Policy to
be flawed and it has already been declared null and void.
[4] I fail to see
how the further implementation by the first respondent regarding the
re-advertisement of the post will affect
the applicant, as argued by
Mr Molotsi.
[5] The further
recommendations pertaining to the first respondent, as contained in
the report by the second respondent, are
to the effect that the first
respondent must subject a certain Mr Mabilo to disciplinary action
for allowing the Applicant to ‘unlawfully
interfere with and
intercept a recruitment and selection process. . .’
Furthermore, the first respondent is to subject a
certain Mr Mokotso
to disciplinary action for failing to advise the selection committee
against accepting and implementing advice
which was procedurally
flawed and irregularly given by the said Mr Mabilo to the first
respondent. In those respects, the further
implementation of the
recommendations pertaining to the first respondent might however
affect the rights of the Applicant.
[6]
Mr Molotsi again referred me to the matter of
National
Treasury v Opposition to Urban Tolling Alliance
[4]
in which the Constitutional Court held:
‘
It
seems to me that it is unnecessary to fashion a new test for the
grant of an interim interdict. The Setlogelo test, as adapted
by case
law, continues to be a handy and ready guide to the bench and
practitioners alike in the grant of interdicts in busy Magistrate’s
Courts and High Courts. However, now the test must be applied
cognisant of the normative schemes and democratic principles that
underpin our Constitution. This means that when a Court considers
whether to grant an interim interdict it must do so in a way
that
promotes the objects, spirit and purport of the Constitution.
Two ready examples come
to mind. If the right asserted in a claim for an interim interdict is
sourced from the Constitution it would
be redundant to enquire
whether that right exists. Similarly, when a Court weighs up where
the balance of convenience rests, it
may not fail to consider the
probable impact of the restraining order on the constitutional and
statutory powers and duties of
the state functionary or organ of
state against which the interim order is sought.
However,
one of the important considerations would be whether the harm
apprehended by the claimant amounts to a breach of one or
more
fundamental rights warranted by the Bill of Rights.’
[5]
[7] With reference
to the fact that the test must be applied cognisant of the normative
scheme and democratic principles that
underpin the Constitution, Mr
Molotsi is correct in his contention that the interim interdict that
the applicant sought to attain
was aimed at protecting her rights,
especially her constitutional rights in respect of ss 33(1) and
Section 10. Particularly s
33(1) of the Constitution on account of
the fact that the report by the second respondent constitutes an
administrative action
(exercise of statutory power) in terms of s
196(4) of the Constitution and s 10 of the Public Service Commissions
Act 46 of 1997.
[8]
Mr Molotsi is also correct in his contention that the applicant was,
and remains, entitled to a procedurally fair administrative
action in
terms of the Constitution. In this regard he is also correct where he
submitted that the Court
a
quo
was bound to consider the applicant’s prospects of success in
the review. Unlike in the
EFF
-
matter
,
however, I was and still am not in a position, ‘to peek into
the grounds of review raised in the main review application
and
assess their strength.’
[6]
For purposes of the present application, I am however, of the view
that the applicant should have the benefit of the doubt and
it should
be accepted, at least
prima
facie
,
that she has a good prospect of success in the review application she
proposes to launch.
[9] Related to the
applicant’s constitutional rights referred to, regard is also
to be had to the requirement of irreparable
harm. As indicated, the
remaining recommendations contained in the report by the second
respondent, relate to the disciplinary
actions to be taken by the
first respondent (the only respondent against whom the interim relief
is sought), against
other
persons and not the applicant
herself. Such disciplinary actions may however have an impact on the
rights of the applicant and
she may suffer irreparable harm.
[10]
Section 17(1)
of the
Superior Courts Act 10 of 2013
, and the related authorities thereto,
provide that leave to appeal may only be given where the judge or
judges concerned are of
the opinion that:
(i)
the appeal would have reasonable prospects
of success; or
(ii)
there is some other compelling reason why
the appeal should be heard, including conflicting in judgments on the
matter under consideration.
[11]
It is also now trite that the proverbial ‘bar has been raised’
and that ‘an applicant for leave to appeal
must convince the
court on proper grounds that there is a reasonable prospect or
realistic chance of success on appeal’.
[7]
[12]
Mr Molotsi argued that the applicant’s case raised important
constitutional issues. This relates to ss 33(1), 10, 23
and 22 of the
Constitution. As stated in
Pikoli
v President
,
[8]
where constitutional rights are violated, the Courts and the public
have an interest to vindicate the Constitution.
[9]
[13]
Mr Molotsi further argued that the Supreme Court of Appeal needs to
resolve the uncertainty regarding the fact whether a pending
review
constitutes an alternative remedy for the purposes of the requisites
of an interim interdict. In this regard he referred
to the fact
that, as far as the alternative remedy requisite is concerned, I
relied to a large extent on
Ithala
[10]
and to a lesser extent on the judgment of
National
Treasury and Another v Kuhakeli.
[11]
[14] Therefore, both on
the grounds of prospect of success in the appeal as well as the
compelling reason requisite, I am satisfied
that applicant should be
granted leave to appeal to the Supreme Court of Appeal. There is no
reason why the usual order as to costs
is not to be granted.
Order
The following order is
granted:
1.
The Applicant is granted leave to appeal
against the whole of the judgment and order dated
19
March 2024
to the Supreme Court of
Appeal.
2.
The costs of the application for leave to
appeal are costs in the appeal.
J J F HEFER, AJ
Appearances:
On
behalf of the Applicant:
Adv
H Molotsi SC
Instructed
by: Rampai Attorneys
Bloemfontein
On
behalf of the First and Third Respondents:
Adv
Baloyi-Mere SC
Assisted
by: Adv Thembi Ntoane
Instructed
by: State Attorney
Bloemfontein
On
behalf of the Second Respondent:
Adv
C Snyman
Instructed
by: Phatshaone Henney Attorneys
Bloemfontein
[1]
Ithala
SOC Limited v South African Reserve Bank and Others
[2022] ZAGPPHC 784.
[2]
Economic
Freedom Fighters v Gordhan and Others: Public Protector and Another
v Gordhan and Others
2020 ZACC 10; 2020 (8) BCLR 916 (CC).
[3]
Ibid para 47.
[4]
National
Treasury v Opposition to Urban Tolling Alliance
[2012]
ZACC 18;
2012 (11) BCLR 1148 (CC).
[5]
Ibid para 45-47.
[6]
Footnote 2 para 42.
[7]
MEC
Health, Eastern Cape v Mkhitha and Another
[2016] ZASCA 176
, para 17.
[8]
Pikoli
v President
and
Others
[2009] ZAGPPHC 99; 2010 (1) SA 400 (GNP).
[9]
Ibid. See also
Tswelopele
Non-Profit Organisation and Others v City of Tshwane Metropolitan
Municipality and Others
[2007] ZASCA 70
;
2007 (6) SA 511
(SCA) paras 17, 27 and 28.
[10]
Footnote 1.
[11]
National
Treasury and Another v Kuhakeli
[2015] ZASCA 141
;
2016 (2) SA 507
(SCA).