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[2012] ZALAC 26
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Khumalo and Another v MEC for Education: Kwazulu-Natal (DA 3/2011) [2012] ZALAC 26; [2012] 12 BLLR 1232 (LAC); (2013) 34 ILJ 296 (LAC) (29 August 2012)
REPUBLIC OF SOUTH AFRICA
IN THE LABOUR APPEAL COURT OF SOUTH
AFRICA
(HELD AT DURBAN)
Reportable
Case Number: DA 3/2011
In
the matter between:
N L KHUMALO
..........................................................................................
First
Appellant
K RITCHIE
............................................................................................
Second
Appellant
versus
THE MEC FOR EDUCATION: KWA-ZULU
NATAL
.....................................
Respondent
Judgement delivered: 29 August 2012
HEADNOTE: Review – Delay in
instituting proceedings for review and its effect on invalid
appointments – Court having
a discretion to decide whether or
not to set aside invalid act – Factors to be taken into account
in the exercise of discretion
– tension between legality and
certainty – Application of the proportionality test.
CORAM: JAPPIE, JA et NDLOVU, JA et
ZONDI, aja
_________________________________________________________
__
________
JUDGMENT
ZONDI, AJA:
Introduction
[1] This is an appeal against the
judgment and order delivered by the Labour Court (Pillay, J) on 6
July 2010, in which the Court
a quo
declared unlawful,
unreasonable and accordingly invalid the promotion of the first
appellant to the post of the Chief Personnel
Officer at the eThekwini
Service Centre of the Department of Education Kwa-Zulu Natal (“the
department”) and the decision
to agree to grant the second
appellant protected promotion in respect of the post of Chief
Personnel Officer at the eThekwini Service
Centre (impugned
decisions). The Court
a quo
set aside the impugned decisions
and further directed the first respondent to take necessary steps to
fill the posts.
[2] In addition thereto the Court
a
quo
granted certain structural remedies.
The facts
[3] The issues presented in this
appeal fall to be determined in the context of the following factual
background.
[4] It is common cause that the first
appellant (Khumalo), the respondent’s employee, was promoted to
the position of Chief
Personnel Officer in April 2004. The second
appellant (Ritchie), also the respondent’s employee, had also
applied for the
same post as that to which Khumalo was promoted.
Ritchie was not shortlisted. He lodged a grievance before and after
the start
of the interviews against his non-shortlisting. When his
grievance failed he referred the dispute to the General Public
Servants
Sectoral Bargaining Council contending that he should have
been shortlisted and appointed because he met the requirements for
the
post.
[5] After an attempt to conciliate the
dispute between Ritchie and the department had failed, the matter was
referred to arbitration.
The department defended the matter. The MEC
alleges that at the time the documentation relating to Khumalo’s
interview and
appointment had gone missing and by reason thereof the
department could not formulate its defence. It then opted to settle
the
dispute by offering Ritchie a protected promotion to the post the
filling of which he was challenging. Ritchie accepted the offer
and
on 11 July 2005 a settlement agreement was concluded to that effect,
which agreement was made an award. The effect of Ritchie’s
settlement was that Khumalo was allowed to retain the post to which
he was promoted.
[6] The MEC was not aware that the
promotions of Khumalo and Ritchie were fraught with certain
irregularities until it was brought
to her attention in a complaint
lodged with her on 6 October 2005 by the National Union of Public
Service and Allied Workers (“NUPSAW
or the Union”),
acting on behalf of 11 of its members. The gist of the complaint was
as follows. Firstly, one official (Khumalo)
who was appointed to the
post of Chief Personnel Officer did not meet all the minimum
requirements for the post in that he did
not have 2 or more years’
supervisory experience at “
Salary Level 6 or 7
”.
He was on level 5. Secondly, another official (Ritchie) who raised a
grievance in respect of the matter and who was not
short-listed for
the post, was granted protected promotion with effect from July 2005.
[7] The Union together with the
complainants met the MEC and following the meeting a resolution was
taken to the effect that a task
team consisting of the departmental
officials and representatives of the Union would be established to
look into the complaints
and thereafter submit a report to the MEC.
This was done.
[8] The task team, in the report which
it presented to the MEC on 26 January 2006, concluded that in the
absence of supporting documentation
it had been difficult for it to
understand why Khumalo was promoted when he did not meet all the
minimum requirements of the post
concerned and why Ritchie had been
promoted in the absence of a prior shortlisting. It therefore found,
on the information presented
to it, that Khumalo could not be
appointed as he did not meet the requirements of Chief Personnel
Officer and the decision to appoint
him rendered “
the
process unfair, especially to potential applicants to whom the
advertised experience requirements proved to be a barrier and
therefore did not bother to apply
” and that as Ritchie had
not been shortlisted the conclusion of the settlement agreement
forming the basis of his promotion
had been irregular.
[9] The MEC accepted the task team’s
findings that Khumalo ought not to have been promoted to the post in
question as he did
not possess the requisite experience. She also
found the conclusion of the settlement agreement granting Ritchie
protected promotion
problematic as in her view the person who
concluded the agreement on behalf of the department had no authority
to do so. On the
basis of the task team’s findings the MEC
approached the court
a quo
on 17 October 2008 seeking
inter
alia
the setting aside of Khumalo and Ritchie’s promotions
on the ground that they were unlawful to the extent that they did not
meet the requirements of just administrative action as set out in
section 33 of the Constitution.
Proceedings in the Court
a
quo
[10] Khumalo opposed the MEC’s
application on various grounds and
also raised preliminary objections. He
contended, firstly, that the MEC was not entitled to approach the
court to set aside her
own administrative decisions and actions. He
argued that the MEC, as the person with ultimate responsibility in
the department,
should herself have done so. Secondly, that she was
not entitled to seek relief in the form of a declarator in the
absence of any
existing dispute between her and either of the
appellants. Khumalo contended that the grievants who lodged a
complaint with the
MEC about their non-appointment should, if they
felt aggrieved by his appointment, have pursued the matter through
the dispute
resolution mechanism provided for by the Labour Relations
Act which would have involved referring the matter to the General
Public
Servants Sectoral Bargaining Council (the Bargaining Council).
[11] Khumalo further averred that in
so far as Ritchie’s appointment was concerned, the matter had
become
res judicata
as the dispute between the MEC and Ritchie
was finalised in terms of the settlement agreement dated 11 July
2005, which was made
an award of the Bargaining Council.
[12] Khumalo also contended that the
MEC should be non-suited in this matter because of unreasonable delay
in bringing the proceedings.
He alleged that the MEC’s right to
bring the application for the setting aside of this appointment had
become prescribed.
To substantiate his allegation he pointed out that
he was appointed in April 2004, and the review proceedings were only
brought
on 17 October 2008 over four years later. The MEC could not
provide any explanation for the delay. Therefore, her right to
institute
the review proceedings for the setting aside of his
appointment had become prescribed.
[13] With regard to the merits of the
application Khumalo denied that he had not met the requirements for
the advertised post. He
alleged that the advertised requirements
were:
“
A senior
certificate/ grade 12 plus extensive relevant, coupled with two or
more years of supervisory experience at levels 6 or
7 within human
resources.”
He contended that he met these
requirements.
[14] He pointed out that his CV, which
was part of the material before the selection panel, indicated that
he had grade 12 qualification
and extensive relevant experience
within human resources. He alleged that although at the time of the
interview he was on level
5 he had, however, been performing the
functions which related to level 6 and 7 posts.
[15] In support of his claim that he
was properly promoted, Khumalo referred to the evidence of Dr
Hlatshwayo before the task team.
Dr Hlatshwayo was on a selection
panel which interviewed and shortlisted Khumalo when he applied for
the position the propriety
of which is now disputed. Dr Hlatshwayo
told the task team that in terms of scores Khumalo was the second
best candidate and was
selected after a lady who scored the highest
points became unavailable for the post.
[16] Ritchie also opposed the review
application and in doing so he mainly associated himself with the
allegations made by Khumalo.
In particular, he denied that his
appointment was irregular. He contended that the department’s
representatives who settled
the dispute with him in terms of the
settlement agreement had authority to do so.
[17] It was also contended by the
appellants that the MEC was not entitled to seek the relief that she
did. They rejected the MEC’s
contention that she could not
herself set aside the impugned decisions on the ground that she was
functus officio
in relation thereto.
[18] The court
a quo
dismissed
the appellants’ defences and granted an order,
inter alia
,
declaring that the promotion of Khumalo to the post of the Chief
Personnel Officer and the decision to agree to grant Ritchie
protected promotion “
was not lawful, reasonable or fair and
was accordingly invalid
”. It set aside the promotion of
Khumalo and the grant to Ritchie of protected promotion and directed
the MEC to re-advertise
the post in question. The appellants’
appeal is against these findings and orders of the Court
a quo
.
The Appeal
[19] It was submitted on behalf of the
appellants that the Court
a quo
erred in the decision it made.
It was argued that the application ought to have been dismissed due
to the MEC’s inordinate
delay in bringing it and further that
the Court
a quo
should have found that any cause of action
which the MEC had, had become prescribed. A person in the MEC’s
position, it was
argued, is not entitled to approach the Court to
rubber stamp the employer’s wish that an appointment should be
set aside.
If others were aggrieved by the promotions, the appellants
further argued, they should have challenged them before the
appropriate
tribunal. The MEC should have herself set aside the
appointments if she considered them invalid and for this proposition
reliance
was placed on
SADTU and Others v Head of Northern
Province Department of Education
[2001] (7) BLLR 829
[LC];
Duda
v MEC for Gauteng Department of Education and Others
[2001] (9)
BLLR 1051
[LC];
North West Department of Education v Neswiswi and
Others
[2004] (8) BLLR 792
[LC].
[20] The appellants’ reliance on
these cases is, in my view, misplaced and they do not provide support
for the contention
which they seek to advance. In
Sadtu
supra
the individual applicants were appointed as principals at five
different schools. The Department of Education subsequently withdrew
their letters of appointment. The applicants declared a dispute,
which was referred to arbitration. The arbitration found that
the
withdrawal of the applicants’ letters of appointment was unfair
and ordered the department to reinstate the applicants.
The
department’s application for review of the award was dismissed.
The propriety of the department’s decision to withdraw
the
applicants’ letters of appointment was not considered by the
Court as the department accepted the arbitrator’s
decision that
its decision to withdraw the applicants from their posts was unfair
(at para 4). Similarly in
Neswiswi
,
supra
the propriety
of the Northwest Department of Education’s decision to withdraw
the individual teachers’ permanent status
was not considered.
The department’s application, in which it sought the setting
aside of the award in favour of the teachers,
was dismissed due to
its lateness.
[21] Finally, the appellants also
rejected the suggestion by the MEC that the person who had concluded
the settlement agreement
with second appellant was not authorised to
do so. They argued that once the matter was settled by the agreement
the dispute was
resolved and the matter became
res judicata.
They submitted that there was no basis to challenge the settlement
agreement and resultant award. In any event, so they argued,
the
procedure to follow would be to review the award.
[22] On the other hand Mr
Soni SC
,
who appeared for the MEC, submitted that in the absence of a
reasonable explanation from the decision makers, Khumalo’s
promotion was not lawful because he did not fulfil one of the
requirements as advertised. He argued that the agreement to grant
Ritchie protected promotion was only made because the Department did
not have evidence to gainsay the allegation that Khumalo’s
promotion was irregular. The protected promotion was unlawful,
invalid and irregular. He submitted that Ritchie was not entitled
to
protected promotion because he was not shortlisted. It was for
Khumalo to place evidence before the Court
a quo
that his
appointment had complied with section 33 of the Constitution.
[23] In response to the appellants’
claim that the MEC’s right to bring the review had become
prescribed and thus could
not be enforced, Mr
Soni
argued that
the Prescription Act does not apply. He submitted that the
Prescription Act applies only to debts. This is not a debt
as
contemplated by the Prescription Act. He rejected the suggestion by
the appellants that the aggrieved members of NUPSAW should
have
approached the tribunals provided for in the Labour Relations Act. He
argued that the MEC was
functus officio
and could not set
aside the appointments herself. She had to approach the Court for the
setting aside of the appointments. He further
argued that
res
judicata
does not apply to the settlement agreement with Ritchie
because it was in conflict with the Constitution. He submitted that
the
prejudice which the appellants will suffer if their promotions
are set aside affords no basis for denying the MEC the relief she
seeks. He argued that the question of prejudice must be determined by
using the proportionality test. He further argued that the
fact that
the appellants may be innocent provides no basis for the contention
that their appointments may not be set aside.
[24] Mr
Soni
submitted that the
fact that the MEC’s delay in bringing a review application has
caused the appellants prejudice is not necessarily
a bar to the grant
of substantive relief. He argued that what is required is the
application of the proportionality test which
will involve the
weighing up of the prejudice to the department and the public
interest if the appellants’ promotions were
to be allowed to
stand against the prejudice to the appellant if their promotions were
to be set aside. He submitted that the principle
of legality and the
public interest would require that the appellants’ promotions
be set aside.
[25] In argument before us Mr
Seggie
SC,
who appeared with Mr
Blomkamp
for the appellants,
confined his attack on the judgment of the Court
a quo
mainly
to two grounds. First, he submitted that the factual issues do not
support the judgment and, secondly, that the delay by
the MEC in
bringing the application for the setting aside of the impugned
decisions is fatal to the MEC’s case.
[26] He pointed out that if the Court
agreed with him on the first point and found that the Court
a
quo’s
findings were factually incorrect then there is no
need to consider the second point.
[27] The thrust of Mr
Seggie’s
argument is that the Court
a quo’s
finding that the
appointments of Khumalo and Ritchie were invalid and unlawful was
based on issues which were factually incorrect.
His argument was that
had the court
a quo
properly analysed the evidence before it,
it would have found that the appointments of Khumalo and Ritchie were
impeccable.
[28] In an attempt to convince us to
find that the Court
a quo’s
findings were based on
incorrect facts Mr
Seggie
analysed the judgment and the
evidence underpinning it. He submitted that it was factually
incorrect to state, as the Court
a quo
did, that “
Khumalo
was promoted to the position... without meeting the minimum
requirements”
. He argued that what the Court
a quo
stated as a fact was in fact what it was required to decide.
[29] He attacked the correctness of
the Court
a quo
’s finding that “
although
Khumalo had acted in a supervisory position, he did so when he held a
level 5 post, not a level 6 or 7 post
”. Mr
Seggie
submitted that the advertisement is open to the interpretation that
one is eligible provided that one has acted at the level required,
even though one’s substantive rank may be lower than that. He
argued that there was no reason to exclude for consideration
a
candidate who has the relevant experience. In this regard he referred
to Mlangeni’s evidence which confirmed that Khumalo
had a
supervisory experience at level 6 or 7 post. Mlangeni’s
evidence was that Khumalo “
was appointed as a senior
personal officer, no matter of the level, whether he was level 5 or
6... he would have qualified...
”.
[30] As regards Ritchie, Mr
Seggie
submitted that the Court
a quo
erred in finding that Ritchie
had misled the MEC by not disclosing that he had not been
shortlisted. He argued that this finding
was not borne out by the
evidence. He argued that Mr Zulu who represented the department at
the arbitration hearing was under no
illusions as to the nature of
Ritchie’s complaint. His complaint was about his
non-shortlisting.
[31] I have given anxious and serious
consideration to the individual points of criticism raised against
the Court
a quo’s
treatment of the factual evidence and
its cumulative effect on the judgment. While I agree that the
judgment of the Court
a quo
is replete with incorrect factual
statements which to a certain extent formed the basis of some of its
findings, I am, however,
not of the view that its findings which
resulted from incorrect factual statements related to the main issue
which was before it
for consideration, namely whether the appellants’
appointments were validly made and, if not, whether for that reason
they
had to be set aside.
[32] The question whether or not the
appointments of the appellants were validly made should be answered
by reference to what the
post for which they applied required and
whether the appellants met those requirements.
[33] The post for which the appellants
applied is Chief Personnel Officer at the Department’s
eThekwini’s Regional Office.
The requirements for the post were
that the candidate had to “
possess a senior certificate/
Grade 12 plus extensive relevant experience, coupled with 2 or more
years of supervisory experience
at level 6 or 7 within human
resources
”. The Newspaper in which the post was advertised
also sets out what the core functions and recommendations for the
post were.
[34] Mr
Seggie
submitted that
the advertisement is open to the interpretation that one is eligible
provided that one has acted at the level required,
even though one’s
substantive rank may be lower than that and on the basis of this
construction, Khumalo, so he argued, met
the requirements. He argued
that Khumalo was the best in terms of scores and had supervisory
experience.
[35] Khumalo alleged in his answering
affidavit that he had a senior certificate and extensive relevant
experience within human
resources. He further alleged that he also
had more than 2 years of supervisory experience at levels 6 or 7,
within human resources.
He, however, pointed out that although he was
on salary level 5 at the time that he had that supervisory
experience, he was performing
the functions that pertained to level 6
and 7 posts.
[36] I reject Mr
Seggie’s
contention that the advertisement is open to the interpretation which
he contended for. In my view the language used in the advertisement
is clear and unambiguous and that, being so, effect must be given to
it. A candidate must have a senior certificate and two years’
supervisory experience and which is at level 6 or 7. Khumalo did not
have supervisory experience at level 6 or 7. He had it at
level 5 and
therefore did not meet the post requirements.
[37] As regards Ritchie’s
appointment, it is common cause that he was not shortlisted for the
post. He filed a grievance regarding
his non-shortlisting. He
obtained promotion through a settlement agreement he concluded with
the department to resolve the dispute
he had referred to the
Bargaining Council for arbitration. The case which the department was
called upon to meet was the fairness
of Ritchie’s
non-shortlisting. In other words, the issue was whether Ritchie’s
non-shortlisting was fair. If it was
fair then the department’s
failure to shortlist him could not have constituted an unfair labour
practice. On the other hand,
if the department was of the view that
Ritchie should have been shortlisted or if it did not have evidence
to support its case
it should have shortlisted him. It was not open
to the department to grant relief which he never sought. The
department’s
decision to grant him protected promotion in
circumstances where there was no evidence to support it was unlawful
and undermined
the spirit of transparency and accountability which is
the cornerstone of the rule of law.
[38] In support of the contention that
he should have been shortlisted Ritchie told the task team that he
was the most senior person.
He was already on salary level 7 and also
acted as Chief Personnel Officer, salary level 8. The task team
rejected Ritchie’s
evidence that he had acted as a Chief
Personnel Officer. It found that he acted on another equivalent post.
The finding of the
task team was not challenged.
[39] The task team found both
appointments to have been irregular. In my view this finding by the
task team was justified in light
of the fact that neither Khumalo nor
Ritchie had met the requirements for the post for which they applied.
In the circumstances
the Court
a quo’s
finding that
these appointments were unlawful was correct.
[40] The next question is whether the
Court
a quo
was correct in setting aside Khumalo and Ritchie’s
appointments.
[41] There is no doubt that the MEC
was not only entitled but also duty-bound to approach a Court to set
aside her own irregular
administrative act (
Municipality Manager:
Qaukeni Local Municipality and Another v FV General Trading CC
2010
(1) SA 356
(SCA) at para [23] and authorities cited therein). This is
so because it is a fundamental principle of the rule of law that the
exercise of public power is only legitimate where lawful.
[42] But the fact that an
administrative act is unlawful does not necessarily follow that it
had to be set aside. In reviewing and
considering whether to set
aside an administrative action, Courts are imbued with a discretion
and may in the exercise thereof
refuse to order the setting aside of
an administrative action, notwithstanding substantive grounds being
present for doing so (
Oudekraal Estates (Pty) Ltd v City of Cape
Town and Others
2010
(1) SA 333
(SCA) at para 33) (
Oudekraal
2). Sections 172 (1) (b) of the Constitution and 8 of PAJA are
statutory provisions providing the source of the Courts’
discretion.
In terms of section 172 (1) (b) of the Constitution a
Court, when deciding a constitutional matter within its powers, may
make
any order that is just and equitable, including an order
suspending the declaration of invalidity for any period. Similarly,
under
section 8 (1) of PAJA the Court in proceedings for judicial
review in terms of section 6 (1), may grant any order that is just
and equitable (
Bengwenyama Minerals (Pty) Ltd and Others v Genorah
Resources (Pty) Ltd and Others
2011 (4) SA 113
(CC) at para 82;
Oudekraal Estates (Pty) Ltd v City of Cape Town and Others
2004 (6) SA 222
(SCA) (
Oudekraal 1
);
Chairperson, Standing
Tender Committee and Others v JFE Sapela Electronics (Pty) Ltd and
Others
2008 (2) SA 638
(SCA) at para 28).
[43] The Court made it clear in
Sapela
supra that in deciding whether or not to exercise its discretion
against the grant of the substantive relief it will have regard
to
the failure by the aggrieved party to institute review proceedings
within a reasonable time and whether there is a public interest
element in the finality of administrative decisions and the exercise
of administrative functions. It will also be guided by considerations
of pragmatism and practicality. The Constitutional Court in
Bengwenyama Minerals (Pty) Ltd
supra at para 84 pointed out,
however, that when making the choice of a just and equitable remedy
in terms of PAJA it would be
important to emphasise the fundamental
constitutional importance of the principle of legality, which
requires invalid administrative
action to be declared unlawful. This
would ensure that the discretionary choice of a further just and
equitable remedy follows
upon that fundamental finding and would not
precede the finding of invalidity.
[44] In setting out the approach to be
followed in determining a just and equitable remedy following upon a
declaration of unlawful
administrative action the Court held at para
85:
“
The rule
of law must never be relinquished, but the circumstances of each case
must be examined in order to determine whether factual
certainty
requires some amelioration of legality and, if so, to what extent.
The approach taken will depend on the kind of challenge
presented –
direct or collateral; the interest involved, and the extent or
materiality of the breach of the constitutional
right to just
administrative action in each particular case”.
[45] The question is whether the Court
a quo’s
decision to set aside the appellant’s
promotions was correct notwithstanding its finding that the MEC had
delayed inordinately
and without reasonable explanation in lodging
the application for the setting aside of the appellants’
promotions and having
regard to the fact that the appellants have
planned their careers on the basis of an assumption that their
appointments were valid.
[46] Mr
Blomkamp
criticised the
manner in which the Court
a quo
considered the question
whether or not the appellants’ promotions had to be set aside.
He submitted that the Court
a quo
did not appear to have
appreciated that it had a discretion and that it was entitled to
refuse the setting aside of the impugned
decisions notwithstanding
substantive grounds being present for doing so. He argued that the
fact that there was a delay in bringing
the application for the
setting aside of the impugned decisions was the factor which the
Court
a quo
ought to have taken into account in the exercise
of its discretion to refuse the setting aside. He emphasised that the
problem
with the approach of the Court
a quo
is that it
fixated on what it saw as the illegality of this administrative
action and gave no proper consideration to the interests
of finality,
pragmatism and practicality.
[47] I agree with Mr
Blomkamp’s
submission that the Court
a quo
was wrong; firstly, in
approaching the matter on the basis that it did not have a discretion
to refuse the setting aside of the
impugned decisions. It appeared to
have adopted the view that once it was found that the impugned
decisions are unlawful they have
to be set aside. Secondly, the Court
a quo
does not appear to have given a proper consideration to
the legal effect of the MEC’s delay in bringing the review
application
on the impugned decisions.
[48] In para 13 of the judgment the
Court
a quo
says:
“
Admittedly,
the MEC has delayed inordinately in lodging this application for
which she has no explanation. However, applying a proportionality
test, the benefit to the department and the public interest must be
weighed against he prejudice to Khumalo and Ritchie. Conversely,
the
harm that will ensue if the decision is allowed to stand must be
weighed against the benefit to Khumalo and Ritchie. Furthermore,
if
State is guilty of “unconscionable conduct” prescription
should not apply.
”
[49] The Court
a quo
went on to
say at para 30 of the judgment:
“
This
application should have been brought years ago. The MEC was alerted
to the need- for condonation. But she made no such application.
Even
if she did apply for condonation, she would not have advanced any
explanation for the delay, because she has none.
”
[50] Then in para 35 of the judgment
the Court
a quo
says:
“
Decisions
based on ignorance, mistake or fraud should be reversed in the public
interest...
”
[51] This approach by the Court
a
quo
is clearly wrong and contrary to the line of cases in which
the Courts have reiterated that in reviewing and considering whether
it will be just and equitable to set aside an administrative
decision, they have a discretion. (
Bengwenyama and Oudekraal 1
supra).
[52] The mere fact that the impugned
decision is based on ignorance, mistake or fraud does not necessarily
mean that it has to be
set aside. In appropriate circumstances a
Court will decline, in the exercise of its discretion, to set aside
an invalid administrative
action in order to avoid or minimise
injustice when legality and certainty collide. (
Oudekraal 1
supra
at 246D).
[53] While it may be true that the
review is aimed at setting aside an invalid act on the basis that it
fails to satisfy the principle
of legality, sometimes practical
considerations would require finality, rendering it less desirable to
set aside an invalid act.
That would be a case where an invalid
administrative act has over a period of time remained unchallenged
and third parties have
arranged their affairs in accordance therewith
and its setting aside may cause them injustice. (
Eskom Holdings
Ltd v New Reclamation Group (Pty) Ltd
2009 (4) SA 628
(SCA) at
para 9).
[54] Mr
Blomkamp
argued that in
the present case there was a pressing need for the exercise of
discretion by the Court
a quo
to avoid or minimise injustice
which would occur to the appellants if the appointments are set
aside. He pointed out that because
of an apparent conflict between
legality and certainty in the present case there are two
considerations to which the Court
a quo
should have given
sufficient attention. The first related to the MEC’s failure to
bring a review within a reasonable time
which, he submitted, may have
caused prejudice to the appellants. The second is the public interest
element in the finality of
administrative decisions.
[55] He argued that if Khumalo’s
appointment is set aside the department would have to go through the
selection process again,
which, he submitted, was unnecessary having
regard to the fact that there is no suggestion that Khumalo is not
doing his work properly.
Secondly, he submitted that the public has
an interest in the MEC’s department delivering services
efficiently and effectively
and that setting aside of Khumalo’s
appointment will cause disruption in the department resulting in the
failure of service
delivery.
[56] I have already found the
appellants’ promotions to have been unlawful and invalid. The
post for which Khumalo applied
required a candidate to have a senior
certificate and two years’ supervisory experience at level 6 or
7. Khumalo did not
have a supervisory experience at level 6 or 7. He
had it at level 5 and therefore he should not have been appointed. In
relation
to Ritchie’s protected promotion, there is no doubt
that Ritchie did not deserve it in light of the fact that he was not
shortlisted. Their appointments were unlawful and irregular and
therefore reviewable. They were inconsistent with the Constitution.
[57] Ordinarily, where there has been
a reviewable irregularity in the exercise of public powers an
aggrieved party would be entitled
to apply to Court to have it set
aside and the principle of legality would require that it be set
aside. It is correct that there
has been an inexplicable delay in
bringing the review in the present case. The appellants have planned
their careers and arranged
their affairs on the basis of an
assumption that they were properly promoted. They are entitled to
certainty. If their appointments
were to be set aside it would have
huge implications for them in terms of their career paths in the
sense that because of their
promotions they may have decided not to
consider other career options available within the field of their
study and may find it
difficult to regain the lost job opportunities.
On the other hand there are those candidates who applied for the post
and who are
of the view that they had all what it takes for the job.
They are entitled to expect to be treated with respect and fairly
when
it comes to the selection process. The aggrieved candidates have
been prejudiced in the sense that the selection committee did not
give sufficient attention to their credentials when it considered
their applications with the result that they were left out for
consideration when they should not have been.
[58] There is no doubt in my mind that
a decision either to allow the impugned decisions to stand or to have
them set aside will
invariably cause the respective parties
prejudice. Granted, the setting aside of the appellants’
promotion will affect their
status and is likely to be perceived by
them as demotion. This is so because of the potential reputational
damage attendant on
a setting aside of one’s appointment. Their
prejudice may entail financial and reputational aspects of their
lives. No doubt
it is the realisation of this potential prejudice to
the appellants and the need to minimise its effects which prompted
the Court
a quo
to order the department not to reduce the
appellants’ salaries as a result of the setting aside of the
appellants’
promotions.
[59] It is clear that the extent of
potential prejudice to the appellant is capable of being minimised in
one way or the other whereas
in relation to the aggrieved candidates
there is no way in which its impact can be lessened. Their prejudice,
as long as the impugned
decisions are allowed to stand, will continue
to exist and is likely to be irreversible. In these circumstances,
although I recognise
the fact that it is highly desirable, in order
to achieve predictability, that certainty should be maintained, I
would, however,
incline to the view which will promote the principle
of legality and set aside the appellants’ promotions in the
hope that
justice would be done to all of those who feel they were
unfairly treated during the selection process. I have decided on this
approach in order to promote the spirit of transparency and
accountability which, in my view, was undermined when the
appointments
of the appellants were made. The integrity of the
selection process was allowed to be compromised in order to
accommodate the interests
of the two individual appellants at the
expense of the aggrieved candidates which in my view was clearly
wrong. The fact that the
agreement in terms of which Ritchie was
granted protected promotion was made an award of the Bargaining
Council does not preclude
the setting aside of his promotion as the
award was based on the agreement which was unlawfully concluded.
[60] Before I proceed to the next
issue I think it is necessary and apposite to comment on some of the
comments made by the Court
a quo
regarding the MEC. Firstly,
it is not correct, as the Court
a quo
found in para 68 of its
judgment, that there is evidence indicating that the MEC also
violated “
every principle of legality and every tenet of
ethical, accountable and transparent public administration, ... in
the promotion
of Khumalo and Ritchie
”. There is no evidence
suggesting that at the time when Khumalo and Ritchie were promoted
the MEC was aware that their promotions
were irregular. The evidence
on record indicates, however, that as soon as the MEC became aware of
allegations of irregularities
in the promotion of Khumalo and Ritchie
she took the necessary steps to have the allegations investigated.
When she received a
report suggesting evidence of irregularities in
the promotion of Khumalo and Ritchie she approached the Court
a
quo
for an appropriate relief.
[61] Secondly, the Court
a quo’s
rejection of the MEC’s explanation for the delay in bringing
the review and its finding at para 78 of its judgment that “
her
explanation is an excuse for managerial indecisiveness and
sloppiness; at worst, ... another cover for official misconduct
”
is for the reasons already given not justified.
[62] With regard to costs the Court
a
quo
deprived the MEC of costs on the basis of her delay in
bringing the review. In relation to the appellants the Court
a quo
deprived them of costs because of their “
dishonourable
conduct
”.
[63] Mr
Blomkamp
urged this
Court to set aside the Court
a quo’s
costs order and
award costs in favour of the appellants on the ground that there is
no evidence suggesting that the appellants
had done anything wrong
and which would have been a basis for depriving them of their costs.
[64] I agree with Mr
Blomkamp.
There is no evidence suggesting that the appellants were guilty
of dishonourable conduct. Had they been successful in the Court
a
quo
they would have been entitled to costs since there would have
been no legal basis for depriving them of their costs.
[65] When it comes to the question of
costs the general rule is that costs follow the event. In other
words, a successful litigant
is entitled to his costs. But the Court
has a discretion to deprive a successful litigant of his costs in
certain circumstances.
In the present case though the MEC was a
successful litigant and ordinarily should have been awarded costs,
the Court
a quo
in the exercise of its discretion deprived her
of her costs because of her delay in bringing the review. There is no
suggestion
that in doing so the Court
a quo
improperly
exercised its discretion and in the circumstances there is no basis
for this Court to interfere with the Court
a quo’s
costs
order.
Order
[66] In the result the appeal against
the judgment of the Court
a quo
is dismissed with costs.
______________
ZONDI AJA
I agree
______________
NDLOVU JA
I agree .
______________
JAPPIE
JA
APPEARANCES
For the appellants : Adv. RJ Seggie
SC & Adv. PJ Blomkamp
Instructed by : Llewellyn Cain
Attorneys
For the respondent : Adv. V Soni SC
Instructed by: The State Attorney
Date of Hearing : 24 November 2011
Date of Judgment: 29 August 2012