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[2017] ZALAC 26
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Zungu v Premier, Province of KwaZulu-Natal and Another (DA11/2015) [2017] ZALAC 26; (2017) 38 ILJ 1644 (LAC); [2017] 9 BLLR 949 (LAC) (16 May 2017)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, DURBAN
Reportable
Case no: DA 11/2015
In
the Matter between:
SIBONGILE
ZUNGU
Appellant
and
PREMIER,
PROVINCE OF KWAZULU-NATAL
First Respondent
MEC,
DEPARTMENT OF HEALTH, KWAZULU-NATAL
Second Respondent
Heard:
12 May 2016
Delivered:
16 May 2017
Summary: Unfair
dismissal – reasonable expectation that a fixed term contract
would be renewed - employee seeking to compel
a renewal of her
contract based on a legitimate expectation premised on a
recommendation by a selection panel – employee
contending that
the refusal to heed to the recommendation of the selection panel
amounts to illegality clothing the Labour Court
with jurisdiction –
Held that this dispute
is squarely within the realm of section 186 (1)(b) of the LRA -
characterising the dispute as having other
characteristics too, does
not dispel the validity of the finding that it fell within the
purview of section 186(1)(b) - where a
clear characterisation is
possible, it is not sensible to force a different characterisation to
facilitate forum shopping - a claim
that a fixed term contract be
renewed on the grounds of a legitimate expectation is a species of
“dismissal”, as defined
in section 186 and is further
regulated by section 191 of the LRA to be within the exclusive
jurisdiction of the CCMA. Labour Court’s
judgment upheld and
appeal dismissed with costs.
Coram: Tlaletsi AJP
and Sutherland JA
JUDGMENT
SUTHERLAND
JA
Introduction
[1]
This
is an appeal against the order of the Labour Court given on 21 April
2015 dismissing the appellant’s urgent application
for a final
interdict and ancillary relief.
[2]
The
applicant, Dr Sibongile Zungu, had been head of Department (HOD) of
the Department of Health in KwaZulu-Natal (KZN) in terms
of a fixed
five-year contract from 1 August 2009 to 31 July 2014. Short-term
extensions were made prolonging her term of office,
the last of which
was to expire on 31 March 2015. The day before, when it had become
apparent to her there would be no further
extension or renewal, the
urgent application was launched, Indeed, on 1 April 2014, the Premier
wrote to the appellant to say he
would not renew it. The aim of the
application was to compel a renewal.
[3]
The
order and the
ex
tempore
judgment of the Labour court did not address the “substantive
issues” raised in the application and the dismissal was
premised on what may be called two “procedural grounds”.
First, in logical order, it was held that the Labour Court
had no
jurisdiction to hear the application because the nature of the
dispute between the appellant and the respondents was such
that
adjudication about such a dispute was within the exclusive
jurisdiction of the Commission for Conciliation, Mediation and
Arbitration (CCMA), and second, in any event, no case was made out
for urgency nor was a case made out for final interdictory relief.
Had the judgment been confined to urgency it could have been brought
again and that aspect is now irrelevant.
[4]
The
two critical issues for decision on appeal can, therefore, be only
(1) whether the Labour Court was wrong to hold it had no
jurisdiction
to entertain the application, and if it was wrong on that point, (2)
was a proper case made out for an interdict.
[1]
The
Relief sought in the application
[5]
The
pertinent portion of the notice of motion read thus:
(i)
That
the respondents be interdicted from making any appointment of HOD for
the department of Health, other than the appellant, including
making
any acting appointment in that position;
(ii)
Directing
the respondents to appoint the appellant as HOD of Transport (sic) in
KZN pursuant to the recommendation of the independent
selection panel
recommending the appointment of the appellant as the HOD for the
department of Health in KZN;
(iii)
Declaring
that the first respondent [ie, the Premier] is not entitled to take
into account the provisional report prepared by the
investigating
team concerning the appellant.
[2]
[6]
In
short, the appellant sought to be appointed as HOD to the exclusion
of any other potential candidate. The prayer in (iii) is
superfluous,
as the other two prayers allow no room for any degree of discretion
by the Premier. Nor is the case advanced that,
in the alternative,
were the Premier entitled to ignore the panel’s recommendation,
he would also be obliged to ignore the
investigation report into
allegations against the appellant. Although it became plain that the
Premier was ostensibly swayed by
the outcome of that investigation,
that influence is irrelevant if he was under the obligation, as
alleged.
[7]
The
legal foundation entitling the appellant to such relief is not
expressed in the prayers themselves, and notably, no declarator
is
sought as to the appellant’s rights or identifying exactly what
those claimed rights might be. The allegations relied
on to assert a
right to a renewal of appointment were set out in her affidavits.
What
is the right relied upon by the appellant?
[8]
The
applicant’s “cause of action” (as persisted with in
argument) can be summarised as follows:
8.1.
A
selection panel recommended her for a renewed appointment for five
years which decision binds the premier.
8.2.
The
appellant has a legitimate expectation of a renewal of her
appointment.
[9]
It
is not readily apparent from the founding affidavit whether the claim
of legitimate expectation is premised on the selection
panel’s
recommendation or is self-standing. If it were to be premised on the
panel recommendation it would be superfluous.
If it is self-standing,
it would require substantiation. No apparent substantiation appears
from the founding affidavit. Eventually,
on appeal, the contentions
of the appellant made it plain that the two notions were indeed
conflated.
[10]
In
a supplementary founding affidavit, the appellant fleshed out the
basis for the bald allegation in the founding affidavit that
the
Premier was bound by the selection panel’s recommendation. She
invoked regulation D5 – D8 of the Public Service
Regulations;
ie-
‘
D.5
The selection committee shall make a recommendation on the
suitability of a candidate after considering
only-
(a)
Information
based on valid methods, criteria or instruments for selection that
are free from any bias or discrimination;
(b)
the
training, skills, competence and knowledge necessary to meet the
inherent requirements of the post;
(c)
the
needs of the department for developing human resources;
(d)
the
representativeness of the component where the post is located; and
(e)
the
department’s affirmative action programme.
D.6 A
selection committee shall record the reasons for its decision with
reference to the criteria
mentioned in regulation VII D.5.
D.7 When
an executing authority does not approve a recommendation of a
selection committee. She or
he shall record the reasons for her or
his decision in writing.
D.8
Before making a decision on an appointment or the filling of a post,
an executing authority shall-
(a)
satisfy
herself or himself that the candidate qualifies in all respects for
the post and that her or his claims or his application
for the post
have been verified; and
(b)
record
in writing that verification.’
[3]
[11]
The
appellant thereupon stated in paragraphs 17- 19 why she claims that
her renewal is a
fait
accompli
in which the Premier must acquiesce.
‘
17.
Moreover, it is now manifest that the Premier seeks to abandon the
process of investigations subject
to which my recommended appointment
was premised.
18.
Quite apart from the fact that the conditionality of my appointment
was always unlawful
as asserted in my previous founding affidavit, it
has now become abundantly clear that the Premier places no great
store thereupon.
19.
Accordingly, the Premier is acting unlawfully in breach of the
regulations quoted above.
But more importantly, his conduct is in any
event susceptible to review by this Court under Promotion of
Administrative Justice
Act, 2000 (“PAJA”), in particular
the provisions of Section 6(2)(d) in that his action is materially
influenced by
an error,
alternatively
Section 6(2)(e) in that
his action was taken for a reason not authorised by the empowering
provisions;
further alternatively,
Section 6(2)(e)(ii) in that
his actions was influenced by an ulterior purpose or motive,
further
alternatively
his action was taken in bad faith and/or
arbitrarily and/or capriciously as envisaged in Section 6(2)(e)(v)
and (vi) and
further alternatively
because his action is
otherwise unlawful and unconstitutional as envisaged in Section
6(2)(i).”
[12]
The
cogency of these contentions as regards the idea that the Premier was
bound by the recommendation is not apparent, but the merits
of that
controversy are not germane to the decision of the Labour Court.
[13]
Lastly,
in her replying affidavit, responding to the Premier’s
answering affidavit asserting that the Premier is vested with
a
discretion to adopt the selection panel’s recommendations, and
is not bound by them, the appellant repeats the proposition
that the
Premier’s decision not to adopt the selection panel’s
recommendation was irrational and is susceptible to
review in terms
of Promotion of Administrative Justice Act 3 of 2000 (PAJA).
[14]
As
is apparent from this traverse of the allegations, the appellant’s
case shifted over time.
[15]
On
appeal, the case advanced on behalf of the appellant as to why the
Labour Court’s judgment was in error was that the appellant’s
cause of action is the Premier’s unlawful conduct and not, as
found by the Labour Court, a dispute contemplated by
Section
186(1)(b)
of the
Labour Relations Act 66 of 1995
;
[4]
ie a refusal to renew a fixed term contract. In this regard, it was
contended that the legitimate expectation of a renewal was
indeed
squarely based on the selection panel’s recommendation which
bound the Premier, whose decision to take into account
the
investigation report, which arose outside of the panel’s
assessments, was unlawful. This scenario, it is argued, cannot
support the notion that there was a “dismissal” dispute
reserved for the attention of the CCMA, rather it is all about
“legality” of the Premier’s conduct.
[16]
The
Respondents, on appeal, predictably, challenged the propriety of the
elaborated case raised in the replying affidavit about
the Premier’s
“irrational” decision, as the initial cause of action was
different and that therefore these averments
constituted a new
case.
[5]
The objection is well
founded. Further, it was argued that no case was made out to
substantiate the contention that Premier was
bound by a selection
panel recommendation because the public service regulations properly
interpreted do not support that notion,
a conclusion, in my view,
manifestly obvious from the text, but not a finding that it is
necessary for this court to make. Lastly,
it was argued that the
requirements for a legitimate expectation were not demonstrated,
again a point well taken.
[6]
Evaluation
of the arguments
[17]
Perhaps
the point of departure ought to be the question whether the Labour
Court is required to assess what character the dispute
manifests to
determine its own jurisdiction. It is not argued that it may not do
so, and the decision in
Gcaba
v Minister of Safety and Security
[7]
is
dispositive of that proposition:
‘
Jurisdiction
is determined on the basis of the pleadings, as Langa CJ held in
Chirwa, 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.’ (Emphasis supplied) [Footnote omitted]
[18]
Accordingly,
the first exercise in any proceedings is to read, as in this case,
the allegations in the affidavits, and make the
determination. It is
not, primarily, the form of relief sought, but rather the necessary
averments to demonstrate the “cause
of action” that
determines the “character” of the dispute, although the
form of the relief, if it is consonant
with the cause of action, will
point in the same direction.
[19]
In
this case, the papers disclose that an employee whose term of
employment was about to expire, sought to compel a renewal. The
right
to renewal was articulated as a legitimate expectation premised on a
recommendation by a selection panel, allegedly binding
upon the
executive authority vested with the power to make the decision to
appoint. In my view, this dispute is squarely within
the realm of
section 186
(1)(b) of the LRA, as a reading of that text plainly
demonstrates.
[20]
It
is sophistry to try to conceptualise the dispute as something else.
Even if it is possible to characterise the dispute as having
other
characteristics too, such additional attributes do not dispel the
validity of the finding that it fell within the purview
of
section
186(1)(b).
In a judicial system where jurisdiction over causes of
action is divided among several fora, it is no surprise that the
imposition
of what is, for policy reasons, an artificial ring-fencing
of types of disputes, will from time to time result in a rubbing-up
against the edges. However, where a clear characterisation is
possible, it is not sensible to force a different characterisation
to
facilitate forum shopping. There can be no serious doubt that the
legislation contemplates and requires a claim that a fixed
term
contract be renewed on the grounds of a legitimate expectation is a
species of “dismissal”, as defined in
section 186
and is
further regulated by
section 191
of the LRA to be within the
exclusive jurisdiction of the CCMA.
[21]
As
to the scattered contentions advanced on behalf of the appellant, it
can be noted that (1) the argument about the applicability
of PAJA is
incorrect,
[8]
given the “pure”
labour relations dimension of the dispute and (2) whether the Premier
is indeed bound to the selection
panel’s recommendations, is
not a point upon which this Court needs pronounce; a dispute about
that issue being subsumed
by the broader dispute about a non-renewal
of a fixed term contract.
Conclusions
[22]
Accordingly,
the decision of the Labour Court to disavow jurisdiction was
correct.
[9]
Moreover, it
is manifest that proof of a clear right necessary for a final
interdict is absent.
[23]
The
appeal must be dismissed. The Labour Court ordered costs against the
appellant, and it is appropriate that the costs of appeal
also be
payable by the appellant.
The
Delay in delivery of this Judgment
[24]
This
matter was heard on 12 May 2016 and judgment had been delayed for
almost a year. This delay is regretted and has been occasioned
by the
ill health of Ndlovu JA who passed away before the judgment could be
delivered. We apologise to the litigants for the delay.
The
Order
The
appeal is dismissed with costs.
______________
Sutherland JA
Sutherland
JA (with whom Tlaletsi AJP concurs)
APPEARANCES:
FOR
THE APPELLANT:
Adv T G Madonsela
SC
Instructed by Strauss
Daly.
FOR
THE RESPONDENT:
Adv G O Van Niekerk SC, with him Adv I J Patel,
Instructed by the State
Attorney, Durban.
[1]
The requirements are a
clear right, imminent irreparable harm and no alternative effective
remedy. Webster v Mitchell 1948(1)
Sa 1186 (W).
[2]
NEHAWU had lodged
complaints against the appellant which the Premier referred for
investigation.
[3]
The requirement to give
reasons for not accepting a recommendation was met when on 8 April
2015, the Premier gave written reasons
to the applicant. The
intrinsic merits or demerits of the reasons are not pertinent to the
appeal.
[4]
Section 186(1)(b)
provides: (1) 'Dismissal' means that-
(a)
….
(b)
an employee employed in terms of a fixed-term contract of employment
reasonably
expected the employer-
(i)
to renew a fixed-term contract of employment on the same or similar
terms
but the employer offered to renew it on less favourable terms,
or did not renew it; or
(ii)
to retain the employee in employment on an indefinite basis but
otherwise
on the same or similar terms as the fixed-term contract,
but the employer offered to retain the employee on less favourable
terms,
or did not offer to retain the employee;
[5]
See: eg,
Arrow
Altech Distribution (Pty) Ltd v Byrne
(2008) 29 ILJ 1391 (D) at [50]’
[6]
See:
National
Director of Public Prosecutions v Phillips
2002 (4) SA 60
(W) at:
“
[27]
A legitimate expectation ‘arises where a person responsible
for taking a decision has induced in someone who may be
affected by
the decision, a reasonable expectation that he will receive or
attain a benefit or that he will be granted a hearing
before the
decision is taken'.
De
Smith, Woolf and Jowell Judicial Review of Administrative Action 5th
ed at 417, para 8-037. Such an expectation may arise,
'either from
an express promise given on or behalf of a public authority or from
the existence of a regular practice which the
claimants can
reasonably expect to continue'.
Council
of Civil Service Unions v Minister for Civil Service
[1985] AC 374
(HL)
([1984]
3 All ER 935)
at 401B - C;
Administrator,
Transvaal, and Others v Traub, and Others
[1989] ZASCA 90
;
1989
(4) SA 731
(A) at 756I;
President
of the Republic of South Africa and Others v South African Rugby
Football Union and Others
2000
(1) SA 1
(CC)
(1999 (10) BCLR 1059)
in para [212].
[28]
The law does not protect every expectation but only those which are
'legitimate'. The requirements for legitimacy of the
expectation,
include the following:
(i)
The representation underlying the expectation must be 'clear,
unambiguous
and devoid of relevant qualification': De Smith, Woolf
and Jowell (op cit at 425 para 8-055). The requirement is a sensible
one.
It accords with the principle of fairness in public
administration, fairness both to the administration and the subject.
It protects
public officials against the risk that their unwitting
ambiguous statements may create legitimate expectations. It is also
not
unfair to those who choose to rely on such statements. It is
always open to them to seek clarification before they do so, failing
which they act at their peril.
(ii)
The expectation must be reasonable: Administrator, Transvaal v Traub
(supra
at 756I - 757B); De Smith, Woolf and Jowell
(supra at 417 para 8-037).
(iii)
The representation must have been induced by the decision-maker: De
Smith, Woolf
and Jowell (op cit at 422 para 8-050);
Attorney-General
of Hong Kong v Ng Yuen Shiu
[1983] UKPC 2
;
[1983] 2 All ER 346
(PC) at 350h - j.
(iv)
The representation must be one which it was competent and lawful for
the decision-maker
to make without which the reliance cannot be
legitimate:
Hauptfleisch
v Caledon Divisional Council
1963
(4) SA 53
(C) at 59E - G.”
[7]
2010
(1) SA 238
(CC) at para 75
.
[8]
See:
Chirwa
v Transnet
[2007] ZACC 23
;
2008 (4) SA 367
(CC).
[9]
See:
eg,
National
Union of Metal workers of SA v Intervalve (Pty) Ltd and Others
[2015] 3 BLLR 305
(CC);
De
Beer v Minister of Safety and Security and Another
(2013) 34 ILJ 3083 (LAC).