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[2018] ZALAC 29
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MEC for Economic Developmemt, Environment & Tourism v Mogahlane (JA42/2016) [2018] ZALAC 29; (2019) 40 ILJ 315 (LAC); [2019] 4 BLLR 347 (LAC) (31 October 2018)
IN THE LABOUR APPEAL COURT OF SOUTH
AFRICA, JOHANNESBURG
Reportable
Case no: JA42/2016
In the matter between:
MEC
FOR ECONOMIC DEVELOPMENT
ENVIRONMENT
& TOURISM
Appellant
and
MADIMETJA ABRAM MOGAHLANE
Respondent
Heard: 13 September 2018
Delivered: 31 October 2018
Summary:
Unreasonable delay in the prosecution of a review application in
terms of section 158(1)(h) of the LRA – court finding
that
although there is no prescribed time limit for launching a review
under section 158(1) (h) of the LRA it should be initiated
within a
reasonable time – held that a delay of almost six months is
excessive particularly where, as found by the Labour
Court in this
matter, the explanation was wholly unreasonable – further that
if there is no merit in the legal challenge
to the impugned decision,
no purpose would be served by overlooking the delay – Court
finding on the merits that employee’s
appointment was in
compliance with the regulations – Labour Court judgment upheld
and appeal dismissed with costs.
Coram: Waglay JP, Davis JA and
Kathree-Setiloane AJA
JUDGMENT
KATHREE-SETILOANE
AJA
[1]
The Appellant is the Member of the
Executive Council (MEC) for Economic Development, Environment and
Tourism for Limpopo Province.
He brought an application in the Labour
Court, in terms of section 158(1)(h) of the Labour Relations Act 66
of 1995 (LRA), to review
and set aside the appointment of the
Respondent, Mr MA Mogahlane as Senior Manager: MEC Support Services
in the Department of Economic
Development, Environment and Tourism.
On 25 November 2015, the Labour Court
(Banks AJ) dismissed the Appellant's application.
[2]
The Appellant applied for leave to appeal the judgment and order of
the Labour Court. It dismissed the application. The Appellant
petitioned this Court for leave to appeal. It granted the Appellant
leave to appeal on 2 November 2016.
[3]
The appeal was set down for hearing in this Court on 9 November 2017.
The Appellant failed to appear at the hearing, and this
Court (Coppin
JA, Phatshoane and Savage AJJA) dismissed the appeal with costs.
Application
for Rescission
[4]
The Appellant applied for an order rescinding the order of 9 November
2017 on the basis that this Court granted it erroneously
and in the
absence of the Appellant who did not receive the notice of set-down.
The Respondent did not oppose the application for
rescission as it
was common cause that the Appellant did not receive the notice of
set-down. In the light of this, the order of
9 November 2017 must be
rescinded and set aside.
The
Appeal
Background
[5]
The Respondent was appointed as Appointment Secretary to the MEC in
the Department of Transport, Limpopo Province with effect
from
October 2009.
He was
transferred to the Department of Economic Development, Environment &
Tourism, Limpopo Province on 19 March 2012, where
he held the
position of Appointment Secretary to the MEC.
[6]
The position of Senior Manager: MEC Support Services in the
Department became vacant during April 2013 (post). The Department
advertised the vacant post. The Respondent applied and was duly
appointed acting Senior Manager: MEC Support Services with effect
from 1 July 2013.
[7]
The interviews for the post took place on 15 July 2013. The selection
committee (appointed by the HOD) interviewed six candidates
including
the Respondent. The Respondent obtained the highest score (76.5%).
The candidate with the second highest score (70.5
%) was Mr MR Mosila
(Mr Mosila).
[8]
The Senior Manager: Human Resources made a formal request to the
Senior Manager: Security and Investigation Services on 16 July
2013
for verification of qualifications of the
Respondent
and Mr Mosila. Ms KM Moselane, the
scribe for the Human Resources Division, telephoned both the
Respondent and Mr Mosila on the
same day to arrange for them to go to
Security Investigation Services for vetting of their qualifications.
She contacted the Respondent,
who made himself available to Security
Investigation Services for vetting on the same day. She also
contacted Mr Mosila but was
unable to get hold of him. So Security
Investigation Services only vetted the Respondent on the afternoon of
16 July 2013.
[9]
On the same day, Ms Moselane
prepared
a submission recommending the appointment of the Respondent or Mr
Mosila to the Head of Department, Mr NS Kgopong (HOD)
and the
erstwhile MEC Economic Development, Environment, and Tourism, Ms
Pinky Kekana (erstwhile MEC). However, since Mr Mosila
did not attend
the vetting with Security Investigation Services, Mr
T
Mdau (Mr Mdau), the Senior Manager: Human Resource Management,
recommended the appointment of the Respondent on 16 July 2013.
Mr KJ Motene (Mr Motene), the General
Manager-Corporate Services, and Mr DF Mothapo (Mr Mothapo), the
Acting Chief Financial Officer,
did so as well. All three of them
were members of the selection committee. Mr
Kgopong,
the Head of Department (HOD) and the erstwhile MEC approved the
recommendation of the select committee.
[10]
The HOD signed the Respondent's appointment letter on 16 July 2013.
It stated that the appointment was “subject to a
positive
personal security clearance.” The Respondent received the
appointment letter on 17 July 2013. On 24 July 2013, the
HOD, on
instructions from the Appellant, reversed the Respondent's
appointment on the basis of a
purported irregularity, as the decision to appoint the Respondent was
not made in conformity with
the applicable procedures for appointment
in the public service, namely Chapter 1. Part VI, clauses D.7 and D.8
of the Public Service
Regulations, 2001 (Regulations).
In
the Labour Court
[11]
The Appellant applied for an order declaring the appointment of the
Respondent as Senior Manager-MEC Support Services at the
instance of
the erstwhile MEC and HOD to be unlawful and null and void.
[1]
The appointment which the Appellant
sought to set aside was made on 16 July 2013, yet the Appellant's
application for review was
delivered only on 13 January 2014.
The Respondent opposed the relief
sought by the Appellant and filed a counter-application in which he
sought an order confirming
his appointment to the position of Senior
Manager-MEC Support Services with effect from 1 August 2013, and for
an order directing
the Appellant to reinstate him into that position
with full retrospective effect to 1 August 2013 without loss of
benefits.
[12]
The Respondent took the point, in his answering affidavit, that the
Appellant had unreasonably delayed in launching the review
application and challenged it to explain the delay. The Appellant did
not file a reply to the Respondent’s answering affidavit.
Nor
did it oppose the counter-application. It did, however, apply for
condonation for the late filing of its review application.
The
Appellant’s application for condonation was only delivered on
21 August 2014. The Respondent opposed the application
on two bases.
The first was that the Appellant had failed to advance a reasonable
and acceptable explanation for the delay in launching
the review
application. The second was that the review application had no
prospects of success. The Appellant did not file a reply
to the
Respondent’s answering affidavit in the condonation
application.
Application
for Condonation
[13]
On determination of the condonation application, the Labour Court
held that, although no statutory time-limit has been set
for a review
in terms of section 158(1)(h) of the LRA, a review delay of more than
six weeks has been held to be unreasonable requiring
an application
for condonation. With reference to the decision of the Constitutional
Court in
Khumalo v MEC for
Education: KwaZulu – Natal (Khumalo),
[2]
the Labour Court observed that courts have the power, as part of
their inherent jurisdiction to regulate their proceedings, to
refuse
a review application in the face of an undue delay in initiating
proceedings or, in appropriate circumstances, to overlook
the delay.
The Labour Court was not persuaded by the Appellant's explanation for
the delay between the Respondent's appointment
on 16 July 2013 and
the launch of the review application almost six months later on 13
January 2014. It found the delay to be excessive
and the explanation
for the delay to be highly unsatisfactory.
[14]
Concerning the prospects of success on the merits of the review
application, the Labour Court held as follows:
‘
[27]
Having regard to the Appellant’s prospects of success on the
merits of the matter I do not believe that the alleged defect
in the
appointment procedure can be said to be ultra vires or defective. It
is beyond dispute that the other incumbent, Mr Mosila,
could not be
contacted and was therefore disqualified from further consideration
for the position. Mr Mokgahlane was thus the only
incumbent who could
possibly have filled the post The mere fact that one or other
signature appears to have been missing from the
form in question
cannot, in my view, be said to constitute a defect of such magnitude
that it could in any way serve to vitiate
the entire appointment
process. In fact, it is of minimal significance and could easily have
been rectified. Mr Mokgahlane's qualifications
had long before been
verified by the [Appellant] and there appears to be no good reason
why his appointment could not have been
ratified by the new MEC once
appointed. The fact that this did not occur compels me to agree with
the submission that Mokgahlane
appears to have been a pawn in a
political power play.
[28]
I am also not satisfied that the remaining grounds of review have any
prospects of success. I am unpersuaded that the Public
Service
Regulations,
2001 were contravened as the [erstwhile] MEC indeed approved the
recommendation of Mr Mokgahlane and his selection
was in turn made by
the selection committee. As an internal, not external candidate,
there was no need to again verify his credentials
as this was done
when he was first employed by the Department of Transport
in
2009. There is nothing to suggest that Mr Mokgahlane's qualifications
were not in fact positively verified, and I agree with
the submission
on his behalf that it must be accepted that verification thereof must
have taken place at the time that Mokgahlane’s
letter of
appointment was issued. None of the other purported grounds of review
takes the Appellant’s case much further.’
[15]
The Labour Court accordingly dismissed the Appellant's application
for condonation as well as its application for review. It
granted the
Respondent's counter-application for an order “confirming the
appointment of the Respondent to the position of
Senior Manager: MEC
Support Services: Department of Economic Development, Environment,
and Tourism: Limpopo Province with effect
from 1 August 2013”.
It also ordered the Appellant to pay the costs of both applications.
The appeal lies against these orders.
[16]
Although there is no prescribed time limit for launching a review
under section 158(1) (h) of the LRA, this type of review
application
should be initiated within a reasonable time.
[3]
A period of six weeks has been regarded by our courts to be “within
a reasonable time.”
[4]
In a legality review, the review application must be initiated
without undue delay.
[5]
Courts have the power, as part of their inherent jurisdiction, to
regulate their proceedings, to refuse a review application where
there has been an unwarranted or undue delay in initiating
proceedings, or to overlook the delay in appropriate
circumstances.
[6]
There is, however, no requirement for a party who has unduly delayed
the initiation of its review application under section 158(1)
(h) of
the LRA, to bring a formal condonation application.
[7]
The Labour Court, therefore, erred in holding that where the
application is more than six weeks late, a formal application for
condonation must be brought. However, this does not mean that the
defaulting party is not required to provide the Court with an
explanation for the undue delay in initiating the review application
under section 158(1)(h) of the LRA, and persuade it to exercise
its
discretion in favour of overlooking the delay and entertaining the
review application.
[17]
In
Gqwetha v Transkei
Development Corporation (Gqwetha),
[8]
the Supreme Court of
Appeal (SCA) held that an assessment of a plea of undue delay
involves examining (i) whether the delay is unreasonable
or undue,
and if so, (ii) whether the Court's discretion should be exercised to
overlook the delay and nevertheless entertain the
application. In
relation to the first leg of the inquiry, the explanation offered for
the delay is considered. In the absence of
any explanation (or any
reasonable explanation), the delay would be unreasonable.
[9]
Concerning the second leg of the
inquiry, the Court is required to assess the delay with reference to
its potential prejudice to
the affected parties and having regard to
the possible consequences of setting the impugned decision aside.
[10]
[18]
A delay of almost six months is excessive particularly where, as
found by the Labour Court in this matter, the explanation
was wholly
unreasonable. The Appellant does not challenge this finding of the
Labour Court on appeal. It is only its failure to
overlook the delay
that the Appellant seeks to challenge on appeal. I am of the view
that there is no point in overlooking an undue
delay if there are no
prospects of success on the merits. In other words, if there is no
merit in the legal challenge to the impugned
decision, no purpose
would be served by overlooking the delay. Significantly, in
Khumalo
,
the Constitutional Court held:
‘
An
additional consideration in overlooking an unreasonable delay lies in
the nature of the impugned decision. In my view, this requires
analysing the impugned decision within the legal challenge made
against it and considering the merits of that challenge.’
[11]
[19]
As is demonstrated below, the Labour Court correctly found that the
Appellant's challenge to the impugned decision lacked prospects
of
success
. The Labour Court did
not misdirect itself by not overlooking the undue delay of almost six
months. It would have been remiss to
do so in the face of a meritless
challenge to the Respondent’s appointment.
The
Merits
[20]
The Appellant’s contentions on the merits can be summed up as
follows:
(a)
The Respondent’s appointment to the post is in contravention of
clause D.7 of the Public Service Regulations, 2008 (Regulations)
as
the erstwhile MEC did not record in writing her reasons for not
approving the appointment of Mr Mosila.
(b)
It is not clear from her approval that she approved the appointment
of the Respondent, as she deleted the words “not approved”
and left in the words “approved” but omitted to enter the
Respondent’s name as the candidate being approved.
(c)
The MEC acted in contravention of D.8 of the Regulations because, at
the time of approving the Respondent’s appointment,
the
verification of his qualifications was outstanding.
(d)
The HOD acted in contravention of the Recruitment and Selection
Policy 2012
[12]
by signing the letter of appointment
while the process of verification was incomplete. And the authority
to appoint vested with
the erstwhile MEC and was not delegated.
[21]
Clause D. 7 of the Regulations
[13]
provides that when a MEC does not approve a recommendation of the
selection committee for an appointment, she shall record reasons
for
her decision in writing. Properly construed, this means that where
the MEC does not approve the select committee’s recommendation
of a candidate for appointment to a particular post, the MEC must
record her reasons for not approving that candidate in writing.
[22]
In the present case, there was only one vacant position that needed
to be filled. Although the submission prepared by the Human
Resources
Division recommended the appointment of the Respondent and Mr Mosila
for appointment to the post, the selection committee
only recommended
the Respondent for appointment to the post. This was because Mr
Mosila did not attend the vetting with Security
Investigation
Services. The document entitled “Consideration for Filling of
the Advertised Post of Senior Manager: MEC Support
Services”
reveals that the selection committee recommended one candidate for
appointment to the post. In making his recommendation,
Mr Mudau
deleted the words “not recommended” and left in the word
“recommended.” Underneath the word “recommended”
he inserted, in manuscript, the words “[t]he appointment of Mr
Mogahlane MA as Senior Manager: MEC Support Services.”
Mr
Motene and Mr Mothapo’s dittoed Mr Mudau’s recommendation
for appointment to the post. After that, the HOD and erstwhile
MEC
approved their recommendation for appointment to the post. There was
simply no need for the HOD or the erstwhile MEC to insert
the
Respondent’s name below the word “approved” as it
was clear that each of them approved the recommended candidate.
To,
therefore, suggest, as does the Appellant, that “it is not
clear from the erstwhile MEC’s approval that she approved
the
appointment of the Respondent” is disingenuous.
[23]
There is furthermore no merit in the contention that the Respondent’s
appointment is in contravention of Clause D.7 because
the erstwhile
MEC had omitted to provide reasons for not approving Mr Mosila for
appointment to the post. As I see it, since the
erstwhile MEC had
approved the select committee’s recommendation, there was no
need for her to record any reasons in writing
as contemplated in
clause D.7 of the Regulations. The failure to give reasons for an
administrative decision is only reviewable
where there is a duty in
law to do so. The Regulations impose no such duty where a MEC has
approved the recommendation of the selection
committee.
[24]
On 29 March 2012, the erstwhile MEC delegated her function, to
appoint any person to her Department, to the HOD in terms of
Part A:
Executive Authority Delegations to HOD for Economic Development,
Environment, and Tourism in Limpopo Province. Clause 8.2.1
of the
Recruitment and Selection Policy of 2012, which was “issued
under the authority of the MEC,” provides that the
HOD shall
appoint a selection panel to make recommendations on shortlisted
candidates and appointments to posts. Clause 8.2.5(a)
of the
Recruitment and Selection Policy provides that before deciding on an
appointment or the filling of a post, the HOD must
be satisfied that,
the recommended candidate qualifies in all respects for the post and,
her qualifications have been verified.
Clause 8.7(3) provides that:
‘
Before
making its final recommendation, the selection committee should
ensure that the information provided by the nominated candidate
has
been verified. This typically includes information pertaining to
her/his educational qualifications, citizenship, and experience.
The
final decision maker should be advised accordingly.’
What
is clear from the Recruitment and Selection Policy, is that the
erstwhile MEC’s function of being satisfied that the
candidate
qualifies in all respects for the post as required under clause
D.8
[14]
of the Regulations is delegated to the HOD and the selection
committee.
[25]
The Respondent was not an external candidate when he applied for the
post. His qualifications were verified when he was appointed
in the
Department of Transport during 2009, and again in 2012 when he was
appointed as Appointment Secretary to the MEC in the
Department of
Economic Development, Environment, and Tourism in Limpopo Province.
The Respondent says as much in his answering
affidavit. He also says
that “the verification of his qualifications must have been
completed” by the time the appointment
letter was signed by the
HOD on 16 July 2013 and issued to him on 17 July 2013. The Appellant
does not deny these allegations.
[26]
Since the Appellant has failed to deny, by way of a replying
affidavit, that the Department had verified the Respondent’s
qualifications, this Court must accept that it verified his
qualifications before the HOD signed and issued his appointment
letter
on 16 July 2013.
[15]
Although the HOD signed the letter of appointment, he did this on the
authority of the erstwhile MEC. The Appellant does not deny
this.
Only the results of the Respondent’s security clearance were
outstanding at the date of issue of the letter of appointment.
As
indicated in the letter, the appointment was “subject to a
positive personal security clearance.” Positive security
clearance results were received on 18 July 2013. This was before the
effective date of the Respondent’s appointment (1 August
2013).
Crucially, the Appellant does not dispute this allegation.
[27]
The Respondent’s appointment to the position of Senior Manager:
MEC Support Services is not in contravention of D.07
and D.08 of the
Regulations. The Respondent scored the highest score of all the
candidates who applied for the post. The Department
positively
verified his qualifications, and he received a positive security
clearance. The selection committee recommended his
appointment to the
post. The HOD and erstwhile MEC approved their recommendation and
appointed the Respondent to the position.
[28]
In the circumstances, I consider the finding of the Labour Court that
the Appellant has no prospects of success in the review
application
to be unassailable. Accordingly, the Labour Court did not misdirect
itself by dismissing both the Appellant’s
condonation
application and its review application.
Counter-application
[29]
The Appellant did not oppose the Respondent’s
counter-application. The Respondent was consequently entitled to the
relief
sought in that application on the Labour Court’s
dismissal of the review application.
Costs
[30]
I see no reason why costs of this appeal should not follow the
result. This would be a fair outcome as the Respondent funded
these
proceedings and was not supported by his trade union.
[31]
The Respondent seeks a cost order in his favour for the 9 November
2017 hearing. It would be iniquitous to mulct the Appellant
with
those costs, because its absence from court, on that occasion, was
due to it not having received the notice of set down which
is common
cause. It is for this reason that the Respondent did not oppose the
Appellant’s application to rescind the 9 November
2017 order
which erroneously dismissed the appeal in the absence of the
Appellant. In the circumstances, I see no reason for also
awarding
the Respondent the costs of the 9 November 2017 hearing.
Conclusion
[32]
For these reasons, the appeal should be dismissed with costs.
Order
[33]
In the result, I order that:
1.
The previous order of the
Labour Appeal Court of 9 November 2017, under case number JA 42/16,
dismissing the appeal is rescinded
and set aside.
2.
The appeal is dismissed with
costs.
F Kathree-Setiloane
Acting
Judge of Appeal
B
Waglay JP and D Davis JA concur
APPEARANCES:
FOR THE APPELLANT:
Mr
SB Nhlapo
Instructed by: The State
Attorney, Pretoria
FOR THE RESPONDENT:
Mr
R
Grundlingh
Instructed
by: Thomas Grobler Attorneys
[1]
The
relief was framed in the form a declaratory order, but the case put
forward by the Appellant in his founding papers was for
a review in
terms of section 158(1) (h) of the LRA. Section 158(1 of the LRA
provides that the Labour Court may review any decision
taken or act
performed by the State in its capacity as employer, on such grounds
as are permissible in law. This is the so-called
legality review.
[2]
Khumalo v MEC
for Education: KwaZulu - Natal
[2014]
35 ILJ613 (CC) at 626 – 627.
[3]
Khumalo
at
para 42.
[4]
Weltevrede
Kwekery (Pty) Ltd v CCMA
(2006)
27 ILJ 182 (LC) at paras 51and 61;
SACCAWU
obo Manzana v Pick 'n Pay, Kimberley
[2003] 10 BLLR 1065
(LC) at paras 114 and 151.
[5]
Khumalo
at para 44.
[6]
Khumalo
at
para 44.
Associated
Institutions Pension Fund v Van Zyl
2005 (2) SA 302
(SCA) at para 46.
[7]
Khumalo
at
para 44.
[8]
Gqwetha v
Transkei Development Corporation
2006
(2) SA 603
(SCA) at paras 33-34.
[9]
Khumalo
at para 50.
[10]
Gqwetha
at paras 33-34.
[11]
Khumalo
at para 27.
[12]
This
policy is applicable to all employees of the Department of Economic
Development, Environment and Tourism.
[13]
Clause
D.7 of the Regulations provides:
“
When
an executing authority
[13]
does not approve a recommendation of a selection committee, she or
he shall record reasons for her or his decision in writing.”
[14]
Clause D.8 of the
Regulations provides:
“
Before
making a decision on an appointment or the filling of a post, an
execution authority shall-
(a)
Satisfy
herself or himself that the candidate qualifies in all respects for
the post and that her or his claims in her of his
application for
the post have been verified; and
(b)
Record
in writing that verification.”
[15]
O
n
the Appellant’s own version, Mr Mudau, the Senior
Manager-Human Resources made a formal request to the Senior Manager-
Security and Investigation Services to verify the qualifications of
the Respondent and Mr Mosila, and inform his office accordingly.
Mr
Mudau recommended the appointment of the Respondent to the post.