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[2012] ZALCJHB 51
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South African Municipal Workers Union v Mopani District Municipality (J 1516/12) [2012] ZALCJHB 51 (15 June 2012)
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA,
IN JOHANNESBURG
JUDGMENT
Reportable
Case no: J 1516/12
In the matter between:
SA Municipal workers union
Applicant
and
Mopani district municipality
Respondent
Heard
:
11 June 2012
Delivered
:
15 June 2012
Summary:
(urgent-staying recruitment process - locus standi of
union - joinder of short-listed candidates).
JUDGMENT
LAGRANGE, J
Introduction
This is an urgent application in which the applicant seeks
effectively to interdict the recruitment process for the appointment
of a new Municipal Manager of the respondent municipality, which has
reached the stage where short-listing has been done and
interviews
of the short-listed candidates are due to take place on 15 June
2011. On account of this, I agreed that judgment would
be given at
08h00 that day before any interviews are due to commence.
The relief sought by the applicant is an interim order pending the
return date:
That the intended interviews for the position of municipal manager
scheduled for 15 June 2012 at 09H00 or any other date thereafter
be
interdicted;
alternatively to 2.1, in the event that interviews already took
place at the time of hearing this application, appointment
of a
recommended candidate be and is hereby interdicted; and
that the short listing process of candidates for the position of
municipal manager be set aside;
that the respondent be ordered to be advertised de novo the
position of municipal manager;
that the respondent be ordered to pay the costs of the application
on attorney and own client scale
An answering affidavit was received shortly before the hearing of
the application which had been stood down from 10h00 to 14h00
today
(14-06-2012). In the circumstances there is no replying affidavit.
The relief sought by the applicant is in the form of a rule nisi,
leaving the final determination of the matter to the return
date.
The effect of granting the interim relief would require the
respondent to abandon the present recruitment process and restart
it
anyway, so the consequences are final in nature. I agree with
respondent’s counsel that the relief sought is in fact
final
in nature. Consequently, the applicant must demonstrate a clear
right, which has been infringed, and an absence of a suitable
alternative remedy in due course.
1
Brief summary of the facts
The employment contract of the previous Municipal Manager, Mr Maake,
ended on 30 April 2012. It was initially extended for a
further five
years by the respondent. This was contrary to the provisions of
section 54
(2A) of the
Local Government: Municipal Systems Act 32 of
2000
, which requires any extension to be sanctioned by the MEC,
which in any event cannot exceed three months. The applicant claims
that as a result of its "blowing the whistle" this invalid
appointment was withdrawn by the respondent.
The respondent then advertised the post of municipal manager in May
2012 setting a closing date for submitting applications by
31 May
2012. Eight people applied for the post by the closing date. The
applicant alleges that in terms of the respondent’s
personnel
procurement procedures, applications received are captured by the
registry section of the municipality on the closing
date to record
the stock of applications received and verify the documentation.
After verifying the applications and documents
attached to them the
applicant claims that corporate services department would retain the
applications until the short listing
process.
The applicant claims that the former municipal manager’s
secretary requested four of the applicants CBS CV’s,
which claims had not yet been captured by the registry department.
These CVs were only returned to the registry section after the
closing date, but the director of corporate services nonetheless
instructed that all the applications should be captured.
The applicant believed that only one of the applicants whose CVs
were removed, was shortlisted. Believed that this might have
been a
result of the CVs being tampered with. However, according to the
respondent two of the applicants in question were in
fact
shortlisted. On the papers I must accept the respondent’s
version. As a result of the applicant's suspicions that
is the four
candidates applications might have been tampered with, it believed
the whole process of recruitment had been tainted
and it demanded
the process be started afresh.
Demands were conveyed in various letters to the respondent to which
the latter replied. In essence, the respondent denied that
the
former municipal manager’s secretary had handled any of the
applications as alleged and was satisfied that the process
of short
listing could continue. This was communicated to the union in two
separate and similar letters from the acting municipal
manager and
the mayor respectively, both signed on 7 June 2012.
The shortlisting process took place on 8 June 2012 and the
applicant's representative, who was entitled to observe the process,
again voiced the union's objections to the recruitment process
continuing, but the short listing proceeded nonetheless. At this
point it is useful to set out the limited role assigned to the
applicant’s representative in the recruitment process.
The relevant clauses of the respondents Personnel Provisioning
Policy read as follows:
"5.4 job levels zero, 1 and 2 positions:
Shortlisting will be done by the speaker, Executive Mayor, or any
two of full-time counsellors, municipal manager and the head of
directorate where possible.
Unions are allowed to attend process
as observers.
”
5.5 Invitation to attend the interview
The directorate of corporate services is to invite in all
instances union representatives to be observers during the
interviewing
process.
The purpose of union observer is to monitor
and evaluate the process
of recruitment on a continuous basis.
Unions do not form part of the selection panel,
Unions do
however attend the interviewing process, but may not ask questions on
substantive issue. They however challenge unprocedural
issues.
"
These are the provisions specifically relied on by the applicant,
though there is also a specific objection procedure provided
in the
policy which enables the union or any shortlisted member to obtain
reasons why a specific candidate was successful or
another was not.
The municipality is also obliged to provide objective reasons for an
appointment. Although there is some ambiguity
as to whether the
union can obtain information on final choices made, the procedure
makes it clear that any party including a
union or another employee
may object if it is not satisfied with the procedures.
The essential concern of the applicant is that because it believed
that the documentation of the four candidates whose CVs were
removed, might have been tampered with by the former municipal
manager or by his staff, it is concerned that the recruitment
process has been tainted and argued that it must start again from
scratch to ensure that it is fair and transparent. It has taken
up
the matter based on its interpretation of its entitlement to ensure
that the recruitment process is procedurally fair based
on the
respondent’s policy. It also claims to have brought the
application to "protect the interest of third parties
who are
not privy to the selection and interviewing processes as they are
not involved."
Analysis
A number of
in limine
objections were raised by the
respondent apart from disputing the applicant’s entitlement to
substantive relief. For the
purposes of this decision I will only
deal with the issue of joinder and the union’s
locus standi
to bring this application.
Locus standi
The union brings this application in its own name and says that its
locus
standi
is also "entrenched" by the
respondent’s Personnel Provisioning Policy. In terms of the
provisions of that policy,
the union is clearly entitled to attend
the short-listing process and the interviews of short-listed
candidates. In terms of
the provisions of the policy not relied on
by the union, it is also entitled to object to any procedural
unfairness and to be
given written reasons for not considering or
appointing a specific candidate.
Union representatives did in fact attend the short listing process,
and did raise objections to the recruitment process proceeding
on
the basis that it was unfair. Mr Venter, who appeared for the
applicant, argued that the rights in the policy were meaningless,
if
the union also did not have a right to pursue a procedural objection
grievance of procedural unfairness by obtaining relief
in the form
of an order compelling the respondent to conduct a procedurally fair
recruitment process. In terms of the policy
the union would
certainly be entitled to enforce its right to participate in the
capacity of an observer and to raise objections,
but that does not
mean that the policy also implies it has a right to stop the process
if its objections are overruled. Such
a right must be founded on
some other ground.
Thus, it might for instance be possible that the union could have
tried to base its right to sue on the broader principle of
locus
standi
introduced by section 38 of the Constitution which
permits a party to sue to protect a fundamental right in the bill of
rights,
even if the party does not have a direct and substantial
interest in the subject matter of the litigation itself. However,
the
union did not lay a basis for this in its founding affidavit and
did not identify a fundamental right in the constitution it was
trying to enforce in the interests of others. The closest it came to
articulating such a ground was to say it was ‘acting
in the
public interest’, but this was not related to a fundamental
right in the bill of rights.
Non-joinder
Another objection raised by the respondent was the failure of the
applicant to join any of the candidates due to be interviewed
on 15
June 2012. In argument it was suggested that such candidates would
suffer no prejudice if the process was restarted as
there was no
reason to believe they would not be shortlisted. All candidates who
met the basic requirements for the post were
shortlisted. When
applicant’s counsel was asked whether there might not be other
prejudice flowing from a delay in the
recruitment process to
shortlisted candidates he argued that the need for ensuring the
fairness of the process would outweigh
such interests.
That might be so, but I do not think that is a basis for not joining
the short-listed candidates. It is the fact that they have
a
material interest in the interview process proceeding now and not at
some indefinite later date which gives them a right to
be heard.
Whether that interest will be outweighed by other considerations is
a matter to be decided on the merits of the case.
For this reason, I think that the application ought also be
dismissed for the non-joinder of the shortlisted candidates.
Conclusion
As there are at least two preliminary reasons why the application
should be dismissed, it is not necessary for me to consider
the
others or the merits of the claim.
Order
The application is dismissed with costs for the reasons stated
above.
_______________________
R LAGRANGE, J
Judge of the Labour Court of South
Africa
APPEARANCES
APPLICANT: R Venter instructed by Maenetja Attorneys
FIRST RESPONDENT: N Cassim, SC instructed by Lebea Attorneys
1
Setlogelo
v Setlogelo
1914 AD 221
at 227