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[2017] ZALCJHB 157
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Masithela v Thabazimbi Local Municipality Council and Another (J710/17) [2017] ZALCJHB 157 (16 May 2017)
Of
interest to other judges
THE
LABOUR COURT OF SOUTH AFRICA,
HELD
AT JOHANNESBURG
C
ase No: J
710/17
In the
matter between:
NANA ARCILIA MASITHELA
Applicant
and
THABAZIMBI LOCAL MUNICIPALITY
COUNCIL
First Respondent
THE MAYOR
Second Respondent
Heard
:
11 May 2017
Delivered
:
16 May 2017
Summary:
(Urgent application – to review and set aside decision to
re-advertise a post – applicant selected
as one of two
competent candidates for Municipal Manager after original recruitment
process – council deciding to re-advertise
– no
appointment made – jurisdictional issue decisive)
JUDGMENT
LAGRANGE
J
Background
to the application
[1] An
interim order in this matter was handed down on 28 March 2017
compelling the local authority to withdraw advertisement of
the
position of a municipal manager pending determination of relief
sought in part B of the notice of motion. The order further
directed
the 1
st
respondent not to hold interviews and other
ancillary relief.
[2] The
final relief sought in this application is to review and set aside
the decision of the respondent to re-advertise the vacancy
of
municipal manager and secondly, to appoint the applicant as the best
qualified and competent candidate for the post of municipal
manager.
An amended notice of motion substituting the 2
nd
part of
the relief sought was filed on 18 April in which the applicant simply
requires an order that the respondent is to do everything
necessary
to appoint the applicant within 5 days of the date of the order as
the municipal manager.
[3] The
applicant had emerged from the selection process following the 1
st
advertisement for the post of municipal manager as one of two
competent candidates. The applicant believed that a rival candidate
had subsequently failed a security vetting test based principally on
the fact of a media release from the Greater Tzaneen Local
Municipality in February 2015, that he was dismissed as a municipal
manager from that local authority. The respondent denies that
the
rival candidate failed any security vetting test. Consequently, the
applicant believed that she was the only remaining candidate
for the
post who had passed successfully through the selection process and
accordingly ought to have been employed.
[4]
However, to her understandable disappointment, the respondent wrote
to her on 16 March advising her that it had decided to re-advertise
the post of municipal manager. This decision was taken at a special
council meeting held on 14 March. The motivation for re-advertising
the post was that, the poor financial state of the municipality
needed a person with excellent financial experience and none of
the
candidates were financially competent in the assessment of the third
party that had evaluated the competency of the candidates.
In
passing, I note that the assessment of the applicant’s
Financial Management competency, the concluding remark was:
“Financial
management may therefore prove to be an important
development area, given the level and nature of the role”,
suggesting that
this was something of a weak spot in the applicant’s
skills set.
[5] The
applicant did not accept this rationale for re-advertising the post
and believed it was simply a ruse to avoid appointing
her as the
municipal manager after she believed she had emerged as the
successful candidate in the initial recruitment process.
[6]
Initially, when the applicant articulated her claim in her original
founding affidavit she claimed that the decision to re-advertise
her
position amounted to unfair discrimination which was inconsistent
with sections 5 and 6 of the Employment Equity Act and sections
9 and
195 of the Constitution. Alternatively, she claimed that the decision
to re-advertise the post amounted to an unfair labour
practice.
[7]
After obtaining interim relief,
the applicant filed an amended notice of motion in which she
abandoned all claims under the Employment
Equity Act and refashioned
her claim as an administrative review under sections 33 (1)
[1]
and section 195
[2]
of the Constitution, without any reference to the Promotion of
Administrative Justice Act 3 of 2000 (“PAJA”) as such.
[8] In
essence, the applicant contends that the reasons provided in the
minutes of the meeting, namely that the financial position
of the
municipality required someone with excellent financial experience and
therefore the post should be re-advertised because
none of the
candidates were financially competent was a retrospective alteration
of the minutes to rationalise the decision to
re-advertise the post.
In support of this contention, the applicant points out
inter alia
that the only new requirement introduced in the re-advertised
position was that of “previous experience as a municipal
manager
will be added advantage”. The applicant contends that
if the requirement been financial experience or competency it is
incomprehensible
that it would not have stated this.
[9] In
summary, the specific grounds of review the applicant relies on are
the following:
9.1
The decision to re-advertise the post was unfair, unreasonable,
irrational and unjustifiable.
9.2
The respondent failed to apply its mind to the recommendations.
9.3
It acted mala fides.
9.4
It acted contrary to the requirements of fair administrative
action.
9.5
The manner in which the decision was arrived at contradicts sections
33 (1) and 195 (1) of the
Constitution.
Jurisdictional
issue
[10] For
the sake of considering whether the court has jurisdiction, I will
assume that the applicant can rely directly on the constitution
and
the common law of review and that therefore, it was not necessary for
the applicant to articulate her grounds of review under
PAJA. The
crisp jurisdictional question that needs to be determined is whether
this court does have jurisdiction to review the
respondent’s
decision to re-advertise the post of municipal manager.
[11] The
respondent argues that the Labour Court’s review jurisdiction
is confined to the situations envisaged under sections
157 and 158 of
the Labour Relations Act, 66 of 1995 (“the LRA”).
[12]
Initially, the applicant placed
some reliance on the decision of the LAC in
Merafong
City Local Municipality v SA Municipal Workers Union & another
[3]
in support of her claim that that the Labour Court does have
jurisdiction to hear her application. However, in argument, reliance
on this case was abandoned. Nonetheless, that decision is important
in delineating aspects of the court’s jurisdiction and
ought to
be considered in order to deal with the other jurisdictional grounds
advanced by the applicant. In the
Merafong
matter, the union had
applied to review and set aside the decision of a municipality to
appoint a particular individual as a municipal
manger when evidence
of financial mismanagement in a former municipality where he was also
employed as a municipal manager came
to light. The LAC embarked on a
detailed examination of the Labour Court’s jurisdiction and
powers and concluded that section
157 (1) confirmed those areas where
the court has exclusive jurisdiction and where it would have
concurrent jurisdiction with the
High Court. However, contrary to
previous interpretations in which section 158 was construed as
dealing only with the powers that
court exercises within its
jurisdiction, the LAC pointed out that some of the provisions of
section 158 in fact describe the type
of matter referred to in
section 157 (1) where the court has exclusive jurisdiction because
they are matters “that elsewhere
in terms of this Act are to be
determined by the court.”
[4]
.
[13] The
LAC went on to decide that one such subsection of section 158 which
designates the court’s jurisdiction and not merely
its power is
section 158 (1) (h) of the LRA, which states:
“
The
Labour Court may –
...
(h)
review any decision taken or any act performed by the
State in its
capacity as employer
, on such grounds as are permissible in law;
...”
(emphasis
added)
The LAC
concluded therefore:
“
[38]
The Labour Court is not precluded by the LRA from reviewing the
decisions and acts contemplated in s 158(1)(h). It has the
power (and
jurisdiction) to review them on any grounds 'permissible in law'.
Permissible grounds in law would include the constitutional
grounds
of legality and rationality 19 and, if they constitute
'administrative action', on the grounds that are stipulated in PAJA,
which is the legislation giving effect to the rights contained in s
33 of the Constitution. The appellant is an 'organ of state'
as
defined in s 239 of the Constitution and its powers and duties are of
a public nature. The appointment of a municipal manager
involves the
exercise of public powers derived from the Systems Act and
constitutes a decision, or decisions, or conduct, by the
state in its
capacity as employer.
[39]
In the circumstances, the Labour Court had jurisdiction to hear and
determine the application for the review and setting aside
of the
appointment of Mr Mabaso as a municipal manager....”
[5]
[14] In
so far as the applicant sought to rely on this judgement as authority
for the court’s jurisdiction to review and set
aside the
decision to re-advertise the municipal manager’s post, the
facts of this matter are not on all fours with that
in
Merafong
and the cases are distinguishable on that basis. In
Merafong
’s
case, the applicant union was seeking to set aside an existing
employment relationship which had been created when the
municipal
manager was appointed. In the applicant’s case, the object of
her review is aimed at creating an employment relationship
which does
not yet exist between herself and the respondent by means of setting
aside the decision to re-advertise the post and
to appoint her in the
position of municipal manager by virtue of the initial recruitment
process. I do not think a decision to
re-advertise the post is a
decision made by the Council in its capacity as an employer, because
that necessarily implies the decision
must have been one taken as an
employer vis-a-vis one or more employees. If the decision had been
one to revoke the appointment
of the applicant and to re-advertise
the post after she had been appointed, the position would probably be
different, but in this
case the applicant was only anticipating her
appointment. The power conferred on the Labour Court by158 (1) (h)
does not extend
to decisions relating to potential employment
relationships.
[15]
The applicant cited three other
cases in which courts had intervened in appointment processes. The
first case is
Mlokoti V
Amathole District Municipality & Another
.
[6]
The headnote to that High Court matter usefully summarises the facts
as follows:
“
The applicant had applied for
the advertised post of municipal manager of the first respondent
municipality. After a shortlisting
process, the applicant and Mr Z
were the two outstanding candidates, and the other candidates were
eliminated. In June 2008 the
council of the municipality resolved to
appoint Mr Z and notified the applicant that his application had been
unsuccessful. The
applicant, aggrieved by the decision , sought,
inter alia, to have the decision reviewed and set aside by the High
Court.”
[16]
In that case, the court decided
that the applicant as an external candidate for the post could not
have relied on the
Labour Relations Act and
that the High Court had
jurisdiction to hear the matter on the basis that in making the
decision to appoint someone else as municipal
manager of the local
authority was performing an administrative act which could be
reviewed and because the applicant did not have
a remedy under the
LRA, she was not obliged to rely on that act but could find relief
under the concurrent jurisdiction of the
High Court, following the
court’s interpretation of the principles enunciated in
Chirwa
v Transnet Ltd & others
2008
(4) SA 367 (CC)
[7]
.
Although the applicant rightly points out that the High Court was
willing to interfere in the appointment process and appoint
the
applicant, who was an external candidate after setting aside the
appointment of the successful candidate, that judgement does
not
assist the applicant in establishing this court’s jurisdiction
in her case. If anything, it suggests the contrary namely
that she
should have launched her application in the High Court.
[17]
The applicant also refers to
the SCA case of
Head,
Western Cape Education Department and Others v Governing Body, Point
High School and Others
[8]
where the court reviewed and set aside the decision to appoint
certain candidates for posts following a selection process and
recommendations of a selection panel. In that case the court
appointed the best qualified candidates to the posts as part of the
relief ordered. Lastly, the applicant referred to the case of
Mahura
v Greater Taung Local Municipality and Others
[9]
,
a decision of the North West High Court. In that matter, the court
found that the selection panel had no authority to lower the
prescribed minimum selection criteria and accordingly the candidate
chosen from the shortlisting process or never to have been
shortlisted
[10]
and his appointment was set aside and the municipality was ordered to
re-advertise the position. Likely, other decisions cited,
it confirms
the competency of the High Court to intervene and set aside
appointments in exercising its powers of administrative
review. They
do not assist in determining whether this court has jurisdiction.
[18]
Another argument in support of this court’s jurisdiction to
hear the matter was advanced after applicant’s counsel
conceded
that the
Merafong
case was indeed distinguishable from the
applicant’s case. As I understand it, the applicant contends
that the court in the
exercise of its concurrent jurisdiction with
the High Court under
section 157
(2) could address the alleged
violation of her right to fair administrative action under the
Constitution. The pertinent portion
of s 157(2) states:
“
The
Labour Court has concurrent jurisdiction with the High Court in
respect of
any alleged or threatened violation of any fundamental
right
entrenched in Chapter 2 of the Constitution of the Republic
of South Africa, 1996, and
arising
from
-
(a)
employment and from labour relations
;
(b)
any dispute over the
constitutionality
of any executive
or
administrative act or conduct
, or any threatened executive or
administrative act or conduct,
by the State in its capacity as an
employer
;...”
(emphasis
added)
Indeed,
there appears to be authority for interpreting s 157(2)(a) as
conferring concurrent jurisdiction on the Labour Court to
determine
disputes concerning an infringement of the rights in the bill of
rights in matters arising from employment and labour
relations. Thus
the Constitutional Court held in
Gcaba
v Minister for Safety and Security & others
[11]
[70]
Section 157(1) confirms that the Labour Court has exclusive
jurisdiction over any matter that the LRA prescribes should be
determined by it. That includes, amongst other things, reviews of the
decisions of the CCMA under section 145.110Section 157(1)
should,
therefore, be given expansive content to protect the special status
of the Labour Court, and section 157(2) should not
be read to permit
the High Court to have jurisdiction over these matters as well.
[71]
Section 157(2) confirms that the Labour Court has concurrent
jurisdiction with the High Court in relation to alleged or threatened
violations of fundamental rights entrenched in Chapter 2 of the
Constitution and arising from employment and labour relations,
any
dispute over the constitutionality of any executive or administrative
act or conduct by the state in its capacity as employer
and the
application of any law for the administration of which the minister
is responsible.111 The purpose of this provision
is to extend
the jurisdiction of the Labour Court to disputes concerning the
alleged violation of any right entrenched in the Bill
of Rights which
arise from employment and labour relations, rather than to restrict
or extend the jurisdiction of the High Court.
In doing so, section
157(2) has brought employment and labour relations disputes that
arise from the violation of any right in
the Bill of Rights within
the reach of the Labour Court. This power of the Labour Court is
essential to its role as a specialist
court that is charged with the
responsibility to develop a coherent and evolving employment and
labour relations jurisprudence.
Section 157(2) enhances the ability
of the Labour Court to perform such a role.112
[72]
Therefore, section 157(2) should not be understood to extend the
jurisdiction of the High Court to determine issues which (as
contemplated by section 157(1)) have been expressly conferred upon
the Labour Court by the LRA.
Rather,
it should be interpreted to mean that the Labour Court will be able
to determine constitutional issues which arise before
it, in the
specific jurisdictional areas which have been created for it by the
LRA, and which are covered by section 157(2)(a),
(b) and (c)
.”
[12]
(emphasis
added)
[19] A
very loose interpretation of the term ‘arising from employment
and from labour relations’ might arguably stretch
far enough to
include a dispute arising between someone who is in the position of
an external job applicant with no existing employment
relationship
with the other party to the dispute. However, I am not persuaded this
was the intention of the legislature, given
that the Labour Court is
generally not able to entertain disputes between external job
applicants and prospective employers except
in very specific limited
cases such as
s 9
of the
Employment Equity Act 55 of 1998
, which
expressly includes a job applicant in the definition of an employee
for the purposes of claims under
sections 6
,
7
and
9
of that Act. It
also would render a provision like s 158(1)(h) effectively
superfluous. If the Labour Court has unlimited concurrent
jurisdiction to review decisions or conduct in any employment related
issue, why would the legislature then narrowly express the
scope of
review in s 158(1)(h)?
[20] In
light of the above, I am not persuaded the court has jurisdiction to
entertain the applicant’s review application.
Costs
[21] On
the issue of costs, I believe that despite the applicant developing
her case as it progressed, she originally launched the
application in
the belief that there was something untoward about the decision to
re-advertise the matter. However, once the pleadings
had closed in
the second part of the urgent application, she should have taken
stock of the position as it appeared once the founding
papers were
finalised. In my view, the application should have been withdrawn
before it was argued on 11 May. Accordingly, I believe
it is only
fair and equitable that she should at the very least bear the
respondent’s costs of that day.
Order
[22] The
application was heard as a matter of urgency and non-compliance with
the requirements of the rules of the Labour Court
relating to time
limits and service is condoned.
[23] The
application is dismissed for lack of jurisdiction.
[24] The
applicant must pay the respondent’s costs of appearance on 11
May 2017.
_______________________
Lagrange
J
Judge of
the Labour Court of South Africa
APPEARANCES
FOR
THE APPLICANT:
Adv
M. Phantsi instructed by
Masike
Attorneys
FOR
THE RESPONDENTS:
Adv
P. Kirstein instructed by JF
Van
Graan & Van Der
Wateren
Attoneys
[1]
Viz ”(1) Everyone has the right to administrative action that
is lawful, reasonable and procedurally fair.”
[2]
S 195 Sets
out the basic principles and values which public administration must
adhere to.
[3]
(2016) 37
ILJ
1857
(LAC)
[4]
At 1866-7, paras
[29]-[35]
[5]
At 1867-8.
[6]
(2009) 30 ILJ 517 (E)
[7]
At 522D-523E.
[8]
2008 (5) SA 18 (SCA)
[9]
(M83/2014)
[2014] ZANWHC 58
(28 November 2014)
[10]
At para
[24].
[11]
[2009] 12 BLLR 1145 (CC)
[12]
At 1166.