About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2018
>>
[2018] ZALCJHB 48
|
|
Letsogo v Department of Economy and Enterprise Development and Others (JR350/16) [2018] ZALCJHB 48; (2018) 39 ILJ 851 (LC) (9 January 2018)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Of
Interest to other Judges
Case
No: JR350/16
In the matter between:
SEILE
EDWIN LETSOGO
Applicant
and
THE
DEPARTMENT OF ECONOMY & ENTERPRISE
DEVELOPMENT
THE
GENERAL PUBLIC SERVICE SECTOR
BARGAINING
COUNCIL) (Pretoria)
P
ROOPA N.O
RUTH
DZANIBE
First
Respondent
Second
Respondent
Third
Respondent
Fourth
Respondent
Heard:
12 July 2017
Delivered:
09 January 2018
JUDGMENT
GOLDBERG
AJ
Introduction
[1]
The
preliminary issues of condonation concerning the failure by the
applicant to timeously apply for a date for the matter to be
heard
(the six months rule – section 145 (5) of the Labour Relations
Act
[1]
(LRA) was not opposed; it
was also not challenged at court, further the reasons given for the
delay were valid and there are prospects
of success; I accordingly
grant condonation in respect of all periods of delay.
[2]
The review application was filed on 03 March 2016 after having been
served on all the respondents including the fourth respondent.
[2]
This matter
concerns an alleged unfair labour practice in the appointment of a
suitable candidate to an advertised position after
shortlisting and
interviews.
[3]
I must
decide if the award is reviewable where the arbitrator found that
there was no unfair labour practice committed by the first
respondent
in terms of section 186 (2) (a) of the LRA in that it did not promote
the applicant despite him qualifying for the position;
this where the
fourth respondent was promoted to such position, even though she
never qualified for the position as per the requirements
initially
set out in the advertisement.
[4]
The facts
are mostly common cause.
[5]
On 01
February 2013 the post of Director: Consumer Affairs (the “
Position
”)
was advertised at the first respondent.
[3]
[6]
The
advertisement sets out certain minimum requirements (to be considered
for the Position) which were
inter
alia
:
[6.1]
A minimum of three (3) years in Middle Management Services (“
MMS
”);
and
,
[6.2] Computer
literacy.
[7]
Various
candidates including the applicant and the fourth respondent applied
for the Position.
[4]
The
applicant met all the necessary requirements as set out in the
advertisement; this was in that the applicant was the Deputy
Director: Consumer Affairs which was a position at the MMS level and
he was computer literate.
[5]
On
the other hand, the fourth respondent did not possess the necessary
requirements;
[6]
she had only
held the position of Assistant Director which was not a MMS
position.
[7]
[8]
Six (6) of
those who applied for the Position, including the applicant were
shortlisted. The fourth respondent was not shortlisted.
[9]
The
selection panel then,
mero
motu
,
changed the selection criteria by removing the MMS experience
requirement set out in the advertisement (the first requirement)
and
replacing it with the requirement termed as follows: “
recognised
experience within career stream from Assistant Director level from
Government sector services, and to scrutinise applicants’
C.V.
from private sector to counterpart duties as outlined in the
advert.
”
[8]
According to the minutes of a meeting at which such change was
discussed the basis to same was that: “
the
advert did not specify the type of required qualification(s) for the
position.
”
[9]
In evidence at arbitration Sekgapane testified that: “
So,
this is the decision that the panel took that its Assistant Director
at that level, would be considered middle management. It
was a
decision that the panel took as the criteria was developed.”
[10]
[10]
The new
selection criteria (that were “
developed
”)
were not re-advertised but a new shortlisting was done whereby the
applicant, the fourth respondent and four (4) others
were then
short-listed for the Position.
[11]
The selection pool was subsequently narrowed [it seems via the
MEC,
[12]
who was informed to
choose two (2) of the three (3) recommended and was seemingly not
informed of the issues at hand] to only the
applicant and the fourth
respondent who were then nominated to undergo a competency test.
[13]
Subsequently the selection panel appointed the fourth respondent. As
such the only person that could and did benefit from such
change was
the fourth respondent.
[11]
The
applicant saw this action by the selection panel as unfair and
referred an unfair labour practice dispute to the second respondent.
The third respondent was appointed and did preside over the matter
which led to the award which is the subject of the present review
application.
[14]
The
award
[12]
The
arbitrator heard the evidence of the parties and decided that there
was no unfair labour practice in that, as he set out in
his analysis:
“
I
have no doubt in my mind that the applicant has not made out a proper
case to succeed in his claim that the respondent had committed
an
unfair labour practice by not appointing him to the position of
Director: Consumer Affairs.”
[15]
[13]
He found
that the “
managerial
requirement
”
set out in the advertisement was “
patently
wrong and if followed, would automatically preclude candidates in
industries outside the public service, a most ridiculous
situation
which needed to be addressed and appears to have been addressed in a
most logical manner.”
[16]
[14]
The
arbitrator concluded that he could not find that any unfair labour
practice had been committed by the first respondent and dismissed
the
applicant’s referral.
The
applicant’s review
[15]
I must
mention that both parties delivered heads of argument very late. The
applicant filed its heads of argument on 28 June 2017
and the first
respondent on the day of the hearing being 12 July 2017;
[17]
this was despite a directive being issued by the court requesting
same in or about January 2017
[18]
and the set down notice having been sent to them on 08 June 2017.
[19]
Further both sets of heads of argument failed to deal with various
issues. The applicant’s heads, while relevant and on the
topic,
failed to properly set out the legal basis for the relief sought
whereas the first respondent’s heads of argument
dealt with
completely incorrect principles, shows a total misunderstanding of
the matter on review, sets out incorrect facts and
refers to
documents without setting out where same were in the record and even
refers to documents and legislation which were not
submitted at
arbitration and / or not dealt with in evidence at arbitration. On 12
July 2017 and at court I stood the matter down
and I placed further
questions to the parties and allowed them time to respond thereto by
the delivery of supplementary heads dealing
with such questions and
to which they responded.
[20]
Further the court file was poorly organised; the transcripts were not
properly done in line format (they only have page numbers
not line
numbers); further there was much research to be done, hence the delay
in this judgment.
Analysis
[16]
The
applicant raises various
grounds of review in its papers but in the main these amount to: “
the
contention that the award is bereft of any reasoning and that the
Arbitrator malfunctioned as an arbitrator; and, the contention
that
the decision ultimately arrived at by the Arbitrator (namely that an
unfair labour practice had not been committed) was one
that a
reasonable decision maker could not have come to.
”
[21]
There is the further ground of legitimate expectation that the
applicant by being appointed to act in the Position and receiving
favourable recommendations from the first respondent in respect of
the performance of his duties but there was no proof and indeed
no
case in this regard.
[17]
The
applicant seeks an order reviewing the award. The applicant further
seeks an order
setting
aside the appointment of the fourth respondent and ordering that the
applicant be placed in the Position retrospectively
as if he had been
appointed. In the alternative, the applicant seeks an order granting
him a protective promotion.
[18]
The test on
review
in
respect of an unfair labour practice was well set out in the Labour
Appeal Court case of
Head
of Department of Education v Mofokeng
[22]
per Murphy AJA:
[31]
The
determination
of
whether a decision is unreasonable in its result is an exercise
inherently dependant on variable considerations and circumstantial
factors. A finding of unreasonableness usually implies that some
other ground is present, either latently or comprising manifest
unlawfulness. Accordingly, the process of judicial review on grounds
of unreasonableness often entails examination of inter-related
questions of rationality, lawfulness and proportionality, pertaining
to the
purpose
,
basis, reasoning or effect of the decision, corresponding to the
scrutiny envisioned in the distinctive review grounds developed
casuistically at common law, now codified and mostly specified in
section 6 of the Promotion of Administrative Justice
Act
[23]
(“PAJA”);
such as failing to apply the mind, taking into account irrelevant
considerations, ignoring relevant
considerations, acting for an
ulterior purpose, in bad faith, arbitrarily or capriciously etc. The
court must nonetheless still
consider whether, apart from the flawed
reasons of or any irregularity by the arbitrator, the result could be
reasonably reached
in light of the issues and the evidence.
[24]
Moreover,
judges of the Labour Court should keep in mind that it is not only
the reasonableness of the outcome which is subject
to scrutiny. As
the SCA held in
Herholdt
,
the arbitrator must not misconceive the inquiry or undertake the
inquiry in a misconceived manner. There must be a fair trial
of the
issues.
[25]
[32]
However, sight may not be lost of the intention of the legislature to
restrict the scope of review
when it enacted section 145 of the LRA,
confining review to “defects” as defined in section
145(2) being misconduct,
gross irregularity, exceeding powers and
improperly obtaining the award. Review is not permissible on the same
grounds that apply
under PAJA. Mere errors of fact or law may not be
enough to vitiate the award. Something more is required. To repeat:
flaws in
the
reasoning
of the
arbitrator, evidenced in the failure to apply the mind, reliance on
irrelevant considerations or the ignoring of material
factors etc.
must be assessed with the purpose of establishing whether the
arbitrator has undertaken the wrong enquiry, undertaken
the enquiry
in the wrong manner or arrived at an unreasonable result.
[26]
Lapses
in lawfulness, latent or patent irregularities and instances of
dialectical unreasonableness should be of such an order (singularly
or cumulatively) as to result in a misconceived inquiry or a decision
which no reasonable decision-maker could reach on all the
material
that was before him or her.
[33]
Irregularities or errors in relation to the facts or issues,
therefore, may or may not produce
an unreasonable outcome or provide
a compelling indication that the arbitrator misconceived the
inquiry.
[27]
In the final
analysis, it will depend on the materiality of the error or
irregularity and its relation to the result. Whether the
irregularity
or error is material must be assessed and determined with reference
to the distorting effect it may or may not have
had upon the
arbitrator’s conception of the inquiry, the delimitation of the
issues to be determined and the ultimate outcome.
If but for an error
or irregularity a different outcome would have resulted, it will ex
hypothesi be material to the determination
of the dispute. A material
error of this order would point to at least a prima facie
unreasonable result. The reviewing judge must
then have regard to the
general nature of the decision in issue; the range of relevant
factors informing the decision; the nature
of the competing interests
impacted upon by the decision; and then ask whether a reasonable
equilibrium has been struck in accordance
with the objects of the
LRA.
[28]
Provided the right
question was asked and answered by the arbitrator, a wrong answer
will not necessarily be unreasonable. By the
same token, an
irregularity or error material to the determination of the dispute
may constitute a misconception of the nature
of the enquiry so as to
lead to no fair trial of the issues, with the result that the award
may be set aside on that ground alone.
The arbitrator however must be
shown to have diverted from the correct path in the conduct of the
arbitration and as a result failed
to address the question raised for
determination.
”
[29]
[19]
The
question
to
be asked is did the arbitrator misconceive the nature of the enquiry
and was such misconception material and / or did he misdirect
himself
in that he ignored materially relevant factors which when considered
in totality rendered the result or outcome that he
arrived at
unreasonable?
[30]
[20]
Further in
respect of the need for a fair trial of the issues in respect of an
unfair labour practices the Labour Court, per Nel
A.J., has set out
that:
“
[17]
Taking this proposition further, and applying what our courts have
said in this regard to the employment field,
I
am of the view that an employee can only succeed in having the
exercise of a discretion of an employer interfered with if it is
demonstrated that the discretion was exercised capriciously, or for
insubstantial reasons, or based upon any wrong principle or
in a
biased manner
(see
Rex
v Zackey
1945
AD 505
at 513;
Madnitsky
v Rosenberg
1949
(2) SA 392
(A) at 398;
Ex
parte Neethling & others
1951
(4) SA 331
(A) at 335D;
Benson
v SA Mutual Life Assurance Society
1986
(1) SA 776
(A) at 781J and 783C;
Shepstone
H & Wylie & other v Geyser NO
1998
(3) SA 1036
(SCA) at 1045A).”
[31]
[21]
What I need
to consider is could the
selection panel change the requirements for the post and did the
arbitrator consider this issue correctly?
[22]
In my view
the arbitrator misconceived the enquiry that he needed to undertake.
He got too bogged down in the credibility of the
witnesses and the
reliability of their testimony
and
failed to deal with the facts of the matter most of which were common
cause. The arbitrator failed to realise that the selection
panel
could not
mero
motu
change the requirements for the Position; they did not have the power
and / or the authority to do so. These requirements as set
out in the
advertisement were set out by the relevant executive authority, being
the Minister and could only be changed by him
/ her. And what is more
the Minister would have to set out his / her reason for doing so and
such deviation would have to have
a legal basis. It was peremptory
that only the Minister could change the requirements of the Position
as set out in the advertisement.
Only once this issue was decided
could the arbitrator even consider whether the requirements were
discriminatory or not and whether
the witnesses’ testimonies
were credible. As such the arbitrator by delving into the question as
to whether the action by
the selection panel in changing the
requirements for the Position was reasonable, bypassed this absolute
requirement. His award
as such needs to be reviewed and set aside.
Further the arbitrator fails to deal with the issue that the fourth
respondent should
have been eliminated from the process right from
the beginning in that she did not possess the required qualifications
for the
Position. It could be said that she had no right to even
apply for the post.
[23]
The first
respondent not only committed an unfair labour practice when it
changed the requirements for the Position (via the panel)
but also
committed an unfair labour practice where it failed to re-advertise
the Position once it had changed the requirements.
[32]
These failures were unfair particularly to the parties to the
process.
[33]
[24]
Further by
then including the fourth respondent in the process and then later
lining her up against the applicant it again committed
an unfair
labour practice firstly because she was not meant to be part of the
process and secondly because the applicant was at
such time the only
qualified candidate left in the running and as such only he could be
appointed to the Position. As such the
process embarked upon by the
panel post the shortlisting phase was not only unfair to the
applicant who now had a running mate
to challenge him where he should
have been alone but same was unlawful in that the required steps (as
per the law) were not taken
and instead the panel acted
ultra
vires
and usurped the functions of the Minister.
[34]
[25]
Further the
first respondent’s explanation, provided at arbitration, as to
why the requirements (as set out in the advertisement)
needed to be
changed or were to be deviated from by the panel; which was because
they were discriminatory; was flawed firstly in
that there was no
proof that they were discriminatory,
[35]
at least not legally defined discrimination;
[36]
and secondly, the requirement of public work experience was based on
attributes pertaining to the candidate’s personal
qualifications
and experience which is not as such directly related
to attributes or characteristics which have the potential to impair
the fundamental
dignity of the potential candidates so as to amount
to discrimination. Once this explanation is removed (which it must
be) the
decision to amend the requirements
becomes
arbitrary. The requirement of experience is specific and
mandatory.
[37]
No application
without the required experience should have been accepted. The fourth
respondent had no right to even apply or respond
to the
advertisement. The requirement of experience as set out in the
advertisement was the yardstick set by the Minister which
all those
who wanted to apply for the Position had to possess prior to
applying. While the provisions of section 20(5) of the Employment
Equity Act
[38]
(EEA) expressly
state that an applicant may not be rejected merely for reasons of
experience this was not applicable here in that
this was not used by
the employer to discriminate in that there was no basis for
comparison and there were other qualifications
than experience set
out in the advertisement. While the determination of the basis to the
requirement of management experience
is not relevant in that the
award is reviewable on the first question as to whether or not the
selection panel could amend the
requirements the award further fails
on the second question in that the amendment made is arbitrary in
that it is not based on
the requirements of the job but on the need
to try and make the requirements less severe. The determination of
suitability must
take into account all relevant requirements. There
was no proof provided by the fourth respondent of this. As such once
the applicant
proved his case the first respondent failed to justify
such unfairness. Further it was clear that the requirement of
management
experience was justified when considering the nature of
the Position. Clearly one cannot be slotted into a management
position
with limited or no experience in such a position. Further
the “
experience
was not the sine qua non for the purposes of appointment or
promotion.
”
[39]
There was also the second requirement of computer literacy.
[26]
Further, as
set out above, the process was also flawed in that once the advert
was amended it should have been re-advertised to
allow candidates who
did not possess
the
management experience to apply and thereby to open the application
process to a wider range of potential candidates.
[40]
All the change did was to allow the fourth respondent to be in the
running where she was not meant to be. As such it was clear
that the
selection panel not only acted unlawfully in subverting the process
but acted unfairly, capriciously and with bias in
amending the
requirements; it can be said that the selection panel acted in a
manner which sought to earmark the Position for the
fourth respondent
who it then sought to and did appoint into the Position. This was
clearly unfair.
[27]
In the case
of
Ga-Segonyana
Local Municipality v Venter N.O. and Others
;
[41]
Tlhotlhalemaje,
J. approved of the following:
“
[20]
In City
of Cape Town v SA Municipal Workers Union on behalf of Sylvester &
others;
[42]
it was held that
the overall test is one of fairness, and that in deciding whether or
not the employer had acted unfairly in failing
or refusing to promote
the employee, relevant factors to consider include whether the
failure or refusal to promote was caused
by unacceptable, irrelevant
or invidious considerations on the part of the employer; or whether
the employer’s decision was
motivated by bad faith, was
arbitrary, capricious, unfair or discriminatory; whether there were
insubstantial reasons for the employer’s
decision not to
promote; whether the employer’s decision not to promote was
based upon a wrong principle or was taken in
a biased manner; whether
the employer failed to apply its mind to the promotion of the
employee; or whether the employer failed
to comply with applicable
procedural requirements related to promotions. The list is not
exhaustive.
[21]
Central to appointments or promotion of employees is the principle
that that courts and commissioner
alike should be reluctant, in the
absence of good cause, to interfere with the managerial prerogative
of employers in making such
decisions.
[43]
In my view, good cause would entail a consideration of the factors
set out in
City
of Cape Town v SA Municipal Workers Union on behalf of Sylvester and
others
as
above.
”
[44]
[28]
As
such
in deciding on an unfair labour practice the courts have clarified
the test to be that of fairness.
[29]
In
Apollo
Tyres SA (Pty) Ltd v CCMA and Others
,
[45]
the Labour
Appeal Court
quoted
from
Du
Toit et al
,
[46]
with
approval on the meaning given for the term / word “
unfairness
”
as follows:
[53]
... unfairness implies a failure to meet an objective standard and
may be taken to include arbitrary, capricious
or inconsistent
conduct, whether negligent or intended.
[47]
[30]
The
applicant in its heads of argument set out various cases dealing with
unfair labour practices where the person that was appointed
/
promoted did not qualify for the post and ought to have been
eliminated at the very first stage.
[48]
I have only set out those cases which I find that the principles
exposed therein are relevant herein.
[31]
In the
appealed case of
Noonan
v Safety and Security Sectoral Bargaining Council and Others
;
[49]
concerning a promotion
where the successful candidate had failed to disclose information
which affected his suitability for the
position the LAC considered
the “
fairness
of the proce
ss
” as
a whole, and came to the conclusion, that the employer had committed
an unfair labour practice against the unsuccessful
employee in that
the successful candidate unfairly participated in the selection
process.
[32]
In
City
of Cape Town v SA Municipal Workers Union obo Sylvester and
Others
[50]
the
court expressly rejected the notion that the employer has the
prerogative to decide who to appoint and that it should
not be
questioned when it exercises that discretion. The court stated that
the proper yardstick was “
fairness
to both parties
”.
[33]
In the case
of
Kwadukuza
Municipality v Rajamoney and Others
[51]
Cele J set out the following:
[15]
For the requirements of an advertised post to be
met therefore, cognisance must be taken of the objective
of the
policy to ensure that the candidate who best meets the selection
criteria is appointed. The short listing of a candidate
who least
meets the set selection criteria will ordinarily fly on the clear
face of the objective of the policy. Such short listing
would then be
arbitrary as contrary to the selection criteria. The applicant set
out requirements to be met for the contested post.
The fairness of
the selection process lay in the screening of all candidates against
the set requirements in a similar approach.
It has to be borne in
mind that there would be people who desired to apply for the
contested post but did not submit their applications
merely because
they did not meet the set requirements. It would also be unfair to
set all candidates who met all requirements against
any candidates
who lack any of the requirements.
[34]
In the case
of
KwaZulu
Department of Transport v Hoosen and Others,
[52]
where the facts were very similar to the present case, Judge Whitcher
found that the promotion of a candidate who did not meet
the
requirements of the advertised post amounted to an unfair labour
practice. The learned Judge set out that the employee’s
“
promotion
was irregular by want of his meeting the minimum criterion for the
position.”
[53]
Valuation
[35]
But what I
need to establish is
whether
there is good cause to interfere with the decision of the arbitrator.
[36]
At
arbitration, the first respondent set out that the change in the
first requirement for the Position was based on the discriminatory
nature of the original advert in that by its requirements (as set out
therein) it excluded those not in the public service. The
arbitrator
found discrimination based on an invalid reason and without a valid
comparator.
[37]
But what I
need to consider is was there an unfair labour practice and is the
award
reviewable?
An unfair labour practice is defined in the LRA. Section 186(2)(a) of
the LRA provides as follows:
‘
(2)
Unfair labour practice means any unfair act or omission that arises
between an employer and an employee
involving:
(a)
unfair conduct by the employer relating to the promotion...of an
employee.’
[38]
Relevant to
this matter are also the following pieces of legislation or
documentation: The Constitution of the Republic of South
Africa,
[54]
[55]
The Public Service
Act;
[56]
the Public Service
Regulations (2001); and, the SMS Handbook.
[39]
Section
11
of the Public Services Act regulates appointments and the filling of
posts in the public service. Section 11 sets out:
“
[1]
In making of appointments and the filling of posts in the public
service due regard
shall
be had to equality and the other democratic values and principles
enshrined in the Constitution.
[2]
In the making of any appointment in terms of section 9 in the public
service-
a.
all persons who applied and qualify for the appointment concerned
shall be considered;
and
b.
the evaluation of persons shall be based on training, skills,
competence, knowledge
and the need to redress, in accordance with the
Employment Equity Act, 1998 (Act 55 of 1998), the imbalances of the
past to achieve
a public service broadly representative of the South
African people, including representation according to race, gender
and disability.”
[40]
In short,
to compete in the process, to be shortlisted, or even considered for
appointment
an applicant for
employment
must
possess the necessary qualifications. Only then can you as the
employer consider other factors such as training, skills, competence,
knowledge and the need to redress imbalances of the past. The
selection panel can only consider those candidates that so to say
pass muster,
that
is,
those
that meet the minimum requirements as set out in the advertisement.
“
Screening
of applicants should take place according to the initial criteria for
the job.
”
[57]
[41]
The SMS
Handbook further
regulates such matters
vis-a-vis
public service. The SMS Handbook has the status of a collective
agreement and as such it is imperative to abide by its terms.
[58]
Chapter 2 of such handbook regulates recruitment and selection.
[59]
Clause 8.3 (1) of Chapter 2 of the SMS Handbook sets out:
“
8.3
Screening
(1)
After the closing date, the
application documents should be screened to determine whether
applicants
comply with the basic criteria laid down in the
advertisement. When in doubt additional information should be
requested. The thoroughness
with which this phase is conducted
determines the success of
the selection activities to follow. During this phase candidate who
do not comply with the minimum advertised
requirements may be
eliminated with noting of reasons, resulting in a preliminary pool.”
[42]
As such
while it may not be compulsory, it is recommended that those who do
not have the qualifications as per the advertised criteria
be
eliminated with “
noting
of reasons
”
and as such, such persons should not be allowed to proceed to the
next step; in short those who do not qualify (as per the
advertised
job specifications / qualification) need to be immediately
eliminated, prior to the process proceeding to the next stage.
[43]
Then
there is also the Public
Service Regulations which regulate appointment and promotions.
Section C.1.1 of these Regulations sets
out the following: “
An
executing authority shall determine the composite requirements for
employment in any post on the basis of the inherent requirements
of
the job.
”
[44]
The
Public Service Act
[60]
defines “
executing
authority
”
in section 1 as follows: “
the
member of the Executive Council responsible for such portfolio.
”
In short this means that the MEC is the only person who has the
authority to determine and / or vary and / or change the
requirements
for a post. It is unlawful for the selection panel to change or vary
the requirements for a post.
[45]
If one
peruses the arbitration
award it is apparent that the arbitrator came to conclusions which
are completely without reason or basis.
For example: he sets out in
the very beginning of his analysis that “
I
have no doubt in my mind that the applicant has not made out a proper
case to succeed in his claim that the respondent committed
an unfair
labour practice by not appointing him to the position of Director:
Consumer Affairs.
”
[61]
[46]
The
arbitrator uses his own reasoning and basis when he sets out in
respect of the initial requirements of the Position as advertised:
“
In
fact, the managerial requirement appearing in (sic) the advertisement
was patently wrong and if followed, would automatically
preclude
candidates in industries outside the public service, a most
ridiculous situation which needed to be addressed and appears
to have
been addressed in a most logical manner.
”
[62]
The problem with this reasoning is that it is not based on anything
except for the personal beliefs of the arbitrator (and his
biases)
who came to such a conclusion without taking into account the
evidence, the circumstances of the matter and the law that
restricted
such action by the selection panel.
[47]
Clearly
there was no scope for
the selection panel to divert from the requirements as set out in the
advertisement and their action in doing
so vitiated the process, but
not the entire process, so that one needs to start again.
[63]
The panel’s action of changing the requirements for the
Position was
ultra
vires
.
The arbitration award seems to skirt this issue and fails to set out
how the selection panel could subvert the law in favour of
widening
up the Position to those who never qualified as per the
advertisement; it only sets out that same was justified or
“
logical
”
[64]
as the original advert was discriminatory. The advertisement had to
set out the necessary requirements for the Position.
[65]
As such the selection panel’s duty was only to assess the
suitability of candidates for the Position; not to change the
requirements as set out in the advertisement so as to widen the pool
of candidates.
[66]
[48]
The fourth
respondent was appointed directly due to the unlawful actions of the
selection panel in varying the selection criteria;
this was clearly
unfair to the applicant (to those others that were shortlisted). It
was correctly argued by the applicant in its
supplementary heads
that: “
but
for the unlawful amendment to the advertised criteria which permitted
Dzanibe to be in the running for the Position; Letsogo
would have
been appointed.”
[67]
I
believe this is a correct summation of the matter.
[49]
The
arbitration award is irrational; it shows that the arbitrator failed
to apply his mind or his reasoning to those issues that
were
important to determine the matter. He failed to deal with the issue
that the actions by the selection panel were unlawful
and instead
found them to be “
logical
”.
[68]
Further the arbitrator misconducted himself and the conclusion or
outcome he reached is poorly reasoned, and irregular. He “
shirk
(ed) his task as an arbitrator.”
[69]
The arbitrator both misconceived the necessary inquiry (by
considering whether the amendment by the selection panel was logical)
and came to an unreasonable decision in finding that no unfair labour
practice had been committed.
[50]
Clearly the
fourth respondent was not able to make it past the first round of
recruitment; she should have been immediately eliminated.
Her CV and
application should never have reached the selection panel because she
could not be shortlisted in that she never possessed
the
qualifications as set out in the advertisement.
[51]
Further it
was not within the purview of the selection panel to change and / or
expand and / or relax the requirements of the Position
as advertised;
this was even when same was done with valid reason, which I must
mention there was none here. The use of the word
“
logic
”,
[70]
by the arbitrator, defies reason. His reasoning and findings are
illogical. As set out by the applicant in his heads of argument:
“
It
was imperative for the recruitment process to be confined to the
applicants who met the requirements (inclusive of the requirement
of
experience): and it was not open to the selection panel to vary or
relax the advertised requirements, as the requirements falls
outside
their purview and within the purview of the MEC.
”
[71]
Further once the fourth respondent is removed from the final
shortlisting process for the Position there is only the applicant
left; he was the only (legitimate) candidate that was meant to be
left in the running for the Position.
[72]
The arbitrator as such committed a manifest misconduct in this
matter; that is that the error was material to the determination
of
the dispute and the result arrived at was unreasonable and cannot
stand.
[52]
In respect
of relief, I sought at court that the parties set out to me as to
what should happen going forward should I decide that
the applicant
should have been appointed by the selection panel instead of the
fourth respondent. The following questions are relevant:
should the
applicant be reinstated into the position or should he be only
appointed as from the date of this judgment? Should the
applicant get
the salaries / backpay he should have earned? Should he be appointed
in the Position or in a protected position at
the same level as the
Position and what should happen to the fourth respondent? In this
regard the first respondent in both its
heads of argument and at
court failed to argue against any decision that I sought / could
make. At court, the applicant party argued
fiercely for the
(re)instatement of the applicant from the date of possible
appointment. At court, the first respondent’s
main (and
seemingly only) argument was that the case law that was cited by the
applicant in its heads of argument were not relevant
in that the
facts were different. This was even after I pointed out to Mr. Gumbi
(who appeared on behalf of the first respondent)
that what was
relevant was not the facts of such cases but the principles expounded
therein.
[53]
The first
respondent’s actions herein in acting unlawfully and in later
trying to justify such action at arbitration are unacceptable.
There
was clearly no discrimination in the advertisement in that the
requirement was justified (at least at face value and that
is all
that is needed); there was not even a comparator upon which to
compare to or even to consider whether discrimination existed.
The
first respondent has shown no good cause and its actions were unfair
and unlawful. The decision made to appoint the fourth
respondent was
unlawful, biased, arbitrary, capricious and unfair.
[54]
It is clear
from what I have set out above that the applicant should have been
appointed in the Position by the first respondent
instead of the
fourth respondent. As such there is no need for me to direct that he
be appointed into a protected position going
forward. Further the
fourth respondent should be removed from such position immediately. I
believe that it would only be fair to
instate the applicant into the
Position as of the date of the appointment of the fourth respondent
which I am advised was 01 November
2013 and that it be seen that he
was appointed since such date in such position and that he is to be
paid all the salaries / backpay
due since such date until the date he
is appointed by the applicant into the Position including interest
and increases. Further
such instatement of the applicant is to take
place within ten (10) days of this Order.
[55]
It is to be
noted that the fourth respondent never appeared at arbitration and
further never opposed the applicant’s review
application
despite being served with same. The fourth respondent (or the person
who took over from her) is to be removed from
the Position with
immediate effect; her / his promotion is as such set aside. The
prejudice caused by such promotion is irreversible
and same cannot be
allowed to stand. In this regard I have considered my possible
discretion in regard of the nullification or
not of such promotion of
the fourth respondent to the Position;
[73]
the just and equitableness of backdating thereof or not; the need to
minimise injustice; the need for practicality;
[74]
and as a result my order, as set out below, covers for same.
[75]
Anyway, as set out above the first respondent failed to argue that
the fourth respondent should be retained in the Position and
/ or
that a protective appointment be created for the applicant where I
find in the applicant’s favour (as I have done).
[56]
I am bound
by the principles of this Court in respect of costs. There is an
ongoing relationship
between
the parties and the true cause of the misconduct or error herein was
the arbitrator; the first respondent was entitled to
defend the
findings, the decisions and the resultant award. As such I am not
going to award costs to either party.
[57]
In the
premise, the following order is made:
Order
1.
The
fourth respondent (or the person who took over from her) is to be
removed from the post of Director: Consumer Affairs with immediate
effect, his / her promotion is as such set aside.
2.
The
applicant is to be appointed (retrospectively) into the post of
Director: Consumer Affairs.
3.
The
applicant is to be instated as the Director: Consumer Affairs as of
the date of the appointment of the fourth respondent into
such
position (01 November 2013), and that it be as if he was appointed on
such date in such position and such, such instatement
is to be
retrospective; that is the applicant is to:
3.1.
be paid all
the salaries / back pay due (as a result of such instatement as of 01
November 2013) from 01 November 2013 until the
date he is appointed
by the applicant;
3.2.
to receive
all bonuses (only where such bonuses are not performance related
bonuses);
3.3.
to receive
all benefits; and
3.4.
to be paid
all interest due at the relevant rate of interest.
4.
Further
such instatement of the applicant (or reinstatement as it was
referred to by the parties in their heads of argument) is
to take
place as soon as possible and at the latest within ten (10) days of
this order being delivered.
_____________________
A
Goldberg
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the Applicant: R Itzkin
Instructed
by:
Assenmacher Attorneys
For
the Respondent: M Gumbi
Instructed
by:
The State Attorney
[1]
Act
66 of 1995 as amended.
[2]
The first
respondent, as the only party opposing the review application raised
the issue that the applicant was meant in terms
of section 145 (5)
apply for a court date within six (6) months of the review
application having been launched (03 March 2016)
but that it failed.
The applicant then applied for condonation setting out that the
second respondent failed to file the record
at the Labour Court
within the ten-day period referred to in Rule 7A (2) (b) despite
complaints by the applicant’s attorneys
to the second
respondent urging timeous compliance; the Record as filed was
incomplete (no electronic recordings and no bundles);
the
applicant’s attorneys complained threatening an application to
compel; an email was sent to the applicant that the
third respondent
had passed away and that second respondent was doing its best to
obtain the record from his office; follow ups
were made by the
applicant’s attorneys who established that De Villiers
Attorneys were appointed to manage the affairs
of the late third
respondent’s law practice and the record was obtained but same
only contained the evidence of the three
(3) witnesses of the first
respondent; the evidence of the applicant was missing; no further
records could be obtained; the missing
evidence needed to be
reconstructed; a reconstruction meeting was held on 25 August 2016
and on this day the parties (applicant
and first respondent) reached
agreement as how to proceed; the evidence was then agreed upon on 30
September 2016. The applicant
filed the agreed record on 21 October
2016. On 24 October 2016 the applicant filed a notice in terms of
Rule 7A (8) (b); an answering
affidavit was filed by first
respondent on 02 December 2016. Condonation was unopposed. The
applicant applied for a hearing date
on 28 March 2017
.
[3]
The advertisement
is at Vol. 2; p110. The post was advertised internally and
externally.
[4]
The Interview
minutes set out that a total number of seventy-eight (78)
applications were received.
[5]
See Record vol. 2
pp376 – 377. Also see the applicant’s CV at Record vol.
2 p111 – 117.
[6]
See Record vol. 3
p377 line 11.
[7]
See Record vol. 3
p379 line 17; vol. 2 p273 – work profile as contained in the
interview minutes.
[8]
[9]
See Record vol. 2
p267 (shortlisting minutes).
[10]
Record vol. 3
p367 (at the bottom) – 368 (at the top). Also see the
shortlisting minute at Record vol. 2 p 267 where it
is confirmed
that the selection panel determined and agreed to the new criteria
that were to be applied.
[11]
Record vol. 2 p68
(shortlisting minutes).
[12]
See Record vol.2
p280 (interview minutes)
[13]
Record vol. 2
p184 (interview minutes).
[14]
The arbitration
award is at pleadings pp34 – 39. The award is dated 26
November 2014 – meant to be dated 26 November
2015; the award
was said to have been received by Applicant on 25 January 2016.
[15]
Pleadings p38 (in
the middle of the page).
[16]
Pleadings p39
(second paragraph).
[17]
At Court the
first respondent whose heads were dated 06 July 2017 set out that it
could not submit its heads of argument as it
could not locate the
file; this excuse is invalid.
[18]
This notice is
not in the court file.
[19]
The proof of
service is in the court file, the notice sets out that heads are to
be filed by the applicant not less than ten (10)
court days before
the hearing and by the respondent not less than five (5) days before
the hearing.
[20]
See parties’
supplementary heads of argument
.
[21]
See applicant’s
heads of argument p2 point 3.
[22]
[2015] 1
(JA14/2014) [2014] ZALAC 50; [2015] 1 BLLR 50 (LAC); (2015) 36 ILJ
2802 (LAC) (1 October 2014).
[23]
Act 3 of 2000.
[24]
Herholdt v
Nedbank Ltd
2013
(6) SA 224
(SCA)
at para 12.
[25]
CUSA v Tao
Ying Metal Industries and Others
[2009]
1 BLLR 1
(CC)
at para 76.
[26]
Herholdt v
Nedbank Ltd
2013
(6) SA 224
(SCA)
at para 21-25.
[27]
Perhaps somewhat
at variance with the Constitutional Court in
Tao
Ying
,
the SCA in
Herholdt
(para 25) was of the opinion that material errors of fact, as well
as the weight and relevance to be attached to particular facts,
are
not in and of themselves sufficient for an award to be set aside,
but are only of any consequence if their effect is to render
the
outcome unreasonable. In
Tao
Ying,
the Constitutional Court seemed to take the view that a factual or
legal error would be reviewable if it was material to the
determination of the dispute submitted to arbitration.
[28]
Bato Star
Fishing (Pty) Ltd v Minister of Environmental Affairs
[2004] ZACC 15
;
2004 (4) SA 490
(CC) at paras 49-54.
[29]
Telcordia
Technologies Inc v Telkom SA Ltd
[2006] ZASCA 112
;
2007 (3) SA 266
(SCA) para 52-78, 85-88.
[30]
See
the Judgment of Molahlehi J in
Ga-Segonyana
Local Municipality v Venter N.O. and Others
(JR961/13)
[2016] ZALCJHB 391; (11 October 2016).
[31]
Also see
Minister
of Home Affairs v General Public Service Sectoral Bargaining Council
and Others
(JR1128/07)
[2008] ZALCJHB 23 (26 March 2008).
Nainaar
v Department of Works
,
KZN and
Others
(D839/05) [2015] ZALCD 26 (19 May 2015).
South
African Police Services ("SAPS") v Gebashe and Others
(D676/11) [2014] ZALCD 68; (2015) 36 ILJ 1620 (LC) (24 November
2014).
[32]
Failing this
step, the process could be seen to be prejudicial to those wanting
to apply but not having had the qualifications
necessary as set out
by the advertisement. See
NUTESTA
v Technikon Northern Transvaal
[1997] 4 BLLR (CCMA) at p. 473 where the arbitrator recommended that
the position be re-advertised with the changed/amended requirement.
[33]
See the case of
Noonan
v Safety and Security Sectoral Bargaining Council and Others
quoted
from, at paragraph 31 of this judgment, where the citation is
referred to as well.
[34]
The exercise of
administrative power must have its genesis in lawful authority. (GE
Devenish et al: Administrative Law and Justice
in South Africa
(2001) at p.31) It is a time-honoured principle that any person who
exercises public power without deriving such
from lawful authority,
will be acting unlawfully. (Baxter L: Administrative Law (1984)
p.74) Also
see
Fedsure Life Assurance v Greater Johannesburg TMC
[1998] ZACC 17
;
1999 (1) SA 374
CC at p58 where this principle was reaffirmed. The
Fedsure
case also set out that it is central to our conception of
constitutional order that the Legislature and Executive in every
sphere are constrained by the principle that they exercise no power
and perform no function beyond that conferred upon them by
law. Also
see
Dunn
v Minister of Defence and Others
2006 (2) SA 107
(T). It is unlawful for the selection panel to have
deviated from the requirements as set out in the advertisement. As
such the
very appointment of the fourth respondent was
void
ab initio
in that it was unlawful. Further in appointing or promotions: The
person whose act is under scrutiny must be authorised by the
law to
take such action; the action must be procedurally fair, and the
action must be rational, not arbitrary or capricious.
Section 11 of
the Public Services Act sets out that: “
In
the making of appointments and the filling of posts in the public
service due regard shall be had to the equality and other
democratic
values and the principles enshrined in the Constitution.
All
the candidates who qualify for the appointment shall be considered
.”
(My underlining) As such the action by the panel could be both
unlawful and irregular. If irregular, then it would be voidable.
[35]
For the
acceptable test on discrimination see the case of
Harksen
v Lane NO and others
1997 11 BCLR 1489
(CC) where it was set out that for differentiation
must amount to discrimination
AND
whether it amounts to unfair discrimination. (At paras 45 v& 46)
[36]
See
Mothoa
v Minister of Safety and Security
(2007) 9 BLLR (LC).
[37]
According to
Public Services Regulations 2001, Chapter 1 Part VII Regulation
C.2.2. provides as follows: “
An
advertisement for a post shall specify the inherent requirements of
the job, the core title and the core functions.
”
[38]
Act 55 OF 1998.
[39]
See
Harmse
v The City of Cape Town
[2003] ZALC 53
at para 41.
[40]
See the case of
Khumalo
and Ritchie v The MEC for Education Kwazulu-Natal
(LAC) Judgment delivered 29 August 2012 at para 8 where the Court
set out that the task team had found that “
could
not be appointed as he did not meet the requirements of the position
he was appointed to and “the decision to appoint
him rendered
‘the process unfair, especially to potential applicants to
whom the advertised experience requirements proved
to a barrier and
therefore did not bother to apply.’
”
Here the court
aquo
found that ’s appointment “
was
not lawful, reasonable or fair and was accordingly invalid.”
The LAC found the task team’s findings justified (at para 39).
The LAC also set out that: “
But
for 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 present for doing so (Oudekraal
Estates (Pty) Ltd v City of Cape Town and Others 2010 (1) SA333
(SCA) at para 33)”
(par 42). Despite this it found that the decision of the court
a
quo
to
set aside the promotions (of Khumalo and Ritchie) to be correct (at
para 45).
[41]
(JR961/13) [2016]
ZALCJHB 391; (11 October 2016).
[42]
(2013)
34 ILJ 1156 (LC), in further reference to
Aries
v CCMA and others
(2006)
27 ILJ 2324 (LC).
[43]
Provincial
Administration Western Cape (Department of Health and Social
Services) v Bikwani and Others
(2002)
23 ILJ 761 (LC) at paras 29 – 30. See also
SAPS
V Security Sectoral Bargaining Council and Others
[2010] 8 BLLR 892(LC)
at para 897B-C:
“
The
decision to promote or not to promote falls within the managerial
prerogative of the employer. In the absence of gross
unreasonableness
or bad faith or where the decision relating to
promotion is seriously flawed, the court and arbitrator should not
readily interfere
with the exercise of the discretion…”.
[44]
Also see
Mbatha
v Safety and Security Sectoral Bargaining Council and Others
(JR372/13) [2015]
ZALCJHB 332 (30 September 2015).
[45]
(DA1/11)
[2013]
ZALAC 3
;
[2013] 5 BLLR 434
(LAC); (2013) 34 ILJ 1120 (LAC) (21
February 2013).
[46]
Du
Toit et al:
The
Labour
Relations Act
of
1995
; 2
nd
edition
at page 443.
[47]
Such action is
reviewable by a Court – see
Basson
v Provincial Commissioner (Eastern Cape), Department of Correctional
Services
[2003] 4 BLLR 341
(LC);
Mafongosi
and Others v United Democratic Movement and Others
2002 (5) SA 567
(Tk);
Pharmaceutical
Manufacturers Association of SA and Others
[2000] ZACC 1
;
2000 (2) SA 674
(CC);
2000 (3) BCLR 241
;
Bel
Porto School Governing Body and others v Premier, Western Cape, and
Others
[2002] ZACC 2
;
2002 (3) SA 265
(CC)
2002 (9) BCLR 891
at para 152.
[48]
The applicant
correctly sets out that these persons should not have been in the
running. Only those applicants that have the qualifications
can
compete in the selection process. See
Swarts
vs National Commissioner South African Police Services and Others
(D915/13) [2015] ZALCD 7 (20 January 2015);
Manana
v Department of Labour
[2010] BLLR 664
(LC);
City
of Tshwane Metropolitan Council v South African Local Government
Bargaining Council and Others
[2011] 12 BLLR 1176 (LC).
[49]
Noonan v
Safety and Security Sectoral Bargaining Council and Others
(PA 1/11)
[2012]
ZALAC 9
;
[2012] 9 BLLR 876
(LAC); (2012) 33 ILJ 2597 (LAC) (1 June
2012).
[50]
(C1148/2010)
[2012] ZALCCT 40;
[2013] 3 BLLR 267
(LC); (2013) 34 ILJ 1156 (LC) (7
September 2012).
[51]
(D880/10) [2013]
ZALCD 17 (13 June 2013).
[52]
2016 37 ILJ 156
(LC).
[53]
At para 23.
[54]
108
of 1996.
[55]
In
particular section 23(1) of the Constitution provides that:
“
Everyone
has the right to fair labour practices.
”
[56]
Act 103 of 1994.
[57]
Dissertational
work: “
Recruitment
Policies and Practices in the Department of Public Service and
Administration
”;
by Ramokhojoane Paul Motsoeneng, UNISA, February 2011.
[58]
See
Mashiane
v Department of Public Works
(J1773/12) [2012] ZALCJHB 69 (18 July 2012) at para 16.
[59]
The relevant
Chapter (Chapter 2) of the SMS Handbook is at Record vol. 2 pp281 –
295.
[60]
Act 38 0f 1994.
[61]
See award at
pleadings p38 (in the middle of the page).
[62]
See award at
pleadings p39 (second paragraph).
[63]
Further once the
reason is removed the action of the panel can be seen, in my
opinion, to be “
an
unceremonious attempt to change horses midstream
”
and its actions seriously prejudiced those that had been shortlisted
in terms of the requirements as set out in the original
advertisement including the applicant.
[64]
See the award at
Pleadings p39 (2
nd
paragraph).
[65]
Section C.1. of
the Regulations sets out: “
An
advertisement for a post shall specify the inherent requirements of
the job, the job title and the core functions.
”
The advert for the Post correctly set out such parameters. Should
the criteria not have been fair the selection committee
should have
complained to the Minister and sought to annul the process and to
re-advertise the position with more acceptable
requirements if they
were seen by the Minister to be exclusionary).
[66]
This is covered
in Sections D.5 – D.7 of the Regulations and paragraph 8.3.1
of the SMS Handbook.
[67]
Applicant’s
heads of arguments p20 para 61.
[68]
See the award at
Pleadings p39 (2
nd
paragraph).
[69]
In
Stocks
Civil Engineering (Pty) Ltd v Rip NO and Another
[2002] 3 BLLR 189
(LAC) (JA52/00) /
[2002] ZALAC 3
(1 February 2002)
it was set out
that: “
52.
In my view the following principles emerge: A court is entitled on
review to determine whether an arbitrator in fact functioned
as
arbitrator in the way that he upon his appointment impliedly
undertook to do, namely by acting honestly, duly considering
all the
evidence before him and having due regard to the applicable legal
principles. If he does this, but reaches the wrong
conclusion, so be
it. But if he does not and shirks his task, he does not function as
an arbitrator and reneges on the agreement
under which he was
appointed. His award will then be tainted and reviewable. It is
equally implicit in the agreement under which
an arbitrator is
appointed that he is fully cognizant with the extent of and limits
to any discretion or powers he may have.
If he is not and such
ignorance impacts upon his award, he has not functioned properly and
his award will be reviewable. An error
of law or fact may be
evidence of the above in given circumstances, but
may in others
merely be part of the incorrect reasoning leading to an incorrect
result. In short, material malfunctioning is reviewable,
a wrong
result per se not (unless it evidences malfunctioning). If
the malfunctioning is in relation to his duties,
that would be
misconduct by the arbitrator as it would be a breach of the implied
terms of his appointment. Gross irregularity
53. In Goldfields
Investments Ltd v City Council of Johannesburg and another
1938
TPD 551
,560 (a case according to Corbett CJ in Hira’s case
87A dealing with the first and narrowest species of review, not
common
law review) Schreiner J distinguished between gross
irregularities that are patent – and occur during the course
of the
trial – and those that are latent – that occur in
the mind of the judicial officer . These are only ascertainable from
the reasons given by him. In neither case need there be intentional
arbitrariness of conduct or any conscious denial of justice.
The
crucial question is whether the irregularity prevented a fair trial
of the issues. A wrong conclusion on law or fact does
not
necessarily lead to a conclusion that there has not been a fair
trial. But if a mistake of law leads to a material misconception
of
the nature of the inquiry or of the court’s duties in
connection therewith, then the losing party has not had a fair
trial.”
[70]
See the award at
Pleadings p39 (2
nd
paragraph).
[71]
Applicant’s
heads of argument p16 para’s 51.1 – 51.2.
[72]
See the case of
South
African Police Services v SSSBC and Others
case number P426/08 where it was set out that: “…
the
appropriate remedy, as a general rule is to set aside the decision
and refer it back with or without instructions to ensure
that a fair
opportunity be given. Since the interest is the fair opportunity to
compete, it
follows
that that should the appropriate remedy rather than appointing the
applicant to the post (or to a post on equivalent terms)
or to
compensate (there being no loss). There are two exceptions. This
principle does not apply to discrimination or victimisation
cases in
respect of which different and compelling interests are at stake.
It
also does not apply if the applicant proves that but for the unfair
conduct, she would have been appointed
.”
(Own emphasis)
Also see the
Kwadukuz
a
case (mentioned above at paragraph 33 of this judgment) at para 20
where the Labour Court (per Cele J) set out that: “
It
is trite that a ‘protected promotion’ may be granted as
a relief where evidence showed that but for the unfair
labour
practice the contesting candidate would probably have been appointed
to the contested post”
Further
the court cites the cases of
Minister
of
Safety and Security v SSSBC and Others
[2010]
9 BLLR 965
(LC)
and
PSA
v Department of Justice and Others
[2004]
2 BLLR 118
(LAC)
in which cases the only impediment to granting of similar relief was
a failure to join the party with a direct and
substantial interest
in the matter.
[73]
See the
Khumalo
case
mentioned in ft. 36 above.
[74]
See
Eskom
Holdings v New Reclamation Group
(Pty) Ltd
2009 (4) SA 628
(SCA) and mentioned in the
Khumalo
case (see ft. 36 above, for citation) at para 53 thereof.
[75]
For a similar
order see the matter of
Baxter
v National Commissioner, Correctional Services and another
[2006] JOL17476 (LC) where at par 54 Cele AJ (as he then was set out
that: “
It
is, in my understanding of the relief sought by the applicant, that
recourse can be had to section 158 (1) (a) (iii) of the
Act. An
order directing the performance of any particular act which order,
when implemented, will remedy a wrong and give effect
to the primary
objects of the Act, will in my view, accord with justice of this
case.
”
Also see
Dunn
v Minister of Defence and others
2006
(2) SA 107
(T).