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[2019] ZALCJHB 26
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National Regulator for Compulsory Specifications v Mazibuko (J2305/16) [2019] ZALCJHB 26 (20 February 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: J2305/16
In
the matter between:
NATIONAL
REGULATOR FOR COMPULSORY
SPECIFICATIONS
Applicant
and
PORTIA
SINDISWA MAZIBUKO
Respondent
Heard:
17 October 2018
Delivered:
20 February 2019
Summary:
Locus standi
–
Duty on the State to
act expeditiously.
JUDGMENT
MABASO,
AJ
Introduction:
[1]
The
applicant, acting in the public interest, exercising public powers as
an entity established in terms of the National Regulations
for
Compulsory Specifications Act
[1]
,
sought an order, in terms of 158 (1) (h) of the Labour Relations
Act
[2]
(LRA), reviewing and
setting aside both its decision and the subsequent appointment of the
respondent as its Head of Human Capital
Management. This decision was
taken on 25 June 2015 and implemented on 01 July 2015. The applicant
further seeks condonation for
the late filing of this application.
The respondent is opposing this application, and she premised her
argument on two points,
namely that the applicant has no
locus
standi
to bring this application and that the application was delivered too
late, therefore, there is an unreasonable delay. I deal with
these
two points below.
Does
the applicant have locus standi?
[2]
The
respondent contends that this application should have been brought by
the Chief Executive Officer (the CEO) of the applicant.
The
respondent in supporting this point argued that as this application
relates to the alleged unlawfulness of her appointment,
the only
entity entitled to approach this Court to seek such rectification is
the responsible functionary which according to her,
is only the CEO
and not the applicant as the latter is not the functionary who is
responsible for rectifying any irregularities
in public
administration. Furthermore, she argues that the functionary which is
compelled by the Constitution
[3]
and other statutory provisions to avoid and eliminate illegalities is
the CEO.
[3]
The applicant in challenging this
point in limine
submitted
that it is an employer, therefore, the appointing authority, it has
sufficient legal interest in ensuring that its employees
are not
appointed irregularly and that the policies in appointing the
respondent were adhered to.
[4]
The
applicant is a juristic person
[4]
,
which is established as a public entity.
[5]
Its powers include
inter
alia,
that,
“
[It] may do all
that is necessary or
expedient
to perform
its functions, including-
(a) acquiring or
disposing of property or any right in respect thereof, but ownership
in immovable property may be acquired or disposed
of only with the
consent of the Minister in concurrence with the Minister of Finance;
(b) opening and
operating banking accounts in the name of the National Regulator;
(c) investing any of
the money of the National Regulator;
(d) insuring the
National Regulator—
(i) against any loss,
damage or risk; or
(ii) against any
liability it may incur in the application of this Act;
(e)
performing
legal acts, including acts in association with or on behalf of any
other person or organ of state
;
(f) subject to
subsection (2), concluding agreements with organs of state and other
persons; or
(g)
instituting
or defending any legal action
.”
[6]
[5]
The Labour Appeal Court (LAC), in
Merafong
City Local Municipality v South African Municipality Workers Union
(SAMWU)
and
Another
[7]
discussing the issue of
locus
standi
under section 158 (1) (h) of the LRA summarised this principle thus:
“
[49].. In
Ferreira
v Levine NO and Others: Vryenhoek v Powell and Others
(Ferreira)
,Chaskalson P preferred a broader approach as opposed
to the more technical approach. Chaskalson P held that it was for the
court
to decide what a sufficient interest was in light of the
circumstances of the matter. O’Regan J in that same matter
mentions
some factors and circumstances that would have to be
considered in determining whether an applicant was genuinely acting
in the
public interest in bringing a constitutional challenge.
Amongst such factors are “whether there is another reasonable
and
effective manner in which the challenge can be brought; the
nature of the relief sought and the extent to which it is of general
and prospective application, and the range of persons or groups who
may be directly or indirectly affected by an order made by
the court
and the opportunity that those persons or groups have had to present
evidence and argument to the court”
[50]
In
Vulindlela Furniture Manufacturers (Pty) Ltd v MEC, Department
of Education and Culture, Eastern Cape and Others,
the court held
that a broad flexible approach should be assumed in establishing
whether an applicant who challenges administrative
action (alleging
it is unlawful), has sufficient interest. The court, in determining
whether the applicant had
locus standi
, also took into account
(
inter alia
) the provisions of the statutes and directives at
issue and the question whether they create any rights and duties for
the applicant,
the applicant’s source of prejudice, the
importance of the issue to be decided, and the nature of the relief
applied for.
[51]
The “narrow, formalistic approach” is inappropriate in
matters with a public interest element or in matters of
a
constitutional (including administrative law) nature.
[52]
…The approach to standing therefore should not be too
technical or formalistic. The question whether the respondents
had
sufficient interest in the matter should be left to the discretion of
the court taking into account all relevant factors and
circumstances.”
[6]
The Minister responsible for trade and industry appoints the CEO of
the applicant,
his responsibilities include the general
administration of the applicant and to carry out any function
assigned to the applicant
by the Act.
[8]
The CEO with the concurrence of the Minister is vested with powers to
appoint a deputy CEO of the applicant. The latter performs
the
functions of the CEO whenever he is unable to perform those
functions, or when its office is vacant. The supporting affidavit
to
this application is signed by the deputy CEO and states that the CEO
has resigned and left the applicant with effect from 10
October 2016.
It states that the deputy CEO is authorised to bring this
application. As I have already mentioned, the deputy CEO
executes the
duties assigned to the CEO in the absence of the latter.
[7]
Locus
standi
means a right to prosecute. Under common law, this doctrine requires
that a party must have a personal and direct interest in the
matter
before the court.
[9]
In terms of
the Constitution
[10]
“(a)
anyone acting in their own interest” and/or “(d) anyone
acting in the public interest”, may approach
a competent court
asking for an order, if it is under the belief that its rights have
been violated or threatened.
[8]
It is important to mention that the powers that are vested on the
applicant as a juristic
person are not taken away by the CEO’s
’s role as his is to “carry out”
[11]
and perform the functions of the applicant. It is my view that it was
not the intention of the legislature that applicant has no
powers
because the same Act provides that the applicant is the public entity
and a juristic person.
[12]
The
Act vests the applicant with powers to institute any legal action
which includes correcting its own decisions. Therefore, the
applicant
in approaching this Court is seeking relief of correcting and setting
aside one of its decisions in appointing the respondent.
Based on
those mentioned above, I conclude that the applicant has
locus
standi
to bring this application, therefore, the submission that the
applicant as an employer has no
locus
standi
is misplaced under the circumstances.
Is
there an unreasonable delay?
[9]
During argument, parties agreed that this application is brought in
terms of section
158(1)(h) of the LRA, despite the initial
uncertainty that was raised by the applicant that the application was
both in terms of
this section together with the provisions of
Promotion of Administrative Justice Act
[13]
(PAJA). It is commonly referred to as judicial review under the
principle of legality, and there is no time limit as to when this
application should be brought, however, as it is a labour dispute it
has to be expeditiously resolved. I agree with the decisions
of this
Court where a reasonable time to bring a review application under
section 158 (1)(h) has been held to be about six (6)
weeks, and the
reasons for this conclusion is that this interpretation serves the
purpose of the LRA.
[10]
In proceeding to decide the issue of delay “in
matters of this nature” the SCA in
Gqwetha
v Transkei Development Corporations Ltd and Others
[14]
said,
“
The
attitude of our courts when faced with the issue of delay in matters
of this nature is neatly captured by Brand JA in Associated
Institutions Pension Fund v Van Zyl
2005 (2) SA 302
SCA at 321 as
follows:
…
…
application
of the rule requires consideration of two questions:
(a) Was there an
unreasonable delay?
(b) If so, should the
delay in all the circumstances be condoned?
[11]
The latter question requires this Court to apply its judicial
discretion being informed by “the
values of the Constitution”
which are the foundation of the LRA. The relief sought consists of
the consequential relief as
the applicant seeks for the appointment
of the respondent to be set aside. The Constitutional Court, in
Khumalo
and Another v Member of the Executive Council for Education:
Kwazulu-Natal,
[15]
re-emphasised the principle that a presiding officer has to take into
account the prejudice that will be suffered as a result of
the relief
sought. It was held that the following factors have to be considered,
taking into account that courts have to make orders
which are just
and equitable: (a) there is a heavy weigh on the State to perform its
duties diligently and without delay,
[16]
(b) Is there any complaint against the employee’s
performance,
[17]
(c) the
merits of the case,
[18]
the
values of security of employment, (d) and the role played by the
employee on the decision taken by the employer.
[19]
[12]
This application was delivered in November 2016, asking that the
decision that was made on 25
June 2015 and effected on 1 July 2015 be
set aside and corrected. The applicant in its papers avers that it
became aware of the
irregularities after an internal audit report
dated 10 May 2016. Therefore, this application was delivered six
months after the
applicant became aware of the alleged
irregularities. The respondent argued that the delay is unreasonable
because the decision
was taken on 25 June 2015, therefore, according
to her, the delay is more than 12 months.
[13]
The first question is from what date such a reasonable period falls
to be calculated. I conclude
that, in deciding as to when the review
should have been brought one has to take into account that according
to the papers, before
the report could be made available to the
applicant it was not aware that there was this alleged irregularity,
therefore to say
the delay starts from June 2015 it cannot stand as
one has to look at when did it become aware of this alleged
irregularity.
[20]
Therefore in
calculating the delay one has to start from 10 May 2016.
[14]
The next question to be answered is: is the delay unreasonable? This
question depends on the
facts and the circumstances of this case. The
six-week period ended on about 23 June 2016, and this review was
delivered 19 weeks
(4 months) thereafter.
[15]
The applicant confirms that the internal audit report was received on
10 May 2016, then it proceeded
to consider “the outcome of the
investigation in the months of May, June and July 2016 taking this
action against implicated
employees”, it only sought legal
advice as to what steps to be taken in August 2016 (about three
months later). The attorneys
of record were appointed and they
proceeded to seek legal opinion from counsel. The applicant avers
that due to prior commitments,
counsel finalised the opinion on 21
September 2016. After a consideration of the opinion, it gave
instructions for this review
to be instituted. It submits that
counsel was instructed on 3 October 2016 and indicated that he had
prior commitments and would
therefore not be able to prepare the
application urgently. It transpired that this is the same counsel who
had been briefed to
provide legal opinion, as the same counsel had
been instructed, a decision was taken that he should prepare the
application as
soon as possible. This application was finalised in
the week of 24 October 2016. There is no indication in the papers
that Maenatje
SC,
who appeared for the applicant in this
matter
,
is the same counsel that was briefed to provide legal
opinion and prepare the papers.
[16]
I am unable to understand why the applicant upon becoming aware of
the alleged irregularity did
not take action at that time by bringing
this application but opted to first institute disciplinary action
against those who took
a decision in appointing the respondent. There
is no reason before this Court which indicates that the outcome of
the dismissal
hearing necessitated the institution of this
application, therefore, in my view, this is an application that
should have been instituted
immediately upon the applicant becoming
aware of the alleged irregularity. The applicant appointed the
attorneys of record, presumably
as attorneys with skill in
prosecuting matters of this nature, the attorneys opted to instruct
counsel who was not available and
they chose to wait for such counsel
to be available. Counsel provided the legal opinion, yet they still
expected for the same counsel
to prepare the papers for them, and
there is no explanation as to why the attorneys could not prepare the
papers themselves. I
have looked at the papers, and to my mind, this
is not a complicated, but a straightforward matter.
[17]
In the papers, there are no allegations that the respondent was aware
or ought to have known
that the appointment was irregular, in this
matter the irregularities are based on the scoring which it is
alleged that Mr Mpfariseni
Mudau made in favour of the respondent.
There is no allegation that the respondent is a poor performer
following the appointment,
being guided among other things by what
the Constitutional Court stated in
Khumalo
, as summarised
above, Furthermore, the applicant being the State which is “
obliged
to act expeditiously in fulfilling [its] constitutional obligations”
this Court cannot overlook the aspect of the unreasonable delay.
[18]
In respect of costs, am of the view that each
party should pay its costs.
[19]
Wherefore, the following order is made:
Order
1.
The application is dismissed.
2.
Each party to pay own costs.
_______________________
S
Mabaso
Acting Judge of the
Labour Court of South Africa
Appearances
For
the Applicants: Adv Maenatje SC
Instructed
by
:
Roy Ramdaw and Associates Inc.
For
the Respondent: Adv H Gerber
Instructed
by
:
Welman and Bloem Inc.
[1]
Act 5 of 2008(the Act)
[2]
Act
66 of 1995 as amended.
[3]
108
of 1996.
[4]
S 3(2)of the Act
[5]
S 3(1) of the Act.
[6]
S 4 of the Act. Own emphasis.
[7]
[2016] 8 BLLR 758 (LAC);
(2016)
37 (ILJ) 1857 (LAC).
[8]
S 6
[9]
Tulip
Diamonds FZE v Minister for Justice and Constitutional Development
and Others
2013(10 BCLR 1180 (CC) at para 27
[10]
S 33 of the Constitution of the Republic of South Africa, 108 of
1996.
[11]
S 6
[12]
S 3(1) and (2) of the Act.
[13]
Act
3 of 2000.
[14]
[2006] 3 All SA 245 (SCA).
[15]
2014
(3) BCLR 333
(CC); (2014) 35 ILJ 613 (CC); 2014 (5) SA 579 (CC).
[16]
Khumalo
at paras 46 and 51.
[17]
Khumalo
at para 54 to 56.
[18]
Khumalo
at para 57.
[19]
Khumalo
at para 65.
[20]
Khumalo
at para 39.