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[2020] ZALCJHB 31
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South African Broadcasting Corporation (SOC) Ltd v Keevy and Others (J1652/19) [2020] ZALCJHB 31; [2020] 6 BLLR 607 (LC) (7 February 2020)
the
labour court of South Africa, JOHANNESBURG
Reportable
case
no:
J
1652/19
In
the matter between:
SOUTH AFRICAN
BROADCASTING
CORPORATION
(SOC)
LTD
Applicant
and
CHRISTELLE
KEEVY First
Respondent
NOMPUMELELO
PHASHA Second
Respondent
JAMES
SHIKWAMBANA Third
Respondent
LINDIWE
VUYELWA
BAYI Fourth
Respondent
THOKOZANI
ZITHA
Fifth Respondent
HAMILTON
NGUBO Sixth
Respondent
PUMZILE
ZONKE Seventh
Respondent
NOMBUSO
GCABASHE Eighth
Respondent
NOMFAZWE
NKOBO Ninth
Respondent
LINDA
HLONGWANE Tenth
Respondent
NYIKO
MAHLAULE Eleventh
Respondent
TENDAI
MATORE Twelfth
Respondent
RONALD
NGWASHENG Thirteenth
Respondent
NOMBULELO
MHLAKAZA Fourteenth
Respondent
TSHIFHIWA
NULAUDZI Fifteenth
Respondent
THANDEKA
NDLOVU Sixteenth
Respondent
GUGULETHU
RADEBE Seventeenth
Respondent
TIMOTHY
RODNEY MAGAMPA Eighteenth
Respondent
PALESA
CHIBISI Nineteenth
Respondent
LESLINA
NGWAMBANI Twentieth
Respondent
THERESA
GELDENHUYS Twenty-First
Respondent
LESEGO
KGWEBANE Twenty-Second
Respondent
DIMAKATSO
MOTSOENENG Twenty-Third
Respondent
YANDE
SITHABISO ZIBI Twenty-Fourth
Respondent
KEOIKANTSE
MAKGALE Twenty-Fifth
Respondent
NOTHANDO
MASEKO Twenty-Sixth
Respondent
AYANDE
MKHIZE Twenty-Seventh
Respondent
Heard
:
11 and 12 December 2019 and 6 and 7 January
2020
Delivered
:
07 February 2020
Summary:
A Review in terms of section 158 (1) (h) of the LRA – is the
SABC a “State” within the contemplation of the section.
Declaratory relief – requirements not met – SABC has a
power to dismiss as a corollary to the power to engage in terms
of
section 26. Is promotion and transfer of employees an exercise of
public power susceptible to review under the legality principle.
The
Provisions of section 26 and other related sections of the
Broadcasting Act considered. Jurisdiction of the Labour Court –
questionable. Counter-application – dispute of fact –
risk – motion proceedings. Delay in instituting review
proceedings – procedural obstacle to the hearing of the review
– not destructive of the merits or demerits of the review.
Held: (1) the application is dismissed. Held: (2) No order as to
costs. Held: (3) The counter-application is dismissed with costs.
JUDGMENT
MOSHOANA,
J
Introduction
[1]
Before me
is a review application brought in terms of the provisions of section
158 (1) (h) of the Labour Relations Act
[1]
(LRA). The application involves a review of one’s own decision
on the basis that it does not comply with the “law”.
For
a period of time the applicant, through its officials, took decisions
that involved appointments; promotions and transfers
of employees
purportedly taken in terms of its internal policies – old and
new. It is an open secret that over a considerable
period of time,
the applicant was controlled by different Board of Directors and
various executive heads. The applicant was riddled
with all sorts of
allegations of corruption and maladministration. This judgment is not
intended to deal with all those allegations.
Its fulcrum is whether
the appointments, promotions and transfers were done in accordance
with the law. If this Court finds that
no law was contravened, then
that shall be the end of the matter for the applicant.
[2]
Given the
number of respondents involved herein, the application was heard over
a period of four full Court days. Initially, and
in line with the
Practice Manual, the Judge President preferentially enrolled the
application for two days. Argument could not
be completed on those
two days, load shedding being a factor as well. A further two days
were arranged with this Court during the
Court’s recess period.
Although the matter involves 27 respondents, the basis of impugnment
remains largely the same. It
is, largely, that the appointments,
promotions and transfers failed to meet the requirements of own
internal policies. The applicant
seeks to take cue from what was done
in
Khumalo
and Another v Member of the Executive Council for Education: Kwa-Zulu
Natal
[2]
.
Pertinent
Background Facts
[3]
The applicant is a corporation established by an Act of Parliament.
The
main business of the applicant is public broadcasting. As an
entity, it is empowered by the legislation that establishes it to
engage employees in order to achieve its objects as listed in the
establishing legislation. For a period of considerable time, the
applicant was plagued with various allegations of maladministration
and non-compliance with processes. Such culminated in the invocation
of powers of some of the chapter nine institutions. Reports were
generated which suggested certain remedial actions. The parliamentary
committee responsible for communications also put a hand in the
quagmire. It too, generated a report requiring certain steps to
be
taken. For the purposes of this judgment, it is unnecessary to deal
in any measure of detail with the conundrums and quandaries
that
beset the applicant for a period of time. Such is matter of public
record.
[4]
The focal
point in this matter is the engagements, promotions and transfers of
about 27 former and current employees of the applicant.
These
employees, the respondents before me, were either engaged through a
process known as headhunting
[3]
,
promoted and/or transferred. Central to the complaints of the
applicant lies the alleged abuse of unfettered powers of one Hlaudi
Motsoeneng. Allegedly, whilst holding the executive position of the
Chief Operating Officer (COO), he was law unto himself, as
it were,
and flouted most, if not all, the internal procedures of the
applicant.
[5]
In the main, two internal policies are implicated in this matter. To
that
extent, these two policies would be the focal point of this
judgment. Other documents that featured centrally, particularly in
the defences raised by the respondents, were the Delegation of
Authority Guidelines (DAG) and the Transfer Policy (TP). Less would
be said about those policies in this judgment, simply because the
alleged illegality is allegedly not germane from them.
[6]
The first policy is the
SABC RECRUITMENT POLICY
(Old Policy),
it is dated 21 July 1999 and is unsigned. The deponent to the
applicant’s case alleges that this policy was
approved on 26
October 1998 and made effective November 1998. I pause to mention
that no evidence was presented as to how it was
approved and by who.
For the purposes of this judgment, I am going to assume that this
policy was drafted by an official at the
executive level and approved
by the Executive Committee. This assumption is fortified by the
following statement that occurs in
the policy itself:
‘
The
SABC
Management
and its relevant stakeholders will be empowered from
time to time to
develop
or review its Recruitment Policy
to
ensure compliance with labour legislation
and/or in consideration
of issues impacting on recruitment practices.
Executive
Committee
The
affairs of the SABC are administered by an executive committee
consisting of the Group Executive Officer, Chief Operating Officer
and no more than 11 other members.’
[7]
Another assumption to make is that it was developed in consultation
with
the trade unions as stakeholders. This policy regulate issues
like Job advertisement; interviews; selections; relocation costs;
post-appointment procedures for successful candidates and exit
interviews.
[8]
Thereafter, the
RECRUITMENT & SELECTION POLICY
(New
Policy) was prepared by one Eleanor Mathole-Khiba, who was the
General Manager: Group Organisational Development. This Policy
was
approved by the Board of the applicant, on 19 August 2016. It is
recorded in this policy that: “
The intention with this
policy is to establish norms, measures and guidelines for recruitment
to ensure effective and efficient recruitment programme and
process.”
[9]
One of the
objectives of this policy is to ensure that the SABC complies with
all relevant employment legislative prescripts as
well as governance
protocols
[4]
. This policy makes
no reference to the old policy. It sought to regulate all job
applicants both internal and external. It regulated
shortlisting;
assessment; appointment; relocation costs; corporate induction;
appointment of non-RSA citizens; deviations; policy
reviews and the
relevant annexures. This policy was last reviewed on 26 November
2014. The contemplation is to review it on a two-year
basis with full
participation of organised labour.
[10]
In its
founding papers, the applicant alleges that these policies were put
in place pursuant to the SABC’s Constitutional
mandate and
statutory obligations and the prescripts in the policies are to give
effect to the Constitutional mandate and statutory
obligations. The
statutes that the applicant detailed in the founding affidavit are
the Constitution of the Republic of South Africa
[5]
(the Constitution), in particular section 195 thereof; the Public
Finance Management Act
[6]
(PFMA), in particular schedule 2 and some definitions and the
Broadcasting Act
[7]
(BA). It is
unnecessary to detail the respective cases made in respect of each of
the respondents. Suffice to mention that the
applicant alleged that
the appointments, promotions or transfers were irregularly made as
they do not conform to the prescripts
alluded to in either the old or
the new policy. The respective respondents, dispute the allegations.
The cases against the 11
th
and 12
th
respondents were withdrawn during the hearing of the application with
no tender to pay the wasted costs. Their counsel attempted
to argue
the issue of wasted cost but relented after the Court referred him to
Rule 13 of the Rules of the Labour Court. Some of
the respondents did
not file opposing papers but were in attendance when the matter was
argued in Court. Other than that all other
respondents opposed the
application. This Court declined an invitation to rule on the alleged
unconstitutional conduct of the Judge
President of this Court when he
enrolled this matter on the preferential basis.
Evaluation
Preliminary
issues
[11]
Prior
to hearing the merits of this application, the Court had to quickly
dispose of an interlocutory application. The gist of the
interlocutory was to seek a directive from this Court. The
application was astutely tucked under Rule 11 of the Rules of this
Court. After hearing Mr Makhura, appearing for the respondent
launching the interlocutory application, this Court dismissed the
application without providing reasons for the order. Briefly, the
reasons thereof are that this Court does not give directives
on how
the parties should litigate. The Practice Manual makes provision for
instances where the Judge President of this Court may
issue
directives to the parties. The directive sought – to compel
provision of further particulars to enable the respondent
to answer,
such a procedure is unavailable in motion proceedings. In a review
application, when an opposing party takes a view
that the Court has
been furnished with an incomplete record, such a party may seek the
dismissal of the review application on that
basis alone
[8]
.
[12]
An
opposing party does not and cannot compel an applicant to discover
some documents, which the opposing party takes a view that
they
should form part of the record. However an available procedure is to
compel provision of record of the proceedings sought
to be reviewed,
in an instance where an applicant for review is not the custodian of
the records of the proceedings sought to be
reviewed and set aside.
The duty to request and present a record of proceedings sought to be
reviewed lies with an applicant for
review. In reviews of own
decision, it is still the duty of the applicant to place before the
Court the record of the impugned
decision in order to demonstrate
that their own decision was unlawful. If a party fails to do so, a
respondent must meet such a
defective case and point out the defect
in order for a Court of review to refuse the review. The
interlocutory application was
ill-conceived and ought not to have
been brought. Rule 11 is there for a purpose and its purpose
[9]
must not be abused in order to bring these kind of applications.
[13]
The affected respondent could have raised a
preliminary point in an answering affidavit. The risk the respondent
took by not answering
to the factual allegations, is one that the
applicant must live with, together with its attendant consequences.
After the ruling,
the affected respondent subsequently filed an
answering affidavit.
[14]
Further,
the Court was compelled to hand down an
ex
tempore
judgment on an application brought by the twenty-seventh respondent
to have part of her case struck off the roll due to non-service.
This
Court briefly supplements the reasons given
ex
tempore
by
stating that in this Court technicalities have no place, given the
statutory imperative to resolve labour disputes speedily
[10]
.
Striking off only part of a case of a respondent in a case brought as
a unitary case against a number of respondents is nothing
but a
technicality and unhelpful to the respondent concerned. Where a
matter is heard in the absence of a party, the LRA makes
provision
[11]
that if an order
is obtained, the affected party may seek a rescission of the order.
Thus, it would have been destructive to this
important matter to give
space to technical arguments. Counsel who represented this particular
respondent also carried a brief
and mandate to represent other
respondents and he had a full set of the papers allegedly not served
on the respondent concerned.
A suggestion made by counsel for
substituted service was one that is without merit. The rules of this
Court has a provision of
how service could be effected. One of the
approved methods is by hand
[12]
.
[15]
This Court was advised by the applicant’s
counsel that the respondent concerned was present in Court and the
application was
handed to the said respondent. This was not seriously
disputed. Nonetheless, it was sufficient, for the purposes of this
matter
that counsel on brief for the other respondents was in
possession of the founding papers of the applicant. For these reasons
too,
the application was ill-founded and was doomed to fail.
[16]
Mr Mokhari SC, appearing for the nineteenth
respondent, passionately pursued an argument that there is no
decision by the Board
of the applicant to launch the present
application. In other words, the institution of this application was
not authorized. Allied
to that was an argument by Mr Gerber,
appearing for a number of respondents, that the application ought to
have been launched by
the Board of the applicant and not the
applicant.
[17]
In
Ganes
v Telecom Namibia
[13]
,
it was held that what is relevant is that the institution and
prosecution of an action was authorized. While in motion proceedings
the best evidence would be an affidavit by an officer of the company
annexing a copy of the relevant resolution of the Board, such
evidence is not necessary in every case and the Court must decide
whether enough has been placed before it to warrant a conclusion
that
it is the company which is litigating and not some unauthorized
person on its behalf.
[14]
In
ANC
Umvoti Council Caucus v Umvoti Municipality
[15]
,
the following was said:
‘
[28]
I am therefore of the view that the position has changed since
Watermeyer J set out the approach in
Merino
…case.
The position now is that absent specific challenge by way of Rule 7
(1), the mere signature of the notice of motion
by an attorney and
the fact that the proceedings purport to be brought in the name of
the applicant is sufficient.’
[18]
Thus, I take a view that enough has been
placed before me to warrant a conclusion that the SABC as a legal
entity is before me.
Later in the proceedings
,
ex abudandi cautela
, in my view, the
applicant handed up an affidavit annexing an extract of a Board
resolution. There was an objection from two counsel,
and yet again,
the Court was compelled to issue an
ex
tempore
judgment on the objection. I
may add that occasionally, this Court accepts this type of evidence
belatedly where the authority
to litigate is unrelentingly pursued.
[19]
Unfortunately,
at the time when the evidence proving authority was presented, Mr
Mokhari SC was not present as he had already asked
to be excused.
However, this Court had highlighted the risks attendant to counsel
asking to be excused before the completion of
the matter.
[16]
Accordingly, I am unable to uphold Mr Mokhari’s submission, who
was supported on this one by Advocate Kufa, that the application
should be dismissed on this basis alone. The SABC as a legal entity
has a right to sue or be sued in its name. The submission by
Mr
Gerber that only the Board of the applicant has
locus
standi
to launch this application is thus rejected. The functionary that
took the impugned decision is the applicant. The fact that the
Board
is the accounting authority within the contemplation of the PFMA is
of no moment in this regard. Section 19 (1) of the Companies
Act
[17]
specifically provides that a company is a juristic person and has all
the legal powers and capacity of an individual.
[20]
There were a barrage of legal points raised
by various respondents, some are indirectly addressed in the merits
discussion in this
judgement and others not. Given the view this
Court takes at the end, it shall be academic to entertain them and
only serve to
elongate this already long judgment.
The
merits of the application
[21]
The central question in this matter is
whether a public institution exercises public power when appointing,
promoting or transferring
employees? Mr Redding SC, correctly
conceded that if this Court reaches a conclusion that the old and new
policies do not have
a force of law, then the principle of legality
finds no application. Such would render it unnecessary for the Court
to enquire
into whether the policies were complied with or not in
relation to each of the respondents. Of course, the contention of the
applicant
is that the policies are law since they are policies put in
place in line with a constitutional mandate of the applicant as an
organ of state. Further, Mr Redding SC, correctly conceded that this
Court must amongst others consider whether a rule of law as
provided
for in the Constitution has been implicated. Differently put, do the
policies form part of the rule of law as it has become
to be known?
[22]
The applicant seeks a declarator to the
effect that the appointments, promotions and transfers of certain of
its employees (the
respondents before me) are unlawful and or
irrational. Further, the applicant seeks a review of those
appointments, promotions
and transfers in terms of the provisions of
section 158 (1) (h) of the LRA.
The
ambit of section 158 (1) (h)
[23]
It
has long been held that a review contemplated in section 158 (1) (h)
is a legality review
[18]
. As
to what a legality review means, the Constitutional Court has in a
number of judgments pronounced on what that is. Recently,
the
Constitutional Court clarified the principle of legality thus:
‘
[40]
What we glean from this is that
the
exercise of public power which is at variance with principle of
legality is inconsistent with the Constitution itself. In short,
it
is invalid
…
Relating all this to the matter before us,
the
award of the DoD agreement was exercise of public power
.
The principle of legality may thus be a vehicle for its review. The
question is:
did
the award conform to legal prescripts? If it did, that is the end of
the matter. If it did not, it may be reviewed and possibly
set aside
under legality review.
[19]
’
[24]
In
Minister
of Defence and Military Veterans v Motau
[20]
it was said:
‘
[69]
The principle of legality requires that
every
exercise of public power
, including
every executive act,
be rational
.
For the
exercise of public power
to meet this standard
it must be
rationally related to the purpose for which the power was given…’
[25]
In
DA
v President of the RSA
[21]
,
Yacoob ADCJ, as he then was, stated the following about rationality:
‘
[27]
The Minister and Mr Simelane accept that the ‘executive’
is constrained by the principle that
[it] may exercise no power and
perform no function that conferred… by law and
that the
power must not be
misconstrued.
It is also accepted that the
decision must be rationally related to the purpose for which the
power was conferred.
Otherwise the exercise of the power could be
arbitrary and at odds with the Constitution. I agree.’
[26]
It
has been confirmed that rationality and reasonableness are
conceptually different. In
Albutt
v Center for the Study of Violence and Reconciliation and others
[22]
,
the following was said:
‘
The
Executive
has a wide discretion in
selecting the means to achieve its constitutionally permissible
objectives
. Courts may not interfere
with the means selected simply because
they
do not like them, or because there are other more appropriate means
that could have been selected.
But,
where the decision is challenged on the
grounds of rationality, courts are obliged to examine the means
selected to determine whether
they are related to the objective
sought to be achieved. What must be stressed is that the purpose of
the enquiry is to determine
not whether there are other means that
could have been used, but whether the means selected are rationally
related to the objective
sought to be achieved. And if, objectively
speaking, they are not, they fall short of the standard demanded by
the Constitution.’
[27]
On
the strength of the above decision, the submission by Mr Redding SC
that rationality in this matter entails ignoring of policies
put in
place by the applicant is thus rejected. The policies themselves
allows an exercise of discretion and are mere guidelines
[23]
.
One policy uses phrases like ‘could be’ as opposed to
must be. Nonetheless, I fully agree with Mr Mokhari SC as supported
by Mr Mkhatswa and Mr Makhura that an internal policy is not the law.
I shall revert to this issue later in this judgment.
[28]
The
net effect of
Motau
and other related judgments is that every decision must be one that
falls within the confines of the law. It has now been authoritatively
held that there is no longer a common law review. It is either a
constitutional review - popularly known as legality/rationality
review or a review under the Promotion of Administrative Justice
Act
[24]
(PAJA) – for
administrative decisions. Since this is a review of own decision, it
has been held that the only applicable
review is that of
legality/rationality. It seems trite that where public power is
exercised, courts are sceptered to evaluate the
legality and/or
rationality of that power. Later in this judgment, this Court would
consider the question whether promoting and
or transferring an
employee amounts to an exercise of public power.
Issue
of Jurisdiction
[29]
An
issue that implicates the jurisdiction of this Court, particularly
under the enabling section of legality review, is whose decisions
are
to be reviewed by this Court under the section? There are some
judgments, to which this Court agrees with, which states that
if the
LRA has provided another remedy and or process, section 158 (1) (h)
should not be invoked.
[25]
The
section is concerned with the “State” in its capacity as
an employer. This Court is not aware of any decision of
the Labour
Court or the Labour Appeal Court that gives meaning to the word
“State” as employed in the section. The
LRA itself does
not specifically afford the word a definition. In my view, it is
about time that such a definition must be attempted
[26]
.
I intend to do so in this judgment. This point was not squarely
raised by any of the respondents before me, but it being a legal
point that implicates the jurisdiction of this Court, the Court is
entitled to entertain it. A jurisdictional point was raised
[27]
and abandoned by the 19
th
respondent. Although it was abandoned, some of the respondents,
particularly Mr Serage, obliquely dealt with issues that implicates
the jurisdiction of this Court. Thus, it remains a live issue before
me.
[30]
When
interpreting any statute, the first port of call is to afford words
employed by the legislature their ordinary grammatical
meaning
[28]
.
In plain English the word “State” means a body of people
that is politically organized, especially one that occupies
a clearly
defined territory and is sovereign. Unfortunately, our supreme law –
the Constitution of the Republic of South
Africa - also does not
define the word. Section 40 (1) of the Constitution only provides
that in the Republic, government is constituted
as national,
provincial and local spheres of government. Section 1 of the
Constitution provides that the Republic of South Africa
is one
sovereign state. In
Women’s
Legal Centre Trust v President of South Africa and others
[29]
,
the Constitutional Court had regard to section 40(1) and the
definition of “
an
organ of state
”
and concluded thus: -
‘
[19]
These provisions (section 40 (1) and section 239) suggest that “the
state” includes
all those actors
who derive their authority from the Constitution,
including Parliament, government at national, provincial and local
levels, state institutions supporting constitutional democracy
created by Chapter 9 of the Constitution, state departments and
administrations as
well as bodies
created by statute.’
[31]
By
this definition, the Constitutional Court was attempting to give
meaning to the word “the state” as employed in section
7
(2)
[30]
of the Constitution.
It is thus understandable for the Constitutional Court to have given
the word a wide meaning, which in its
judgment it termed “
this
broad assemblage
”.
The question is, should the word State always be given this broad and
wide definition, or, where necessary, it should be
given a restricted
definition. As pointed out above the LRA does not specifically define
the word.
[32]
However,
the word “
Republic”
was afforded a special meaning. It is, when used to refer to
the
state as a constitutional entity
,
the Republic of South Africa as defined in section 1 of the
Constitution. In my view, with reference to the special meaning of
the
Republic
above, it must be accepted that when the legislature used the term
State in the LRA, it is referring to a “constitutional
entity”.
Further, the LRA defines “
public
service
”
to mean national, provincial departments and administration,
including components contemplated in section 7 (2)
[31]
of the Public Service Act
[32]
(PSA). Institutions like the applicant before me are not mentioned in
the section.
[33]
Perhaps
the answer to all of these may lie in the historical position which
obtained with regard to state employees. From a regulation
point of
view, the employment of state – government employees in South
Africa was regulated mainly by the administrative
law
[33]
.
Over time, after the ushering in of the Interim Constitution, the PSA
was ushered. It was to provide for the organisation and
administration of the public service of the Republic, the regulation
of the conditions of employment, terms of office, discipline,
retirement and discharge of members of the public service and matters
connected therewith. At some point the Public Service Labour
Relations Act (PSLRA) was introduced. In 1995, the new LRA was
ushered in. The current LRA repealed the whole of the PSLRA.
[34]
This, then ushered state employees into the
LRA. However, the PSA remains in the statute books. It continues to
regulate issues
like appointments, promotions and transfers. In order
to protect the state employees in that regard – where the state
exercises
powers emanating from the PSA (appointments, promotions and
transfers), it was incumbent on the legislature to introduce section
158 (1) (h). The obvious reason for that is that there is one LRA
governing both the public and the private sector. There is now
one
specialized court, being the Labour and Labour Appeals Court. With
the above historical background, the contextual meaning
of the word
“state” must be referring to the state as a
constitutional entity comprising of national, provincial and
local
governments to the exclusion of state-owned entities.
[35]
It
does appear that this question received judicial attention in
The
Greater Johannesburg Transitional Metropolitan Council v Eskom
[34]
.
This was before the
Women’s
Legal Centre supra
judgment. In this judgment, the Supreme Court of Appeals in dealing
with section 24
[35]
of the
Eskom Act
[36]
, Melunsky AJA,
writing for the majority had the following to say: -
[14]
I turn to consider what is meant by the expression “the State”.
In
the
State and Other Basic Terms in Public Law (
1982)
99 SALJ 225-226
, LG Baxter suggests that, as a rough description,
‘the State’ appears to be used as a collective noun for:
“
(a)
the collective wealth (‘estate’) and liabilities of the
sovereign territory known
as the Republic of South Africa’
which are not owned or owned by private individuals or corporations;
and
(b)
the conglomeration of organs, instruments and institutions which have
as their common
purpose the ‘management’ of the public
affairs, in the public interest, of the residents of the Republic of
South Africa
as well as those of her citizens abroad in their
relations with the South African ‘Government’.”
In the
Shorter Oxford English Dictionary Vol II 2112,
State
is defined to mean
inter alia
“
IV
1. …
2.
A particular form of government;
3.
The state: the body politic as organised for supreme civil rule and
government;
political organisation which is the basis of civil
government; hence the supreme civil power and government vested in a
country
or nation”
[15]
…In its ordinary meaning for the purposes of domestic law the
word is frequently used
to include all institutions which are
collectively concerned with the management of public affairs unless
the contrary intention
appears.
[36]
After having had regard to various
authorities, including the English decisions, Melunsky AJA concluded
as follows: -
“
On
proper construction of the Eskom Act the expression “the State”
in s 24 is not limited to central and provincial
government:
it
includes the State in all its manifestations
.
[37]
In
Holeni
v The Land and Agricultural Development Bank of SA
[37]
,
the Court dealing with section 11 (b)
[38]
of the Prescription Act
[39]
, a
question was flashed out by Navsa JA, writing for the majority: “
can
the Land Bank be considered to be ‘the State’ as referred
to in s 11 (b) of the Prescription Act?
”
Navsa JA sought refuge from the Constitution and observed that there
is no definition of the expression in it. Ultimately,
he arrived at
the following conclusion:
[17]
It should be borne in mind that, when the Act was promulgated, the
definition of ‘organ
of state’ in s 239 of the
Constitution was more than two decades into the future. It can hardly
be contended that the legislature,
at that time, had in mind a
broader meaning of ‘the State’ to coincide with what is
presently contained in that definition.
In
any event, the Constitution itself differentiates between the state
and organs of the state. The Constitution can therefore not
be used
as authority for the proposition that ‘the State’ in the
Act should be interpreted so as to include organ of
the state.
[38]
Navsa JA went on to say:
‘
[20]
The state is referred to in two other places in the Act. In s 19, the
following appears: “
This Act shall
bind the State
”. This provision
was necessary because of the rule, at the time, that state is not
bound by its own laws.
The reference
here must be to the state as a governing entity with legal
personality.
[22]
Thus, in terms of the rule of interpretation that the same words must
be similarly interpreted
in different parts of an Act, the
reference
to ‘the State’ in s 11 must also be to the state as
government and as a juristic person in its own right,
[40]
unless there are indications to the contrary.’
[39]
After
extensive consideration of certain parts of the Land and Agricultural
Bank Act
[41]
, Navsa JA arrived
at a conclusion which says:
[38]
To sum up LADA makes it clear that the bank
is
a separate juristic person acting in its own name and right, distinct
from, although not entirely independent of government.
[40]
Turning to the LRA, section 209 states that
“
This Act (the LRA) binds the
State
”. Thus, if one employs the
reasoning of Navsa JA, it must mean that where the expression is
used, it must be referring to
the state as government and as a
juristic person. In order to arrive at a similar conclusion as Navsa
JA did, I must travel the
same path with regard to the BA. Section 7
of the BA deals with the establishment of the applicant before me. It
states:
‘
Incorporation
7
(1) On the transfer date
[42]
the
Minister
must apply
for the
establishment
by
incorporation
of the Corporation
to a limited liability company with a share capital as contemplated
in the Companies Act.
7
(3) The
application
for incorporation
must be accompanied
by the
memorandum and articles of
association
as contemplated in the
Companies Act
signed by the Minister
on behalf of the
state.’
[41]
It
is crystal clear to me that the applicant is established as a company
by incorporation within the contemplation of the Companies
Act and is
not a
state
.
How can a
state
official – the Minister - apply to establish, through
incorporation, a
state
?
And, how can a
state,
through its own official act on behalf of the
state
?
Just to digress a bit and move to the Companies Act
[43]
.
Section 8 thereof suggests that there are two types of companies, a
profit and a non-profit company. The section contemplates
a
state-owned company. Section 19 (1) (a) of the Companies Act provides
that from the date of incorporation, the company becomes
a juristic
person. Back to the BA, in terms of section 7 (8), the
State
upon incorporation holds 100% of the shares of the corporation.
Section 13 of the BA deals with the members of the Board. In terms
of
subsection 13 (11), the Board controls the affairs of the
corporation. In terms of section 14, the Executive Committee
administers
the affairs of the corporation as appointed and
accountable to the Board. On the other hand, section 83 (1) of the
Constitution
tells us that the President is the Head of State. As
Head of State, the President’s function is amongst others to
make appointments
within the contemplation of section 84 (1) (e) of
the Constitution.
[42]
The
Companies Act defines the board to be board of directors of a
company. In terms of section 19 (1) of the BA shareholding in
the
applicant is subject to the provisions of section 32
[44]
of the Companies Act.
[43]
In light of the above provisions, I take a
view that the applicant is a separate and distinct legal entity from
the state. That
being the case, section 158 (1) (h) does not have the
likes of the applicant in mind when it empowers the Labour Court to
review
decisions or acts performed by the
state
in its capacity as an employer. In this regard, the applicant is in
the same position as any other employer registered as a company
in
terms of the Companies Act. Private companies do not have a right to
approach this Court to review their own decisions to appoint,
promote
and or transfer employees.
[44]
It
has been authoritatively held that even public service employees do
not have as an added string to their bow to challenge their
dismissal
under this section. Why should it be open for a state-owned company
to challenge appointments, promotions and transfers
under this
section? I conclude that the legality review under section 158(1) (h)
is not available to the applicant. A point was
made in
City
Power (Pty) Ltd v Grinpal Energy Management Services (Pty) Ltd and
Others
[45]
that a private company becomes an organ of the state only when it
performs a public function
[46]
.
Since I later hold a view that in failing to comply with the policies
implicated in this matter, the applicant was not performing
a public
function, it is therefore before me as a private company.
[45]
The jurisdiction of the Labour Court is
controlled by section 157 of the LRA. In terms thereof, the Labour
Court can only exercise
jurisdiction on matters that are to be
determined by it in terms of the LRA. In other words, if the LRA does
not grant the Labour
Court power, as it is the case in this matter,
the Labour Court must decline jurisdiction. Section 157 (2) grants
the Labour Court
concurrent jurisdiction with the High Court only on
violation of fundamental rights in relation to conduct by the
state
in its capacity as an employer. Given my views as articulated above,
much as the matter may be arising from employment and labour
relations, I do not believe that the Labour Court may exercise
jurisdiction in the circumstances where it lacks power under section
158 of the LRA.
Can
the applicant obtain a declaratory relief nonetheless?
[46]
Mr
Redding SC, conceded, correctly so in my view, that this prayer of
declaration is effectively infused in the legality review.
Its fate
is largely dependent on the success of the legality review. However,
I have the following to say with regard to the separate
declaratory
[47]
relief because
Mokhari SC took a divergent view. The Labour Court has powers to
issue a declaratory order in terms of section 158
(1) (a) (iv) of the
LRA and resultantly has jurisdiction in terms of section 157 (1) of
the LRA. I must emphasize, the declaration
contemplated in section
158 is not similar to the declaration contemplated in section 172 (1)
(a) of the Constitution. The one
in section 158 of the LRA is one in
which rights between parties are declared. The one in the
Constitution is one where invalidity
of a conduct or law is declared.
Corbett CJ in
Shoba
v OC Temporary Police Camp, Wagendrift Dam
[48]
,
laid
the following principle with regard to declaratory reliefs: -
“
An
existing or concrete dispute between persons is not a prerequisite
for the exercise by the Court of its jurisdiction under this
subsection, though the absence of such may, depending on the
circumstances cause the Court to refuse to exercise its jurisdiction
in a particular case … But because it is not the
function
of the Court to act as an advisor, it is a requirement of the
exercise of jurisdiction under this subsection that there
should be
interested parties upon whom the declaratory order would be binding
…”
[47]
As
it shall be demonstrated later in this judgment, the declaratory
order, if made would have no binding effect on any of the
respondents.
In
Proxi
Smart Services (Pty) Ltd v The Law Society of SA and others
[49]
,
the High Court, correctly, in my view, held that the Court will not
grant a declaratory order where the issue raised before it
is
hypothetical, abstract and academic, or where the legal position is
clearly defined by statute. I take a view that the issue
of irregular
appointments, promotions or transfers is clearly dealt with by the
LRA. For that reason, this Court exercises its
discretion by refusing
to make a declaratory order, in terms of section 158 – which
this Court is empowered to make - in
the circumstances of this case.
The
legal position
[48]
If I am wrong that this Court should refuse
to exercise jurisdiction under section 158(1) (h) of the LRA, I
proceed to say that
where there is a remedy or process available
under the LRA or any other law, then section 158(1) (h) review powers
cannot be invoked.
The applicant takes a position that because the
appointments, promotions and transfers are made by invoking the
powers in section
26 of the BA, a legality review is appropriate.
Subsection 26 (1) reads thus: -
“
The
Corporation may
engage
such officers and other employees as it may be necessary
for
the attainment of its object
and may
determine their duties and salaries, wages and allowances or other
remuneration and their other
conditions
of service in general.
From
the subsection arises two public powers/functions - (a) to engage
employees and (b) once engaged – being employees –
determine their conditions of employment in general. Other than
specifying the power to engage, the subsection does not spell out
as
to how the engagement may be undertaken by the applicant. One must
accept that the issue of how, is a matter left for the administration
to determine. Section 40 of the BA however provides that the Minister
of Communications is empowered to make regulations regarding
any
administrative and procedural matter which it is necessary to
prescribe to give effect to the provisions of the Act. Since
section
26 does not prescribe the engagement procedures, using section 40,
the Minister may have prescribed the procedure so as
to give effect
to the engagement part of the section.
[49]
Any
other administrative and procedural matter not prescribed by the
Minister does not have legal force and effect, on application
of the
ultra
vires
principle, now an incident of the principle of legality. The
Constitutional Court in
Masetlha
v President of the Republic of South Africa and Another
[50]
held
that the power to dismiss is an essential corollary of the power to
appoint and the power to dismiss was read into section
209 (2) of the
Constitution. The reason it was read in was that section 209 (2) does
not expressly provide for dismissal. Similarly,
in this matter, I
must conclude that the applicant possesses the power to dismiss in
terms of section 26 of the BA. Since the applicant
holds a view that
the respondents were not appointed, promoted or transferred properly,
the applicant may dismiss them and or reverse
the promotions or
transfers and does not require an advice from this Court nor is the
Court empowered to do so on its behalf. Mr
Moraka made this point and
I agree with him.
[50]
This is so because, in my view,
unprocedural appointment, does not equate an unlawful conduct, within
the contemplation of section
172 (1) (a) of the Constitution, in the
circumstances of this case. I shall return to this aspect later.
Suffice to mention that
section 167 (7) of the Constitution provides
that a constitutional matter includes any issue involving the
interpretation, protection
or enforcement of the Constitution. Added
to this is that the jurisdiction of the High Court to decide a
constitutional matter
is regulated by section 169 (1) (a) of the
Constitution. Section 151 (2) provides that the Labour Court is
equivalent to the High
Court when it comes to matters under its
jurisdiction. Section 157 (2) of the LRA grants the Labour Court
concurrent jurisdiction
with the High Court on matters relating to
alleged or threatened violation of any of the fundamental rights in
Chapter 2 of the
Constitution. To the extent that the applicant’s
papers are seeking an enforcement, interpretation and protection of
section
1(c) of the Constitution, then section 172 (2) powers may be
invoked. It seems apparent that the applicant approached this Court
to exercise its review powers under section 158 (1) (h). That being
the case, I do not agree with Mr Mokhari SC that this Court
is not to
decide a constitutional matter within the contemplation of section
172 of the Constitution. Thus, under section 158 (1)
(h), if I
discount my reservations highlighted above, this Court has review
powers for unlawful decisions or those that offends
the rule of law.
[51]
An
employee does not have as a right, the right not to be dismissed or
demoted. An employee only has a right not to be unfairly
dismissed or
subjected to an unfair labour practice. Section 185 (1) (a) and (b)
of the LRA makes that point. I take a view that
section 23 (1) of the
Constitution properly construed affords any employer the right to
exercise fair labour practices
[51]
.
Such fair labour practices includes the right to dismiss fairly and
to practice fair labour practices – demotion or transfers.
In
my view, as corollary to the right not to be unfairly dismissed and
being subjected to unfair labour practice lies the right
to dismiss
fairly and to practice fair labour practices.
[52]
The
LRA was promulgated to give effect to the fundamental rights
conferred by section 23 of the Constitution. Implicit in section
188
is a right to dismiss for reasons of misconduct, incapacity and
operational requirements. Section 187 (2) (b)
[52]
of the LRA goes to the extent of stating that a dismissal is fair if
the reason for it is that an employee has reached the agreed
or
normal retirement age. A further point to be made is this. The
applicant laments non-compliance with the policies. Typically,
this
is akin to a dispute contemplated in section 24 of the LRA. Section
213 of the LRA defines a collective agreement to mean
a written
agreement concerning terms and conditions of employment or any other
matter of mutual interest concluded by one or more
registered trade
unions on the one hand and on the other hand one or more employers.
The policies involved herein may well be collective
agreements, in
which case, the provisions of section 24 of the LRA is an available
procedure to deal with the interpretation and
application of the
collective agreements. The policies themselves do mention that they
were developed or reviewed in consultation
with organised labour or
relevant stakeholders – a trade union may be one. With all
these statutory mechanisms in place,
it is inappropriate, in my view,
to invoke section 158 (1) (h) reviewing powers. All that is required
is for the applicant to exercise
its labour relations rights –
dismiss and/or reverse the promotions or refer a dispute about
interpretation or application
of those policies.
[53]
In general, bodies like the CCMA, the
Bargaining Council and the Labour Court exist to resolve disputes and
not to create disputes.
They are specialized bodies created solely
for the resolution of labour disputes. Whatever the applicant
complains about with regard
to the respondents can be resolved by
invoking the rights codified in the LRA. If the appointment of
respondent X does not assist
the applicant in attaining any of its
objects, section 189 of the LRA may be invoked. Mr Serage suggested
that the applicant had
initiated the section 189 process, this is
based on his reading of an allegation that section 189 process was
publicized.
[54]
There
is no evidence that the applicant initiated that process. However,
there is nothing preventing it from initiating same. Further
there is
nothing preventing the applicant to initiate negotiations to change
the terms and conditions of employment. Where an employee
refuse to
accept the change, it has been held by the LAC
[53]
that an employer may lawfully commence a section 189 process. If the
appointment and or promotion is inappropriate because the
incumbent
is not appropriately qualified, incapacity procedures contemplated in
section 188 read with the Code of Good Practice
may be invoked. If
the appointment and or promotion arose as a result of dishonesty and
or misrepresentation, the misconduct procedures
may be invoked. If
there is non-compliance with a policy which may be a collective
agreement on the evidence before me, section
24 may be invoked. Last
but not least, if a person appointed had reached
[54]
an agreed or normal retirement age, he or she may be fairly
dismissed. Mr Redding SC correctly conceded that there is nothing
that prevented the applicant to simply exercise its dismissal powers.
Upon realizing that the shoe was pinching, the applicant presented
a
draft order, which effectively watered down the relief of termination
of the appointments. This, in my view, does not help the
applicant.
[55]
In a legality review, what matters is the
question whether the decision is lawful or not? Given the view, I
take at the end, the
draft order in its ameliorated form cannot be
adopted. The question remains, why then trouble the Labour Court by
using its reviewing
powers, which is reserved for instances not
provided for in the LRA.
[56]
The upshot of what the applicant is seeking
to do is for the Labour Court to dismiss on its behalf for
misconduct, incapacity and
or operational requirements. The Labour
Court does not possess those powers. I am acutely aware that since it
was done in
Khumalo
,
it appears to be the norm, despite the existence of circumstances
that may allow the invocation of the LRA, to approach this Court
under section 158 (1) (h). This norm must, in my view, be ‘nipped
in the bud’ as it were. This norm would create a
culture of
undermining labour rights and is inconsistent with the scheme and
purpose of the LRA.
[57]
The underpinning consideration in the LRA
is fairness. How is fairness to be factored in in a legality review?
In my view it cannot
be. In the Constitution, the issue of just and
equitable only features once a conduct has been declared unlawful.
The fairness
I am referring to is one that should be factored
en
route
declaration. The only manner in
which it can be fostered is for the Labour Court to take a ‘hands
off approach’. It
is not unusual for the Labour Court to take a
hands off approach. It is frequently done in a power play situation
because the LRA
does allow power play.
[58]
As
an added factor, this Court shares concurrent jurisdiction with the
High Court on matters arising from a contract of employment.
[55]
In contract law, a contract may be set aside on the grounds of
mistake
[56]
and or
misrepresentation
[57]
. With
all those available legal remedies why seek a declarator and/or
invoke section 158 (1) (h)? In my view, this Court should
refuse to
be dragged into being a legal advisory Court. It is a Court of law
and equity.
Exercise
of public power.
[59]
The
next question to be considered is whether by promoting, appointing
and transferring the respondents, the applicant was exercising
public
power or not. The High Court in
DA
v SABC
[58]
took a view that in appointing employees using section 26, the SABC
exercises public power. At paragraph 160 of the judgment the
following was said:
[160]
If
the
dismissal of an employee by a public body such as the SABC is the
exercise of public power
[59]
,
a
fortiori
must this be the case in relation to appointments.
Once
an appointment has been made, there is scope for an argument that the
relationship between the parties is governed by their
contract and
the remedies in the Labour Relations Act.
The same scope does not exist in relation to the exercise of the
power to appoint.
[60]
I seem to understand this paragraph to mean
that the public power and the exercise thereof ends at the
appointment/engagement stage
because once the appointment/engagement
is made the relationship going forward is governed by a contract of
employment and the
provisions of the LRA. If my understanding is
correct, I am inclined to agree. In fact, Mr Redding SC correctly
associated himself
with this understanding. Once an appointment is
made, an employer and an employee relationship is born.
[61]
Unlike
in
Khumalo
,
section 26 of the BA does not set out how the public power must be
exercised. In all the three judgments written by Skweyiya J
(majority), Ngcobo J (minority) and Langa CJ (minority) in
Chirwa
v Transnet Limited and Others
[60]
,
only the judgment of Langa CJ addressed the pertinent question of the
exercise of a public power
[61]
.
In relation to this matter, I must decide whether in appointing,
promoting and transferring was the applicant exercising public
power
or not. The then learned Chief Justice had the following to say: -
[186]
Determining whether a power or function is “public” is a
notoriously difficult exercise. There
is no simple definition or
clear test to be applied. Instead, it is a question that has to be
answered with regard to all the relevant
factors including: (a) the
relationship of coercion or power that the actor has in its capacity
as a public institution; (b) the
impact of the decision on the
public; (c) the source of the power; and whether there is a need for
the decision to be exercised
in the public interest. None of these
factors will necessarily be determinative; instead
,
a court must exercise its discretion considering their relative
weight in the context.
[62]
Of importance for me in this exercise is
the source of the power. It is apparent that when the respondents
were promoted and or
transferred the power was purportedly to be
sourced from the old and the new policy. These policies are in my
view an offspring
of a contract of employment. A breach of them
simply entails a breach of a contractual obligation. As pointed out
above employment
policies do not have a force of law unless they are
collective agreements, which are given legal power by section 23 of
the LRA.
Perhaps it helps to peep into the provisions of the PAJA for
the purpose of buttressing this point. In the PAJA, an administrative
action is defined and it involves exercise of public power.
Similarly, a legality review requires exercise of public power. In
the PAJA, the empowering provision is defined to mean a law, a rule
of common law, customary law, or an agreement, instrument or
other
document in terms of which an administrative action was purportedly
taken. It is worth emphasizing that any such agreement,
instrument or
document must be concerned with the performance of public function.
[63]
Mercifully, the matter before me was not
brought under the provisions of PAJA. It thus becomes unnecessary to
decide whether the
policies are the empowering provisions as defined
in PAJA. I must state that I do not agree with an assertion that the
policies
owe their existence from a constitutional mandate. A
constitutional mandate is one that derives from the provisions of the
Constitution.
The applicant owes its existence from the BA. If regard
is had to the preamble of the BA what the legislature sought to do
was
to align the
broadcasting system
with the democratic values and to enhance and protect the
fundamental
rights of citizens
. The fundamental
rights referred to in here are those which relates to those set out
in chapter 2 as reserved for citizens.
[64]
Chapter II of the BA emphasizes that the
broadcasting system is owned and controlled by South Africans. Only
the Minister has the
constitutional mandate of broadcasting policy
development. Section 3 (1) of the BA spells out the broadcasting
system which is
owned and controlled by South Africans. Subsection 3
(2) emphasizes that the Minister is ultimately responsible to develop
the
broadcasting policy that is required from time to time. Both
policies in their text, suggests that they exist to ensure compliance
with Labour legislation. Thus, in my view, the Board or the
management when developing those policies were not carrying out any
constitutional mandate. The person who carries a delegated
constitutional mandate in terms of the BA is not before me, nor was
the court told that such a mandate was further delegated – of
course it being contrary to the principle of
delegatus
delegare non potest
- to the
Board and or management.
[65]
Even
if I were to draw an analogy from the provisions of PAJA, I take a
view that the application or non-application of the recruitment
process of the applicant does not involve performance of a public
function.
Gcaba
v Minister for Safety and Security and Others
[62]
told
us already that generally employment matters are not administrative
actions. The upshot of that being that in employment matters
no
exercise of public functions or powers is involved. The driving
force, in my view, when it comes to legality review is the
implication of the rule of law. As to what a rule of law means, I can
do no better than to refer to
Lon
Fuller
,
when he said for law to be law rather than pure force, eight demands
of legality must be respected: law must be a system of rules
and
these rules must be general, public, prospective, comprehensive,
consistent, possible to obey, relatively stable, and there
must be
congruence between these rules and their administration.
[63]
[66]
Canadian
case
law
had something to say about the concept of
exercise
of public power
that may attract judicial review. The Supreme Court of Canada in
Highwood
Congregation of Jehovah’s witnesses (Judicial Committee) v
Wall
[64]
,
had the following to say:
[14]
Not all decisions are amenable to judicial review under a superior
court’s jurisdiction.
Judicial review is only available
where
there is an exercise of state authority and where that exercise is of
a sufficiently public character
.
Even public bodies make some
decisions that are private in nature – such as renting of
premises
and hiring of staff – and
such decisions are not subject to judicial review…
In making
these contractual decisions,
the public body is not exercising “a power central to the
administrative mandate given to it
by Parliament” but rather
exercising private power… Such decisions do not involve
concerns about the rule of law insofar
as this refers to the exercise
of delegated authority.
[22]
Second, while it remains true that “almost all powers exercised
by public authorities today
have a statutory basis”, it is
important to recognize that
public
authorities can function based on powers that do not owe their
existence to enactments.
The
Crown has powers of a natural person, and can conduct some of its
affairs without relying on statutory powers
.
Indeed, even some fairly sophisticated administrative regimes have
operated without any comprehensive statutory framework.
[24]
Where a public authority is operating
under powers that do not arise from an enactment, remedies under s
2(2) (b) of the Judicial
Review Procedures Act will not be available
,
though remedies under s 2(2) (a) will remain available if the public
authority’s activities have sufficient public character.
[67]
In
Paine
v University of Toronto et al
[65]
,
it was said:
[I]t
is not enough that the impugned decision be made in the exercise of a
power conferred by or under statute;
it
must be made in the exercise of a “statutory power of
decision”
, and I think
that
must be a specific power or right to make the very decision in issue.
[68]
In
Hamsphire
County Council v Supportways Community Services
[66]
,
the following was said:
59 …
[I] agree with Neuberger LJ that this was not a public case. The
action of the Council in conducting the support services
review was
not amenable to judicial review, because there was no sufficient
nexus
between the conduct of the review and the public law powers of the
Council to make this a judicial review case. The required public
law
element of unlawful use of power was missing from the support
services review. The substance of the dispute between the Council
and
the Company was about the expiration of the Agreement after the
Council had conducted the support services review under clause
11…
The
source of the power of the Council’s support services review
was in the Agreement, not legislation or in the non-statutory
2003
Guidelines and published rules…
Termination of the Agreement turned on the operation of the contract
according to agreed terms,
not exercise
of a statutory or common law public law power of the Council which
was amenable to judicial review.
[69]
The
above approach was cited with approval in
Calibre
Clinical Consultants (Pty) Ltd and another v NBCRFI and another
[67]
.
In a dissenting judgment, Rogers AJA, in the matter of
Sanparks
v MTO Forestry (Pty) Ltd and another
[68]
,
had
the following to say:
[63]
I agree with Dambuza JA that the conclusion
of the lease was an exercise of public power.
However,
once the contract came into existence, a commercial contract in which
DWAF did not negotiate from a position of superiority,
the exercise
of its contractual right was in my view a private matter…
[69]
[77] …
To attract the court’s supervisory jurisdiction there must be
not merely a public but a governmental interest
in the
decision-making power in question.
[70]
[70]
I find myself in agreement with the
Canadian
case law
in as far as the legality review in a South African context is
concerned. Where the applicant relies on powers not emanating
specifically
from section 26 of the BA, there is no exercise of
public power involved, thus legality review is unavailable. On its
own version,
when the transfers; appointments and promotions were
made, the applicant alleges that they were not made in the exercise
of the
“law” emanating from the policies. That must mean
that there was no exercise of public power, which would allow the
exercise of judicial review under the legality review. The implicated
officials adopted their own unapproved procedures –
head
hunting and deviations – so to speak. The decisions in issue
were made sourcing powers from some employment policies
or practices
and not an enactment. Exercising powers emanating from an employment
policies/practice does not amount to exercise
of a statutory power of
decision.
[71]
In
appropriate circumstances, internal employment policies may become a
term and condition of employment under the rubric of an
employment
contract
[71]
. These policies
involved in this matter could not have been sourced from the
provisions of section 26 of the BA. Engage does not
equate promote.
An employer engages
[72]
a
person who then becomes an employee once so engaged. On the contrary,
an employer can only promote or transfer an appointed employee.
Promotion in an employment context means to be moved to a higher
position or rank. Transfer in an employment context means to move
an
employee from one workplace to another. There is no debate in this
matter that all the respondents were or are employees within
the
meaning of an employee as defined in the LRA. One thing for certain,
they had been engaged by the applicant in order to meet
its objects.
That is consistent with the text in section 26 of the BA. As the
Constitutional Court in
State
Information Technology Agency SOC ltd v Gijima Holding (Pty) Ltd
[73]
puts
it, once there is compliance with the prescripts that is the end of
the matter in a legality review. In my view, a missed opportunity
arose for the applicant
[74]
.
Section 40 of the BA empowers the Minister to make regulations that
would have spelled out how recruitment to engage within the
contemplation of section 26 must happen. Those regulations would have
attracted a force of law, which if breached, would ignite
the
principle of legality. In
Constitutionality
of the Mpumalanga Petitions Bill
[75]
,
Langa DP (as he then was) stated the following:
“
Regulations
are a category of subordinate legislation framed and implemented by a
functionary or body other than the legislature
for
the purposes of implementing valid legislation
.
Such functionaries are usually members of the executive branch of
government… A legislature has the power to delegate the
powers
to make regulations to functionaries when such regulations
are
necessary to supplement the primary legislation…”
[72]
These
documents (the old and the new policy), as I have pointed out above,
have no force of law. If all domestic employment policies
would be
given a force of law, then the content and meaning of the rule of law
would be diluted and be meaningless. I say so because
one domestic
policy for company X may design a particular procedure which is
inconsistent and in direct contradiction of the procedure
designed
for company B. In those circumstances how would the Courts enforce
and uphold the rule of law? In my view, such an approach
of affording
domestic internal policies a force of law is nothing but a recipe for
disaster. Even in instances where an administrative
policy is issued
in terms of legislation, Courts have expressed doubt on the binding
nature of such policies. The SCA in
Akani
Garden Route (Pty) Ltd v Pinnacle Point Casino (Pty) Ltd
[76]
,
Harms JA had the following to say:
[7]
The word “policy” is inherently vague and may bear
different meanings…
Any course or program of action adopted by
a government may consist of general or specific provisions. Because
of this I do not
consider it prudent to define the word either in
general or in the context of the Act. I prefer to begin by stating
the obvious,
namely that laws, regulations and rules are legislative
instruments
whereas policy determinations are not
. As a matter
of sound government,
in order to bind the public, policy should
normally be reflected in such instruments
. Policy determinations
cannot override, amend or be in conflict with laws (including
subordinate legislation)
[73]
The
above conclusion, which I associate myself with, simply implies that
policy determinations lack force of law and has no public
binding
effect
[77]
. In terms of
section 43 of the Constitution, the legislative authority vests in
Parliament; Provincial legislatures and Municipal
Council. It is
apparent that these Policies were drawn up by the Executive Committee
and approved by the Board as guidelines in
recognition of Labour
legislations. In drawing them up, the Executive Committee was not
creating legislation and or subordinate
legislation which could
attract a force of law, neither was their drawing up involving the
exercise of public function. Recently,
the SCA in
Mostert
NO v The Registrar of Pension Funds
[78]
had the following to say:
[8]
A word of caution may not be out of place.
New Clicks
is no
authority for the
proposition that the making of regulations by a
minister, in general, is administrative action for purposes of PAJA
.
It seems, with respect, that the statements in some of the other
judgments in that case, to the effect that this is what Chaskalson
CJ
held, were based on a misinterpretation of what he said…
[10]
…The final word on regulation-making and the applicability of
PAJA to it may therefore
not have been spoken…
[74]
That
being so, how can compliance or non-compliance with the internal
employment policies amount to exercise of public power? In
my view,
no exercise of public power is involved in
casu
.
The Constitutional Court in
AAA
Investments (Pty) Ltd v The Micro Finance Regulatory Council
[79]
,
confirmed
that if a Council exercises its functions in terms of national
legislation and the functions are in the public interest,
it is
subject to the principle of legality. In
Gijima
and others, it was confirmed that a contract awarded contrary to
section 217 of the Constitution is liable to be set aside only
on the
principle of legality. I must add, as argued by Mr Redding SC, with
reference to
Allpay
Consolidated Investment Holdings (Pty) Ltd v Chief Executive officer
of SASSA
[80]
,
the supply chain management policy referred to in
Allpay
was an offshoot as it were of the Treasury Regulations drawn up in
line with an Act of Parliament. Such is not the situation with
regard
to these two policies allegedly breached. The two policies
specifically states, they are guidelines and allow a fair amount
of
discretion when it comes to their application. This is at odds with
the rule of law as defined by Fuller.
[75]
In my view, the situation as it obtained in
Khumalo
does not obtain in this matter. The promotion of Khumalo was done
within the purported confines of section 11 of the PSA. The section
specifically spelled out the required process in making appointments
and filing of the posts in the public service. The Court in
Khumalo
concluded that the promotion of Khumalo offended section 11 (2) of
the PSA, since it required persons to be qualified for promotion
and
Khumalo was not qualified. Section 26 of the BA says nothing about
qualifications. Mr Itzkin for the applicant urged this Court
to take
heed of portions of paragraph 62 in
Khumalo.
In my view when the entire paragraph is
read a different picture to the one punted for in this matter
emerges. The entire paragraph
reads thus:
[62]
Section 11 (2)
must be read in the context of the state’s obligation under
section 195 (1) (i) of the Constitution and the
right to fair labour
practices under section 23 of the Constitution. Section 195 (1) (i)
stresses the importance of ensuring that
the appointment process in
the public sector are based on ability, objectivity and fairness.
Fairness in employment practices and labour relations requires the
state to be even-handed and transparent not only to those whom
it
employs, but so too to those who may wish to apply for employment at
a state institution. It would
not be
fair if the state were to employ persons who do not meet the very
requirements that the state itself sets. It is neither
fair nor in
compliance with the dictates of transparency and accountability for
the state to mislead applicants and the public
about the criteria it
intends to use to fill a post
. The
formulation and application for a particular post is a minimum
prerequisite for ensuring objectivity of the appointment process.
Persons who do not meet the requirements for the post in the public
sector ought not to be appointed.
[76]
The above paragraph reveals that the
objectivity that requires the state to formulate the minimum
requirements derives from the
concept of fair labour practices, hence
reference to fairness as opposed to legality. Section 11 (2) of the
PSA that the Court
was seeking to give context to does not apply to
the applicant. At paragraph 63, the Constitutional Court buttressed
the point.
It said:
[65]
…
The reading of the corollary
into section 11 of the PSA, in the context of section 195 of the
Constitution
, implies that, it would
generally not
be fair or in terms of an
objective process for
public-sector
employers
to consider applicants who
fall outside of the formal criteria.
[77]
On
the contrary, the applicant’s case is not pegged on a statute
but policies developed internally. In
Chief
Executive Officer of the SASSA N .O v Cash Paymaster Services (Pty)
Ltd
[81]
,
the SCA held as follows
:
-
[20]
SASSA has, in terms of reg 16A3.2
a
supply chain management policy
that
requires that procurement and tendering should be in accordance with
a system which is fair, equitable, transparent, competitive
and
cost-effective.
[21]
SASSA is not obliged to comply with its
policy
in the circumstances set out in
reg16A.6.4 and it is accordingly unnecessary to consider the terms of
the policy further.
[28]
…I think not. As was recently said by this court
[82]
“
It
is important to mention that
mere
failure to comply with one or other administrative provision does not
mean that the whole procedure is necessarily void …”
[83]
[78]
The
principle of legality does not come in when it comes to breach of an
employer’s internal policies
[84]
.
To the extent that the applicant wishes to rely on section 195 of the
Constitution, I am of a view that there can be no direct
reliance
without due regard to the PSA. The applicant may fit the definition
of a public enterprise, but it has not pegged its
case on a national
legislation that promotes the principles listed in section 195 (1) as
required by section 195 (3). On 30 October
2013, the Public
Administration Management Bill was published.
[85]
Once the State President issues a proclamation, the Act to be known
as Public Administration Management Act
[86]
(PAMA), shall come into effect. Practically, it shall be safe to
assume that Parliament has passed the legislation contemplated
in
section 195 (3).
[79]
That
being the case, the principle of subsidiarity
[87]
must apply in relation to the principles set out in section 195 (1)
of the Constitution. Interestingly, public administration as
employed
in section 195 is defined to mean the public service, municipalities
and their employees. The public service is defined
to mean national
and provincial departments and its components. In section 4 of PAMA
an obligation is created for each institution
to promote the
principles outlined in section 195 of the Constitution. An
institution is defined to mean national, provincial departments
and
municipality or components of national and provincial governments.
All of the above points that the applicant before me is
not one of
the identified bodies to promote the principles in section 195 (1) of
the Constitution. The objects of PAMA is amongst
others to give
effect to section 195 (1) of the Constitution.
[88]
[80]
One other angle to look at section 195
arises from the provisions of section 196 of the Constitution. The
section establishes a
constitutional body known as the Public Service
Commission (PSC). This body is clothed with powers and functions. One
of the functions
is to promote the values and principles in section
195. It is specifically empowered to give directions aimed at
ensuring that
personnel procedures relating to recruitment,
transfers, promotions and dismissals comply with the values and
principles set out
in section 195. In February 2016, the PSC issued a
fact sheet on irregular appointments in the public service. In
the fact
sheet it sought to explain irregular appointments and stated
thus: -
“
In
Human Resource Practice the term “irregular appointments”
is utilized to describe a wrongful action that has taken
place during
the process of R&S (recruitment and selection)
which
is in contravention with legislation, regulations and other
subordinate prescripts. Simply put, irregular appointments entail
transgression of applicable legislative and policy framework in the
appointment process.
[81]
Therefore, it seems plain to me that within
the contemplation of section 195, for an irregularity to arise, which
may be seen to
offend any of the principles and values, there must be
a statutory obligation to follow a specified process for the purposes
of
recruitment and selection. Discretionary internal policies with no
force of law is not contemplated in section 195 of the Constitution.
[82]
The majority in
Chirwa
concluded that although section 195 provides valuable interpretative
assistance it does not found the right to bring an action.
According
to Ngcobo J, in
Chirwa,
section 195 principles are there to contemplate fair labour practices
and must be understood within the context of section 23 (1)
of the
Constitution.
[83]
Regard
being had to the above legal position; this Court reaches a
conclusion that a course open to the applicant is to proceed
as
contemplated by the LRA. I also conclude that not complying with the
internal employment policies does not of necessity amount
to the
exercise of public power
[89]
and it is incapable of attracting a legality review. All there is, is
a public enterprise by-passing its own discretionary procedures.
[84]
In
DA v SABC
,
the High Court took a view that since the SABC is a public body
which, when it acts, is generally exercising public power. I do
not
agree that at all times when the SABC acts it exercises public power.
Proper reading of the
DA
judgment reveals that the High Court sought refuge from
Chirwa
and
Khumalo
to come to that conclusion. My views on
Chirwa
are given impetus by my reading of
Gcaba
,
which necessarily removes at a general level employment matters from
the purview of the exercise of public power. Again, I read
Khumalo
to be specific to legislative powers as opposed to non-legislative
powers.
[85]
The
Canadian
case
law
as espoused above, at the very least supports this disagreement. Mr
Redding SC correctly conceded to this proposition that not
at all
times is public power being exercised by the SABC. As the Learned
Late Chief Justice Langa observed in
Chirwa
,
determining whether the exercise is that of public power is
notoriously difficult. It is not that easy. One Canadian case
[90]
suggested factors
[91]
relevant
to the determination whether a matter is coloured with a public
character element or character to bring it within the
purview of
public law.
[86]
The SABC appoints employees in order to
attain its objectives. The objectives of the SABC are listed in
section 8 (a) - (p) of the
BA. It ought to be remembered that section
9 of the BA clearly provides that the applicant operates on two
separate organizational
entities. The public service function is
spelled out in section 10 of the BA. I do not read section 26 to mean
or say that employees
are appointed to carry out the public service
functions contemplated in section 10. Subsection 8 (d) to my reading
is the only
one that expressly spells out that one of the objectives
is to provide in its public service radio and television programming
that
informs, educates and entertains.
[87]
The
late Chief Justice Langa made it absolutely clear that not one factor
is determinative. Nonetheless, I agree that when the SABC
appoints
using powers conferred to it in section 26, it does exercise
statutory public power. Therefore, in order to determine
the legality
of the engagements, the ambit of section 26 only must be considered.
As pointed out in
Masethla
,
the question is rather about whether public authority has been
exercised in a constitutionally valid manner
[92]
.
In
Masethla
,
it was found that section 209 implied the power to dismiss and having
dismissed Mr Masethla, the President exercised the power
in
accordance with the law
[93]
–
the law being section 209 of the Constitution.
[88]
Legality simply entails compliance with the
empowering legislation. Since there are no prescribed requirements,
by simply engaging
an employee to assist in achieving its objects,
the SABC would have exercised public power in terms of the enabling
section (section
26 of the BA). As held in
Masethla
,
once appointed, a contract of employment arises and in this instance,
the LRA shall apply thereafter. It is interesting to note
that the
Constitutional Court refused to accept that section 12 of the PSA was
the source of the power because it provided for
the manner and form
of the service contract once the appointment or dismissal has
occurred. Similarly, in my view, there is no
power to be sourced from
the policies when it comes to engagement.
[89]
The
only source of public power is section 26 and nothing more
[94]
.
The PFMA was only flagged to justify approaching this Court.
[95]
The source of power to do anything more after the appointment is
lawfully executed is the LRA or where necessary the employment
contract itself, if it is in place.
[90]
With regard to a discretionary relief of
declaration of rights, in this Court’s view, the requirements
of the relief are not
met. Axiomatically, the relief sought by the
applicant must be refused. I must briefly return to the question of
the alleged irrationality
of the promotions and or transfers. The
rejected argument of Redding SC was that it is irrational for an
employer like the applicant
before me to ignore its own internal
policies. Rationality involves exercising public powers for a
different purpose for which
the powers has been afforded. In section
26 of the BA, the purpose of the power to engage is to attain its
objects. It has not
been alleged and or proven in the papers that any
of the appointments were done to achieve a different object. Unlike
in the
DA case
there was no allegations of adverse findings against any of the
respondents when their respective transfers, appointments or
promotions
were made.
[91]
I fully agree with Mr Mokhari SC that no
case for irrationality has been made by the applicant. Since the
empowering section 26
does not prescribe a procedure, the fact that
the applicant may have adopted a different means that seeks to
by-pass its discretionary
bespoken procedures does not mean the means
the applicant adopted is irrational and performed in the exercise of
public functions.
The
issue of delay
[92]
Of necessity, all alleged unlawful actions
ought to be attacked within reasonable time. Our Constitution does
not countenance an
illegality. It is premised on the foundation of
the rule of law. The section that the applicant invoked to approach
this Court
does not set out a time period within which to approach
the Court. The majority of the impugned decisions were taken some
time
ago. PAJA which deals mainly with administrative actions, an
offspring of section 33 of the Constitution, prescribes that within
a
period of 180 days, action must be taken to deal with any unlawful
administrative action. Section 145 of the LRA requires an
attack on a
defective arbitration award to be launched within a period of six
weeks.
[93]
In
respect of the decisions that the applicant seeks to impugn a period
ranges from 3 years up to and including 10 years in some
cases. The
Prescription Act, provides that some claims get extinguished in law
after a passage of a prescribed time period. Recently,
the
Constitutional Court in
No
ty
awa
v Makana Municipality and others
[96]
had the following to say: -
[50]
As was noted in
Khumalo
,
prejudice that may flow from the nullification of an administrative
decision long after it was taken may be ameliorated by the
exercise
of the wide remedial powers to grant a just and equitable remedy in
terms of section 172(1)(b) of the Constitution. At
common law, our
courts avoided prejudice to respondents by declining to
entertain
a review
application
.
Our law has since moved on and PAJA affords courts the wide remedial
power which may be exercised to protect the rights of innocent
parties.
That power mirrors in exact
terms the power contained in section 172(1) (b).
[51]
It must be emphasised that when a court exercises the discretion
,
it must always keep in mind the development brought about by the
Constitution and PAJA
…
What
is important is to note that the exercise of discretion is no longer
regulated exclusively by the common law principles which
did not
permit the flexibility of reversing unlawful decisions while avoiding
prejudice to those who had arranged their affairs
in terms of the
unlawful decision.
[94]
The message above seems loud, lucid and
clear. It is no longer permissible for a Court of law to avoid its
constitutional obligation
simply because of the passage of time. In
line with the constitutional imperatives of a rule of law, it does
seem to me that a
Court of law is more exalted to ascend to the
altar, where an allegation is raised – not proven – that
a particular
decision is threatening the rule of law. Jafta J added
that where the unlawfulness of the impugned decision is clearly
established,
the risk of reviewing that decision on the basis of
unreliable facts does not arise. In my mind a party seeking a review
of a decision
on the basis of illegality, bears the
onus
to show the alleged illegality. The other party, the respondents in
this case, bears very little risk, which may translate to
inconvenience, which may be remedied with an appropriate order of
costs, if the party heard, after a passage of time, fails to show
the
alleged unlawfulness. On the other hand, where a Court of law refuses
to hear a matter in the face of apparent unlawfulness,
in my mind,
that Court would be failing the foundational principle of the rule of
law.
[95]
A rule of law is achievable through a
functional judiciary. Section 165 (1) of the Constitution vests
judicial authority in the
courts. Although the common law rule of
undue delay still serves a purpose, in my view when regard is had to
section 1 (c) read
with sections 165 (1), 34, 39 (2) and 173 of the
Constitution, unless a hopeless case is so presented, courts must
rise to the
occasion and defend, where necessary, the rule of law, to
ensure a functional State. Our constitutional democracy is young and
fragile and it deserves judicial activism.
[96]
The
applicant has provided reasons why it approached this court late. In
Gijima
,
the Court asked the question: did the award (impugned decision)
conform to the legal prescripts? If it did, that is the end of
the
matter. If it did not, it may be reviewed and possibly set aside
under legality review. The Constitutional Court went on to
reconfirm
DoT
v Tasima (Pty) Ltd
[97]
with
regard with the issue of delay. In
Gijima
,
before dealing with the delay the question was posed: What impact, if
any, should this delay have? After
Gijima
,
the Constitutional Court again in
Buffalo
City Metropolitan Municipality v Asla Construction (Pty) Ltd
[98]
laid
the basis for the delay rule in legality reviews. The majority stated
that the approach to overlooking a delay in a legality
review is
flexible. It set out that it involves taking into account a number of
factors. The first of which is (a) potential prejudice
to affected
parties – this is ameliorable, (b) the nature of the impugned
decision – may drive the court to the merits
of the review, (c)
the conduct of the applicant – state litigants are exalted to
act with haste given the available resources,
(d) court compelled to
declare the conduct unlawful – as duty bound by section 172 (1)
(a) of the Constitution.
[97]
The
two step approach remains. The first is, is the delay unreasonable?
In my view, the delay in this matter is unreasonable. The
second is,
should this delay be overlooked? Having considered the evidence of
the applicant and having weighed the factors mentioned
above, with
flexibility of course, I choose to overlook the delay and entertain
the matter. I regard the matter to be important
to both parties, an
additional factor to be weighed, in my view, when considering whether
to overlook or not. It ought to be emphasised,
the delay rule only
prevents a court of review to entertain the application and does not
prevent the court once the delay is overlooked
to still dismiss the
review on its merits. In
Merafong
City Local Municipality v Anglogold Ashanti Ltd
[99]
,
the majority judgment made an order remitting the matter to the High
Court to consider the lawfulness of the Minister’s
decision. In
Heath
v President of the Republic of South Africa
[100]
,
it was stated that the Court is obliged to adopt a two stage
approach, if it finds that the delay is reasonable that is the end
of
this enquiry and the review proceeds.
[101]
The delay is nothing but a procedural obstacle, which a Court
of law must be slow to allow it to prevent the Court from looking
into a challenge to the lawfulness of the exercise of public power.
Counter-application
[98]
The 26
th
respondent brought a counter-application, in terms of which she seeks
damages for an alleged breach of contract. The
onus
remains on the 26
th
respondent to allege and prove the terms of the agreement and the
breach thereof. In addition, she has to prove the damages claimed.
In
my view, the choice of proceedings – motion proceedings, was a
very bad choice given the disputed facts, which ought to
have been
foreseen by her
[102]
.
Without any further ado, the 26
th
respondent, in my view, has failed to discharge her overall
onus
and must fail.
[99]
This being civil proceedings, costs must follow the results. The
counter-application ought
to be dismissed with costs.
Respondents’
respective cases
[100]
In the light of the above principles, it is
unnecessary for this Court to consider whether indeed there was or
was no compliance
with the Policies. A decision on this aspects would
firstly not be appropriate in a judicial review since compliance or
non-compliance
does not implicate the Constitutional rule of legality
and over and above that it would be a futile and academic exercise.
Decidedly,
this Court chooses not to entertain each of the
respondents’ defences to the alleged non-compliance. Suffice to
say, the
statutory prescripts were exercised lawfully and rationally,
thus, the matter ends there. The applicant failed to discharge the
onus
to
demonstrate that there was an illegality which would have ignited the
Court’s powers.
The
issue of costs
[101]
The
costs of the counter-application have already been dealt with. With
regard to the costs of the main application, this Court
adopts the
approach in
Biowatch
Trust v Registrar, Genetic Resources
[103]
,
for
a simple reason that the applicant approached this Court in an
attempt to defend the Constitutional principle of legality. True,
the
respondents were dragged into a matter which ostensibly involve huge
litigation costs, however, the legal certainty on this
issue is
beneficial to them as well. Not forgetting that as the Labour Court,
section 162 of the LRA affords me a wide discretion
when it comes to
costs. The practice of costs following the results is foreign in the
Labour Court jurisdiction.
[104]
[102]
In the premises the following order is made.
Order
1.
The main application is dismissed.
2.
There is no order as to costs in relation to the
main application.
3.
The 26
th
Respondent’s counter-application is dismissed.
4.
The 26
th
Respondent is to pay the costs associated with the
counter-application.
_______________________
G. N. Moshoana
Judge
of the Labour Court of South Africa
Appearances:
For the
Applicant
:
Redding SC with him
R
Itzkin and S Manie
Instructed
by
: CDH
Inc, Sandton.
For
the Respondents
The 1
st
, 5
th
,
10
th
, 20
th
and
21
st
Respondents
:
H
Gerber
Instructed
by
: Welman
and Bloem
Incorporated
The 2
nd
, 11
th
and 12
th
Respondents
: M Kufa
and C Nkosi
Instructed
by
: Machaba
Attotrneys
The
4
th
Respondent
:
M Kufa
and C Nkosi
Instructed
by
:
Nyapotse Incorporated
The 6
th
Respondent
:
S
Seepamore of SG
Seepamore
Incorporated
The
9
th
Respondent
:
G Snyman
Instructed
by
:
Fluxmans Incorporated
The
13
th
Respondent
:
Mr M
Mkhatshwa
Instructed
by
: Poswa
Incorporated
The 15
th
and
23
rd
Respondents:
J Moroka of KD Magabane
Inc
The 16
th
Respondent
:
M
Makhura of Cheadle
Thompson
& Haysom
The 17
th
, 18
th
and 25
th
Respondents
: H
Gerber
Instructed
by
:
Ndzabandzaba Attorneys Inc.
The
19
th
Respondent
: Mokhari
SC
Instructed
by
: SLL
Motlogelo Moroka
Attorneys
The 22
nd
Respondent
: TM
Serage of TM Serage
Attorneys
The
26
th
Respondent
: M Kufa
and C Nkosi
Instructed
by
: Gwina
Attorneys
The
27
th
Respondent
: M Kufa
and C Nkosi
Instructed
by
:
Motlatsi Seleka Attorneys
[1]
No. 66 of 1995, as amended.
[2]
2014 (3) BCLR 333 (CC).
[3]
Also known as Executive Search – it is the process of
recruiting to fill senior positions in organisations. Generally,
it
is undertaken by the board of directors or the delegated Human
Resources Executive.
[4]
Clause 2.4 thereof
[5]
Act no. 108 of 1996.
[6]
No. 1 of 1999.
[7]
No. 4 of 1999.
[8]
Francis
Baard District Municipality v Rex N. O
[2016] 10 BLLR 1009 (LAC).
[9]
It is there to assist the Court and not the party to adopt any
procedure that it deems appropriate in instances where a situation
not catered for in the Rules arise.
[10]
Section 1 of the LRA
[11]
Section 165 of the LRA
[12]
Rule 4 (1) (a) (i) by handing a copy to the person.
[13]
2004 (3) SA 615 (SCA).
[14]
Mall
(Cape) (Pty) Ltd v Merino Kooperasie BPK
1957 (2) SA 437 (C).
[15]
2010 (3) SA 31
(KZP).
[16]
In my view counsel on brief must remain in attendance until the
entire case is completed. This is simply in the interest of the
client. This, despite the fact that counsel would have completed his
or her submissions in a matter involving a number of respondents,
like this matter. If Mr Mokhari SC was in attendance, he may have,
for the benefit of his client made valuable submissions to
assist
the Court to arrive at a conclusion with the benefit of his client
included.
[17]
No. 71 of 2008.
[18]
See
Ramonetha
v Department of Transport Limpopo and others
[2018] 1 BLLR 16
(LAC)
[19]
State
Information Technology Agency SOC ltd v Gijima Holding (Pty) Ltd
2018 (2) BCLR 240 (CC).
[20]
2014 (8) BCLR 930 (CC)
[21]
2013 (1) SA 248 (CC)
[22]
2010 (3) SA 293 (CC)
[23]
See
Leonard
Dingler (Pty) Ltd v Ngwenya
[1999] 20 ILJ 1171 (LAC) and
SAMWU
obo Abrahams and others v City of Cape Town
[2008] 29 ILJ 1978 (LC)
[24]
No. 3 of 2000.
[25]
See:
PSA
obo De Bruyn v Minister of Safety and Security and another
[2012]
33 ILJ 1822 (LAC) para [2] … Section 18 (1) (h) was intended
to preserve the common law judicial review remedy of
public
servants. In
Ngutshane
v Ariviakom (Pty) Ltd
[2009] 30 ILJ 213 (LC), the Court said: [24] Accordingly, the Labour
Court has no jurisdiction to review the decision of the
respondent
to dismiss Ngutshane. The provisions of s 158 (1) (h) may apply in
circumstances where the LRA offers no remedy…Recently,
similar sentiments were echoed by my brother Tlhotlhalemaje J in
Denosa
v MEC Health Gauteng [
2019]
40 ILJ 2533 (LC).
[26]
In my view, this is an important task that may lessen the load of
this Court. Largely, this Court experiences a number of parastatals
seeking to challenge decisions of disciplinary committees using
section 158 (1) (h) of the LRA.
[27]
Paragraph 5.5 pages 1820-1821 bundle 5.
[28]
This approach received endorsement in the recent judgment
of
Independent Institute of Education (Pty) Ltd v Kwa-Zulu Natal Law
Society and others
[2019] ZACC 47
[29]
Case CCT 13/09 [2009] ZACC 20.
[30]
The
state
must
respect, protect, promote and fulfil the rights in the Bill of
Rights.
[31]
For the purposes of the administration of public service there shall
be national departments and provincial departments mention
in the
first column of Schedule 1, provincial departments mentioned in the
first column of Schedule 2 and the organisational
components mention
in the first column of Schedule 3. The components mentioned is
the Independent Complaints Directorate(ICD);
Sports and Recreation
South Africa (S&RSA) and Statistics South Africa (Statsa)
[32]
No. 103 of 1994.
[33]
See
Administrator
Transvaal, and others v Zenzile and others
1991 (1) SA 21 (A).
[34]
Case 536/97 dated 30 November 1999.
[35]
Eskom is hereby exempted from the payment of any income tax, stamp
duty, levies or fees which would otherwise have been payable
by
Eskom to the
State
in terms of any law…
[36]
No. 40 of 1987
[37]
(266/08)
[2009] ZASCA 9
(17 March 2009)
[38]
11 (b) fifteen years in respect of any debt owed to
the
State
…
by the
State
to the
debtor …
[39]
Act 68 of 1969.
[40]
See
Sinovich
v Hercules Council
1946
AD 783
at 804.
[41]
No 15 of 2002.
[42]
Means a date announced by the Minister by proclamation in the
Gazette.
[43]
Act 71 of 2008.
[44]
A section that deals with use of a company name and registration
number
[45]
[2015] 36 ILJ 1423 (CC)
[46]
Para 23 of the judgment.
[47]
Paragraph 1 of the unamended notice of motion page 2 bundle 1. Later
a draft order was handed up which by implication amends
the original
notice of motion.
[48]
1995 (4) SA 1
(A) at 14F-I
[49]
Case 74313/16 dated 16 May 2018.
[50]
2008 (1) SA 566 (CC).
[51]
In
Nehawu
v University of Cape Town and others 2993 (2) BCLR 154 (CC)
it was said: [40] In my view the focus of section 23(1) is broadly
speaking, the relationship between the worker and the employer
and
the continuation of that relationship on terms that are fair to
both. In giving content to the right, it is important to
bear in
mind the tension between the interests of the worker and the
interests of the employers which is inherent in labour relations.
Care must therefore be taken to accommodate, where possible, those
interests so as to arrive at the balance required by the concept
of
fair labour practices.
It
is in this context that the LRA must be construed
.
This was reaffirmed by the Constitutional Court recently in
AMCU
and others v Royal Bafokeng Platinum Ltd and others
CCT181/18
[2020] ZACC 1
(23 January 2020).
[52]
On a matter involving a respondent who was appointed contrary the
retirement rules, Mr Redding conceded, rightly so, that since
the
respondent has left the services of the applicant a review would be
moot. This Court is sceptered to refuse an application
on the basis
of mootness. I do so without deciding whether the appointment was
unlawful or not.
[53]
See
Numsa
and others v Aveng Trident Steel (A division of Aveng Africa (Pty)
Ltd
[2019] 40 ILJ 2024 (LAC) at para 31
[54]
The twenty first respondent Ms Geldenhuys.
[55]
Section 77 (3) of the BCEA.
[56]
Khan v
Naidoo
1989 3 SA 724 (N)
[57]
Trollip
v Jordaan
1961 1 SA 238 (A)
[58]
Case 3104/2016 dated 12 December 2016.
[59]
In
Gcaba
,
which came after
Chirwa
,
it was concluded that failure to promote and appoint was not an
administrative action. At para 64 the Court in
Gcaba
said
generally,
employment and labour relations issues do not amount to
administrative action
within
the meaning of PAJA.
[60]
[2008] 2 BLLR 97 (CC).
[61]
Although Ngcobo J in the minority judgment disagreed with a view
that Transnet in dismissing was not exercising public power.
His
conclusion was that the functionary was public and actions of a
public official is public power. The majority by Skweyiya
J was to
the effect that the functionary is irrelevant, what is relevant
is
the nature of the power
.
[62]
2010 (1) SA 238 (CC).
[63]
Lon L Fuller,
The
Morality of Law
rev ed (New Haven: Yale University Press, 1964) at 39, 44.
[64]
2018. SCC 26
[65]
[1982] 34 O.O (2d) 770
[66]
[2006] EWCA Civ 1035 (CA)
[67]
2010 (5) SA 457
(SCA). Nugent JA amongst others said: [36] …
I have considerable doubt whether a body can be said to exercise
‘public
powers ‘or ‘perform public function’
only
because the public has an interest in the manner in which the powers
are exercised or its functions are performed, and I
find no support
for that approach in other cases in this country or abroad.
[68]
[2018] ZASCA 59
(17 May 2018)
[69]
I fully agree with this view and find persuasion in it.
[70]
R v
Chief Rabbi of the United Congregations of Great Britain and the
Common Wealth, Ex Parte Wachmann
[1992] 1 WLR 1036
(QB) at 1041C-E
[71]
See
Commonwealth
Bank of Australia v Barker
[2013] FCAFC 83.
[72]
The dictionary meaning of engage is to arrange to employ or hire
someone.
[73]
2018 (2) BCLR 240 (CC).
[74]
In my view it is not a lost opportunity though.
[75]
2001 11 BCLR 1126 (CC)
[76]
Case 252/99
[2001] ZASCA 59
(17 May 2001)
[77]
See ON Fuo in
Constitutional
basis for the enforcement of “Executive” Policies that
give effect to Socio-Economic rights in South
Africa
PELJ 2013 (16) 4. Also Jan J Hattingh:
Government
Relations, A South African Perspective Manualia Didactica
36 1998. Hattingh at page 55 emphasises that administrative policies
as being unenforceable.
[78]
2018 (2) SA 53 (SCA)
[79]
2006 (11) BCLR 1255
(CC).
[80]
2014 (1) SA 604 (CC).
[81]
[2011] ZASCA 13
(11 March 2011)
[82]
Nokeng
Tsa Taemane Local Municipality v DPOA
(518/09)
[2010] ZASCA 128
(30 September 2010) para 14
[83]
This specific position was not approved by the Constitutional Court
on the basis set out in the footnote below. However, it ought
to be
observed that
the
policy was issued in terms of the regulations hence it acquired a
force of law.
[84]
In
Allpay
Consolidated Investment Holdings (Pty) Ltd v Chief Executive officer
of SASA
2014 (1) SA 604
(CC) it was confirmed that compliance with the
requirements for a valid tender process
,
issued in accordance with the constitutional and legislative
procurement framework,
is
thus
legally required.
These requirements are
not
merely internal prescripts
that SASA may disregard at a whim …
Once
a particular administrative process is prescribed by law
,
it is subject to the norms of procedural fairness codified in PAJA.
[85]
GG No 36981 of 30 October 2013
[86]
No. 11 of 2014.
[87]
See:
My
Vote Counts NPC v Speaker of the National Assembly and others
[2015] ZACC 31
(30 September 2015.
[88]
See section 3 (a) of PAMA
[89]
Currie:
The
Promotion of Administrative Justice Act: A commentary
stated the following which met with the approval of the
Constitutional Court in
Allpay
:
“only procedures in empowering provisions can qualify as fair
but different. An empowering provision is defined as ‘a
law,
rule of common law, customary law, or an agreement, instrument or
other document in terms of which an administrative action
was
purportedly taken’.
Some
empowering materials – such as internal department circulars –
are not generally publicly accessible. At least
for the purposes of
the fair but different provision, it is submitted that an empowering
provision can only qualify as fair if
it is itself publicly
accessible. A law that is not publicly accessible cannot provide
publicly known and thus fair procedures”.
[90]
Air
Canada v Toronto Port Authority
,
2011 FCA 347
at para 60
[91]
Those are (a) the character of the matter for which review is
sought; (b) the nature of the decision-maker and its
responsibilities;
(c) the extent to which a decision is founded in
and shaped by law as opposed to private discretion; (d) the body’s
relationship
to other statutory schemes or other parts of
government; (e) the extent to which a decision-maker is an agent of
government or
is directed, controlled or significantly influenced by
public entity; (f) the suitability of public law remedies; (g) the
existence
of compulsory power; and (h) an “exceptional”
category of cases where the conduct has attained a serious public
dimension.
[92]
Para 63 of the judgment.
[93]
Para 87 of the judgment.
[94]
This point was made in
DA
v SABC
paragraph 157 of the judgment.
[95]
See para 18.7 of the Founding Affidavit page 28 Bundle 1.
[96]
[2019] ZACC 43
(21 November 2019)
[97]
2017 (2) SA 622 (CC).
[98]
[2019] ZACC 15.
[99]
[2016] ZACC 35
[100]
[2018] 1 All SA 740 (WCC)
[101]
Para 22 of the judgment.
[102]
In
Wightman
t/a JW Constructions v Headfour (Pty) Ltd and another
[2008] ZASCA 6
;
2008
(3) SA 371
(SCA) it was held that: A real, genuine and bona fide
dispute of fact can exist only where the court is satisfied that the
party
who purports to raise the dispute has in his affidavit
seriously and unambiguously addressed the fact said to be disputed.
See
also
Room
Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1949 (3) SA 1155
(T)
[103]
2009 (10) BCLR 1014 (CC)
[104]
See:
Zungu
v Premier of the Province of KZN and others
(2018)
36 ILJ 523 (CC) and
Long
v South African Breweries (Pty) Ltd and others
(2019)
40 ILJ 965 (CC)
.