IN THE HIGH COURT OF SOUTH AFRICA
(EAST ERN CAPE DIVISION , BHISHO )

Of interest
CASE NO. CA 20/2024

In the matter between:

DIBWE NJIBU First appellant

MULANGALA TRESOR MUKINAYI Second appellant

ISSU JAMES MANDUANGA Third appellant

TRESOR KANTENGA NSAMBA Fourth appellant

and

MEMBER OF THE EXECUTIVE COUNCIL FOR First respondent
HEALTH, EASTERN CAPE PROVINCE

SUPERINTENDENT -GENERAL FOR THE Second respondent
DEPARTMENT OF HEALTH,
EASTERN CAPE PROVINCE

CHIEF EXECUTIVE OFFICER: ISILIMELA Third respondent
DISTRICT HOSPITAL

______________________________________________________________________
JUDGMENT
______________________________________________________________________
LAING J

[1] This is an appeal pertaining to the employment contracts concluded b y the
appellants and the Department of Health , Eastern Cape . The appellants are medical
practitioners from the Democratic Republic of Congo (‘DRC’) , appointed to serve as
medical officers at the Isilimela Dis trict Hospital, situated at Port St Johns , along the
Transkei coastline . The court a quo dismissed their urgent application for, inter alia , a
declarator to the effect that their contracts were of a permanent nature, and the review
and setting aside of the decision to terminate th e contrac ts in question .

The appellants’ case

[2] In th eir founding affidavit , the appellants aver that they each concluded an
employment contract on or about 1 July 2020. The material terms thereof were that ,
inter alia , they would be paid monthly salaries , they would be entitled to leave , and they
could terminate the contract on one month’s written notice. The Department, in turn,
could only terminate the contract for reasons related to incapacity, operational
requirements , or misconduct . The contracts would, moreover, be subject to the
provisions of the Public Service Act 103 of 1994 (‘the PSA’) and the regulations thereto,
the relevant collective agreements, and the Department’s policies. Save for the first
appellant, the remaining appellants are all members of the Government Employees
Pension Fund; deductions are made from their salaries in that regard.

[3] On 11 May 2023, the third respondent delivered termination lett ers to each of the
appellants. The contents thereof are pertinent and are repeated below:

‘SUBJECT: EMPLOYMENT CONTRACT TERMINATION LETTER -
YOURSELF …

Dear Dr…

The purpose of this letter is to confirm termination of your employment contract
with the Eastern Cape Department of Health under OR Tambo District (Isilimela
Hospital). Regrettably, this means your contract of employment will be
terminated. This decision is not a reflection of our performance but is in
adherence to Paragraph 5, 7 & 14 of the Policy on Recruitment of Foreign Health
Professionals, which reads as follows:

“5. Except for Foreign Health Professionals recruited through a
government -to-government agreement, a Corporate Permit
obtained in terms of section 2 of the Immigration Act or unpaid or
volunteer services , the employment of Foreign Health Professionals
shall only be allowed after they have been successful in competing
for an advertised post and there is record of no South African
citizen or Permanent Resident was available and found suitable to
fill the particular post. The National Minister of Health may prescribe
how posts would be advertised to ensure consistent prac tices in the
health sector .”

“7. Only fixed term employment contracts shall be issued to Foreign
Health Professionals . An employment contract shall not exceed a
term of three years from the date of employment and may not be
extended unless otherwise determ ined by a specific government -to-
government agreement. A Foreign Health Professional who is not
employed under government -to-government agreement, shall not
be allowed to enter into a new employment contract during the
currency of the initial contract. Sho uld a health employer wish to
renew an employment contract during or after the initial contract of
three years, the conditions contained in paragraph 5 above shall be
applicable.”

“14. At no stage, the recruitment and employment of Foreign Health
Professionals shall compromise employment opportunities
available to South African citizens and permanent residents. Health
care employers shall present a recruitment and employment plan
contain ing quotas for the employment of Foreign Health
Professionals for consideration by the National Minister of Health
and reporting to the National Health Council. The National Minister
of Health may issue further directives to health employers regarding
quotas for the employment of Foreign Health Professionals .”

Based on the above directive, your 3 -year contract of employment will end on the
30th June 2023 and has already been effected as such on the PERSAL system.
Isilimela Hospital management acknowledges and thanks you for valuable
contribution during your employment with us.

Yours in Health Services

…’1

[4] The appellants regarded the termination letters as unlawful and their attorneys
demand ed the retraction thereof. This m et with no response.

[5] In the urgent application that followed , the appellants asserted that only the first
respondent, not the third respondent, had the necessary authority to terminate the
contract s. They also asserted that th is could only be don e based on one of the limited

1 Sic.
grounds stipulated therein. Regarding their personal circumstances, the appellants
referred to the fact that they were all sole breadwinners , with minor children and
extended families to support . Their financial obligations included school fees and
transportation costs, rental , motor vehicle instalments, insurance premiums , food , and
household expenses in general. As foreign health professionals, the appellants were
unlikely to obtain alternative employment, especially considering the provisions of the
relevant policy and the Department’s budgetary constraints. They sought to enforce the
terms of the contracts, arguing that damages claims would not suffice .

Respondents’ case

[6] The respondents opposed the application and brought a counter -application . The
relief claimed was somewhat confusing and contradictory , but the respondents
effectively sought the review and setting aside of the decision to appoint the appellants
on 1 July 2020 , alternatively a declarator that the appellants were employed in terms of
fixed term contracts that terminated on 30 June 2023 .

[7] In the founding aff idavit to the counter -application, the second respondent
averred that the first page of the contracts was altered to reflect their fixed term nature .
It was recorded in this way administratively. The appellants, moreover, were always
aware of th eir fixed term nature because they were described as contract workers in
such leave or salary enquiry forms as were requested by and issued to the appellants
from time to time. The termination letters, contended the second respondent, were
merely reminders ; the appellants’ contracts terminated on 30 June 2023 by effluxion of
time.

[8] The second respondent went on to argue that the original appointment of the
appellants , by the District Manager: OR Tambo, was done in contravention of the Policy
on the Utilisation of Foreign Nationals to Address Human Resource and Skills Needs in
the Public Service (‘the PSA policy ’).2 Furthermore, the Policy on the Employment of
Foreign Health Professionals in the South African Health Sector (‘the health recruitment
policy’) provided that the Head of a Provincial Department of Health was responsible for
the employment of foreign health professionals and could not delegate his or her duties
in this regard.3 The district manage r had no power to appoint the appellants.

[9] Addressing the averments made in the appellants’ founding affidavit, the second
respondent denied that the appellants were the holders of permanent residence
permits . They had refugee status.

In reply

[10] The appellants, in their replying papers, took issue with the respondents’ delay in
launching the counter -application . They point ed out that this was done almost three
years after their knowledge of the permanent nature of the contracts . The respondents
had placed no facts before the court upon which it could condone such a delay.
Substantial prejudice would be caused to the appellants if the contracts were set aside.

[11] Furthermore, t he appellants contended that the policies in question allowed the
public sector to address human resources needs in relation to critical skills and
occupations by employing foreign nationals . The policies did not expressly prohibit a
foreign national from accepting a permanent employment contract and did not invalidate
any agreement to that effect . They also permitted the renewal of a fixed term
employment contract . There were no South Africans who had applied for the positions
when the appellants were appointed. The appellants have , in any event, no intention of
returning t o the DRC.


2 The policy was ostensibly issued by the Minister for Public Service and Administ ration as a directive in
terms of section 41(3) of the PSA to supplement the Public Service Regulations, 2001 (since repealed)
with effect from 1 December 2009.
3 The policy appears to have been issued by the Minister of Health on the recommendation of the
Natio nal Health Council , with effect from 8 February 2010.
Further developments

[12] On 27 June 2023, t he matter came before Tokota J , who ordered the
respondents to retain the appellants in the employmen t of the Department on a month -
to-month basis, pending the final determination of the matter . The respondents
subsequently amended their counter -application to the effect that they sought, inter alia :
a declarator that the letters of appointment issued by the district manager on 1 July
2020 were in breach of section 10 of the PSA as well as the PSA policy , and that the
district manager had acted outside her powers; alternatively, that the appellants had
been employed on a fixed term basis , and that the termination of their contracts on 30
June 2023 had come about by effluxion of time.

Findings of the court a quo

[13] In his judgment, Rugunan an J referred to section 10 of the PSA , pointing out that
it precludes the permanent appointment of a person to any post in a government
department unless he or she is a South African citizen or a permanent resident. Both
the PSA policy and the health recruitment policy are consistent with the legislation in
question but permit the employment of foreign health professionals for a fixed term of no
more than three years, subject to the conditions stipulated.

[14] The learned judge distinguished , from the present matter, the decisions relied
upon by the appellants . The doctrine of legality was a means by which the C onstitution
regulated the exercise of public power ; public officials were required to act within the
ambit of the law and could not exercise powers not conferred upon them . Rugunanan J
stated that the single question to be answered was whether the conditio n of South
African citizenship or permanent residency status had been satisfied . The learned judge
held that it had not . The district manager had failed , moreover, to apply her mind to the
provisions of section 10 of the PSA , and the PSA policy , when concluding the contracts
with the appellants.

[15] Turning to the counter -application, Rugunan an J found that the respondents’
delay in instituting a legality review was unreasonable. There was also no satisfactory
explanation for the delay. Nevertheless, a court could find itself compelled to declare , as
unlawful, the conduct of a public official because the Constitution enjoined the exercise
of only such power as was sanctioned by law. Consequently, in assessing the
respondents’ delay , the court could consider the lawfulness of the contracts in terms of
the doctrine of legality.

[16] The court a quo held, in the end, that the contracts concluded with the appellants
were unlawful . It dismissed the main application with costs ; it upheld the counter -
application, declaring that the letters of appointment issued by the district manager on 1
July 2020 were in breach of section 10 of the PSA as well as the PSA policy, and that
the district manager had acted outside her powers .

Application for leave to appeal

[17] The appellants contended that the court a quo had erred in distinguishing the
decisions relied upon. They also said that , considering the relevant constitutional
principles, the court had failed to construe properly the provisions of the PSA. The court
should have found that the contracts were valid. The appellants argued, furthermore,
that the court had erred in not finding that the termination thereof was unlawful ; this had
not been done in accordance with the terms of the contracts or the PSA itself.

[18] Regarding the cou nter-application, the appellants contended that the court a quo
had not followed the principles of the applicable case law. It had failed to consider the
importance of the constitutional rights advanced, the nature of the decision to be
reviewed, the prospects of success , the question of prejudice, and the allegations of
irregularity and impropriety made against the respondents. The appellants also arg ued
that the court had erred in not applying section 172(1)(b) of the Constitution by failing to
grant a just and equitable remedy. The appellants should retain their employment.

[19] Rugunan an J stated that the crux of his judgment was the finding that an
employment contract concluded between an unauthorised public official and a person
who did not meet the requirements of section 10 of the PSA had no permanence and
should be treated as a nullity. The appellants had failed to satisfy the condition of South
African citizenship or permanent residency status . Nevertheless, the learned judge
granted leave based on the arguments made by the appellants, recognising at the same
time the importan ce of the matter ; in his opinion , an appeal would have a reasonable
prospect of success. It was Rugunanan J’s view that the appeal turned on the
interpretation of the PSA within the context of its purpose , as well as the remedies
contained therein.

Issues to be decided

[20] The grounds of the appellant’s appeal provide the general framework within
which the present matter must be evaluated. From the p apers filed, and from the
arguments advanced at the appeal hearing, the issues a re capable of being confi ned to
the following : (a) whether the employment contracts can be treated as lawful ; (b) if not,
then whether the counter -application must succeed, notwithstanding the delay incurred;
and (c) where the decision to appoint the appellants is declared invalid , what just and
equitable relief should follow.

[21] The main principles are mention ed below . To the extent that each issue, as set
out above, attracts its own set of specific principles, these will be disc ussed separately.

Legal framework

[22] The starting point for an examination of the relevant principles is the PSA itself. In
the preamble thereto, the purpose of the legislation is, inter alia , to provide for the
regulation of the conditions of employment and terms of office for members of the public
service. Section 10 provides as follows:

’10. Qualifications for appointment .–(1) No person shall be appointed
permanently, whether on probation or not, to any post on the establishment in
a department unless he or she –

(a) is a South African citizen or permanent reside nt; and

(b) is a fit and proper person .

(2) …’

[23] The legislation is silent in relation to the purpose of distinguishing between South
African or permanent residents , on the one hand, and foreign nationals , on the other . If
the PSA is considered within the context of the Constitution, then the provisions of
section 195 are pertinent to some extent since they set out the basic values and
principles governing public administration . To that effect sub-section (i) provides that :

‘Public administration must be broadly representative of the South African
people, with employment and personnel management practices based on ability,
objectivity, fairness, and the need to redress the imbalances of the past to
achieve broad representation.’

[24] Who qualifies as ‘the South African people’ is not apparent , but sub-section (i)
does not reserve employment in the public administration exclusively for citizens ; an
inclusive approach would , moreover, be consistent with the constitut ional values of
human dignity, equality, and freedom.4 Returning to the PSA , section 10 does not
prevent the employment of a person who is neither a citizen nor a permanent resident ; it
merely prohibits his or her permanen t appointment .


4 Section 7(1) of the Bill of Rights, contained in chapter 2 of the Constitution.
[25] The PSA policy that features in the present matter was issued by the minister as
a directive . Paragraph 2 explains that the purpose of the policy was:

‘To provide mandates and processes according to which departments can
address their human resource and skills need in respect of critical occupations
and critical skills by utilising foreign nationals on an employment, secondment or
exchange basis.’

[26] The policy set out the applicable principles, emphasising in paragraph 5.1 that
the employment of South African citizens and permanent residents must receive
preference ; the use of foreign nationals was a ‘last resort’. The provisions of paragraph
5.2.1 made i t abundantly clear that :

‘In terms of section 10(1)(a) of the Public Service Act, 1994 no person shall be
appointed permanently to a post unless she or he is a South African citizen or
permanent resident . Foreign nationals who are not in possession of a pe rmanent
residence permit may therefore only be employed temporarily in departments. ’

[27] Further more, the policy stipulate d under paragraph 5.5.4 that:

‘(a) The employment of foreign nationals must be on a fixed term contract
basis, the term of employment must not exceed the term of the relevant
work permit and the employment relationship must be on a full -time basis
in funded vacant posts.’

[28] The remaining policy relied upon by the respondents was the health recruitment
policy . To that effect, its aim was described as the promotion of high standards of
practice in the recruitment and employment of health professionals who were neither
South African citizens nor permanent residents. The relevant principles are those
mentioned in the third respondent’s termination letters , which are broadly consistent
with the principles listed in the PSA policy , and which comply, ultimately, with the
prohibition contained in section 10 of the PSA.

[29] At this point, it is helpful to emphasise the relevance of the principle of legality .
This is a key aspect of the rule of law and its bearing upon the present matter was
recognized in the court a quo . Hoexter comments as follows:

‘The first principle of administrative law (and of the rule of law) is that the
exercise of power must be authorised by law.’5

[30] The principle was given impetus during the early constitutional era in the decision
of Fedsure Life Assurance Ltd and Others v Greater Johannesburg Transitional
Metropolitan Council and Others .6 In what has been described as one of the most
frequently cited dicta in South African public law,7 the Constitutional Court stated that:

‘It seems central to the conception of our constitutional order that the Legislature
and Executive in every sphere are constrained by the principle that they may
exercise no power and perform no function beyond that conferred upon them by
law. At least in this sense, then, the principle of legalit y is implied within the terms
of the interim Constitution. Whether the principle of the rule of law has greater
content than the principle of legality is not necessary for us to decide here . We
need merely hold that fundamental to the interim Constitution is a principle of
legality. ’8

[31] The principle continues to run like a golden thread through our administrative law
jurisprudence. This can be seen in recent decisions such as Merifon (Pty) L imite d v

5 Hoexter and Penfold , Administrative Law in South Africa (Juta, 3ed, 2021), at 357.
6 1999 (1) SA 374 (CC).
7 Hoexter and Penfold, ibid.
8 Fedsure , at paragraph [58].
Greater Letaba Municipality and Another ,9 where the Consti tutional Court reiterated
that:

‘An important foundation of our constitutional democracy is the doctrine of
legality , a subset of the rule of law. This Court, as well as the Supreme Court of
Appeal, has stressed in a number of decisions that the exercise of public power
must strictly comply with ordained prescripts, and that failure to observe this
contravenes the doctrine of legality.’10

[32] The principle is an important part of the legal framework within which the present
matter must be assessed. As already mentioned, t he remaining principles pertain to the
areas delineated in the paragraphs that follow. It is logical to use the respondents ’
counter -application as a departure point ; as counsel for the appellants contended, the
fate of the appeal turns on whether the respondents have demonstrated that the
contracts are unlawful .

Lawfulness of the employment contracts

[33] The respondents rely on section 10 (1) of the PSA. For their part, the appellants
argue that the legislation in question does not indicate that a contract concluded with
anyone who is neither a South African citizen nor a permanent resident is rendered null
and void. They refer to several authorities in th at regard.

[34] In Standard Bank v Estate Van Rhyn ,11 the erstwhile Appellate Division dealt with
an executor ’s failure to have com plied with section 116(1) of the Administration of
Estates Act, 2013 in terms of which a cheque drawn on an estate account was required
to stipulate the reason for payment and the name of the payee . Penalties were imposed

9 2023 JDR 2444 (CC).
10 At paragraph [1]. Mlambo AJ, writing for the court, referred to , inter alia , Pharmaceutical Manufacturers
Association of South Africa : In re Ex Parte President of the Republic of South Africa 2000 (2) SA 674
(CC); MEC for Health, Eastern Cape v Kirland Investments (Pty) Ltd t/a Eye & Lazer Institute 2014 (3) SA
481 (CC); and Merafong City v AngloGold Ashanti Ltd 2017 (2) SA 211 (CC).
11 1925 AD 266, at 274.
for non -compliance . Solomon JA held that, as a general proposition, the effect of a
statutory prohibition was to render an act null and void , but this was not a hard and fast
rule. If it could be shown that the intention of the legislature was not to render an act
invalid , then it would be incorrect to hold otherwise. The learned judge stated that:

‘As Voet (1.3.16) puts it - “but that which is done contrary to law is not ipso jure
null and void , where the law is content with a penalty laid down against those
who contravene it.” Then after giving some instances in illustration of this
principle, he proceeds: “The reason of all this I take to be that in these and the
like cases greater inconvenien ces and impropriety would result from the
rescission of what was done, than would follow the act itself done contrary to the
law.” These remarks are peculiarly applicable to the present case, and I find it
difficult to conceive that the Legislature had any intention in enacting the
directions in section 116(1) other than that of punishing the executor who did not
comply with them.’12

[35] The subject of inconveniences and impropriety resulting from the treatment of
non-compliant contracts as null and void was subsequently addressed in Pottie v
Kotze .13 In that matter, the Appellate Division considered the question of whether the
sale and delivery of a tractor was null and void where the seller had not previously
obtained a certificate of roadworthiness in terms of section 13 bis of the Transvaal Motor
Vehicle Ordinance, 17 of 1931. An infringement thereof would attract a criminal
sanction. Fagan JA held that:

‘a further compulsory penalty of invalidity would - as the cases referred to above
show - have capricious effects the severity of which might be out of all proportion
to that of the prescribed penalties, it would bring about inequitable results as
between the parties concerned and it would upset transactions which, if the

12 At 274-5.
13 1954 (3) SA 719 (A).
safeguard of an examination for roadworthiness can be enforced… the
Legislature could have had no reason to view with disfavour.’14

[36] The stance taken by the Appellate Division was consistently followed in later
cases . This is exemplified in Metro Western Cape (Pty) Ltd v Ross ,15 where Boshoff JA
emphasised the importance of discerning legislative intent.16 In the post-1994 decision
of Steenkamp and Others v Edcon Ltd ,17 the Constitutional Court endorsed the
approach adopted by the earlier authorities. The matter concerned section 189A(2)(a) of
the Labour Relations Act 66 of 1995 (‘LRA’), which stipulated that , for dismissals based
on operational requirements by employers with more than 50 employees, notice of
termination of employment ‘must’ be given ‘in accordance with the provisions of this
section’. The case involved the provisions of section 189A(8), which precluded an
employer from giving dismissal notice during a period of 30 days after giving a section
189(3) notice. The respondent gave notice prematurely . The appellants applied
unsuccessfully for a declarator to the effect that the ir dismissal s were invalid and of no
force or effect. On appeal to the Constitutional Court, Zondo J held as follows:

‘The approach that the use of the word “shall” in a statutory provision means that
anything done contrary to such a provision is a nullity is neither rigid nor
conclusi ve. The same can be said of the use of the word “must”. Many factors
must be considered to determine whether a thing done contrary to such a
provision is a nullity. There are cases where the performance of an act in breach
of a statutory obliga tion does not necessarily result in the act being invalid and of
no force and effect. When the question arises whether something that was done
contrary to a statutory provision is invalid and of no force and effect, the proper
approach is to ascertain what the purpose of the legislation is in this regard.
Sometimes the purpose of the legislation will be to render it a nullity . At other

14 At 727.
15 1986 (3) SA 181 (A).
16 At 188F -G.
17 2016 (3) SA 251 (CC).
times the purpose will not be to render such a thing a nullity . In each case the
legislation will need to be construed properly to establish its purpose .’18

[37] The learned judge referred to several authorities in support of such an approach,
saying further that:

‘Some of the factors that should be taken into account in the construction of the
statute to establish its purpose are the following: the purpose of the legislation as
a whole , the purpose of the relevant section of the Act, the mischief sought to be
addressed, whether the statute makes provision for remedies for its breach , or
whether, if the act were not held to be null and void, it would mean that the
provision may be breached with impunity. Where the statute does make provision
for some remedies for the breach of the relevant provision, the court would also
have to take into account whether the remedies provided are adequate . Where
they are adequate, there seems to be no justification for the conclusion that the
purpose of the legislation is to visit an act committed in breach of the provision
with nullity. It would be a different case where the remedies provided by the
statute are not adequate, particularly if they are substantially inadequate or
where such remedies cannot be easily obtained.’19

[38] The appellants argued that the court a quo erred in distinguishing the facts in
Steenkamp from those in the present matter. The principles derived from the decision in
question remain of general application. I am inclined to agree.

[39] If the above principles are applied here, then the PSA must be considered more
closely . From the preamble, as already noted, the purpose of the legislation is t o provide
for, inter alia , the regulation of the conditions of employment and terms of office for
members of the public service . The provisions of section 10 stipulate the qualificat ions
required for permanent appointment to a departmental post . Non-compliance with the

18 At paragraph [182].
19 At paragraph [183].
PSA is addressed under section 16A, which requires appropriate disciplinary steps to be
taken against the officials in question and for the matter to be reported to the relevant
government structures, public office -bearers, or senior officials, as the case might be.
Non-compliance does not result in criminal charges or contractual nullity. It cannot be
said, with out equivocation, that the intention of the PSA is, to use the language of
Steenkamp , to visit the appointment of a person who is neither a South African citizen
nor a permanent resident with nullity.

[40] The appellants also argued that the PSA must be interpreted within the context of
an employment relationship. In that regard, the y drew attention to the decision of the
Labour Court in Discovery Health Ltd v Commission for Conciliation, Mediation, and
Arbitration and Others ,20 where the appellant contended that the first respondent (the
CCMA) had no jurisdiction to arbitrate an employee’s unfair dismissal claim because the
definition in section 213 of the L abour Relations Act 66 of 1995 (‘LRA’) regard ed an
‘employee’ as a person who was party to a valid employment contract . The third
respondent (an Argentinian national) had previously been employed by the appellant but
could not claim the protection afforded by the LRA , so the contention went, because his
contract with the appellant was tainted by illegality for want of a valid work permit . Van
Niekerk AJ observed that the Immigration Act 13 of 2002 did not stipulate that a n
employment contract concluded without the necessary permit was void or that a person
committed an offence by accepting work from or performing work for another in such
circumstances .21 It was also clear, said the learned judge, that t he legislation did not
intend to limit the right to fair labour practices or to accomplish more than to penalise
persons who employed others on unauthorised terms.22 Inequitable consequences
could flow where the legislation was construed to mean that employment contracts
concluded with foreign nationals without valid permits were rendered void .23 Van
Niekerk AJ held that:


20 (2008) 29 ILJ 1480 (LC).
21 At paragraph [24 ].
22 At paragraph [30].
23 At paragraph [31].
‘…by criminalizing only the conduct of an employer who employs a foreign
national without a valid permit and by failing to proscribe explicitly a contract of
employment concluded in the se circumstances, the legislature did not intend to
render invalid the underlying contract. For this reason, the contract concluded
between Discovery Health and [the employee] … was valid, and remained so until
its termination …’24

[41] The decision in Discovery Health was cited with approval in Sithole v Metal and
Engineering Industries Bargaining Council and Others ,25 to which the appellants also
referred. In that matter, Nkutha -Nkontwana J stated that a breach of the Immigration Act
13 of 2002 was never intended to shield employers from the consequences of
terminating an employment contract. The learned judge held that a foreign national can
vindicate his or her right to fair labour practices by availing themselves of the
‘comprehensive machinery of the LRA’, despite having been employed illegally .26

[42] As attractive as t he appellants’ arguments might appear , there are, nevertheless ,
key differences between the case law mentioned and the present matter. In Estate Van
Rhyn , Pottie , and Metro Western Cape , the court dealt with commercial transactions
that d id not comply with the applicable legislation . That is not the situation here. In
Steenkamp , Discovery Health , and Sithole , the court dealt with the termination of
employment contracts where there had been a breach of a statutory obligation . The
distinction to be drawn , however, is that the employers in question were not organs of
state .

[43] Whereas there may be debate about where the frontier of administrative law lie s
in relation to employment relationships, and commensurately where the domain of
labour law begins ,27 there seems to be little dispute that a decision by an organ of state

24 At paragraph [33].
25 (2018 ) 39 ILJ 472 (LC).
26 At paragraph [13].
27 In the same breath, there is debate about the extent to which the two fields of law overlap. See the
discussion in Hoexter and Penfold (n 5), at 262-70.
to conclude a contract in such a context can indeed be regard ed as administrative
action. For example, in Head, Western Cape Education Department and Others v
Governing Body, Point High School and Others ,28 the Supreme Court of Appeal had no
difficulty in regarding a s such the Head of Department’s appointment of the principal
and deputy -principal at the Point High School in Mossel Bay , purportedly in terms of
section 6(3) of the Employment of Educators Act 76 of 1998 .29 In the present matter, the
appellants accepted that the ir appointment by the district manager constitute d
administrative action ; no contention was made that the respondents were preclud ed
from bringing a self -review application .30

[44] This, in turn, appears to invite the question of how the principles expressed in
authorities such as Steenkamp and Discovery Health relate , in the present matter, to the
principle of legality . Mindful of the centrality of the principle to South Africa’s
constitutional order, I am of the view that the approach taken in the context of the
authorities mentioned by the appellants should not be permitted to undermine the basic
tenet that an organ of state is constrained by the principle that it may exercise no power
and perform no function beyond that conferred upon it by law . If an organ of state ’s
power to appoint foreign health professionals was derived from and circumscribed by
section 10(1) of the PSA , as is the case here, then any act beyond the empowering
provisions in question, such as the decision to conclude permanent employment
contracts , gives rise to an illegality . This cannot be ignored or wished away.31

[45] In Municipal Manager: Qaukeni Local Municipality and Another v FV General
Trading CC ,32 the Supreme Court of Appeal, per Leach AJA, held that:


28 2008 (5) SA 18 (SCA).
29 At paragraph [10].
30 Indeed, counsel for the appellants confirmed during argument that the matter pertained to a legality
review but urged the court to consider the surrounding circumstances.
31 The point was , with respect, correctly made by Rug unanan J in the court a quo . See Ndjibu and Others
v Member of the Executive Council for Health , Eastern Cape Province and Others (331/2023) [2023]
ZAECBHC 33 (10 October 2023), at paragraphs [43] to [45] .
32 2010 (1) SA 356 (SCA).
‘This court has on several occasions stated that, depending on the legislation
involved and the nature and functions of the body concerned, a public body may
not only be entitled but also duty -bound t o approach a court to set aside its own
irregular administrative act .’33

[46] Simila rly, in Merafong City v AngloGold Ashanti Ltd ,34 the Constitutional Court,
per Cameron J, stated as follows:

‘This court has affirmed as a fundamental principle that the state “should be
exemplary in its compliance with the fundamental constitutional principle that
proscribes self -help”. What is more, in Khumalo35 this court held that state
functionaries are enjo ined to uphold and protect the rule of law by inter alia
seeking the redress of their departments’ unlawful decisions . Generally, it is the
duty of a state functionary to rectify unlawfulness. The courts have a duty “to
insist that the state , in all its dealings, operate within the confines of the law and,
in so doing, remain accountable to those on whose behalf it exercises power ”.
Public functionaries “must, when faced with an irregularity in the public
administration, in the context of employment or ot herwise , seek to redress it”. Not
to do so may spawn confusion and conflict, to the detriment of the administration
and the public.’36

[47] In the circumstances, I find that the conclusion of the contracts was unlawful . It
cannot be said that they should not be rendered null and void. Whether there is ,
however, a basis upon which the respondents can successfully apply for the review and
setting aside of the decision to appoint the appellants depends on whether they can
overcome the hurdle presented by the delay incurred . It is to this issue that attention
must now be focused.

33 At paragraph [23]. The court referred to its earlier decisions in, inter alia , Pepcor Retirement Fund and
Another v Financial Services Board and Another 2003 (6) SA 38 (SCA) , at paragraph [10] , and Premier,
Free State and Others v Firechem Free State (Pty) Ltd 2000 (4) SA 413 (SCA) , at paragraph [36] .
34 2017 (2) SA 211 (CC).
35 Khumalo and Another v MEC for Education, KwaZulu -Natal 2014 (5) SA 579 (CC).
36 Merafong , at paragraph [61]. Footnotes omitted.

Delay in the institution of s elf-review proceedings

[48] It was common cause in the present matter that an official or officials in the
employment of the Department altered the appellants’ contracts unilaterally to reflect a
fixed term , rather than permanent duration. The details of who was responsible for such
alteration and precisely when this was done are entirely unclear. The court a quo rightly
criticised such conduct, describing it as ‘administrative self -help’.37 It was also common
cause that, at worst for the respondents, a period of three years had lapsed since the
decision to conclude the contracts and the date upon which they instituted self-review
proceedings.

[49] The importance of launching any application to that effect as exped itious ly as
possible was emphasised in Khumalo and another v Member of the Executive Council
for Education: KwaZulu -Natal .38 The Constitutional Court held, per S kweyiya J , that:

‘…Section 237 of the Constitution provides:

“All constitutional obligations must be performed diligently and without
delay.”

…Section 237 acknowledges the significance of timeous compliance with
constitutional prescripts . It elevates expeditious and diligent compliance with
constitutional duties to an obligation in itself. The principle is thus a requirement
of legality.

…This requirement is based on sound judicial policy that includes an
understanding of the strong public interest in both certainty and finality. People
may base their actions on the assumption of the lawfulness of a particular

37 Ndjibu (n 31), at paragraph [54].
38 2014 (3) BCLR 333 (CC) .
decision and the undoing of the dec ision threatens a myriad of consequent
actions.

…In addition, it is important to understand that the passage of a considerable
length of time may weaken the ability of a court to assess an instance of
unlawfulness on the facts. The clarity and accuracy of decision -makers’
memories are bound to decline with time. Documents and evidence may be lost,
or destroyed when no longer required to be kept in archives. Thus the very
purpose of a court undertaking the review is potentially undermined where, at the
cause of a lengthy delay, its ability to evaluate fully an allegation of illegality is
impaired.

…In Gqwetha39 the majority of the Supreme Court of Appeal held that an
assessment of a plea of undue delay involves examining: (1) whether the delay is
unreasonable or undue (a factual enquiry upon which a value judgment is made
in the light of “all the relevant circumstances”); and if so (2) whether the court’s
discretion should be exercised to overlook the delay and nevertheless entertain
the application.’40

[50] The two-stage approach , described above , has subsequently become known as
the Khumalo test, despite its origin. It forms the basis for the assessment of any undue
delay regarding a self-review application such as that in the present matter .

[51] The provisions of PAJA would ordinarily govern the procedure to be adop ted, but
the Constitutional Court held , in State Information Technology Agency SOC Ltd v Gijima
Holdings (Pty) Ltd ,41 somewhat controversially,42 that an organ of state was constrained
to rely on the legality principle, instead of PAJA, when seeking the review and setting
aside of its own decision. This meant that the 180-day period stipulated under

39 Gqwetha v Transkei Developmen t Corporation Ltd and Others 2006 (2) SA 603 (SCA).
40 Khumalo , at paragraphs [46] to [49].
41 2018 (2) SA 23 (CC).
42 See the discussion in Hoexter and Penfold (n 5), at 152 -6, and 692-5.
section 7(1) of PAJA did not apply . The applicant was required merely to institute
proceedings within a reasonable time.

[52] The legal position was clarified i n Buffalo City Metropolitan Municipality v Asla
Construction (Pty) Ltd .43 The Constitutional C ourt, per Theron J, confirmed the Khumalo
test when assessing undue delay in relation to a self -review application, stating that:

‘Firstly, it must be determined whether the delay is unreasonable or undue. This
is a factual enquiry upon which a value judgment is made, having regard to the
circumstance s of the matter. Secondly, if the delay is unreasonable, the question
becomes whether the Court’s discretion should nevertheless be exercised to
overlook the delay to entertain the application.’44

[53] The court went on to amplify the principles that must be applied when carrying
out such an assess ment . The first is that there are differences between a review
brought in terms of PAJA and a review brought based on legality.45 The second is that
the reasonableness of the delay must be examined with reference to the explanation
offered for the delay; where there is no explanation, the delay will necessarily be
unreasonable. The third is that the reasonableness of the delay cannot be examined in
a vacuum and the court must decide whether the delay ought nevertheless to be
overlooked. In doing so, the court m ust consider several factors: (a) the potential
prejudice to affected parties as well as the possible consequences of setting aside the
impugned decision; (b) the nature of the impugned decision; and (c) the conduct of the
applicant. The fourth principle i s that, despite there being no basis upon which to

43 2019 (6) BCLR 661 (CC). The subject of self -review was addressed extensively in earlier decisions of
the Constitutional Court , e.g. MEC for Health, Eastern Cape and Another v Kirland Investments (Pty) Ltd
t/a Eye & Lazer Institute 2014 (3) SA 481 (CC), Department of Transport and Others v Tasima (Pty) Ltd
2017 (2) SA 622 (CC), and Cape Town City v Aurecon SA (Pty) Ltd 2017 (4) SA 223 (CC). A distinction
emerged, however, bet ween PAJA and legality reviews. ASLA assisted in clarif ying the position to a
considerable extent.
44 At paragraph [48].
45 As already mentioned, t he first of the differences is that PAJA contains a 180 -day bar; there is no fixed
period under a legality review. The second difference is that delay in terms of PAJA requires an
application for condonation; there is no corresponding requirement under a legality review.
overlook an unreasonable delay, the court may nevertheless be constitutionally
compelled to declare state conduct unlawful.46

[54] In the present matter, it cannot be disputed that , at the very least, the firs t time
that the Department fully appreciated that permanent employment contracts had been
concluded was when the y were unilaterally altered to reflect a fixed term. When this
occurred remains a mystery . It was for the respondents to have demonstrated why self-
review proceedings were instituted some three years after the conclusion of the
contracts . At best for the respondents, they explained that the district manager was
unaware of the appellants’ forei gn national status at the time of their appointment . They
also explained that an internal investigation ha d been commenced to ascertain the
circumstances of the matter . The findings of the investigation, whether preliminary or
final in nature, are completely unknown . That is not good enough.

[55] The potential prejudice to the appellants is obvious. The secure future that the
contracts provided for the appellants and their dependents will cease to exist if the
district manager’s decision is set aside . The hospital in question will, on the available
evidence, lose four competent members of its staff. The community , situated in a rural
area and far from urban health facil ities, will lose the services of four dedicated health
professionals . The decision , moreover, was taken by a senior official on behalf of a state
employer in relation to services to be rendered by individual s, whose inherent
disadvant age in the employer -employee power relationship was exacerbated by their
refugee status. They have done nothing wrong. In contrast, the conduct of the
respondents has been , if not quite ‘utterly reprehensible’, as the court a quo termed it,47
then certainly very far from acceptable .

[56] Consequently, I do not hesitate in finding that the respondents’ delay in instituting
the present proceedings was undue. There is, moreover, no reason why it should be
overlooked.

46 See the discussion in Asla, paragraphs [44] to [72].
47 Njibu (n 31), a t paragraph [54].

[57] However, that is not the end of the matter. In terms of the Gijima principle, a court
is enjoined , under section 172(1)(a) of the Constitution, to declare invalid any law or
conduct that it finds to be inconsistent with the Constitution .48 The harshness of the
principle was ameliorated to some extent in Asla, where the court held as follows:

‘The Gijima principle should thus be interpreted narrowly and restrictively so that
the valuable rationale behind the rules on delay are not undermined. At the same
time, this is not a matter in which the Gijima principle can be ignored and thus
impliedly overruled . So the injunction it creates - to declare invalid that which is
indisputably and clearly inconsistent with the Constitution - must be followed
where applicable.’49

[58] In the present matter, the Department ’s conclu sion of permanent employment
contracts with the appellants amounted to blatant non-compliance with section 10(1) of
the PSA. If the provisions had been worded differently, in more permissive terms,50 then
there might have been a basis upon which to avoid the appl ication of the Gijima
principle. Where, however, the decision was taken in direct contravention of a clear
prohibition, then it was indisputably and clearly inconsistent with the constitutional
principle of legality. It falls to be declared invalid .

Just and equitable relief

[59] Having declared that the district ma nager’s decision was invalid , the issue that
arises is wh ether to set it aside, as sought by the respondents. In terms of section
172(1)(b) of the Constitution , a court that decid es a constitutional matter, within its
power, may make any order that is just and equitable. In Corruption Watch NPC and

48 Gijima (n 41), at paragraph [52].
49 Asla (n 43), at paragraph [71].
50 For example: ‘A person may be appointed permanently… provided that he or she is… a South African
citizen or a permanent resident…’
Others v President of the Republic of South Africa and Others ,51 the Constitutional
Court, per Madlanga J, held , with reference to section 172(1)(b), that:

‘The operative word “any” is as wide as it sounds . Wide though this jurisdiction
may be, it is not unbridled. It is bounded by the very two factors stipulated in the
section - justice and equity. ’52

[60] Whether the court must set aside the district manager’s decision is an issue that
falls to be determined with consideration for the broad discretionary power available.
The basic principles of justice and equity comprise the essential guardrails that protect
the decision -making process. In that regard, however, a proper appreciation of context
is necessary , involving a recognition of the centrality of the principle of legality as an
aspect of the rule of law. This remains a core principle of South Afri ca’s constitutional
order.

[61] In Waenhuiskrans Arniston Ratepayers Association and Another v Verreweide
Eiendomsontwikkeling (Edms) Bpk and Others ,53 De Swardt AJ held that it would be ‘in
the interests of justice for a court to be slow to exercis ing its discretion in a ny way that
undermines the principle of legality.54 A year later, in Bengwenyama Minerals (Pty) Ltd
and Others v Genorah Resources (Pty) Ltd and Others ,55 the Constitutional Court , per
Froneman J, emphasised the fundamental importance o f the principle of legality in
relation to a court’s exercise of its discretion to make any order that is just and equitable
under section 8 of PAJA. I am of the view that the same recognition must be accorded
to the principle of legality in the present matter.

[62] The appellants drew attention to several authorities where the court refused to
set aside unlawful conduct. These included MEC for Gauteng Department of

51 2018 (2) SACR 442 (CC).
52 At paragraph [68].
53 2011 (3) SA 434 (WCC).
54 At paragraph [73].
55 2011 (4) SA 113 (CC).
Infrastructure Development v Rampepe56 and Minister of Social Development , Western
Cape Provincial Government and Another v Van Reenen and Another ,57 where the facts
were clearly tilted in favour of the employees when measured against the factors of
justice and equity . Furthermore, the appellants urged us to have regard to the factors
listed in Financial and Fiscal Commission v Davids and Another ,58 which persuaded the
court to decline to set aside the appointment of the employees in question.

[63] In the present matter, there is no evidence to suggest that the appointment of the
appellants was anything but fair and transparent . There is also nothing to impugn the
conduct of the appellants or to indicate that they were in any way unqualified or
unsui ted for the posts in question. They have provided satisfactory services to the
Department , the hospital, and the community . The setting aside of the d istrict manager’s
decision will have an adverse impact upon the m, as well as their dependents , more so
because of their refugee status . In contrast, t he conduct of the Department’s officials in
unila terally altering the contracts was plainly wrong and wholly inexcusable .

[64] The difficulty that faces the appellants, however, is that a refusal to set aside the
decision will perpetuate , indefinitely , the illegality in question . Mindful of the centrality of
the legality principle , as already discussed, this is a serious obstacle to the relief that the
appellants seek. The situation is complicated further by the fact that the Department’s
conclusion of permanent employment contracts flew in the face of both the PSA policy
and the h ealth recruitment policy. Neither has been challenged for want of
constitu tionality or otherwise. To permit the contracts to stand will thwart the policy
objectives involved and potentially undermin e the purposes of related policies regarding
the implementation of section 10(1) of the PSA in relation to the appointment of
individuals to the public service in other occupational sectors. This is territory into which
the court is loath to venture.


56 (J1943/2019) [2022] ZALCJHB 98 (12 May 2022).
57 (C634/2022) [2023] ZALCCT 53 (22 August 2023).
58 (15022/2023) [2024] ZAWCHC 127 (8 May 2024).
[65] There are, in the exercise of the court’s broad discretion, ways in which to
mitigate against at least some of the negative consequences of setting aside the
decision . Such an outcome is achiev able by adhering to the basic principles of justice
and equity. For example, the declaration of invalidity can be suspended to allow the
appellants an opportunity to re -arrange the ir personal circumstances to the extent that
this might be feasi ble; rights that ha ve accrued to the appellants in terms of the
impugned contracts can be protected and preserved . This aspect seems not to have
been considered sufficiently by the court a quo but remains the only area in which it can
possibly be said that the court a quo was incorrect . I cannot find fault with the remainder
of its findings .

Conclusion

[66] The appellants abandoned their argument s in relation to estoppel. Nothing more
needs to be said. Similarly, it would be pointless to consider the respondents’ arguments
regarding the termination of the contracts by effluxion of time.

[67] Turning to the question of costs, the conduct of the respondents cannot esca pe
criticism. It would be neither just nor equitable , despite the outcome of the appeal, to
make an award in that regard .

[68] In the circumstances, I propose the following order:

(a) The appeal is dismissed , save for :

(i) the inser tion of the following sub-paragraphs in paragraph 3 of the
order of the court a quo :

(aa) ‘(c) the declaration s made in sub -paragraphs (a) and (b),
above, are suspended until 31 December 2025 ;’ and;

(bb) ‘(d) the appellants shall retain the right to all salary
payment s and other benefits that have accrued because of the
issuing of the letters of appointment , provided that this shall
fall away upon the date indicated in sub -paragraph ( c), above’;

(ii) the consequential renumbering of existing sub -paragraph (c) to (e) .

(b) Each party is ordered to pay its own costs in relation to the appeal.


_________________________ _____
JGA LAING
JUDGE OF THE HIGH COURT

I agree.

_________________________ _____
AS ZONO
ACTING JUDGE OF THE HIGH COURT

I agree.

______________________________
KL WATT
ACTING JUDGE OF THE HIGH COURT


APPEARANCES

For the appellant: Adv Cooke with Adv Ntikinca
Instructed by: T L Luzipo Attorneys
26 Corner of Victoria and Madeira Street
1st Floor, Steve Motors Building
MTHATHA
Email: tlluzipoattorneys@telkomsa.net
c/o Msamo Attorney s
No. 18 Alexandra Road
KING WILLIAMS TO WN
(Ref: Siya )

For the respond ent: Adv Nyondo
Instructed by: The Office of the State Attorney
17 Fleet Street
Old Spoornet Building
EAST LONDON
Email: BTongo@justice.gov.za
(Ref: Ms B Tongo ref 301/23 -P11)

Date heard: 16 September 2025.
Date delivered: 21 January 2025 .