THE LABOUR APPEAL COURT OF SOUTH AFRICA, GQEBERHA
Reportable
Case No: PA 15/24
In the matter between:
JAFTA BOOYSEN Appellant
and
BEAUFORT WEST MUNICIPALITY First Respondent
HENDRIK TRUMAN PRINCE Second Respondent
Heard: 21 May 2025
Delivered: 19 August 2025
Coram: Nkutha-Nkontwana JA, Mahalelo AJA and Tokota AJA
Summary: Section 158(1)( h) of the Labour Relations Act – PAJA or legality
review – review of a decision not to appoint a job applican t who is
not an employee – jurisdiction of the Labour Court – State as an
employer – job applicant – the decision not to appoint a qualified
candidate was unreasonable, irrational and arbitrary – instatement is
a fair and equitable remedy.
2
______________________________________________________________________
JUDGMENT
______________________________________________________________________
NKUTHA-NKONTWANA, JA
Introduction
[1] This matter pertains to two judgments of the Labour Court delivered by different
judges. The appellant (Mr Booysen) , an external job applicant, impugned the
decision of the first respondent (the Municipality) not to appoint him to the
position of Director of Community Services. Mr Booysen’s case was premised on
the Promotion of Administrative Justice Act 1 (PAJA) and the doctrine of legality.
The Municipality opposed the application and raised a jurisdictional point to the
effect that an external job applicant cannot avail himself of a claim in terms of
section 158(1)(h) of the Labour Relations Act2 (LRA).
[2] The first judgement dealt with the jurisdictional point taken by the Municipality . It
was found that the Labour Court was properly clothed with the jurisdiction to
determine the matter, and that was the demise of the Municipality’s jurisdictional
point. The Municipality impugns this order by way of a cross-appeal.
[3] Subsequently, t he second judgment dealt with the merits of the review
application and, in turn, dismissed Mr Booysen's claim. Mr Booysen appeals
against this order with leave of the Labour Court.
Factual background
[4] Mr Booysen applied for the vacant position of Director of Community Services
(the impugned position) , which was advertised on 17 August 2018. It is not in
dispute that Mr Booysen was suitably qualified. His career in the Local
1 Act 3 of 2000.
2 Act 66 of 1995, as amended.
3
Government commenced on 22 January 2001 and includes nine years of
experience as a Municipal Manager in the very same Municipality up until
December 2016.
[5] Mr Booysen was shortlisted and underwent an intensive selection process, which
included an interview, an assessment, and a test. The process was conducted by
the Council selection panel and external consultants, Roy Steele and Associates.
Notably, the second respondent (Mr Prince) was a member of the selection panel
in his capacity as a Deputy Executive Mayor and Portfolio Councillor. Mr Prince
was a councillor for the African National Congress (ANC), which, together with its
coalition partner, the Karoo Democratic Front (KDF) , were running the
Municipality. Mr Booysen obtained an aggregate score of 64,80% which placed
him a t the top of the list of candidates. He was followed by JJ France, who
obtained an aggregate score of 62,27%. The consultants prepared the selection
report in terms of which no candidate was found suitable for appointment and
recommended that the position be re-advertised.
[6] The selection report was tabled before the Municipal Council on 1 November
2018. Mr Prince, seconded by Mr Constable, a KDF Councillor, proposed that the
impugned position be re-advertised and the legality of headhunting be explored.
That proposal was adopted as the resolution of the Council . Mr Booysen was not
advised of the resolution of the Council . He became aware of the turn of events
for the first time in January 2019 when the position was re-advertised through the
media.
[7] Mr Booysen applied for the post once more. Yet, o n 25 March 2019, through his
attorneys of record, Mr Booysen addressed a letter to the acting Municipal
Manager requesting reasons for his non- appointment in the first recruitment
process. The Municipal Manager responded on 29 March 2019 by providing the
minutes and reports that informed the Municipality's decision of 1 November
2018.
4
[8] On 2 April 2019, Mr Booysen received an invitation from the consultants to be
tested and interviewed once more following being shortlisted after a preliminary
screening process conducted by the Council's selection panel . Mr Prince was
also a candidate during the second recruitment process. The selection report
was compiled in April 2019. Mr Van der Westhuizen was the highest -ranking
candidate, with a 62.93% aggregate score. Mr Booysen ranked second, with a
62.13% aggregate score. Mr France ranked third, with a 58.80 % aggregate
score, and Mr Prince ranked fourth, with a 58.00% aggregate score. Mr Van der
Westhuizen was recommended for appointment ; alternatively, that Mr Booysen
to be appointed in the event Mr Van der Westhuizen declined the offer.
[9] On 24 May 2019, Mr Prince resigned as a Councillor. On 31 May 2019, the
Council resolved to appoint Mr Prince to the impugned position, contrary to the
recommendation of the selection panel . The explanation provided by the
Municipality for appointing Mr Prince is that the Council was unable to agree on a
candidate and therefore resorted to voting. The Municipal Manager, Mr. Haarhoff,
who was in attendance, distanced himself from the Council ’s resolution and
warned the Council members that they risk being held personally liable for any
costs consequent to any legal action challenging it.
[10] Notwithstanding, the Council sat again on 2 June 2019 and appointed Mr. Prince
to act in the impugned position pending the effective date of his appointment , 1
July 2019. The controversial appointment of Mr Prince was not well received.
That led to the intervention by the Minister of Local Government, Environmental
Affairs and Development Planning in the Western Cape Provincial Government
(the Minister), who challenged the legality of the Council’s decision to appoint Mr
Prince. The Minister threatened to take legal action to have the impugned
decision reviewed and set aside, unless corrected by the Municipality. In
decision reviewed and set aside, unless corrected by the Municipality. In
response, t he Municipality resolved to review its decision to appoint Mr Prince
and to re-advertise the position.
5
[11] Notably, the Municipality extended Mr Prince’s acting appointment for a further
period not exceeding three months. The Minister equally challenged the legality
of the decision. To circumvent the scrutiny by the Minister, the Council resolved
to do away with the position and to create the position of Senior Manager:
Community Services , to which Mr Prince was appointed to act pending a
permanent appointment to that position. Nonetheless, it is not in dispute that the
position was subsequently reinstated to the organogram and was vacant and
funded as at 3 November 2022, when the Labour Court heard argument in
respect of the merits. Mr Booysen sought the order in the following terms:
‘1. That the decision of the first respondent on the 1st of November 2018 not to
appoint the applicant as the Director of Community Services be reviewed and
set aside.
2. That the decision of the first respondent on the 31st of May 2019 to appoint
the second respondent as the Director of Community Services of the first
respondent be reviewed and set aside.
3. That the decision of the first respondent not to appoint the applicant as
Director of Community Services of the first respondent, insofar as may be
necessary, be reviewed and set aside.
4. Substituting the decision of this Honourable Court for the decision of the first
respondent, with an order that:
4.1 The applicant be and is hereby appointed Director of Community
Services of the first respondent with effect from the 1st of July
2019, with full salary and benefits.
4.2 That the first respondent, together with the second respondent, in
the event of the second respondent opposing the application, pay
the costs of this application, the one paying the other to be
absolved.
5 Further and/or alternative relief.’
6
The jurisdiction of the Labour Court
[12] I deal first with the Municipality’s cross -appeal, which turn s on t he correct
interpretation of section 158(1)(h) . The Municipality contends that the first
judgment erroneously found that the Labour Court had jurisdiction to entertain
the review application by a job applicant, as the meaning of ‘ the state as the
employer’ in section 158(1)(h) must be understood within the context of the
definition of ‘ employee’ in section 213 of the LRA which means a person who is
already employed. Job applicants or prospective employees are accordingly
excluded; so the argument further goes. The Municipality further contends that
the first judgment negates the established notion supported by the previous
decisions of the Labour Court that its jurisdiction is contingent on the existence of
the employer/employee relationship.3
[13] In Pretorius and Another v Transport Pension Fund a nd Others 4 (Pretorius ) ,
relied on by the Municipality, the Constitutional Court dealt with an unfair labour
practice claim in ter ms of section 23 of the Con stitution.5 The applicants
impugned the High Court’s finding, which upheld the respondent’s exception on
the basis that there was no employer/ employee relationship. The following
observations by Constitutional Court are pertinent:
‘[47] That appears to be unnecessarily restrictive. The section refers to
'everyone' having the right and its purpose is to protect persons from
unfair labour practices that originated in an employer – employee
relationship. Labour law jurisprudence under the Labour Relations Act
(LRA) recognises that unfair labour practices under the Act may extend
beyond the termination of employment.
[48] Contemporary labour trends highlight the need to take a broad view of fair
labour practice rights in s 23(1). Fewer and fewer people are in formal
3 See: SAAPAWU v Premier (Eastern Cape) & Others [1997] 9 BLLR 1226 (LC) at 1229A-B; Mphage and
Others v South African Municipal Workers Union (2013) 34 ILJ 1764 (LC) at para 17.
4 2019 (2) SA 37 (CC) at paras 46 – 55.
5 Section 23(1) of the Constitution of the Republic of South Africa provides that ‘Everyone has the right to
fair labour practices’.
7
employment; fewer of those in formal employment have union backing
and protection. More and more people find themselves in the 'twilight
zone' of employment as supposed 'independent contractors' in time-
based employment subject to faceless multinational companies who may
operate from a web presence. In short, the LRA tabulated the fair labour
practice rights of only those enjoying the benefit of formal employment—
but not otherwise. Though the facts of this case do not involve these
considerations, they provide a compelling basis not to restrict the
protection of s 23 to only those who have contracts of employment. ’6
(Emphasis added)
[14] Pretorius left ample room for the interpretation that expands rather than limits the
protection afforded by section 23 to persons who may not be formally employed,
contrary to the Municipality’s contention. That is so because the purpose of
section 23 is to protect ‘ any person’ from unfair labour practice and cannot be
furthered in any way by denying job applicants this constitutional right. The
following findings in paragraph 17 of t he first judgment accord with Pretorius and
are accordingly unassailable:
‘The LRA seeks, amongst other things, to give expression to the constitutional rights
to fair labour practices and the freedom of association. Although the definition of
unfair labour practices in the LRA is limited to those persons in employment, section
5(2) of the Act protects persons seeking employment against violations of the right
to freedom of association. In other words, the LRA recognises that in some
circumstances at least, applicants for employment are entitled to statutory
protections of their fundamental rights. … Section 158(1)( h) makes no absence of
the pronoun “an” before “employer” is not insignificant. What this indicates is that the
sole determinant is that the impugned decision or act must be one performed in the
capacity of an employer, not as the employer of the employee seeking the remedy
capacity of an employer, not as the employer of the employee seeking the remedy
of review. In short, section 158(1)( h) is a self-standing, jurisdiction conferring
provision capable of bearing the interpretation for which the applicant contends.’
7
6 Id.
7 See: Booysen v Beaufort West Municipality and Another [2021] 9 BLLR 904 (LC) at para 17.
8
[15] The Municipality further impugns the first judgment’s reliance on this Court’s
judgment in Merafong City Local Municipality v SA Municipal Workers Union and
Another8 (Merafong) that section 158(1)(h) is jurisdiction -conferring. It contends
that Merafong is incorrect as it conflates matters of jurisdiction and powers of the
Labour Court and deviates from the decisions of this Court and the Supreme
Court of Appeal (SCA), particularly in Booysen v Minister of Safety & Security &
others9 (Booysen) and Motor Industry Staff Association v Macun NO & others 10
(Macun).
[16] In Merafong, this Court was confronted with a section 158(1)(h) review
application by a trade union, challenging the respondent municipality’s decision
to appoint as a Municipal Manager, a candidate who did not meet the statutory
requirements for that position. The court opined that, while section 157 manifestly
deals with the jurisdiction of the Labour Court, ‘a proper reading of s 157 makes it
clear that other provisions of the LRA are sources of jurisdiction of the Labour
Court’ and, pertinently, section 158 (1)(h).
11
[17] Sections 157(1) and (2) deal with the jurisdiction of the Labour Court and
provide:
‘(1) Subject to the Constitution and section 173, and except where this Act
provides otherwise, the Labour Court has exclusive jurisdiction in respect of
all matters that elsewhere in terms of this Act or in terms of any other law
are to be determined by the Labour Court.
(2) The Labour Court has concurrent jurisdiction with the High Court in respect
of any alleged or threatened violation of any fundamental right entrenched
in Chapter 2 of the Constitution of the Republic of South Africa, 1996, and
arising from –
(a) employment and from labour relations;
8 (2016) 37 (ILJ) 1857 (LAC) at paras 31 – 36.
9 (2011) 32 ILJ 112 (LAC).
10 (2016) 37 ILJ 625 (SCA).
11 Merafong above fn 8 at para 36.
9
(b) any dispute over the constitutionality of any executive or
administrative act or conduct, or any threatened executive or
administrative act or conduct, by the State in its capacity as an
employer; and
(c) the application of any law for the administration of which the
Minister is responsible.’
[18] While section 158(1) deals with the powers of the Labour Court and provides:
‘(1) The Labour Court may –
(a) make any appropriate order, including –
(i) the grant of urgent interim relief;
(ii) an interdict;
(iii) an order directing the performance of any particular
act which order, when implemented, will remedy a
wrong and give effect to the primary objects of this Act;
(iv) a declaratory order;
(v) an award of compensation in any circumstances
contemplated in this Act;
(vi) an award of damages in any circumstances
contemplated in this Act; and
(vii) an order for costs;
(b) order compliance with any provision of this Act or any employment
law;
(c) make any arbitration award or any settlement agreement an order of
the Court;
(d) request the Commission to conduct an investigation to assist the
Court and to submit a report to the Court;
(e) determine a dispute between a registered trade union or registered
employers’ organisation and any one of the members or applicants for
membership thereof, about any alleged non-compliance with –
10
(i) the constitution of that trade union or employers’
organisation (as the case may be); or
(ii) section 26(5)(b);
(f) subject to the provisions of this Act, condone the late filing of any
document with, or the late referral of any dispute to, the Court;
(g) subject to section 145, review the performance or purported
performance of any function provided for in this Act on any grounds
that are permissible in law;
(h) review any decision taken or any act performed by the State in its
capacity as employer, on such grounds as are permissible in law;
(i) hear and determine any appeal in terms of section 35 of the
Occupational Health and Safety Act, 1993 (Act 85 of 1993); and
(j) deal with all matters necessary or incidental to performing its functions
in terms of this Act or any other law.” (Emphasis added)
[19] Jurisdiction is tritely defined as the power or competence of a Court to hear and
determine an issue between parties and is determined based on the pleadings. 12
In Macun, the SCA referred with approval to a High Court dictum in O Thorpe
Construction and Others v Minister o f Labour and Others ,13 which endorsed a
notion that section 158(1) is jurisdiction-conferring, albeit in the context of section
158(1)(g) and read with section 157(1). Macun was followed in South African
Municipal Workers’ Union and others v Mokgatla and O thers14 (Mokgatla),
another SCA decision, albeit in the context of section 158(1)(e)(i) . Mokgatla
confirmed that, while section 157(1) and (2) relate, broadly, to the jurisdiction of
the Labour Court, section 158(1) lists both specific remedial powers 15 and
12 See: Gcaba v Minister for Safety and Security & Others (2010) 31 ILJ 296 (CC) at para s 75 and 75;
Chirwa v Transnet Ltd and Others [2008] 2 BLLR 97 (CC) at paras 155 and 169; Makhanya v University
of Zululand [2009] 8 BLLR 721 (SCA) at paras 34 and 71.
13 (2015) 36 ILJ 935 (WCC) at para 32.
14 [2016] 6 BLLR 560 (SCA).
15 Section 158(1)(a), (b), (c), (d) and (f).
11
provides substantive jurisdictional bases 16 of the Labour Court .17 In both
instances, the Labour Court’s exclusive jurisdiction was confirmed.
[20] The Municipality’s criticism of Mer afong is unwarranted. This Court has , in
different instances, confirmed the Labour Court's jurisdiction and power to review
the decisions and acts of the State as employer contemplated in section
158(1)(h) on any grounds permissible in law , which include the constitutional
grounds of legality and rationality and, if they constitute administrative action, on
the grounds that are stipulated in PAJA.18
[21] It is not in dispute that the Municipality is an organ of the State as defined in
section 239 of the Constitution, and its powers and duties are public . This
includes the powers to recruit Municipal Managers and M anagers reporting to
them, which are derived from the Local Government: Municipal Systems Act19
(Systems Act). They constitute decisions or acts performed by the State in its
capacity as employer.20
[22] It must therefore follow that the construction of section 158(1)(h) proposed by the
Municipality is irreconcilable with the purpose of this provision, which is to extend
the jurisdiction of the Labour Court to review decisions of the S tate in its capacity
as employer on any grounds permissible in law.21 This power is pivotal to the role
of the Labour Court as a specialist court that is charged with the responsibility to
develop a coherent and evolving employment and labour relations
jurisprudence.22
[23] The Municipality contends, alternatively, that Merafong is, in any event,
distinguishable, as it is not the authority for the proposition that the Labour Court
has jurisdiction over a complaint which does not concern an employee or an
16 Section 158(1)(e) and (g).
17 Macun above. See also Mokgatla supra at paras 11 and 14.
18 See: Merafong above fn 8 at para 38; Hendricks v Overstrand Municipality [2014] 12 BLLR 1170 (LAC);
MEC for Finance, KwaZulu-Natal v Dorkin NO (2008) 29 ILJ 1707 (LAC).
19 Act No 32 of 2000.
20 Merafong above fn 8 at para 38.
21 Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] 2 All SA 262 (SCA) at para 18.
22 Gcaba above fn 12 at paras 70 – 72.
12
employment relationship. This argument is fallacious. In my understanding,
Merafong does not impede a job applicant , like Mr Booysen, or any interested
person, from invoking section 158(1)(h) to review and set aside the Municipality’s
employment-related decisions or actions vitiated by , inter alia , irrationality or
illegality. The authorities relied on by the Municipality in this regard are of no
assistance to its case as they are patently distinguishable.
[24] Overall, the interpretation accorded to section 158(1)(h) in the first judgment is
unassailable as it conforms with the Constitution.23
Right to fair labour practice in terms of section 23 of the Constitution.
[25] Mr Booysen sought to challenge the decision not to appoint on the basis, inter
alia, that it violated his right to fair labour practices in terms of section 23 of the
Constitution. The first judgment confirmed the jurisdiction of the Labour Court in
terms of section 157(2) , subject to the notion of subsidiarity. However, it did not
pronounce on this issue because it took the view that it turned on the merits of
the claim rather than the jurisdiction.
[26] The second judgment did not deal with this issue , nor was it taken up by Mr
Booysen in these proceedings . The Municipality contends in its written
submissions that it does not avail M r Booysen to bypass the legislation enacted
to give effect to a constitutional right and rely directly on the Constitution without
challenging that legislation as falling short of the constitutional standard. 24
Without the benefit of legal argument on behalf of Mr Booysen, I am disinclined
to pronounce on this issue.
Review in terms of PAJA
23 See: Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor Distributors
(Pty) Ltd and Others: In re Hyundai Motor Distributors (Pty) Ltd and Others v Smit N.O and Others 2001
(1) SA 545 (CC) para 22; Cool Ideas 1186 CC v Hubbard and Another 2014 (4) SA 474 (CC) para 28,
National Commissioner of SA Police Services and Others v Phopho (2021) 42 ILJ 1666 (LAC) at paras 59
and 60.
24 See: South African National Defence Union v Minister of Defence and Others 2007 (5) SA 400 (CC) at
para 51.
13
[27] Before the Labour Court , Lallie J proceeded on the premise that she was
properly clothed with the jurisdiction to determine the matter in terms of section
158(1)(h) and the ground being PAJA. Mr Booysen makes the following
assertions in relation to the grounds of review in paragraph 67 of his founding
affidavit:
‘I respectfully submit that the municipality's decision not to appoint me on two
occasions and to appoint Mr Prince falls to be set aside in terms of PAJA for the
following reasons:
67.1 Irrelevant considerations were taken into account, or relevant
considerations were not considered (Section 6(2)(e) (iii));
67.2 The decision was arbitrarily and capriciously taken (Section
6(2)(e)(vi));
67.3 The decision was taken in a way not rationally connected to:
67.3.1 the purpose for which it was taken;
67.3.2 the purpose of the empowering provision;
67.3.3 the information before the council of the municipality
(Section 6(2) (f) (ii));
67.4 The decision was so unreasonable that no reasonable person
could have reached the decision taken by the municipality
(Section 6(2) (h)); and
67.5 The decision was irrationally, and thus, unconstitutionally taken
(Section 6(2)(i)).’
[28] The respondents raised various points in limine, but the second judgment dealt
with only two , which pertain to the impugned decision in terms of the first
recruitment process . F irst, the review was instituted outside the 18 0 days
stipulated by PAJA . Second, the impugned decision regarding the first
recruitment process had been overtaken by the events, and the relief would
accordingly be unenforceable because Mr Booysen had participated in the
14
second recruitment process. The first point in limine was dismissed on the basis
that, when computing the 18 0 days , the Municipality failed to take into
consideration the date when Mr Booysen received the reasons for his non-
appointment. The second point in limine was upheld.
[29] On the merits, the second judgment found that the impugned decision in relation
to the second recruitment process was capricious and irrational. However, relief
of instatement was refused on the basis that Mr Booysen failed to show that , but
for the impugned second decision, he would have been appointed. The claim
was accordingly dismissed.
[30] Before this Court, Mr Booysen submits that t he second judgment err oneously
held that he sought relief in relation to the second recruitment process , and that
the first recruitment process had been overtaken by the events . He further
submits that t he second judgment failed to appreciate that both recruitment
processes had been tainted by irrationality and capriciousness , which entitled
him to be instated. Mr Booysen’s alternative submission is that he was entitled to
be instated in terms of the first recruitment process, in which he had been the
highest-ranking candidate in line with the dictum in Department of Rural
Development and Agrarian Reform v General Public Service Sectoral Bargaining
Council and Others.25
[31] I deal first with the legal points raised by the Municipality. Firstly, the first
judgment erroneously accepted that the impugned deci sions and conduct of the
Municipality constitute ‘administrative action’ or the exercise of a public power .
Secondly, the first judgment erroneously dismissed the Municipality’s first point in
limine pertaining to delay and waiver arguments.
Administrative action in terms of PAJA
[32] The Municipality contends that, unlike in Merafong, the impugned decisions
solely affect Mr Booysen personally and have no impact on other people and the
25 [2020] 4 BLLR 353 (LAC)
15
citizens generally. Thus , it does not constitute administrative action in terms of
PAJA. To buttress this contention, the Municipality referred to the following
passage in Gcaba26:
‘Generally, employment and labour relationship issues do not amount to
administrative action within the meaning of PAJA. This is recogni zed by the
Constitution. Section 23 regulates the employment relationship between employer
and employee and guarantees the right to fair labour practices. The ordinary thrust
of s 33 is to deal with the relationship between the state as bureaucracy and citizens
and guarantees the right to lawful, reasonable and procedurally fair administrative
action. Section 33 does not regulate the relationship between the state as employer
and its workers. When a grievance is raised by an employee relating to the conduct
of the state as employer and it has few or no direct implications or consequences for
other citizens, it does not constitute administrative action.'27 (Emphasis added)
[33] A helpful illustration of the relevant principles is well articulated in Minister of
Labour and Another v Public Services Association of SA and Another28 (Minister
of Labour), where this Court stated:
[51] What was established in Gcaba is a general principle that employment
relationship issues do not amount to administrative action within the
meaning of PAJA (ie as construed consistently with s 33 of the
Constitution). The clear implication being that there could be exceptions
to the principle and that certain employment relationship issues (ie
actions) may amount to “administrative action” within the meaning of
PAJA, properly construed. For example, there might be instances where
grievances by State or public sector employees have implications or
consequences for other citizens.
[52] Features that serve to distinguish the exception from the general are,
inter alia, the source and nature of the action, whether the action involves,
inter alia, the source and nature of the action, whether the action involves,
or is closely related to the formulation of policy, or to the initiation of
26 Gcaba supra fn 12.
27 Ibid at para 64.
28 (2017) 38 ILJ 1075 (LAC) at paras 51-52.
16
legislation and/or whether it has to do with the implementation of
legislation. In De Villiers the Labour Court added the existence of
alternative remedies as another factor to be considered, due to the
importance attached to that aspect in both the Chirwa and the Gcaba
decisions.’ (Emphasis added)
[34] Gcaba patently posits a general principle which is not rigid. As well, the
observation in Public Servants Association of SA on behalf of De Bruyn v
Minister of Safety and Security and Another 29 that ‘[t]he supposition that public
servants had an extra string to their bow in the form of judicial review of
administrative action… evaporated when the Constitutional Court in Chirwa v
Transnet Ltd & others , held that the dismissal of a public servant was not “an
administrative action” …’30 is context -specific and finds no appl ication in the
present case.
[35] In Minister of Defence and Military Veterans v Motau and Others 31 (Motau), the
Constitutional Court aptly expounded the definition of ‘administrative action’ ,
stating:
‘The concept of “administrative action”, as defined in section 1(i) of PAJA, is the
threshold for engaging in administrative- law review. The rather unwieldy
definition can be distilled into seven elements: there must be (a) a decision of an
administrative nature; (b) by an organ of state or a natural or juristic person;
(c) exercising a public power or performing a public function; (d) in terms of any
legislation or an empowering provision; (e) that adversely affects rights ; (f) that
has a direct, external legal effect; and (g) that does not fall under any of the listed
exclusions…’32
[36] In Minister of Labour , this Court found that PAJA was implicated because the
Registrar of Labour Relations is a public position and the decision by the Minister
to reverse his designation impacted the rights of significant numbers of workers
29 (2012) 33 ILJ 1822 (LAC) at para 26.
30 Ibid.
31 2014 (5) SA 69 (CC).
32 Ibid at para 33.
17
and the public.33 Accordingly, it was found to constitute administrative action as it
had a significant impact on the incumbent and beyond. 34 As a result , the
Minister’s decision to revoke Mr Crouse’s designation as Registrar was found to
be unreasonable, irrational and procedurally unfair in terms of PAJA and the
principle of legality.
[37] In the present case, it is apparent that political machinations in the Council
tainted the impugned decisions and had a significant impact on Mr Booysen and
beyond. Like in Merafong, the appointment of the m anagers accountable to the
Municipal Manager is equally essential ; hence, their competence is , similarly, a
statutory imperative. It is also apparent from the regulations that only a person
with relevant qualifications, experience, competence, and skills is eligible for
appointment to ensure that municipalities effectively perform their functions.
[38] Consequently, the recruitment of managers accountable to the Municipal
Manager is subject to oversight by national and provincial ministers, ensuring that
qualified candidates are appointed to serve the general citizenry of municipalities.
For this reason, the Municipality’s contention that the impugned decisions had no
implications or consequences for other people or citizens must be rejected.
[39] Turning to the Municipality’s further contention that the second judgment should
have refused to exercise its review jurisdiction on the basis that Mr Booysen has
alternative remedies in terms of the LRA and unfair discrimination in terms of the
Employment Equity Act
35 (EEA).
[40] The availability of alternative remedies does not oust the court’s review
jurisdiction. This notion was recently affirmed by the Constitutional Court in SARS
and Another v Richards Bay Coal Terminal (Pty) Ltd36 (SARS). The primary issue
in that matter was whether section 47(9)(e) of the Customs and Excise Act 37
(CEA), which allows a party to challenge a tariff determination made by SARS
(CEA), which allows a party to challenge a tariff determination made by SARS
33 Minister of Labour supra at para 67 and 68.
34 Ibid.
35 Act 55 of 1998, as amended.
36 2025 (6) BCLR 639 (CC).
37 Act 91 of 1964.
18
under the CEA (wide appeal ), effectively ousted the review jurisdiction of the
High Court in terms of PAJA and legality. In a unanimous decision panned by
Kollapen J, the Constitutional Court held that it did not and that, absent an
express ouster, and given the constitutional significance of the right to just
administrative action, both remedies should co-exist.38
[41] Ultimately, the test is whether the alternative remedy is adequate in all the
circumstances to resolve the litigant’s grievance. The enquiry should not be
limited to available alternatives but must extend to the suitability and
appropriateness of judicial review in the circumstances. In that regard, SARS
instructs that the interests of justice should inform the court’s decision whether to
exercise its review jurisdiction and, expertly crafted a list of scenarios that may
constitute interests of justice, including an instance where ‘the factual and legal
circumstances underlying the review grounds [ are] so egregious that they
warrant, in the interests of justice, the exercise of the court’s review
jurisdiction…to address and correct the shortcomings in the decision- making
process…’
39
[42] Notwithstanding the context, SARS applies in th e present case by parity of
reasoning. The exercise of the review jurisdiction by the second judgment is
unassailable. It will be apparent from the conclusion I reach later in this judgment
that the factual and legal circumstances underlying the grounds of review in the
present case are so egregious that they justified , in the interests of justice, the
court’s intervention to correct the glaring irregularities in the decision -making
process and the irrational outcome.
[43] Therefore, the only conclusion to come to, as I now do, is that the impugned
decisions constitute administrative action. Moreover, t o the extent that the
impugned decisions emanate from the exercise of a public power, the matter also
implicates the constitutional doctrine of legality.
implicates the constitutional doctrine of legality.
Legality review
38 SARS above fn 36 at para 119 - 121.
39 Ibid.
19
[44] The gravamen of the doctrine of legality is that the exercise of public power, even
if it does not constitute administrative action, must comply with the Constitution. 40
In Affordable Medicines Trust and Others v Minister of Health and Others 41, the
Constitutional Court stated the following:
'The exercise of public power must therefore comply with the Constitution, which
is the supreme law, and the doctrine of legality, which is part of that law. The
doctrine of legality, which is an incident of the rule of law, is one of the
constitutional controls through which the exercise of public power is regulated by
the Constitution. It entails that both the Legislature and the Executive “are
constrained by the principle that they may exercise no power and perform no
function beyond that conferred upon them by law”. In this sense the Constitution
entrenches the principle of legality and provides the foundation for the control of
public power.'
[45] The recruitment of managers reporting to the Municipal Manager is regulated by
the Systems Act and the relevant regulations. Section 56 of the Systems Act
provides:
‘56. Appointment of managers directly accountable to municipal managers
(1)(a) A municipal council, after consultation with the municipal manager,
must appoint —
(i) a manager directly accountable to the municipal
manager; or
(ii) an acting manager directly accountable to the
municipal manager under circumstances and for a
period as prescribed.
40 See: National Director of Public Prosecutions and Others v Freedom Under Law 2014 (4) SA 298
(SCA) 28-29; Affordable Medicines Trust and Others v Minister of Health and Others 2006 (3) SA 247
(CC); Democratic Alliance v President of the Republic of South Africa and Others 2012 (1) SA 417 (SCA)
at para 28 – 30.
41 2006 (3) SA 247 (CC) at para 49.
20
(b) A person appointed in terms of paragraph (a) (i) or (ii) must
at least have the skills, expertise, competencies and
qualifications as prescribed.
(c) A person appointed in terms of paragraph (a) (ii) may not
be appointed to act for a period that exceeds three
months: Provided that a municipal council may, in special
circumstances and on good cause shown, apply in writing
to the MEC for local government to extend the period of
appointment contemplated in paragraph (a), for a further
period that does not exceed three months.
(2) A decision to appoint a person referred to in subsection (1) (a) (i)
or (ii), and any contract concluded between the municipal council
and that person in consequence of the decision, is null and void
if—
(a) the person appointed does not have the prescribed skills,
expertise, competencies or qualifications; or
(b) the appointment was otherwise made in contravention of
this Act,
unless the Minister, in terms of subsection (6), has waived any of the
requirements listed in subsection (1)(b).
(3) If a post referred to in subsection (1)(a)(i) becomes vacant, the
municipal council must—
(a) advertise the post nationally to attract a pool of candidates
nationwide; and
(b) select from the pool of candidates a suitable person who
complies with the prescribed requirements for appointment
to the post.
21
(4) The municipal council must re-advertise the post if there is no suitable
candidate who complies with the prescribed requirements.’
[46] The Local Government: Regulations on Appointment and Conditions of Service of
Senior Managers42 (Regulations) provide, inter alia , that the selection of
candidates for appointment must be ‘ competence-based’, and ensure the
effective performance by municipalities of their functions , and that only persons
with relevant qualifications , experience, competence, and skills may be
appointed.
Waiver and delay arguments
[47] The Municipality’s contention that Mr Booysen waived his right to challenge the
first recruitment process is not supported by evidence on record. On the contrary,
it is clear ex facie the record that Mr Booysen took issue with the first recruitment
process. Nothing much turns on the fact that Mr Booysen only sought to be
instated with effective from 1 July 2019, date when Mr Prince was appointed; or
whether he correctly or incorrectly conceded that there was a delay. The first
judgment accordingly erred in upholding the Municipality’s point in limine to the
effect that the first decision was overtaken by events and therefore
unenforceable.
[48] The waiver argument is , in any event, incongruous with the established legal
principle that reliance on estoppel is impermissible where the exercise of public
power is unlawful and, if upheld, would amount to sanctioning illegality .43 Mr
Booysen had no right to waive, and the waiver argument must be seen for what it
is, just a mere estoppel labelled differently.44
42 GN 21, GG 37245, 17 January 2014.
43 See: Municipal Employees Pension Fund and another v Mongwaketse (Centre for Applied Legal
Studies as amicus curiae) amicus curiae) 2022 (6) SA 1 (CC) at para 40; Fedsure Life Assurance Ltd and
Others v Greater Johannesburg Transitional Metropolitan Council and Others 1999 (1) SA 374 (CC) at
para 18.
44 Ibid.
22
[49] Equally, there is no substance in the Municipality’s delay argument. The fact that
Mr Booysen participated in the second recruiting process did not sanction the first
impugned decision. Strangely, the Municipality persist s with the contention that
Mr Booysen had always been aware of the first impugned decision without
providing proof that it had communicated same. What is undisputed, though, is
the fact that the information containing the first impugned decision and reason for
not appointing anyone during the first recruitment process was communicated to
Mr Booysen on 29 March 2019, and the review application was filed on 22 July
2019. In this regard, t he following observations by the Constitutional Court in
Buffalo City Metropolitan Municipality v Asla Construction (Pty) L td45 (Asla) are
instructive:
'In both assessments the proverbial clock starts running from the date that the
applicant became aware or reasonably ought to have become aware of the
action taken.’46
[50] Since the matter also implicates the doctrine of legality, Asla further observed:
‘The approach to undue delay within the context of a legality challenge
necessarily involves the exercise of a broader discretion than that traditionally
applied to s 7 of PAJA. The 180-day bar in PAJA does not play a pronounced role
in the context of legality. Rather, the question is first one of reasonableness, and
then (if the delay is found to be unreasonable) whether the interests of justice
require an overlooking of that unreasonable delay.’47
[51] The second judgment correctly found that there was no need for condonation
within the context of a PAJA review. Even in the context of a legality review, the
application was instituted within a reasonable time; alternatively, the delay was
not unreasonable.
First impugned decision
45 2019 (4) SA 331 (CC).
46 Ibid at para 49.
47 Ibid 50.
23
[52] Mr Booysen contends that the approach taken in the second judgment was
unduly circumscribed and was informed by the erroneous finding that the first
recruitment process had been overtaken by events. I agree. The impugn against
the outcome of the first recruitment process , whether self -standing or
interconnected to the second recruitment process, should not have escaped the
second judgment’s scrutiny.
[53] The Municipality asserts in its opposing affidavit that the Council neither
deliberated on the selection report nor questioned the recommendation not to
appoint any of the candidates. Yet, in its written submissions, it seems to suggest
that there exists a record of deliberations by the Council that culminated in the
resolution to re-advertise the impugned position. I doubt that such a record exists
because, if it did, the Municipality would have discovered it to support its case.
What can be gleaned from the information on record, though, is that Mr Prince,
an ANC councillor, proposed that the position be re- advertised and was
seconded by his political ally, Mr Constable, a KDF Councillor . It is telling that Mr
Prince was also a member of the selection panel. Therefore, it is not a sheer
coincidence that Mr Prince emerged as a candidate during the second
recruitment process.
[54] The Municipality is grasping at straws in denying that it took a decision that could
be challenged because the Council did not deliberate on the contents of the
selection report and the suitability for appointment of each candidate. Counsel for
Mr Booysen correctly submits that the Council did take a decision which was to
sanction the selection report and implement its recommendation to re-advertise
the position. That decision was , by necessary implication, also a decision not to
appoint Mr Booysen, who was the most eligible candidate for appointment.
[55] Section 56(4) of the Systems Act enjoins the Council to re -advertise a position if
[55] Section 56(4) of the Systems Act enjoins the Council to re -advertise a position if
only there is no suitable candidate who complies with the prescribed
requirements. The Council failed in its duty as a decision maker to satisfy itself ,
based on the information that was placed before it, whether indeed there was no
24
candidate suitable for appointment . The selection panel could only make a
recommendation, but the ultimate decision lay with the Council to decide on the
suitability of the candidates. That entails consideration of all the information
contained in the selection report and taking a decision that is rationally connected
to its purpose, which is to appoint a suitable candidate. The approach followed by
the Council is at odds with this constitutional imperative.
[56] The Municipality contends that Mr Booysen viewed the two processes as
interconnected; hence, it was not an accident or error that he sought to be
appointed from the date that Mr Prince was appointed, 1 July 2019. Well, Mr
Booysen indeed sought a substitution order effective from 1 July 2019. However,
that does not mean that he abandoned the prayer to have the first impugned
decision reviewed and set aside. Therefore, the approach adopted by the second
judgment cannot be supported as it did not pay fidelity to the constitutional duty
to fashion orders that will provide effective relief to those affected by
constitutional breaches.48
[57] It follows that the first impugned decision stands to be set aside as it is vitiated by
arbitrariness, capriciousness and irrationality.
Second impugned decision
[58] The Council's brazen impropriety led to the appointment of Mr Prince, contrary to
the selection panel’s recommendations. Municipal Manager’s stern warning
about the threat of legal costs against the Council member s, individually, did not
dissuade the Council. Even after the Minister assailed the second impugned
decision, the Council was obstinate. It appointed Mr Prince to act in the very
same position for which he was not suitable, and it went so far as to tamper with
the organogram to keep him in its employ.
48 See: Minister of Health and Others v Treatment Action Campaign and Others (No 2) 2002 (5) SA 721
(CC) at paras 102 – 105; Ngomane and Others v Johannesburg (City) and Another 2020 (1) SA 52 (SCA)
at para 22.
25
[59] It follows, as correctly held by the second judgment, that the second impugned
decision was equally vitiated by arbitrariness and capriciousness. However, as
mentioned above, the Council had already set it aside at the instance of the
Minister.
Relief
[60] What remains is the issue of an appropriate and effective remedy following a
finding that sets aside administrative actions. Section 8(1) of PAJA affords courts
a wide discretion to grant ‘ any order that is just and equitable ’. At the same time,
section 8(1)(c)(ii)(aa) affords a court the discretion to make a substitution in
exceptional circumstances . In Trencon Construction (Pty) L td v Industrial
Development Corporation of South Africa Ltd and Another,49 the Constitutional
Court formulated the following exceptional circumstances test:
‘To my mind, given the doctrine of separation of powers, in conducting this
enquiry there are certain factors that should inevitably hold greater weight. The
first is whether a court is in as good a position as the administrator to make the
decision. The second is whether the decision of an administrator is a foregone
conclusion. These two factors must be considered cumulatively. Thereafter, a
court should still consider other relevant factors. These may include delay, bias or
the incompetence of an administrator. The ultimate consideration is whether a
substitution order is just and equitable. This will involve a consideration of
fairness to all implicated parties. It is prudent to emphasise that the exceptional
circumstances enquiry requires an examination of each matter on a case-by -
case basis that accounts for all relevant facts and circumstances.’ (Emphasis
added)
[61] Mr Booysen tepidly criticised the second judgment for refusing to substitute the
second impugned decision with an order instating him, prudently so. As correctly
submitted by counsel for the Municipality , substitution was correctly denied
submitted by counsel for the Municipality , substitution was correctly denied
because there was no causal connection between the impugned second decision
and Mr Booysen’s non- appointment. The second impugned decision was not a
49 2015 (5) SA 245 (CC) at para 47.
26
foregone conclusion because Mr Booysen was the second-best candidate during
the second recruitment process . However, the second judgment erred in not
considering alternative remedies, such as remitting the matter back to the
Council for reconsideration with a clear directive on how that process should be
to undertaken, instead of dismissing the matter.
[62] Even so, when it comes to the first recruitment process, nothing impedes the
substitution. On the record before this C ourt, the result is a foregone conclusion.
As alluded to above, Mr Booysen received the highest aggregate score, as he
met all the requirements for the position in terms of the prescripts. Mr Booysen’s
eligibility for appointment is beyond reproach. It is also not the Municipality’s case
that there are outstanding internal recruitment procedures that had to be
complied with. Conversely, the first recruitment process had been finalised and
the selection report tabled before the Council. Moreover, the Municipality
demonstrated a bias which led to utter disrespect for the recruitment regulatory
framework. Regrettably, there is no demonstration of penitence or undertaking to
self-introspect on the part of the Municipality.
[63] Having found that the result is a foregone conclusion, remitting the matter for
reconsideration would serve no useful purpose.
Conclusion
[64] For all the reasons above, the appeal must succeed, and the cross-appeal must
be dismissed. The first impugned decision must be set aside and be substituted
with an order instating Mr Booysen to the position of Director of Community
Services. Mr Booysen sought to be instated from 1 July 2019, which is, to my
mind, a just and equitable relief in the context of the present case.
Costs
[65] There is no reason why the Municipality should not be mulcted with costs Mr
Booysen, an individual litigant , had to incur expenses to vindicate his
constitutional right, whose affront was flagrant.
27
[66] In the result the following order is made:
Order
1. The appeal is upheld with costs.
2. The cross-appeal is dismissed with costs.
3. The order of the Labour Court in the second judgment is set aside and
substituted with the following:
3.1. The Municipality’s decision of 11 November 2019 not to
appoint the applicant, Mr Booysen, as the Director of
Community Services is reviewed and set aside.
3.2 Mr Booysen is instated to the position of Director of
Community Services of the Municipality effective from 1 July
2019 with full salary and benefits.
3.3 The Municipality shall pay Mr Booysen’s costs.
___________________________
P Nkutha-Nkontwana JA
Mahalelo AJA and Tokota AJA concur.
28
Appearances
For the appellant: Wheeldon Rushmere & Cole Inc
For the respondents: Marais Muller Hendricks Attorneys