THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
In the matter between:
PASSENGER RAIL AGENCY OF SOUTH AF
and
THE OFFICE OF THE PUBLIC PROTECTOR
THEMBALETHU JACK
In the matt
ENCY OF SOUTH AFRICA
E OF THE PUBLIC PROTECTOR
CECELIA JAM-JAM
Reportable
No: C389/2024
Applicant
First Respondent
Second Respondent
Case No: C391/2024
Applicant
First Respondent
Second Respondent
In the matter between:
PASSENGER RAIL AGENCY OF SOUTH AFRICA
and
THE OFFICE OF THE PUBLIC PROTECTOR
LUMKILE RICHARD MZUKWA
Delivery: 8 December 2025
Heard:
2
Case No: C390/2024
icant
}itl1jJ e court are three unopposed applications seeking similar relief and relying on
'"'.• '?i: .::~J?tubstantially similar factual background. Although they have not been
/,'·\:·;;;/
•• consolidated into a single application, for purposes of this judgment and for the
sake of convenience, I will treat them as if they are a single application, save where
it needs to be pointed out that the factual distinctions have any impact on the merits
or the relief sought.
3
[2] All three applications are brought in terms of section 158 (1 )(h) of the Labour
Relations Act1 ("LRN). In all three cases, the applicant seeks to review its own
decision relating to the appointment of an employee.
[3] "Metrorail" provides commuter rail services. Commuter rail services by and large,
[4]
[5]
[6]
provide poor communities with essential public transport.2 estionable
appointments investigated by the Office of the Public Prote
report discussed in what follows thus concerned the qualification
of persons hired to provide mainly poor people in the Western Cape
train services.
Section 195 of the Constitution provides that in pointment to the public
administration a high standard of professional ethics must be promoted and
maintained, and appointments should promote the efficient, economic, and
effective use of resources an
The first application concer
applicant's Senior Manager: Hu
application")3
appointment of Thembalethu Jack as the
Resources on 2 August 2012. ("the Jack
The second concerns the appointment of Cecelia Jam-Jam as its
r on 1 April 2014. ("the Jam-Jam application")4
[7] The third application concerns the appointment of Lumkile Richard Mzukwa as
Area Manager: Customer Services on 4 September 2013 ("the Mzukwa
application. )5
Office of the Public Protector ("the PP)l) is the first respondent in all three
cases.
1 Act 66 of 1995, as amended.
2 Rail Commuters Action Group v Transnet Ltd t/a Metrornil 2005 (2) SA 359 (CC) at para 8.
3 case number C389/2024
4 case number C391/2024
5 case number C390/2024.
4
[9] Report number: 37 of 2021/22 compiled by the PP is entitled "Report on an
Investigation into Allegations of Improper Conduct and Maladministration by
Metrorail: Western Cape Relating to the Appointment of Staff'.
[1 O] I quote at some length from the executive summary (excluding portions ,g,~t here
.1f;/f
1
relevant) as it contains the background to and reasons for the bri 'lrti,,hof this
application: ift!t11
'Executive Summary
(i)
(ii)
(iii)
The report communicates
appropriate remedial actio
Constitution, following an in
Public Protector and
to a complaint into allegations of
improper condu?t~[and,:, malad tion by Metrorail: Western Cape
(Metrorail), a !Ji~i;iog~f,)~e Passenger Rail Agency of South Africa
(PRASA) re • \~;j~~:,;,pp6i'htment of staff.
✓ //+ii,
'?~,' .,,.,
with the Public Protector on 30
the main related to the alle ed abuse of Metrorail fleet
l{~ehicles,~~d the irregular appointment of staff by Metrorail. The incidents
4
~~ferred t'1f by the Complainants occurred during the period Mr Mthura
f/,~;Jj); ., ,,,.,/;}::;::~
riz''"Mr Swartz was the Re ional Mana er of Metrorail.
m the information provided by the Complainants and obtained from the
initial enquiries made, it was established that some of the allegations were
unsubstantiated or without merit. It also transpired that Metrorail had
already taken disciplinary and corrective action in respect of several of the
incidents complained of.
(v) It was, therefore, decided to focus the investigation on the following
allegations made in the complaints that were lodged and the information
obtained, namely:
(vi)
(vii)
(a)
(b)
5
The alleged improper appointment of Ms Jam-Jam by Metrorail as
Transformation Manager on 1 April 2014.
(c) _ __,!_T!.!.:he~aa!!.:lle:::.::::i..::::..::::......:.:...:..:.i:::.:...::::.c:::.:::::.:.....~~...:.::.:...:..=.:..:.::.....;::;.:~:.:,__:::=.:...:..~::......:..:.:.
(d)
(e)
Mzukwa as Area Mana er Customer Services and
as Customer Services Manager in 2013.
Senior Mana er: Human Resources
In essence, the Complainants and/or PRASA's
conduct, as described
maladministration.
, the following issues were identified
(a)
(b,),wz,:« appointment of Ms Jam-Jam as Transformation
j4gfrf"!"<J:"'
1
. 1 April 2014 by Metrorail was not in accordance with
1
th~lJrelevant laws and prescripts regulating the recruitment and ·1:f... },Jt,¥
(d)
1
• {,ii~rf~ftction of staff by Metrorail and if yes, whether Metrorail's conduct
was improper and constitutes maladministration.
Whether the appointment of Mr Mzukwa as Area Manager
Customer Services and subsequently as Customer Services
Manager in 2013 by Metrorail was not in accordance with the
relevant laws and prescripts regulating the recruitment and
selection of staff by Metrorail and if yes, whether Metrorail's conduct
was improper and constitutes maladministration.
6
(e) Whether the appointment of Mr T Jack as the Senior Manager:
Human Resources by PRASA in 2012 was not in accordance with
the relevant laws and prescripts regulating the selection and
recruitment of staff by PRASA and if yes, whether PRASA's conduct
was improper and constitutes maladministration.
(viii) The investigation was conducted in terms of section
Constitution and sections 6 and 7 of the Public Protector Act
the exchange of correspondence with PRASA, fVletroraiL and the
Complainants, the evaluation and conside • of the d,~~~;111ents
submitted and obtained, and consideration
laws and legal prescripts.
n ofthe relevant
(ix) The Acting Regional Manager of Metrorail: Western Cape and the Group
Chief Executive Officer (Gcbi•ri,TfPRASA and the persons implicated or
(x)
that could be affected by t obtained during the investigation
were afforded an opportunity thereto, in terms of section 7(9) of
the Public Protector Act The responses received were considered during
the investigation
Havin the evidence and information obtained during the
blic Protector makes the following findings:
Regarding whether the appointment of Ms Jam-Jam as
Transformation Manager on 1 April 2014 by Metrorail was not in
accordance with the relevant laws and prescripts regulating the
recruitment and selection of staff by Metrorail and if yes, whether
Metrorail's conduct was improper and constitutes
maladministration_
(aa) The allegation that the appointment of Ms Jam-Jam as
Transformation Manager on 1 April 2014 by Metrorail was
not in accordance with the laws and prescripts regulating
(c)
7
the recruitment and selection of staff by Metrorail, is
substantiated.
(bb) Her appointment by Metro rail contravened the provisions of
section 195(1 )(i) of the Constitution and paragraph 14 of the
Recruitment and Selection Policy, as it did not ly with
the minimum requirements for the position
and advertised by Metrorail.
(cc) Metrorail's conduct accordin
Constitution and maladminis
6(5)(a) of the Public Protector Act
of the
rms of section
Regarding whether t
Manager Customer
Mr Mzukwa as Area
nd subsequently as Customer
Services Manager in rorail was not in accordance with
the releva and s regulating the recruitment and
selecti y Metrorail and if yes, whether Metrorail's conduct
(aa)
~titutes maladministration.
ointment of Mr Mzukwa as Area
Manager Customer Services and subsequently as
Customer Services Manager in 2013 by Metrorail was not in
accordance with the relevant laws and prescripts regulating
the recruitment and selection of staff by Metrorail, is
substantiated.
(bb) His appointment by Metrorail contravened the provisions of
section 195(1 )(i) of the Constitution and paragraph 14 of the
Recruitment and Selection Policy as Mr Mzukwa did not
comply with the minimum requirements for the position, as
determined and adve1iised by Metrorail.
( cc) Metrorail's conduct accordingly constitutes improper
conduct as envisaged in terms of section 182(1) of the
8
Constitution and maladministration in terms of section
6(5)(a) of the Public Protector Act.
(e) Regarding whether the appointment of Mr T Jack as the Senior
Manager: Human Resources by PRASA in 2012.,;wa~ ;,,not in
accordance with the relevant laws and prescri gulatirigc,the
selection and recruitment of staff by PRAS
PRASA's conduct was improper and constitute
(aa) The allegation that the appointment of Mritack \ the Senior
Manager: Human Resourtdes"·i•,io 2012 byPRASA was not in
accordance with the r:t? '\\'H,:l'i\, :., J/ • •
the recruitment and
substantiated.
PRASA is
(bb) His ,.~R~.ointment Gontravened the provisions of section
W5{1 )(/)i(::of the Constitution and paragraph 14 of the
ft ~Wfl~htJ~Hd Selection Policy as it did not comply with
t~e m . • um requirements for the position as determined
and adJ~hised by Metrorail and/or PRASA.
PRASA's conduct accordingly constitutes improper conduct
as envisaged in terms of section 182(1) of the Constitution
and maladministration in terms of section 6(5)(a} of the
Public Protector Act.
The appropriate remedial action taken in terms of section 182(1)(c) of the
Constitution is the following:
(a) The GCEO of PRASA to:
(aa) To approach a court to review the appointment of Mr Jack
and for a iust and equitable order when considering the
consequences thereof. In this regard, it should be noted that
the Constitutional Court held in In Khumalo and Another v
(b)
9
Member of the Executive Council for Education: KwaZulu
Natal (2013] ZACC 49; that appointments made irregularly
are not automatically null and void because the appointed
candidate has labour rights .. It was further held in this case
that only a court can grant a "just and equitablen order in
terms of section 172 1 b of the hen
considerin the conse uences of
unlawful.
(bb) Take appropriate action based on the engag
The R
(aa)
National Treasury and
the salary paid to Mr
also taken that PR
Protector that there is a
's internal auditors to declare
ulafexpenditure. Note is
so advised the Public
underway to deal with the
matter including the rernedial action as per the National
er of Metrorail: Western Cape to:
eh a court to review the a ointments of Ms Jam
Jam and Mr Mzukwa and for a iust and equitable order when
considering the consequences thereof.
Take appropriate action based on the engagement with the
National Treasury and PRASA's internal auditors to declare
the salaries paid to Ms Jam-Jam and Mr Mzukwa as
irregular expenditure.'6 (Own emphasis)
licant
[11] This application is brought in terms of Section 158(1)(h) of the LRA. The applicant
0c;;,;::;r,.C) to review its own decisions relating to the appointments of the three named
individual respondents referred to in the report of the PP as set out above.
6 Portions of the quote not directly relevantto these proceedings have been omitted. The underlining has
been added.
10
[12] The relevant persons, posts and dates are as follows:
1 1 Jack on the 2nd of August 2012, as a Senior Manager: Human Resources.
12.2 Jam-Jam as its Transformation Manager on 1 April 2014.
12.3 Mr Mzukwa as Area Manager Customer Services on 1
subsequently as Customer Services Manager on 4 Septe
[13] The court is asked to review and set aside these irregular appointrne
is furthermore requested to make 'a just and
consequences of these irregular appointments.
e 'or<:Jer\ 'Considering the
[14] The purpose of bringing these applications is sub
[15]
duty of organs of state to uphold the rule of law and act in a transparent fashion.
and Recruitment Policy
anates from Paragraph 14 of the Selection
~,1~laarticularly the part on Shortlisting and
shortlisted must be limited to and restricted to
nimum requirements of the position as advertised.'
The appoin
[16] appointing Jack, contravened the Policy by acting in a manner
edes was irregular, improper and constitutes maladministration for
the following reasons:
The appointment of Jack was unsubstantiated in that there was non
compliance with the minimum requirements for the position as determined
and advertised by the applicant;
11
16.2 The appointment of Jack, the applicant also concedes, constituted improper
conduct in terms of section 172(1 )(a) of the Constitution.7
[17] The non-compliance with this section is said to have been caused by a
from the minimum requirements for an applicant to be shortliste
bachelor's degree in human resources (llHR") was required. Mr J
[18]
[19]
[20]
[21]
but not in HR. This notwithstanding it was decided to shortlist
relevant HR experience. According to the applicant he als e best
candidate in the interview process.8
After the applicant became aware of the PP's ficitfi~g
be taken, the applicant took no steps to challe'e the r
"'-;";,-;,,,
rt, and in bringing this
application, the applicant also confirm
respondent's findings.
t dbgS:1Q@1':fhtend to review the first
J'/t'-C,v
In summary, this applicatiop4pis' 6~:sed on uncontested evidence to the effect
:1/f /~<,
appointment was irregular ,~~R. i9Z1Jllqp~r,.J1s Jack was appointed notwithstanding
his failure to meet the min :'.fr;{?' uir~;~·~nts for the post because of his lack of a
required qualificati
the applicant did not dispute the evidence obtained
acti
~
0
<fi-Ci;?-;,
re~~9rideat was the following:
that the appropriate remedial action to be taken by the first
A court was to be approached to review the appointment and for a just and
equitable order; and
7 A court must declare any conduct that is inconsistent \Vith the Constitution invalid to the extent of its
inconsistency.
s The post in question was a senior post and cmTied a cost to company package ofRl 148 724.
12
21 It should take appropriate action based on engagement with the National
Treasury and the applicant's internal auditors on financial consequences or
expenditure relating to the second respondent's appointment.
[22] With regard to the taking of remedial steps, the applicant submits tha
that none of the unsuccessful applicants for these posts challenged the out
,:'/ ,' _,
[23] At the time of these appointments, there was no evidence t t show~dthatat the
time the successful applicants applied for these positions, th
unlawfully and or fraudulently. (The submission see be there was no
personal culpability on the part of the individual respond
which they were unlawfully appointed.)
the process by
[24] The members of the panel that made
employ of the applicant by 8 October 20
·ntments were no longer in the
e PP's report was concluded.
Discussion -the legal effect of a decision by the public protector
[25]
[26]
appropriate remed
challenged by way ota
binding until set aside, and if not set aside, the
be taken must be implemented unless it is
PP,
icant's duty to approach this court to give effect to the decision of the
ed out by the applicant that in the matter of Economic Freedom
er, National Assembly and Others; Democratic Alliance v Speaker
I Assembly and Others9, the court held as follows:
'The power to take remedial action is primarily sourced from the supreme law itself.
And the powers and functions conferred on the Public Protector by the Act owe
their very existence or significance to the Constitution, just as roots do not owe
9 2016 (3) SA 580 (CC) at paras 64 to 66. This is the decision which found that President Jacob Zuma
breached the South African Constitution by failing to implement the recommendations in the Public
Protectofs Nkandla report.
And
13
their life to branches, so are the powers provided by national legislation incapable
of eviscerating their constitutional forebears into operational obscurity.'10
'Our constitutional order hinges also on the rule of law. No dedsionground ·n
the Constitution or law may be disregarded without reco set9/a,A::ourt.of l~w. To
do otherwise would "amount to a license to self-help".' 11
[27] The power of the courts in constitutional matters is deri ction 172( 1 )(a)
law or conduct
is approached the
ion as this provision empowers
[28]
of the Constitution which enjoins a Court to declare invali
inconsistent with the Constitution. When
Section 158(1 )(h) of the LRA becomes
the Labour Court to review any decisio
as an employer, on such grounds as are pe
concern an act of the State as an employer.
ny act performed by the State
general to
individual re
action is concerned, the applicant's submission was
appointments and possibly calling on the auditor
ecified, no orders should be made against the
[29] The applicant's submission is that it would be impermissible for the individual
ondents 'to be punished in anyway whatsoever for the irregular appointmenf.
rd, reliance was placed on the decision of the Constitutional Court in
alo and Another v Member of the Executive Council for Education: KwaZulu-
12 where the Constitutional Court held -so submitted the applicant -and organ
of state was not merely entitled but duty bound to seek redress of an irregularity in
a court of law.13 At para 62! the Court also said the following:
10 Ibid at para 64.
11 Ibid at para 74.
12 (2014) 35 ILJ 613 (CC).
13 Paragraph 21 of the applicant's heads of argument quotes this alleged passage from the CC' s judgement: "'Irregular
appointments are potentially unlawful, Appointments made irregularly are not automatically null and void because
the appointed candidate has labour rights, only a court can grant a just and equitable order in terms of Section l 72(l)(b)
14
'[62] Section 11 (2) must be read in the context of the state's obligations under
section 195(1 )(i) of the Constitution and the right to fair labour
under section 23 of the Constitution. Section 195(1 )(i)
importance of ensuring that appointment processes in the p
based on ability, objectivity and fairness. Fairness in er:g.
:<i~iv
and labour relations requires the state to be even J1a'ff~
not only to those whom it employs, but so too t~
11
'1~~,§
apply for employment at a state institution. 1(,ould n
s
were to employ persons who do not
state itself sets. It is neither fair n
;:t/V»
)¥ re. . .. ements that the
,;;fi~t:~~11
nee with the dictates of
transparency and accountability,Jor,t
public about the criteria it in~~ds·;~ u
·s1ead applicants and the
post The formulation and
application of requirements fti'Jt.a parti r post is a minimum prerequisite
<:\?f{~·'t-,.. ,,.,.---<;?//
not meet the r
appointed.' 0;
-~tt:
·vity of ffre1,app5intment process. Persons who do
ts for a post in the public sector ought not to be
Steps taken after the publi'l!ation o;Tfie P
[30] As previous
Mkhweb.9De
cf:3:iljtftttfhe report was signed by the then pp Busisiwe
r 2021.
[31]
/IP';~"< .·
Paragragt:ll8'."l:!l of the report required the GCEO of the applicant to submit an
',t:ff;W/ tl
ent,~!iffti"plan to the PP within 30 days of the report on the implementation
., .. ,:1:·
dial action required.
mplementation plan, if it was ever submitted1 is not annexed to the applicant's
,<application.
of the Constitution , when considering the consequence of declaring the decision unlawful until a court pronounces
on the validity of the act (appointment, the act exists in fact and has legal effect in terms of which legal consequences
will continue to exist The court explicitly viewed functionaries as being not entitled but duty bound to seek redress
of an irregularity in a court of law'. The applicant's heads of argument unhelpfully fail to reference the paragraph
numbers of paragraphs from judgments directly quoted in their heads. In most of these instances I was able through
considerable effort to source, find and :fbotnote the relevant paragraph after reading the whole judgement. I
unfortunately cannot find this quoted paragraph in the CC judgment in Khumalo. It may be a quote from someone
else's summary of the decision as the legal principles cited are correct
15
[33] The affidavit in the Jack application at paragraph 46 says that this implementation
plan is annexure PP 13. Annexure PP 13 is an internal document dealing with the
transfer of Jack. Annexure pp14 is an internal report to the CEO by the acting
executive human capital management which discusses the remedial action could
be taken to comply with a report of the PP. There is accordingly no evide
this court implementation plan was submitted to the PP.
[34] The founding affidavit notes that at the time that the applicant i
report, Jack had been transferred to a risk pool due to
accordingly no longer rendering services as a SeniorJJanage
'Yf::::11~\;
at a salary of R 1 148 724 per annum. ,~~!!11;,
!if)J41
[35] The applicant submits that it is in the hands
appointment of the second respondent sflcfti'lcf
,;_,·/;:V
to decide whether the
e he declared irregular,
[36]
[37]
improper and unconstitutional.
an offer for a voluntary s ..
2023. Jack did not ap
employment. He wa~t.h
date to enco
2023. (The I
'-<'•
,, it,f\;;;.:c 1{f irfi
memoranaum to all employees in respect of
e - VSP. The closing date was 21 August
ly due to his absence from his place of
approached by the employer after the closing
for a VSP, which he then did on 16 November
s (prompted by the employer to apply) for this VSP were
obvio41~f~qql osing dates would not be applied in their cases.)
1, i'*!?/t~
It will th~n con;i~ as no surprise to discover that Jacks' VSP was approved on 20
~k,~~'3 and he was then paid a generous package of R 1 140 063 in
severance, together with certain other benefits, the termination date of
ployment being 30 November 2023.
founding affidavit is dated 7 August 2024. It submits that the applicant holds
the view that bringing this application is academic and moot, given that the
applicant has taken steps to correct the irregular appointment and Jack is no longer
in the employ of the applicant.
16
[39] This initial stance notwithstanding, the applicant, however, met with
representatives of the PP on 3 May 2024 to discuss the possible mootness of an
application. It noted that measures to correct the irregular appointm t had
[40]
[41]
[42]
already been taken by the applicant and that the affected employ~,
4Jf
longer in the employ of the applicant.
Its views on mootness were not shared by the PP and ,t
<{fif+::~
Modibeni, Chief Human Capital Officer of the applicant says;
of the PP 'insisted that this application should be bP~~g~t an
~c:1!&}
absence of any specific order sought on remediaJttm,i• ,,.
be taken on remedial action'.
The founding affidavits makes muc~:~f the ...,'--', ........ , that the individual
respondents are in no way to blame fo·~~~,~'. h~il)happened. The applicant says
that they rendered the service which they;1W~:d been hired and were found to
be competent and with th ite skills to hold the position on merit. The
affidavit does not, howe#& in any convincing way why the appointment
-,~';:r
criteria were not apftlifd an~~ro s to blame for this 14. Mention is made of an
~Jtlt?Jined;tut it is not at all apparent from the findings of that
The
:;jfie,.'.~d,e
,:?1i~?~i!/l{JJ;r
al~i?direct relationship that dismissal had to Jacks'
does not appear to me to have been revealed in these papers.
epeatedly uses the odd phrase that certain facts will now be
~;,_ 'S;:f:\
rll{J;fi6netFbecause 'it is therefore necessary to bring the court into confidence by
stating ... '
':,ff
y general impression is that the culpable parties are being shielded, and the
applicant regards the PP's report as much ado about nothing. What is missing from
the narrative is an explanation for the motivation for making these unlawful
14 The intervie·ws are conducted by panels. The interviews are obviously preceded by a shortlisting process.
15 The annexure is a 34 page finding dealing vvith 14 charges made against Mthuthuzeli Swart None of these
charges relate to the appointments applicant seeks to have set aside in this case and it is not apparent to me why this
document vvas annexed to the applicant's application.
17
appointments. The court is told to accept that none of the appointees were in any
way to blame for their having been appointed, even if they did not meet the
advertised requirements. This is, however, stated as a conclusion, but no evidence
is provided to explain the decision to ignore the compulsory advertised criteria.
Was it an innocent mistake? Was it nepotism? Was it politic ated? We
simply do not know, and without knowing, it is not possible t ~•it1-at the
appointees were truly blameless. At best, it can be said that th
decided to place no evidence before the court, which would permit it to come to
any other conclusion .16 It is also obvious that the papers track the CC's decision
in Khumalo with a view to driving a court to a conclusion that, although the
unlawfulness of the conduct is not cont
runs the argument, applicants for jobs
be blamed if they simply try their luck by
getting appointed.
Condonation
no one is to blame. In any case, so
entry qualifications can hardly
r the position and then end up
[44] The deponent says th s served on the applicant on or about 8 October
2021, but the applicant on ointed its current legal representatives in or around
2022 to consider and bring an application to the Court.
[45] n refers to certain documents that were required to launch this
were traced with some difficulty. This delayed the bringing of the
application. The notice of motion was signed on 30 August 2024, that is, almost
three years after the PP's report had been received.
is submitted by the applicant that the respondents will not suffer any prejudice if
condonation is granted, whereas the applicant will suffer irreparable harm 'as they
16 The procedure or context through which matters of this sort must be brought to court is a cause of concern. A set
of facts is brought to the attention of the PP by a whistleblower. A finding is then made unconstitutional conduct on
the part of the organ of state which is also directed to approach a court to give full effect to the PPs findings. It is
then expected that the organ of state which was found to be breach of the Constitution will change its spots and
expeditiously file papers in which they will enthusiastically seek to reveal all to promote transparency, the
Constitution and the rule of law instead of protecting the governing incumbents and appointees who would have
come to no harm but fen· actions of a whistleblower.
18
would have failed to comply with the findings and recommendation of the Public
Protector which are statutoty and binding'. The court declining to hear the case
'would also entail that the applicant is defiant (sic) of the supremacy of the
Constitution patticularly the provisions of section 191 (5) of the Constitution'.
The PP's non-participation in these proceedings
[47] The PP did not file papers or present arguments. This was surprisihgJis alth
no order was sought against her, it was the PP that had re uireg th~applic~mt to
bring these proceedings and her views could have assisted
(a) proceedings had been launched within a reasona
conduct was consistent with the remedial action required
form of appropriate relief the PP expected this court to grant.
oUft on whether:
the' applicant's
; and (c) what
[48] This court issued a directive before th
was not opposed, as it was a matter o
required to file heads of argument and
ting that, although the matter
rest, the first respondent was
also directed to appear at the
[49]
proceedings and present or~I argument with reference to authority on what it
·ust and equitable relief on the facts of these three
cases.
d by the PP, but Ms S Langeveldt from the office
of the PP was present a,t the hearing. She explained that she was not a lawyer and
that be required to obtain legal services. At the completion of oral
argu applicant, an order was made by agreement that the first
responde Id, after obtaining legal advice, file heads of argument on or before
12 September 2025, to which the applicant could reply before 19 September 2025.
September 2025 first respondent wrote to the registrar to advise that it could
ot procure external legal advice by 12 September 2025 and after apologising to
the court for failing to act on the courts directive said 'We have requested the
Applicant's attorneys to indulge us in this regard, by requesting that we agree to
have the timelines revised, in order for the [PP] to participate meaningfully in the
19
matter'. The first respondent was informed by the registrar that a court order could
not be altered in the absence of a formal application. No such application was
brought and nor were the heads filed late, together with an application for
condonation. This court must accordingly assume that the first responde
end result, decided or was advised not to file written argument.
Explanation for the delay
[51] The applicant fails by a considerable margin to adequat
several years in launching this application. My impres •
its/~l'!ay of
c;,tft,
trfe delay was
purposeful and had the purpose of shielding
appointed employees from suffering negatively..,..., .............. ,., ....
the unlawfully
conduct.
Prospects of success I mootness
[52] Solid a rite it Helpende Hand N/jt:Jf~ncJ Others inister of Cooperative Governance
<f/;;;/ ;;:i
and Traditional Affairs17 rovi~esl ,, Jell9,wing summary of the relevant principles
tf/?l;{{V/ , "'' i;,,,:;,:;r·
'[12] is that a matter is moot when a court's judgment will
ffect on the parties. This usually occurs where there is
1~~ long i!'V n existing or live controversy between the parties. A court
-::;??~t~:.>·--: -.~':<::,.?:r
s~balg:\fe(ffain from making rulings on such matters, as the court's decision
merely amount to an advisory opinion on the identified legal questions,
ich are abstract, academic or hypothetical and have no direct effect; one
of the reasons for that rule being that a court's purpose is to adjudicate
existing legal disputes and its scarce resources should not be wasted away
on abstract questions of law. In President of the Republic of South Africa v
Democratic Alliance, the Constitutional Court cautioned that "courts should
be loath to fulfil an advisory role, particularly for the benefit of those who
have dependable advice abundantly available to them and in
17 ( 104/2022) [2023] ZASCA 35 (31 March 2023).
20
circumstances where no actual purpose would be served by that decision,
now
11
•
[13] However, this principle is not an absolute bar against deciding moot
matters. An appeal court has a discretion to decide a matter even if it has
become academic or moot in circumstances where 'the intere
require that it be decided'. In Independent Electoral
Langeberg Municipality, the Constitutional Court held c:t~;t611ows:
"This Court has a discretion to decide iss
no longer present existing or live
must be exercised according to what
A prerequisite for the exercise of the .di
~\~pp~~'~v~rrif they
. Th9t discretion
f justice require.
1s that any order
which this Court may make wilLhave some practical effect either on
the parties or on others. Other··.factors: that may be relevant will
include the nature and extent of the practical effect that any possible
order might have, the importance of the issue, its complexity, and
the fulln erwise of the argument advanced."'
[53] This case is now moot becau
have been affected . by the outc
e employees whose appointment might
of this case are still in the employ of the
[54]
applicant. In a • • n, itis notpossible for this court to make a determination of
whether or n e appropriate for anybody unlawfully appointed, including
a director, to alaries which they have received, as no information was
furnished to put urt in a position to conclude that making such a decision to
this effect wou}d.: be in the interests of justice.
f the applicant's failure to properly explain the reasons for its delay, it
necessary to consider the prospects of success but, given that it can be
argued that applications such as this are brought to promote the public good and
not for the benefit of the applicant, the question arises as to whether or not court's
should condone the late filing in order to promote the rule of law and for the public
benefit even though there has been no proper explanation for the lengthy delay
and the case has become moot.
21
[55] The case is, however, and probably by design, moot as the applicant self-evidently
took steps to ensure that by the time this case got to court, the affected employees
were no longer in their employ, and so the real issue in a case such as thisJ1;9amely
';:J~/7
[56]
whether the appointments should be nullified (with possible consequ elief),
did not arise.
Making an order in these circumstances would, in my opinio
,ft~v
with the objects of the rule of law, as it would, in ·~e
noncompliance with the rule of law.
[57] If the office of the PP wishes to make sur
[58]
compliance with its report, then it may firJ,ttJt f stigate whether there
;2;~;:~>-:+~:,~ts~
are any named individuals who can f,Q~ blam~, on-compliance with the
t{).;;., -;;{#~:;
appointment criteria or whether the~i;.1 are ~Jjly named officials or legal
":?itb1t~✓>-?·f ~iAf~?
representatives who can be ed for ''tne1'' cynical way the applicant has
pretended to give effect to ort.
Asked to explain wh?t the eeking an order to set aside the appointments
4'%>.,
at this stage, Adv ma s itted that it is the report itself that needs to be
::r,, _ A~w endorsed by l
0
tfaJtilo understand what the point would be in the court
doing so. As been pointed out, courts do not dispense academic legal
imum requirements for this post included a three-year legal or human
sources degree or diploma.
Cecilia Jam-Jam's highest qualification was a Certificate in Office
Administration and Computer Training. This notwithstanding she was rated the
18 I should clarify that although I have found that the application is moot I do not in so finding hold that the PP was
required to agree with the applicant was thereby excused from bringing this application to court, as had been
required in the PP' s report. The applicant could not excuse its own inaction by simply deciding of its own accord -
and without approaching a court -that the application had become moot.
22
best candidate and appointed at an annual salary of R434 623 per annum from
1 April 201
[61] Apart from asserting that she was blameless as process the applicant's papers
fail to explain why the selection panel did not apply the minimum requJr~ments
in her case. They also fail to point out that Themba Jack, also appointed to his
post by an unlawful process, was a member of the selecti
recommended her for appointment. Th is emerges from a
February 2014 which motivated for appointment.
[62] Jam-Jam also did not apply for a VSP but was approached arn:t encouraged to
apply after the expiry date. Her employment on 20November 2023,
and she received a package of R415 825,9
Appointment of Lumkile Mzukwa as area manager: Cu
[63] In the case of this post the s listed candidate was required to have a B.Com
[64]
[65]
or equivalent degree an
logistics environment an
um of four years' experience in a service and
stomer service experience.
March 2
gree in social science (and not a degree in
noth~ve any of the requisite experience required. On 15
ppointed to this position in salary group 109.
agraphs are repeated in the part of the affidavit that deals
with his appointment in other words that he was in no way blameworthy in being
• ted, and that the payment of his salary was in no way wasteful fruitless
umkile Mzukwa did not exit via a VSP as he was dismissed for serious
misconduct on 11 March 2022. The charges he faced and the reasons for his
dismissal do not appear from the papers.
Failure to make out a proper case
23
[67] The founding affidavit of the applicant in Jack is inherently contradictory.19 On
the one hand, the deponent, Naledi Modibeni, Chief Human Capital Officer of
the applicant, submits that the application is brought to give effect to the rule of
law and the South African Constitution.
[68] On the one hand, it pays mere lip service to the finding of the/
[69]
unlawful process of the appointments needed to be re
appointments being set aside. The applicant, without s4Us
'~{}ft,,,
took several years to initiate these proceedings and althocr
appointments are indeed unlawful, compounded ~'i!§, non-
•,;_;-A._.,;
lengthy delay in launching these proceedi
p Iance by a
iting two of the
unlawfully appointed employees to accept
obvious that, were this to occur, th~/lrt/~§tio
mstances where it was
continued employment
would be rendered moot.
::/;,t
r ~ , ~,J:f;f~[;0 >~tit/;(1/
The applicant's conduct i~"~g#aR!,fJ9 these appointments in the first place, in the
l,~.,.:1;✓ )~J1
way in which it respon( / , JLP P's report and in the late filing of self-
•/.;:;,1x<11Tltt?'
defeating papers in th1 as self-serving, cynical and is to be deprecated.
The ancilla relief sou
[70]
r?l <ttj;~
Each noti~e of motl(?n contains prayers for declarators to the effect that the
ttt}.. Jl?/J
,,~¥:h,/ ;'.iJiii
1
re the renumeration paid in each case as irregular
"''.;-;,;,:, J;\.Y'
hat within six months of this order "the applicanfs internal auditor
with office of the auditor general on the expenditure incurred" as
'itur, ~~i!~gtillof each flawed appointment. In addition1 the court should make orders
'/;;xj:f;;;';;,
/¥~Which it considers 'Just and equitable considering the recommendations of the
ti.fft'
rst respondent and all the pleaded facts placed before the court by the
applicant."
[71] As I have found that all three cases are moot as regards the main prayer to
set aside these appointments, I would also decline the granting of these further
set aside these appointments, I would also decline the granting of these further
19 Most of this affidavit is also cut-and-paste into the founding affidavit in the other applications.
24
prayers. I accordingly leave open the question of whether Labour Court wou ld
in either event have jurisdiction to grant relief of this nature. I should add for
completeness that in each case it is submitted in the affidavits that although the
expenditure incurred was irregular it was not fruitless and wasteful as the
appointees were found to be "competent with the pre-requisite skills t
position on merit".
[72] The application is accordingly dismissed. Costs were not sought.
1. The application is dismissed.
2. There is no order as to costs.
Appearances:
C. Kahanovitz
Acting Judge of the Labour Court of South Africa
Adv J. Malema
Padi Inc Attorneys