IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Reportable
Appeal Case No: A149/2025
Court a quo Case No: 15022/2023
In the matter between:
FINANCIAL AND FISCAL COMMISSION Appellant
and
SHAFEEQA DAVIDS
CLAIRE MARGARET HORTON
First Respondent
Second Respondent
Neutral citation: Financial and Fiscal Commission v Shafeeqa Davids &
Another (Case no: A149/2025) [2026] ZAWCHC (30 July 2026)
Coram: JUSTICE FORTUIN ET THULARE ET MAYOSI JJJ
Heard: 22 July 2026
Delivered electronically: 3 August 2026
Summary: Appeal against an order made, in the exercise of the court a quo’s
discretion in terms of section 172(1)(b) of the Constitution, refusing to set aside
the appointment of the respondents to positions in the appellant,
notwithstanding an order, made in terms of section 172(1)(a) of the
Constitution, declaring the appellant’s appointment of the respondents to those
positions to be inconsistent with the principle of legality and invalid –
condonation - grounds for appellate court’s interference with the lower court’s
section 172(1)(b) discretion - costs.
ORDER
1. The application for condonation is granted , with the appellant to bear the
respondents’ costs, including the costs of one junior counsel, on Scale A;
2. The appeal is dismissed with costs, including the costs of one junior
counsel, on scale A.
JUDGMENT
Mayosi J:
Introduction
[1] This appeal is with the leave of the Supreme Court of Appeal (SCA),
granted on 19 February 2025.
[2] The appeal lies against the orders made by Salie J in paragraphs 12(iii)
and (iv) of her judgment that was delivered, ex tempore, on 8 May 2024 .
The orders app ealed against appear as follows in paragraphs 3 and 4 of
the court order that was subsequently issued on 21 May 2024:
3.That in terms of section 172(1)(b ) of the Consti tution, and despite the
declarations of invalidity in orders (i) and (ii) above, the appointment of the
first and second respondents into their posts are not set aside.
4.That the costs of this application, including the costs of one junior counsel
on scale A and one attorney on scale A, shall be paid by the applicant.
[3] The appeal emanates from an opposed ‘State self-review’ application that
was instituted by the appellant in the court below, relying on the principle
of legality in the Constitution; section 195 of the Constitution a nd section
5(7)(a) of the Public Service Act, 1994.
[4] The appellant is a constitutional institution as envisaged in section 2 20 of
the Constitution. It was established and is governed by the Financial and
Fiscal Commission Act, 99 of 1997 (the Act ), which mandates the
appellant to provide advice to Parliament, provincial legislatures,
organised local government and other organs of state . The appellant’s
primary functions include advising on: (a) the equitable division of
nationally collected revenue across the national, provincial and local
spheres of government; (b) allocations for provinces and local
government out of the National Revenue Fund; and (c) other financial
and fiscal matters as required by the Constitution and national legislation.
[5] In the court below the appellant sought to have the respondents’
appointments to senior positions on its staff establishment declared
irregular and unlawful, and to have their appointments set aside.
[6] The respondents accepted in the court a quo, as they do in this appeal,
that their appointments were irregular because the person who appointed
them did not have the delegated authority to do so and, accordingly, that
the court a quo had to declare their appointments to be inconsistent with
the principle of legality in the Constitution and invalid, in terms of
section 172(1)(a) of the Constitution, which the court a quo duly did. To
be clear, the remainder of the process that culminated in the appointment
of the respondents, i.e., the recruitment and selections processes, were not
impugned. Rather, it was the formal step that occurred at the end of the
process – the question of who had the authority to sign off on the
appointments - that formed the basis of the challenge before the court a
quo.
[7] However, the respondents submitted in the court a quo that, in the
exercise of the wide discretion conferred upon it by section 172(1)(b) of
the Constitution, it should decline to set aside their appointments , which
is what the court a quo decided. It is this decision - not to set aside the
appointments - that forms the subject matter of this appeal.
[8] The appellant furthermore seeks condonation for the late filing of its
notice of appeal , which was filed 67 days late. The respondents have
mounted a vigorous opposition to the granting of condonation.
[9] A final issue for determination in this appeal concerns the costs order
made by the court a quo, which ordered that the appellants pay the
respondents’ costs of suit.
[10] It is apposite to deal upfront with the condonation sought.
Condonation
[11] The appellant , which has be en represented from the inception of these
proceedings by the State Attorney in Cape Town, seeks condonation for
the late filing of its notice of appeal to this Court.
[12] Uniform Rule 27(3) gives this Court a wide discretion to, on good cause
shown, condone any non -compliance with the Rules . In order not to
hamper or abridge the exercise of this discretion, the courts have
consistently refrained from attempting an exhaustive definition of what
constitutes good or sufficient cause for the exercise of this discretion.
[13] In Grootboom v National Prosecuting Authority 1 the Constitutional
Court2 held that the standard for considering an application for
condonation is the ‘interests of justice’. In this regard the following was
stated:3
However, the concept “interests of justice” is so elastic that it is not capable of
precise definition. As the two cases demonstrate,4 it includes: the nature of the
relief sought; the extent and cause of the delay; the effect of the delay on the
administration of justice and other litigants; the reasonableness of the
explanation for the delay; the importance of the issue to be raised in the
intended appeal; and the prospects of success. It is crucial to reiterate that
both Brummer and Van Wyk emphasise that the ultimate determination of what
is in the interests of justice must reflect due regard to all the relevant factors
but it is not necessarily limited to those mentioned above. The particular
circumstances of each case will determine which of these factors are relevant.
[14] The cause of the delay in the late filing of the notice of appeal is
explained in the affidavit of the Assistant State Attorney tasked to deal
with the file, namely Mr David Mashigo. He explains that the lateness of
the filing is attributable to the following events:
1 2014 (2) SA 68 (CC)
2 With reference to Brummer v Gorfil Brothers Investments (Pty) Ltd 2000 (2) SA 837 (CC); and Van Wyk v
Unitas Hospital (Open Democratic Advice Centre as Amicus Curiae) 2008 (2) SA 472 (CC)
3 At paragraph 22
4 Brummer supra; and Van Wyk supra
[a] The matter was previously handled in the office of the State
Attorney by attorney Mr Trevor Shabane who resigned from the
office of the State Attorney on 30 November 2024. It was Mr
Shabane, assisted by his secretary Ms Olwetu Matu , that had filed
the special leave to the SCA after the appellant’s application for
leave to appeal was dismissed by the court below.
[b] After the departure of Mr Shabane the file was allocated to
Ms Tanya Lombard who also resigned f rom the State Attorney in
May 2025. Before her departure, Ms Lombard was on sick leave
for extended periods causing her to be remiss in following up with
the correspondent attorneys in Bloemfontein as to the progress of
the appellant’s appeal.
[c] After Mr Mashigo joined the office of the State Attorney in
April 2025, he had to familiarise himself with the new environment
whilst at the same time perusing the old files that had be en left
behind by Mr Shabane and other s; and at the same time Mr
Mashigo was being allocated new files. This exercise took him
about two months as he had to peruse more than 400 files and also
deal with the new instructions.
[d] Before her departure Ms Lombard had instructed her
secretary, on 23 April 2025, to enquire about the status of the
appeal filed with the SCA. There was no response from Ms Cronje
of the correspondent attorneys in Bloemfontein.
[e] The file was transferred to Mr Mashigo on 26 May 2025.
On 27 May 2025, he caused a follow up email to be sent to Ms
Cronje regarding the status of the appeal, to which no response was
received from Ms Cronje.
[f] On 4 July 2025 Mr Mashigo requested his secretary Ms
Kayla Worship to directly call Ms Cronje as a follow up to the
previous emails sent. It was only on that day , through the
information that he received f rom Ms Worship , that Mr Mashigo
learned that an email containing the SCA Order granting leave to
appeal to this Court had been sent, on 24 March 2025 , to both Mr
Shabane and his former secretary Ms Matu.
[g] Ms Worship approached Ms Matu who then forwarded to
her on the same day a trail of emails received from Ms Cronje.
The email trail showed that the Registrar of the SCA had emailed a
copy of the SCA Order to Ms Cronje on 28 February 2025; and on
24 March 2025 Ms Cronje had emailed the Order to Mr Shabane
and his secretary Ms Matu.
[h] On the same day – 4 July 2025 - Mr Mashigo addressed
correspondence to the appellant requesting instructions to proceed
with the appeal and to brief counsel in the matter.
[i] Upon receiving instructions from the appellant, Mr Mashigo
instructed counsel to prepare the necessary papers for this appeal,
which papers were completed on 8 July 2025.
[15] Rule 49(2) of the Uniform Rules provides that if leave to appeal to the
full court is granted the notice of appeal shall be delivered to all the
parties within 20 days after the date upon which leave was granted , or
within such longer period as may upon good cause shown be permitted.
The SCA Order h aving been received by the correspondent attorneys on
28 February 2025, the notice of appeal to this Court ought to have been
delivered on 31 March 2025 . For the reasons explained by Mr Mashigo,
it was filed on 9 July 2025 – 67 court days late.
[16] The respondents’ opposition to the condonation application is based on
three grounds: (a) the degree of delay is said to be severe; (b) the
appellant’s explanation does not cover the full period of the delay; and (c)
there are poor prospects of success in the appeal.
[17] Whilst the extent of the delay is indeed substantial, much of it from 28
February 2025 until the allocation of the file to Mr Mashigo on 26 May
2025 is not attributable to him, but to his erstwhile colleagues who were
then dealing with the matter. It was the attempts made by Mr Mashigo
after the allocation of the file to him that ultimately led to the discovery
that, unbeknownst to him, the SCA order had in fact be en received over
four months earlier in February 2025.
[18] The period of six weeks that lapsed from the allocation of the file to Mr
Mashigo to the filing of the notice of appeal is indeed far from ideal.
However, it seems to me to be more indicative of the systemic
inefficiencies in the office of the State Attorney than wilful default on the
part of Mr Mashigo in prosecuting the appeal.
[19] In Ferris v FirstRand Bank Ltd 5 the Constitutional Court held that
lateness is not the only consideration in determining whether an
application for condonation may be granted. It held that the test for
condonation is whether it is in the interests of justice to grant it and, in
this regard, that an applicant’s prospects of success and the importance of
the issue to be determined are relevant factors.
5 2014 (3) SA 39 (CC) at paragraph 10
[20] As will become apparent from this Court’s judgment on the merits of this
appeal, the respondents ’ objection to the condonation application based
on the poor prospects of the appeal is well -founded. In my view,
however, the appeal raises issues of public importance. The public
importance of the matter derive s from the fact that the appellant is a
public institution seized with the performance of constitutional functions
of some significance, and the subject matter of the appeal is a matter of
public important. Whilst the appellant’s explanation may fall short of
what is required in a condonation application, the flaws in the explanation
together with the poor prospects in the appeal are outweighed by the
public importance of the case. I would therefore grant the condonation
application, in the interests of justice.
[21] Given the extent of the delay and the appellant’s prospects in the appeal,
the respondents’ opposition to the application for condonation was
reasonable and indeed warranted, and for these reasons it is only fair and
just that they not be required to bear the costs of opposing an application
that was , after all, necessitated by the appellant’s own lax conduct in
prosecuting its own appeal.
Relevant factual background
[22] In or about March 2022 the appellant advertised two positions of research
specialist, for which the first and second respondents applied. At the time
the respondents were senior officials in the employ of the WC Provincial
Government in its Provincial Treasury.
[23] Whilst they were awaiting the outcome of their applications, and
unbeknownst to the respondents, on 11 May 2022 the appellant amended
its system of internal delegations of authority including the locus of
authority to make appointments to posts above salary Level 12. The
amended system of internal delegations vested the authority to make
appointments to posts pitched at Level 12 and above in the Chairperson
of the appellant, Dr Patience Nombeko Mbava.
[24] On 5 April 2022 , the appellant’s selection panel shortlisted ten
candidates, who included the respondents , for interviews. Af ter the
elimination of two candidates from this group, the remaining eight
candidates were interviewed , a fter which the appellant’s Human
Resources Officer made a written recommendation to Mr Cheng Tseng,
the Acting Chief Executive Officer at the time, that the first respondent
and a Mr Thando Ngozo be appointed on permanent contracts into the
positions of research specialists, at salary Level 13. Mr Tseng had
previously been employed at the WC Provincial Treasury.
[25] Mr Tseng accepted and signed the recommendation, and on 13 June 2022
he signed the first respondent’s employment contract, warranting by his
signature that he was duly authorised thereto. The first respondent
commenced working as a research specialist at the appellant on 1 July
2022.
[26] During November 2022 , the appellant advertised a further position of
research specialist and the second respondent applied again. After being
interviewed by a selection committee the Human Re sources Officer
addressed a written recommendation to Mr Tseng that the second
respondent be appointed to the position . Upon accepting the
recommendation, Mr Tseng signed the second respondent’s employment
contract and she commenced working for the appellant in the position of
research specialist on 1 March 2023.
[27] On 17 March 2023, the appellant became aware of an anonymous letter
dated 3 March 2023 sent by ‘ Concerned Staff Members ’ of the appellant
to the President of the Republic . One of the allegations in this letter was
that Mr Tseng was guilty of favouritism in appointing to the appellant
two of his ‘friends from the Western Cape Provincial Treasury.’
[28] On 20 June 2023 the respondents were called to separate meetings with
the Chairperso n and were informed of the irregularity regarding their
appointments, and were asked to make a submission as to how the
appellant could remedy the irregularity.
[29] They decided not to resign from their positions. They were of the view
that it would be un just and inequitable for them to have to give up their
positions with the appellant on account of what was essentially a formal
irregularity that had nothing to do with them , caused by a bona fide
mistake by Mr Tseng and the appellant’s Human Resources Department.
[30] There was no dispute on the papers that the remainder of the process
which culminated in the appointment of the respondents was regular; that
they were adjudged by the appellant to be the best applicants for the
vacant positions and that they were more than suitably qualified for
appointment. Furthermore, it is accepted by the parties that Mr Tseng
made a genuine error regarding his authority (which he lacked) , and no
ulterior motive or bias was imputed to him in the appointments , or
anyone else who was involved in the recruitment process.
[31] The appellant approached the court a quo in August 2023 , seeking the
review and setting aside of the then Acting CEO’s decision to appoint the
respondents, on the sole ground that he had no authority to do so because
that authority resorted with the Chairperson. The notice of motion
furthermore invited the court a quo to grant any equitable remedy in
terms of section 172(1)(b) of the Constitution.
[32] In their answering affidavit in the court a quo, the respondents
highlighted ten factors relevant to the court a quo’s exercise of its
discretion in terms of section 172(1)(b). These included the following:
[a] The fact that their appointments followed recruitment and selection
processes that were competitive , fair, transparent and in accordance with
the appellant’s relevant policies. The appellant did not dispute this in
reply.
[b] The irregularity with their appointments was essentially a formal
one due to a bona fide mistake by Mr Tsen g and the appellant’s Human
Resources Department at the very end of the process, as to who should
make the appointment decision. Strikingly in relation to this aspect, there
was no affidavit by the delegated decision -maker, namely the appellant’s
Chairperson Dr Mbava, to the effect that had the Human Resources
Department’s recommendations be en submitted to her for decision, she
would not have appointed the respondents to the vacant posts. Surely if
this were the case, the appellant would doubtless have said so in its
papers before the court a quo. Nor is there any other indication in the
papers that Dr Mbava would not have approved the appointments. The
appellant did not address this at all in reply; the issue having be en
pointedly raised by the respondent s. In the circumstances therefore, the
assumption that, had the recommendations been submitted to Dr Mbava
she, too, would have appointed the respondents to their positions is not an
unreasonable one to arrive at.
[c] The respondents were not to blame for the procedural irregularities
in the process – to the contrary, they reasonably relied on the appellant’s
representation that Mr Tseng, as the acting CEO, had the requisite
authority to approve their appointments. The appellant did not take issue
with this in reply.
[d] Both respondents were well -established in their posts in the
appellant. Setting aside their appointments could impair the functioning
of the important aspects of the appellant, for which they were responsible,
namely, research and the preparation of the appellant’s recommendations
in terms of section 214(2) of the Constitution regarding the divisions (or
shares) of the public revenue collected nationally with local government
and the provinces. The appellant did not dispute this in reply.
[e] Should their appointments be set aside, the respondents would
suffer very significant prejudice because their current and future income,
employment and retirement benefits would be severely adversely
impacted. The appellant disputed that the respondents’ chances of re -
employment or their pension benefits would be negatively impacted if
their appointments were set aside.
[33] The court a quo accepted the respondent’s submissions which, as I have
stated (save for [e]), were not seriously disputed by the appellant. As to
the submission in [e] above, i.e., the prejudice to t he respondents if their
appointments were set aside , the court a quo was not convinced by the
appellant’s rejection of the submission, holding that the respondents stand
to suffer very significant prejudice because their current and future
income, employment and retirement benefits will be severely adversely
impacted in the event of their appointments being set aside.
[34] The court a quo’s further consideration and weighing up of the factors
raised by the parties , in the exercise of its discretion in terms of section
172(1)(b), is evident from the following passage of the judgment of Salie
J:
7. Setting aside is a discretionary remedy if the court considers same to be just
and equitable in the circumstances of the case. I have therefore considered an
appropriate balance of the interests of all those who might be affected by the
order including to what extent the requirement of deterrence and good
governance would be achieved. I had during argument requested both counsel
to address me on these issues specifically and indeed the opportunity was
utilized to argue same in respect of the parties’ respective interests.
8. I mention a few factors which have made an indelible impression on me
which are distinct features in this matter and which I believe weigh heavily in
the course of determining if setting aside would be appropriate or not in my
discretion.
[35] Salie J then proceeded to consider and weigh the factors placed before
her, which encompassed the prejudice to both the respondents and the
appellant that could eventuate from a setting aside order . She concluded
that she was sati sfied that the judicial discretion conferred by section
172(1)(b) of the Constitution warranted her to decline setting aside the
respondents’ appointments notwithstanding the irregularity committed in
their appointments.
[36] The nub of what is in dispute in this appeal is whether or not it can be
said, from the court a quo’s decision, that it misconceived the nature of its
powers and did not do what was just and equitable in exercising its
discretion.
[37] Before addressing the nub, I should mention that the second respondent is
no longer employed by the appellant. She returned to the WC Provincial
Treasury, where she has been employed since January 2025. The
respondents contend that now that the second respondent is no longer
working at the appellant the substantive relief sought by the appellant in
this appeal is moot as it will have no practical effect in relation to her.
Whilst it is correct that the relief sought in this appeal will have no
Whilst it is correct that the relief sought in this appeal will have no
practical result in relation to the second respondent, this does not render
the appeal moot , justifying its di smissal. The first respondent remains
employed at the appellant and an order setting aside her employment is
sought in this appeal. In the circumstances, the appeal and the issues it
raises remain very much a live. This court’s judgment will have a
practical effect on the first respondent; a s well as t he appellant for that
matter.
The applicable legal principles
[38] The starting point for a discussion of the exercise of the discretion in
section 172(1)(b) of the Constitution is section 172(1) itself, which
stipulates the following, in relevant part:
(1) When deciding a constitutional matter within its power, a court –
(a) must declare that any law or conduct that is inconsistent with the Constitution
is invalid to the extent of its inconsistency; and
(b) may make any order that is just and equitable, including-
(i) an order limiting the retrospective effect of the declaration of
invalidity; and
(ii) an order suspending the declaration of invalidity for any period and on
any conditions, to allow the competent authority to correct the defect.
[39] The compulsory nature of section 172(1)(a) and the discretionary nature
of section 172(1)(b) are vi vidly illustrated by the Constitutional Court’s
dealing with the issue of the remedy in State Information Technilogy
Agency SOC Ltd v Gijima Holdings (Pty) Ltd 6 (Gijima), indeed in the
very part of the judgment in which the Constitutional Court a rticulated
what is now known as the Gijima principle ,7 as well as from the order s
that the CC consequently mad e declaring SITA’s decision to appoint
Gijima as a service provider constitutionally invalid ;8 whilst refusing to
6 2018 (2) SA 23 (CC)
7 Paragraphs 52 to 54
8 Order at paragraph 3(a)
divest Gijima of any contractual rights that accrued to it consequent to the
invalid award.9
[40] Gijima forms part of a long line of judgments establishing and applying
the principles of our modern constitutional law that, first, setting aside is
a discretionary remedy, additional to a declaration of invalidity which is a
mandatory remedy; and, second, when exercising the discretion conferred
by section 172(1)((b) of the Constitution, courts must consider and
appropriately balance the interests of all those who might be affected by
the order.10
[41] In dealing with section 172(1)(b), the Constitutional Court in Corruption
Watch NPC v President of the Republic of South Africa; Nxasana v
Corruption Watch NPC 11 held 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 . This Court has laid down certain principles in
charting the path on the exercise of discretion to determine a just and
equitable remedy.’12
[42] Like the discretion to make an award as to costs, the discretion conferred
on the court a quo by section 172(1)(b) of the Constitution is a wide and
true discretion as was held by the C onstitutional Court in Trencon,13
dealing with the comparable wide decision -making powers available to
courts under section 8(1) of the Promotion of Administrative Justice Act
3 of 2000.
9 Order at paragraph 3(b)
10 The relevant judgments to which I allude are many. They include, but are not limited, Khumalo v Member of
the Executive Council for Education: KwaZulu Natala 2014 (5) SA 570 (CC) para 53; Buffalo City
Metropolitan Municipality v Asla Construction (Pty) Ltd 2019 (4) SA 331 (CC) paras 104-105 and para 3 of the
CC’s order; Economic Freedom Fighters and Others v Speaker of the National Assembly and Another 2018 (2)
SA 571 (CC) paras 209 - 211
11 2018 (10) BCLR 1179 (CC))
12 Paragraph 68
SA 571 (CC) paras 209 - 211
11 2018 (10) BCLR 1179 (CC))
12 Paragraph 68
13 Trencon Construction (Pty) Ltd v Industrial Development Corporation of South Africa Ltd and Another 2015
(5) SA 245 (CC), in paragraphs 82 to 92
[43] Relatively recently the CC summarised the state of our law as follows in
Ekapa Minerals (Pty) Ltd and Another v Sol Plaatje Local
Municipality and Others14:
[55] In review proceedings under the principle of legality and in
considering the application of section 172(1)(b) of the Constitution, it is
settled law that a court has broad and a flexible discretion to craft an order that
prioritises substance over form, thereby allowing the court to pinpoint the
genuine underlying conflict between the parties and mandate actions that
resolve the dispute in accordance with constitutional principles, due regard
being had to the specific circumstances of the case . The court must balance
the interests of all parties, avoiding a narrow focus on the interests of one side
alone.
…
[60] …this Court has remarked that: “ improper performance of an
administrative function would implicate the Constitution and entitle the
aggrieved party to appropriate relief” (own emphasis). It has also
distinguished between a declaration of invalidity and a setting aside order as
was the case in Khumalo, where this Court held that “[w]hile a court must
declare conduct that it finds to be unconstitutional invalid, it need not set the
conduct aside”. A declaration of invalidity would then engage a court’s
remedial powers to grant a “just and equitable” order under section 172(1)(b)
of the Constitution.
[61] Thus, when a court declares a decision of the state invalid and
unlawful, the default position is that the impugned decision is void ab initio
(from the start), for example, the declaration of invalidly has retrospective
effect – “an administrative decision declared to have been invalid is to be
retrospectively regarded as if it had never been made.” However, the court has
wide powers to exercise a discretion to ameliorate the consequences of such an
order. It follows that a court that is asked to set aside an invalid administrative
order. It follows that a court that is asked to set aside an invalid administrative
act in proceedings for judicial review has a discretion whether to grant or to
withhold the remedy: for example, notwithstanding the invalidity, the
14 2025 (6) SA (6) SA 1 (CC)
impugned decision might not be set aside, and hence the declaration of
invalidly would have no retrospective effect.
[44] This exposition is relevant to the issues raised in this appeal.
[45] The true discretion that was enjoyed by the court a quo in determining a
just and equitable remedy in terms of section 172(1)(b) of the
Constitution was not disputed during argument. This accords with
Ekapa:
[57] The Supreme Court of Appeal confirmed in Central Energy Fund ,15
that the discretion exercised in terms of section 172(1)(b) of the Constitution is
a true discretion, to be exercised on a case -by-case basis. Therefore, it may
only be interfered with on appeal, if the court of appeal is satisfied that the
discretion was not exercised judicially, or was influenced by wrong principles
or based on a misdirection of fact. It follows that the enquiry here should be
whether the High Court misdirected itself on the facts and the law.
[46] As this passage makes clear, when a lower court exercises a discretion in
the true sense , as is the case in this matter, an appellate court may not
interfere unless it is satisfied that:
[a] the lower court was influenced by wrong principles or a
misdirection on the facts; or
[b] the discretion was not exercised judicially; or
[c] the lower court reached a decision that could n ot reasonably have
been made by a court properly directing itself to all the relevant facts and
principles.
15 Central Energy Fund SOC Ltd v Venus Rays Trade (Pty) Ltd [2022] ZASCA 54; 2022 (5) SA 56 (SCA) at
para 43.
[47] These are the issues that arise for determination in this appeal.
The appellant’s grounds of appeal
[48] The appellant’s grounds of appeal are difficult to decipher from its notice
of appeal and the heads of argument. However, when regard is had to
the contents of the founding affidavit that was made on its behalf in
support in of its successful petition to the SCA, together with its heads of
argument the appeal grounds gleaned therefrom can be grouped under the
headings: vindication of the Constitution and deterrence.
Vindication of the Constitution and deterrence
[49] Under this ground the appellant asserts, correctly in my view, that an
appropriate and effective remedy is one that upholds, enhances and
vindicates the values underlying , and the rights entrenched in , the
Constitution.
[50] Where I part ways with the appellant is when it makes the following
contentions:
[a] The court a quo’s refusal to set aside the respondents’
appointments was contrary to the rule of law and cannot by any means be
regarded as a vindication of the rule of law.
[b] The court a quo’s refusal to set aside the appointments is against
the legal principle that court orders must be effective , and courts should
guard against issuing academic orders or orders which have no material
effect to the parties.
[51] These submissions are legally unsustainable.
[52] Mr Tseng’s decisions to appoint the respondents to their positions in the
appellant were reviewed by the court a quo and it issue d declarations, as
it was obliged to do by section 179(1)(a) of the Constitution, that the
decisions were inconsistent with the principle of legality in the
Constitution and invalid. This declaration of invalidity was the first
vindication of the rule of law by the court a quo.
[53] In fact, the appellant itself had instituted the self -review proceedings in
order to vindicate the principle of legality in the Constitution , more
specifically to uphold and protect the rule of law by seeking redress for
the A cting CEO’s unlawful exercise of the power to appoint the
respondents to Level 13 posts.
[54] The appellant’s having had to go to the trouble and incur the expense of
bringing the application was a sufficient deterrent against the appellant
repeating the irregularity in the future and a sufficient guarantee of the
appellant improving this aspect of its human resources management
going forward.
[55] The court a quo’s setting aside of the respondents’ appointment would, in
essence, have the effect of punishing them with a sever e sanction akin to
dismissal for a formal mistake committed by the ap pellant’s most senior
executive when making their appointments, through no fault of their own .
The following rhetorical question must be asked when assessing the
effectiveness of the setting aside contended as a deterrent in the
circumstances of this case : How would what amounts to punishing
innocent employees who had no idea of an indoor -management
irregularity committed by their employer, deter future violations by their
employer? The question needs only be asked in order for the injustice
and inequity attendant upon setting aside respondents’ appointments for
the appellant’s error, in the circumstances of this case.
[56] I turn now to the appellant’s contention that the court a quo’s failure to
set aside the respondents’ appointments renders its order of invalidity
academic and of no effect. This contention cannot be sustained for the
reasons I set out below.
[57] The court a quo’s substantive orders are not academic . They h ave
significant and material effects on the appellant and the first respondent,
as well as the second respondent until she resigned from the appellant
with effect from January 2025.
[58] Mr Tseng’s decisions to appoint the respondents to their positions in the
appellant were reviewed by the court below and it issued declarations in
terms of section 172(1)(a) of the Constitution, as it was obliged to do, that
the decisions were inconsistent with the principle of legality in the
Constitution and invalid.
[59] For the reasons set out in its Judgment and despite the declarations of
invalidity, the court a quo, acting in terms of section 172(1)(b) of the
Constitution exercised its discretion against setting aside the respondents’
appointments into their posts.
[60] For as long as these orders are not set aside by this Court of a higher court
of appeal, they entail, firstly , binding public declarations that Mr Tseng’s
decisions to appoint the respondents are unconstit utional and unlawful
and secondly, a bi nding public determination that their appointments
nevertheless be set aside.
[61] When the court a quo’s judgment is read as a whole, it is clear that it
decided not to set aside the respondents’ appointments despite their
unlawfulness and unconstitutionality, because in the court a quo’s
opinion, that is what justice and equity require in the circumstances of
their case. The court a quo stated in paragraph 9.6 of its judgment that
‘[p]unishing the respondents b y rendering them jobless in these
circumstances can never be deemed to be just and equitable .’ This is
similar to the principle that the Labour C ourt applied in MEC for
Health, Eastern Cape v Mafoko,16 where the view was expressed that
where an employee has been appointed in good faith and is not
responsible for any irregula rity in the appointment process, it would be
inequitable and unfair to set aside the appointment with retrospective
effect as if he or she had never bene employed ; and that the employer’s
remedy, if any, lies in following a fair procedure to terminate the
employment relationship, not in declaring the contract void ab initio.17
[62] The upshot was that the respond ents, who are in a sense the innocent
victims of the appellant’s error in this matter, remained employed by the
appellant (in the second respondent’s case until January 2025), an
outcome which certainly had a significant material effect on their lives
and livelihoods. The court a quo’s orders of invalidity and refusal to set
the appointments aside can therefore hardly be said to have no material
effect on the parties.
[63] The manner in which the court a quo exercised its discretion is in
harmony with two cases in which the courts exercised their section
172(1)(b) discretion by declining to set aside appointments in the public
sector which where irregular because of missteps by the appointing
authorities similar to that made by the appellant in this matter.
16 ZALCJ 44; (2014) 35 ILJ 2012 (LC)
17 Paragraph 25
[a] In Ramapepe,18 the court held that, though unlawful , it does ‘ not
automatically follow that the decisions are to be set aside .’ The factors
that the court considered in reaching its decision were a three -year delay
in brining the application; the respondent was close to retirement age; he
was not to blame for the irregularity in his appointment; he was suitably
qualified; he was performing well in his position ; and the potential
prejudice if the appointment was set aside.
[b] In Van Reenen,19 the court declin ed to set aside the appointments
because there was no ulterior motive or purpose on the affected
employees’ part or on the part of anyone else involved in the recruitment
process; the reasons for the invalidity of the decision to appoint the
respondents were not ascribable to them; the respondents were well -
established in their posts; and the respondents were senior public servants
and setting aside their appoints could impact on their remuneration and
other employment benefits.
[64] In my view, the decision of the court a quo refusing to set aside the
respondents’ appointments notwithstanding the invalidity of the decisions
appointing them, was not influenced by any wrong principles . The
discretion was exercise d judicially after the court had properly directed
itself to all the relevant facts and legal principles. There are no reasons
justifying this Court’s interference with the decision of the court a quo.
Costs
18 MEC for Gauteng Department of Infrastructure Development v Ramapepe (J1943/2019) [2022] ZALCJHB 98
(12 May 2022); paragraphs 122 - 126
19 Minister of Social Development, Western Cape Provincial Government and Another v Van Reenen and
Another (C634/2022) [2023] ZALCCT 53 (22 August 2023), at paragraph 67
[65] In the appellant’s notice of appeal, it seeks the following orders in
relation to costs:
[a] ‘that the appeal be upheld with costs’; and
[b] the court a quo’s order is substituted with an order that ‘ the first
and second respondents are to pay the costs of this application on scale
B.’
[66] The appellant is appealing against the court a quo’s costs order for the
following reasons as set out in its founding affidavit in support of its
petition to the SCA:
‘In paragraph (iv) of the Order, the Court awarded cost (sic) against the
applicant. The issue of cost (sic) is settled law that it is the discretion of the
Court to award cost (sic). However, such a discretion cannot be exercised
arbitrarily and there are limited grounds to interfere with a cost (sic) order.
These grounds may include that the lower court did not act judicially in
exercising its discretion or based its exercise of discretion on wrong principles
of law or a misdirection on material facts.’
[67] This paragraph fails to make out a case as to why this Court should
interfere with the court a quo’s exercise of its discretion that the appellant
pay the respondents’ costs of suit.
[68] The court a quo correctly pointed out in paragraph 11 of its judgment that
the only substantive issue for determination by it was whether or not to
set aside the respondents’ appointments; and on that issue the respondents
were substantially successful.
[69] It was and remains common cause that the appellant was responsible for
the irregularity in the respondents’ appointments. In line with the general
principles applicable to proceedings for judicial review, if the order is
granted (as happened here with the declarations of invalidity), the organ
of state concerned (here, the appellant) should bear the costs and any
private parties (which the respondents are in the context of this
application) should not be mulcted in costs.20
Conclusion
[70] In the circumstances, I propose the following order:
[a] The application for condonation is granted , with the appellant
to bear the respondents’ costs, including the costs of one junior
counsel, on Scale A;
[b] The appeal is dismissed with costs, including the costs of one
junior counsel, on scale A.
_____________________________
N T MAYOSI
JUDGE OF THE HIGH COURT
I agree.
_____________________________
D THULARE
JUDGE OF THE HIGH COURT
20 Biowatch Trust v Registrar, Genetic Resources, and Others 2009 (6) SA 232 (CC) paragraphs 21 – 28 and 56,
the principles in which apply to applications for judicial review of administrative action (Harrielal v University
of Kwa-Zulu Natal 2018 (1) BCLR 12 (CC).
I agree and it is so ordered.
_____________________________
C FORTUIN
JUDGE OF THE HIGH COURT
Appearances:
For applicant: Adv WR Mokhare SC
Instructed by: State Attorney, Cape Town
For respondents: Adv A M Breitenbach SC
Adv N Ristic
Instructed by: Bagraims Attorneys