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[2013] ZACC 49
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Khumalo and Another v Member of the Executive Council for Education: KwaZulu Natal (CCT 10/13) [2013] ZACC 49; 2014 (3) BCLR 333 (CC); (2014) 35 ILJ 613 (CC); 2014 (5) SA 579 (CC) (18 December 2013)
Links to summary
CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case
CCT 10/13
[2013]
ZACC 49
DATE:
18 DECEMBER 2013
In
the matter between:
NKOSINATHI
LAWRENCE
KHUMALO.
...........................................................................
First
Applicant
KRISH
RITCHIE
..............................................................................................................
Second
Applicant
And
MEMBER
OF THE EXECUTIVE COUNCIL
FOR
EDUCATION:KWAZULU-NATAL
..............................................................................
Respondent
Heard
on : 8 August 2013
Decided
on : 18 December 2013
JUDGMENT
SKWEYIYA
J (Moseneke DCJ, Cameron J, Froneman J, Madlanga J, Mhlantla AJ,
Nkabinde J and Van der Westhuizen J concurring):
Introduction
[1]
This application concerns a challenge by the Member of the Executive
Council for Education, KwaZulu-Natal (MEC), the respondent
in this
Court, to the lawfulness of her own department’s employment
decisions. The matter raises the enforcement of the
rule of law in
the context of a significant delay by the MEC in bringing her
challenge to court.
Background
[2]
The first applicant, Mr Nkosinathi Lawrence Khumalo, and the second
applicant, Mr Krish Ritchie, are employees of the Department
of
Education, KwaZulu-Natal (Department). In March 2004, an
advertisement for the post of Chief Personnel Officer (Human
Resources:
Provisioning) was published in the Sunday Tribune
newspaper. The advertisement specified the following as
requirements:
“
Senior
Certificate / Grade 12 plus extensive relevant experience, coupled
with 2 or more years of supervisory experience at level
6 or 7 within
human resources.”
[3]
Mr Khumalo, who was employed at salary level five at the time,
applied for the post and was shortlisted. Mr Ritchie, who was
at
salary level seven, similarly applied for the post but he was not
shortlisted. Mr Khumalo was subsequently interviewed and
promoted to
the post, with effect from April 2004. Upon Mr Khumalo’s
promotion, Mr Ritchie lodged a grievance with the Department
complaining that he had not been shortlisted for the post. When the
grievance could not be resolved, he referred the dispute to
the
General Public Service Sectoral Bargaining Council (Bargaining
Council)
1
where it was set down for arbitration.
[4]
The day before the arbitration, Mr Zulu, from the Directorate for
Employee Relations at the Department’s Head Office,
was given a
mandate by the acting Chief Director to settle the dispute. This was
in the light of Mr Zulu’s inability to
get answers from Human
Resources on the promotion or to trace any relevant documentation.
On 11 July 2005, the Department and
Mr Ritchie concluded a settlement
agreement in terms of which Mr Ritchie was granted a “protected
promotion”.
2
The agreement stated:
“
We
the parties hereby agree as follows:
Protected
Promotion for Mr K Ritchie to post of Chief Personnel Officer level 8
effective 11 July 2005 and starting scale being
the second notch of
level 8. This is in full and final settlement of the dispute.”
The
settlement agreement was made into an award of the Bargaining
Council.
[5]
Some months later, on 6 October 2005, the National Union of Public
Servants and Allied Workers (NUPSAW), on behalf of 11 other
employees
who had applied for the same post, addressed a letter to the
Superintendent-General complaining about irregularities
in the
advertising and appointment process in the Department. Mr Khumalo’s
promotion was cited as an example. The complainants
demanded an
investigation into Mr Khumalo’s promotion and Mr Ritchie’s
protected promotion and, depending on the outcome,
that they too be
granted protected promotions.
[6]
The MEC, following a meeting held with NUPSAW, set up a task team
comprising four Department officials and three NUPSAW members
(Task
Team) to investigate the complaint. The Task Team conducted
interviews and sought to collect documentary evidence. The
record
reflects that the interview process commenced in October 2006, a year
after the complaint letter was submitted. The Task
Team eventually
submitted a Report on the Investigations into NUPSAW Grievances
(Report) to the MEC in January 2007.
[7]
The Report noted that the documentation relating to the appointment
process could not be traced and that those involved in the
selection
process presented with an “almost total collapse” of
memory. It stated that there was “no uniformity
on the
advertised requirements of positions in the eThekwini Region as well
as the Department as a whole.”
[8]
The Task Team found that Mr Khumalo did not meet the minimum
requirements relating to supervisory experience stated in the
advertisement. It found that, in the absence of any information to
the contrary, he ought not to have been shortlisted and interviewed
and that the process was “unfair”. Three separate
irregularities in the appointment process were identified: the
expansion of the shortlist at the intervention of the Regional
General Manager; the refusal to shortlist a particular candidate
because he had not provided a matric certificate but only a statement
of his results; and the waiver of the right to be interviewed
by one
of the shortlisted candidates because the interview proceedings were
running late.
[9]
Regarding Mr Ritchie’s protected promotion, the Report noted
that Mr Zulu had been put in a difficult situation in the
arbitration
proceedings because of the absence of documentation or witnesses. It
nevertheless concluded that continuing with the
arbitration would
have been a better route. The settlement agreement was not “prudent”
in the circumstances.
[10]
In October 2008, some 20 months after the MEC received the Task Team
Report, she launched an application in the Labour Court
seeking to
challenge Mr Khumalo’s promotion and Mr Ritchie’s
protected promotion. No explanation has been given for
her delay in
launching the application.
Labour
Court
[11]
The MEC approached the Labour Court, seeking an order, inter alia:
“
1. Declaring
that the promotion of [Mr Khumalo] to the post . . . was not lawful,
reasonable or fair and is accordingly invalid.
2. Declaring
that the decision to agree to grant to [Mr Ritchie] protective
promotion . . . was not lawful, reasonable or fair and
was
accordingly invalid.
3. Setting
aside the promotion of [Mr Khumalo] . . . .
4. Setting
aside the grant to [Mr Ritchie] of protective promotion”.
[12]
In her founding affidavit in that Court, the MEC motivated her need
to approach the Court in terms of section 9 of the Public
Service
Act
3
(PSA), which empowers her to appoint and promote persons in the
Department. She noted that her oath of office
4
requires her to ensure the supremacy of the rule of law. She
contended that the demands for just administrative action in terms
of
section 33 of the Constitution and the Promotion of Administrative
Justice Act
5
(PAJA) required her to act on the purported irregularities and, in
so doing, to encourage a culture of accountability, openness
and
transparency in the exercise of public power. Following her view
that she was functus officio, the MEC argued that the Labour
Court
was an appropriate authority to assist her in protecting the
integrity of the Department.
[13]
Mr Khumalo and Mr Ritchie argued that the MEC had delayed
unreasonably in bringing her application. They denied that the MEC
was functus officio. For these reasons, they argued that she was not
entitled to approach a court for relief. On the merits,
they
contended that Mr Khumalo indeed met the requirements of the post.
Regarding Mr Ritchie, they argued that the settlement
agreement
rendered the dispute a matter already decided (res judicata). Mr
Khumalo and Mr Ritchie argued further that the impugned
decisions did
not amount to administrative action under PAJA and that the
promotions should be allowed to stand.
[14]
NUPSAW was cited as the third respondent in the Labour Court but took
no part in those proceedings, nor in subsequent proceedings.
[15]
The Labour Court
6
granted the MEC the relief she sought and declared the promotion of
Mr Khumalo and the protected promotion of Mr Ritchie unlawful,
unreasonable and unfair and set the promotions aside. However, it
ordered that no deductions were to be made from their salaries
in
respect of payments made at a higher salary scale. The MEC was
instructed to re-advertise the post and to investigate which
Department officials had committed misconduct in the process.
Labour
Appeal Court
[16]
Mr Khumalo and Mr Ritchie appealed the decision to the Labour Appeal
Court. The Court held that Mr Khumalo did not meet the
requirements
stated in the “clear and unambiguous” language of the
advertisement.
7
It found that the grant of a protected promotion to Mr Ritchie
amounted to relief that he had never sought because his complaint
related to the fact that he was not shortlisted. The decision was
thus unlawful.
[17]
The Labour Appeal Court held further that while the MEC was
duty-bound to approach a court to set aside her Department’s
unlawful administrative acts, the Labour Court had erred in holding
that, once a finding of unlawfulness was made, it had no choice
but
to set aside the unlawful decisions. It held further that the Labour
Court had erred in not properly evaluating the legal
effect of the
MEC’s delay when it considered setting aside the promotions.
[18]
The Labour Appeal Court considered various factors in weighing the
potential prejudice in setting aside the promotions. It
found that
it was possible to minimise the potential prejudice to Mr Khumalo and
Mr Ritchie if the promotions were set aside.
For the other
candidates who had applied for the post, however, the prejudice
caused to them would likely be irreversible as long
as the promotions
were allowed to stand. The Labour Appeal Court found that the
integrity of the selection process had been compromised
and it set
aside the promotions. The appeal against the judgment of the Labour
Court was dismissed.
[19]
Mr Khumalo and Mr Ritchie petitioned the Supreme Court of Appeal for
special leave to appeal, which petition was dismissed.
Issues
[20]
In this Court, Mr Khumalo and Mr Ritchie seek leave to appeal against
the decision of the Labour Appeal Court. They ask for
the orders of
the Labour Appeal Court and the Labour Court to be set aside.
[21]
The issues for determination are:
(a)
Should leave to appeal be granted?
(b)
What is the legal nature of the MEC’s challenge to the impugned
decisions?
(c)
Is there a duty on a state functionary in the MEC’s position to
rectify unlawfulness committed under his or her authority?
(d)
Should the Court review Mr Khumalo’s promotion notwithstanding
the MEC’s delay in bringing the application? If
so, was Mr
Khumalo’s promotion lawful?
(e)
Should the Court review Mr Ritchie’s protected promotion
notwithstanding the MEC’s delay in bringing the application?
If so, was Mr Ritchie’s protected promotion lawful?
(f)
If the promotions are unlawful, what is the appropriate remedy?
Leave
to appeal
[22]
The matter raises an important constitutional issue relating to the
state’s obligation to comply with the requirements
of the rule
of law under section 1(c) of the Constitution
8
in the context of public-sector employment. Considering that the
state is the country’s largest employer, it is in the
interests
of justice that the matter be considered by this Court. In addition,
the applicants have prospects of success. Accordingly,
leave to
appeal should be granted.
The
nature of the challenge
[23]
While it appears from its reasoning that the Labour Court approached
the MEC’s application as a legality review, the
framing of the
legal challenge in the Labour Appeal Court is more difficult to
discern. Portions of the judgment appear to proceed
from the premise
that the decisions amount to “administrative action” but
there is no reasoning to illustrate the Court’s
apparent
conclusion on this point.
[24]
Before the Labour Court, counsel for the MEC submitted that the
application was made in terms of section 158(1)(h) of the Labour
Relations Act
9
(LRA) to review the administrative acts of the decision-making
officials. Section 158(1)(h) provides that the “Labour Court
may review any decision taken or any act performed by the state in
its capacity as employer, on such grounds as are permissible
in law”.
[25]
In supplementary written submissions following the hearing in this
Court, the MEC argued that the application brought before
the Labour
Court was not for a review but for declaratory orders that the Court
was empowered to grant in terms of section 158(1)(a)(iv)
of the LRA.
The section provides that the “Labour Court may make any
appropriate order, including a declaratory order”.
10
The MEC argued further that the provisions of section 11 of the PSA,
as they read at the time the impugned decisions were made,
were “of
direct relevance to the legality” of Mr Khumalo’s
promotion.
[26]
At the time of the applicants’ promotions, section 11 provided
as follows:
“
Appointments
and filling of posts
(1) In
the making of appointments and the filling of posts in the public
service due regard shall be had to equality and the other
democratic
values and principles enshrined in the Constitution.
(2) In
the making of any appointment or the filling of any post in the
public service—
(a) all
persons who qualify for the appointment, transfer or promotion
concerned shall be considered; and
(b) the
evaluation of persons shall be based on training, skills, competence,
knowledge and the need to redress the imbalances of
the past to
achieve a public service broadly representative of the South African
people, including representation according to
race, gender and
disability.
(3) Notwithstanding
the provisions of subsection (2), the relevant executing authority
may, subject to the prescribed conditions,
approve the appointment,
transfer or promotion of persons to promote the basic values and
principles referred to in section 195(1)
of the Constitution.”
[27]
The MEC submits that section 11(2)(a) of the PSA means that only
persons who qualify for a promotion may be considered, unless
section
11(3) applies.
11
She makes reference in her heads of argument to the right to just
administrative action under section 33 of the Constitution
and PAJA.
Admittedly, the grounds of the review are ambiguously framed.
Counsel for the MEC acknowledged in the hearing that
the relief
sought was deliberately framed in terms of the LRA in an effort to
avoid the time frames set by PAJA. Notwithstanding
the ambiguity, in
my view, these references to administrative action and PAJA are not
meant to found the legal basis of her challenge
but to motivate her
standing to correct the impugned decisions. In any event, any direct
reliance by her on section 33 of the
Constitution or PAJA, to
establish the grounds of review, would be misplaced in the light of
this Court’s jurisprudence and
the particular facts of this
matter.
[28]
To me, the true nature of the application is one for judicial review
under the principle of legality, sought in terms of section
158(1)(h).
12
The principle of legality is applicable to all exercises of public
power and not only to “administrative action” as
defined
in PAJA.
13
It requires that all exercises of public power are, at a minimum,
lawful
14
and rational.
15
Mr Khumalo’s promotion is argued to be unlawful because of an
alleged failure to comply with section 11 of the PSA. With
respect
to Mr Ritchie, the review appears to be framed more broadly on the
grounds that he did not qualify for a protected promotion
and that
the decision to enter into the settlement agreement was irrational.
The
duty of a state functionary to rectify unlawfulness
[29]
The rule of law is a founding value of our constitutional democracy.
29
It is the duty of the courts to insist that the state, in all its
dealings, operates within the confines of the law and, in so
doing,
remains accountable to those on whose behalf it exercises power. The
supremacy of the Constitution and the guarantees in
the Bill of
Rights add depth and content to the rule of law. When upholding the
rule of law, we are thus required not only to
have regard to the
strict terms of regulatory provisions but so too to the values
underlying the Bill of Rights.
[30]
Historically, public-sector employment and private employment were
regulated by distinct legal regimes in South Africa. Since
the
adoption of the LRA, public sector employment has largely been
synchronised with the legal regulation of employment in the
private
sector.
17
Section 23(1) of the Constitution further provides that “[e]veryone
has the right to fair labour practices.” There
is thus no
longer a general distinction in principle between the protections
afforded to private and public sector employees.
[31]
In Chirwa, this Court held:
“
The
LRA does not differentiate between the state and its organs as an
employer, and any other employer. Thus, it must be concluded
that
the state and other employers should be treated in similar fashion.”
18
Nevertheless,
as acknowledged by Ngcobo J in Chirwa (citing the rationale of the
drafters of the LRA):
“
The
political dimension of the state as employer, more particularly the
fact that its revenue is sourced from taxation and that
it is
accountable to the Legislature, gives rise to unique and distinctive
characteristics of state employment. For example, the
state can
invoke legislation to achieve its purposes as employer and its levels
of staffing, remuneration and other matters are
often the product of
political and not commercial considerations. This uniqueness does
not, however, justify a separate legal
framework.”
19
[32]
In this matter, the constitutional and legislative framework must
inform an approach which does not undermine the hard-won
protections
afforded to public sector employees whilst understanding the
uniqueness of public-sector employment. Of importance
is the demand
that decisions are made and executed lawfully, fairly and
expeditiously. We are confronted with the rather unusual
situation
of a state functionary seeking to establish the unlawfulness of its
own institution’s actions. The MEC’s
standing to bring
the challenge is established in a number of previous decisions of the
Supreme Court of Appeal.
20
It is nevertheless of relevance here to outline and particularise
this principle.
[33]
The Labour Court held that section 195 of the Constitution compelled
the MEC, in the public interest, to avoid and eliminate
illegalities
in public administration. It held that the principle in this Court’s
decision in Njongi
21
(that it is always open to a government official to admit, without
qualification, that an administrative decision was wrongly taken)
must apply to unlawful acts committed deliberately, negligently or
even in good faith.
22
The Labour Appeal Court agreed that the “MEC was not only
entitled but also duty-bound to approach a court to set aside
her
irregular administrative act”.
23
[34]
Section 195 of the Constitution provides in relevant part:
“
Basic
values and principles governing public administration
(1) Public
administration must be governed by the democratic values and
principles enshrined in the Constitution, including the
following
principles:
(a) A
high standard of professional ethics must be promoted and maintained.
(b) Efficient,
economic and effective use of resources must be promoted.
(c) Public
administration must be development-oriented.
(d) Services
must be provided impartially, fairly, equitably and without bias.
(e) People’s
needs must be responded to, and the public must be encouraged to
participate in policy-making.
(f) Public
administration must be accountable.
(g) Transparency
must be fostered by providing the public with timely, accessible and
accurate information.
(h) Good
human-resource management and career-development practices, to
maximise human potential, must be cultivated.
(i) Public
administration must be broadly representative of the South African
people, with employment and personnel management practices
based on
ability, objectivity, fairness, and the need to redress the
imbalances of the past to achieve broad representation.
.
. .
(4) The
appointment in public administration of a number of persons on policy
considerations is not precluded, but national legislation
must
regulate these appointments in the public service.”
[35]
Section 195 provides for a number of important values to guide
decision makers in the context of public-sector employment.
When, as
in this case, a responsible functionary is enlightened of a potential
irregularity, section 195 lays a compelling basis
for the founding of
a duty on the functionary to investigate and, if need be, to correct
any unlawfulness through the appropriate
avenues. This duty is
founded, inter alia, in the emphasis on accountability and
transparency in section 195(1)(f) and (g) and
the requirement of a
high standard of professional ethics in section 195(1)(a). Read in
the light of the founding value of the
rule of law in section 1(c) of
the Constitution, these provisions found not only standing in a
public functionary who seeks to
review through a court process a
decision of its own department, but indeed they found an obligation
to act to correct the unlawfulness,
within the boundaries of the law
and the interests of justice.
[36]
Public functionaries, as the arms of the state, are further vested
with the responsibility, in terms of section 7(2) of the
Constitution, to “respect, protect, promote and fulfil the
rights in the Bill of Rights.” As bearers of this duty,
and in
performing their functions in the public interest, public
functionaries must, where faced with an irregularity in the public
administration, in the context of employment or otherwise, seek to
redress it. This is the responsibility carried by those in
the
public sector as part of the privilege of serving the citizenry who
invest their trust and taxes in the public administration.
[37]
In the context of public-sector employment, this is fortified by
section 5(7)(a) of the PSA which provides:
“
A
functionary shall correct any action or omission purportedly made in
terms of this Act by that functionary, if the action or omission
was
based on error of fact or law or fraud and it is in the public
interest to correct the action or omission.”
Section
5(7)(a) undoubtedly includes the possibility of a functionary seeking
recourse in the courts.
[38]
The MEC’s actions in seeking to rectify the irregularities that
were brought to her attention must be viewed in this
light – as
a bold effort to fulfil her constitutional and statutory obligations
to ensure lawfulness, accountability and
transparency in her
Department. I now turn to the impugned decisions.
Mr
Khumalo
Delay
[39]
Despite trying to do the right thing, the MEC delayed reprehensibly
in bringing her application to the Labour Court. The MEC
appointed
the Task Team with relative haste after hearing of the complaints
from NUPSAW. However, after receiving the Task Team’s
Report,
it took the MEC about 20 months to bring the application, at which
point Mr Khumalo had occupied the post for over four
years. The MEC
has not sought in any way to explain her delay.
[40]
The applicants take issue with the delay. They argue that it is
unreasonable and ought to non-suit the MEC. The Labour Court
nevertheless exercised its discretion to overlook the delay. The
Labour Appeal Court did not interfere with the Labour Court’s
discretion and this Court can interfere with it only if it finds the
discretion was not judicially exercised.
[41]
In considering the delay, the Labour Court held:
“
This
application should have been brought years ago. The MEC was alerted
to the need for condonation. But she made no such application.
Even
if she did apply for condonation, she would not have advanced any
explanation for the delay, because she has none.
However,
it will be short-sighted for the Court to dismiss this application on
the procedural technicality that it lacks an application
for
condonation or that the cause of action has prescribed because that
will compound the injustice. Furthermore, the balance
of convenience
favours the adjudication of the substantive merits of the dispute in
the public interest and in the interests of
promoting ethical,
accountable and transparent public administration. The prejudice to
the Department and the public interest
far outweighs any prejudice to
the [Mr Khumalo and Mr Ritchie]. Any prejudice to [Mr Khumalo and Mr
Ritchie] as a result of the
delay will be accommodated in the
remedy.”
24
(Footnotes omitted.)
[42]
There is no prescribed time limit for launching a review under
section 158(1)(h) of the LRA. The Labour Court Rules further
prescribe no time limits for bringing review applications. Under
other provisions of the LRA, the time limits in which litigants
or
complainants are required to bring their disputes are strictly
circumscribed.
25
The importance of resolving labour disputes in good time is thus
central to the LRA framework. It is generally understood that
proceedings under section 158(1)(h) must be launched within a
reasonable time. In some instances, in the context of the LRA, the
courts have held a reasonable time to be about six weeks.
26
[43]
Previously, section 39 of the PSA stipulated a 12-month prescription
period in which a claimant could bring an action against
the state
for any act or omission made in terms of the Act.
27
The time limit was subsequently repealed by section 2(1) of the
Institution of Legal Proceedings Against Certain Organs of State
Act
28
(Repealing Act). At all relevant times, the PSA thus prescribed no
time limits for reviews of conduct in terms of the Act.
[44]
But what do we make of the Legislature’s decision to remove
these time limits? Does this mean that litigants are not
constrained
by any requirement to act timeously? In my view, the Legislature’s
decision to remove the 12-month prescription
period opens the actions
of public functionaries in terms of the PSA to ongoing scrutiny and
transparency. Bearing in mind the
purpose of the Repealing Act,
29
the repeal of section 39 allows that an applicant cannot
automatically be non-suited on the basis of a delay. Nevertheless,
it is a long-standing rule that a legality review must be initiated
without undue delay and that courts have the power (as part
of their
inherent
30
jurisdiction to regulate their own proceedings) to refuse a review
application in the face of an undue delay in initiating proceedings
31
or to overlook the delay. This discretion is not open-ended and
must be informed by the values of the Constitution. However,
because
there are no express, legislated time periods in which the MEC was
required to bring her application, there is no requirement
that a
formal application for condonation needs to have been brought.
[45]
In the previous section it was explained that the rule of law is a
founding value of the Constitution, and that state functionaries
are
enjoined to uphold and protect it, inter alia by seeking the redress
of their departments’ unlawful decisions. Because
of these
fundamental commitments, a court should be slow to allow procedural
obstacles to prevent it from looking into a challenge
to the
lawfulness of an exercise of public power. But that does not mean
that the Constitution has dispensed with the basic procedural
requirement that review proceedings are to be brought without undue
delay or with a court’s discretion to overlook a delay.
[46]
Section 237 of the Constitution provides:
“
All
constitutional obligations must be performed diligently and without
delay.”
Section
237 acknowledges the significance of timeous compliance with
constitutional prescripts.
32
It elevates expeditious and diligent compliance with constitutional
duties to an obligation in itself. The principle is thus
a
requirement of legality.
[47]
This requirement is based on sound judicial policy that includes an
understanding of the strong public interest in both certainty
and
finality
33
.
People may base their actions on the assumption of the lawfulness
of a particular decision and the undoing of the decision threatens
a
myriad of consequent actions.
[48]
In addition, it is important to understand that the passage of a
considerable length of time may weaken the ability of a court
to
assess an instance of unlawfulness on the facts. The clarity and
accuracy of decision-makers’ memories are bound to decline
with
time. Documents and evidence may be lost, or destroyed when no
longer required to be kept in archives. Thus the very purpose
of a
court undertaking the review is potentially undermined where, at the
cause of a lengthy delay, its ability to evaluate fully
an allegation
of illegality is impaired.
[49]
In Gqwetha
34
the majority of the Supreme Court of Appeal held that an assessment
of a plea of undue delay involves examining: (1) whether the
delay is
unreasonable or undue (a factual enquiry upon which a value judgment
is made in the light of “all the relevant circumstances”);
35
and if so (2) whether the court’s discretion should be
exercised to overlook the delay and nevertheless entertain the
application.
36
[50]
In terms of the first leg of the enquiry, any explanation offered for
the delay is considered.
37
We know in the present matter that the MEC has made no attempt to
explain why she was idle for so long. Considering the typically
short time frames for challenges to decisions in the context of
labour law, the MEC’s delay of about 20 months, if taken
from
the time of the receipt of the Task Team Report, is significant in
itself. Furthermore, in the absence of any explanation,
the delay is
unreasonable.
[51]
The fact that the MEC has elected not to account for the delay,
despite having had the opportunity to do so at multiple stages
in the
litigation, can only lead one to infer that she either had no reason
at all or that she was not able to be honest as to
her real reasons.
Had the matter been brought by a private litigant, this aspect of the
test might weigh less heavily. However,
given that the MEC is
responsible for the decision, that she is obliged to act
expeditiously in fulfilling her constitutional obligations,
38
and that she should have within her control the relevant resources to
establish the unlawfulness of the decision she impugns, the
unreasonableness of the unexplained delay is serious.
[52]
But should we nevertheless overlook the unreasonable delay? On this
leg of the test, the majority in Gqwetha held that the
delay cannot
be evaluated in a vacuum but must be assessed with reference to its
potential to prejudice the affected parties
39
and having regard to the possible consequences of setting aside the
impugned decision.
40
In the context of public-sector employment, the value of security
for employees
41
and in mitigating the arguably inherent inequality of the workplace
42
must be kept in mind.
[53]
Under the Constitution, however, the requirement to consider the
consequences of declaring the decision unlawful is mediated
by a
court’s remedial powers to grant a “just and equitable”
order in terms of section 172(1)(b) of the Constitution.
43
A court has greater powers under the Constitution to regulate any
possible unjust consequences by granting an appropriate order.
While
a court must declare conduct that it finds to be unconstitutional
invalid, it need not set the conduct aside. The delay
was indeed a
factor taken into account by the Labour Appeal Court when deciding
whether or not to set aside the applicants’
promotions once
they had been found unlawful.
[54]
In considering the consequences of a possible finding in this matter,
it was stressed by counsel for the MEC that her application
distinguished between the declaratory relief she sought (to declare
the decisions unlawful, unreasonable and unfair) and the
consequential
relief (to set aside the respective promotion and
protected promotion). It is significant in this context that if the
full relief
is granted in the MEC’s favour, Mr Khumalo will
lose his position. Mr Khumalo has gone on with his life, continued
in his
employment, presumably adapted his expenses accordingly, and
invested nine years of his career in this path. At no stage has the
MEC sought so much as to imply that Mr Khumalo performs inadequately
in his post.
[55]
Furthermore, the MEC states candidly that the facts do not disclose
any wrongdoing by Mr Khumalo. Even if Mr Khumalo’s
promotion
is found to have been unlawful, on the facts he bears no
responsibility for it but for having the boldness to apply for
a
position for which he possibly did not qualify. The burden on the
public administration and cost to the public purse to recommence
the
appointment process would be further prejudice to consider.
[56]
Considering the courts’ power to grant a just and equitable
remedy the impact of a finding of invalidity may be ameliorated
by
fashioning a remedy that is fair to Mr Khumalo. In considering the
factors above, particularly the lack of a complaint against
Mr
Khumalo’s performance, a just and equitable remedy would in all
likeliness result in him keeping his job, if his promotion
were found
to be unlawful. Therefore, on this leg of the test, the consequences
and potential prejudice do not in this case, and
ought not in
general, to favour the Court non-suiting an applicant in the face of
the delay. The application of this aspect of
the test set in Gqwetha
must be contextualised in the courts’ discretion to grant a
just and equitable remedy.
[57]
An additional consideration in overlooking an unreasonable delay lies
in the nature of the impugned decision.
44
In my view, this requires analysing the impugned decision within the
legal challenge made against it and considering the merits
of that
challenge.
Mr
Khumalo’s promotion
[58]
The MEC argues that the advertisement of the post to which Mr Khumalo
was appointed specified two requirements in relation
to supervisory
experience which an applicant had to meet: (1) two years’
supervisory experience; and (2) being at level six
or seven.
[59]
Mr Khumalo argues that the advertisement is ambiguous at best and can
be interpreted in a way that he meets the requirements.
He contends
that, while he was at salary level five at the time when he applied,
he did have two or more years’ supervisory
experience
performing the functions that pertained to level six and seven posts.
He at no point avers that he had in fact acted
in a level six or
seven post previously, although he notes that it is not uncommon in
the public service for persons to act in
posts. In setting out his
experience prior to his application for the promotion, Mr Khumalo
mentions his duties in conducting
in-house training, evaluating the
progress of trainees and writing reports. He notes further that he
supervised newly appointed
staff and sat on interview panels. The
MEC has not contested the factual accuracy of these averments.
[60]
Nevertheless, even if we accept Mr Khumalo’s interpretation of
the advertisement, he has not gone far enough to show
that he met the
post’s requirements. Nowhere has he indicated that the
supervisory roles he puts forward are those performed
by a person at
level six or seven. Nor has he indicated that, collectively, his
supervisory experience was equivalent to two years.
Therefore, even
on his own interpretation, the evidence he puts forward does not
prove he met the requirements.
[61]
The MEC’s interpretation of section 11 of the PSA
45
is compelling. Section 11(2) does not state explicitly that only
those who meet the requirements may be appointed. However,
section
11(2)(a) does create an entitlement for those who apply and qualify
for a position to be considered. The purpose of section
11(2) is to
ensure that applicants are considered on their merits and on the
basis of equality and objectivity. It follows, as
a corollary to
these express terms, that those who do not apply or do not qualify
are not entitled to be considered.
[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 practices under section 23 of the Constitution.
Section 195(1)(i) stresses the importance of ensuring
that
appointment processes in the public sector are based on ability,
objectivity and fairness. Fairness in employment practices
and
labour relations requires the state to be even-handed and transparent
not only to those whom it employs, but so too to those
who may wish
to apply for employment at a state institution. It would not be fair
if the state were to employ persons who do not
meet the very
requirements that the state itself sets. It is neither fair nor in
compliance with the dictates of transparency
and accountability for
the state to mislead applicants and the public about the criteria it
intends to use to fill a post. The
formulation and application of
requirements for a particular post is a minimum prerequisite for
ensuring the objectivity of the
appointment process. Persons who do
not meet the requirements for a post in the public sector ought not
to be appointed.
[63]
But is the public sector permitted no flexibility in its appointment
process? If the ideal applicant happens not to meet one
of the
formal criteria, is a state employer barred from considering that
applicant? The reading of the corollary into section
11 of the PSA,
in the context of section 195 of the Constitution, implies that it
would generally not be fair or in terms of an
objective process for
public sector employers to consider applicants who fall outside of
the formal criteria. However, the fairness
of the decision will
typically be weighted heavily on the process and justification of the
decision-makers. This would be in line
with the interpretation
offered by the MEC of section 11(3)
46
to require justifications to be given for departing from the
requirements.
[64]
Section 11(3) allowed for the approval by an executing authority of a
promotion
47
to promote the basic values and principles in section 195(1) of the
Constitution. The values in section 195(1) may, therefore,
call for
the approval of a person whose appointment would, for example,
promote a more efficient, economic and effective use of
resources;
48
maximise the human-resource potential in the institution;
49
or provide for greater representativeness.
50
The rationality of an approval of this nature would largely depend
on the reasons of the executing authority.
[65]
It is possible that Mr Khumalo had particular skills or experience
that caused the short-listing and selection committees to
view him as
the candidate best-suited to meet the inherent requirements of the
post
51
for the particular station of the eThekwini region. Mr Khumalo
cannot be expected to know those reasons – he can only
speculate
on the basis of why he thinks he was a worthy appointee.
Indeed it is the MEC, as the applicant before the Labour Court, who
needs
to satisfy the Court of the promotion’s unlawfulness.
Absent the full documentary record of the appointment process, there
is insufficient information to determine whether or not an approval
in terms of section 11(3) was made.
[66]
The inability to access the reasons of the decision-makers (in
documentary form or through their memories of the process) is
largely
occasioned by the delay in bringing the matter on review in the
delay that occurred in the conduct of the Task Team’s
investigation. By the time that the interviews occurred, almost
three years had passed since the appointment process and, without
access to the minutes of the proceedings, it is not surprising that
the interviewees failed to recall Mr Khumalo’s application
in
much detail. The delay in this instance constrains the ability of
the Court to determine the lawfulness of the decision accurately.
We
simply do not know the basis of the decision to appoint Mr Khumalo –
we only know that he was the highest-scoring candidate.
[67]
Thus it appears as if Mr Khumalo did not meet the requirements of the
post and that his promotion, in consequence, was unfair.
However, we
are left with no means accurately to verify whether the absence of
reasons to motivate the departure from the requirements
reflects that
there truly were no reasons or if those reasons are merely not
discoverable at this late stage. A full picture of
the promotion’s
legality is thus not reliably ascertainable on the evidence before
the Court, nine years after the fact.
While the MEC might not be
responsible for the entire period of the delay that affects the
Court’s assessment of the decision’s
lawfulness,
objectively the passage of the extended period of time since the
decision was made stands in the way of this Court
making a clear
determination of the promotion’s unlawfulness. This is a
consideration rather peculiar to these facts and
the particular basis
of the challenge.
[68]
The nature of the application and the strength of the merits do not
favour overlooking the delay. The delay was unreasonable
and
unexplained, and although we might ameliorate the consequences of a
possible finding of unlawfulness in remedy, the nature
of the claim
does not warrant condoning the delay.
[69]
The Labour Court erred in overlooking the delay. While the Court was
correct to be cautious in permitting the delay to non-suit
the MEC,
its simple reference to promoting public accountability and the
balance of convenience, as the basis on which to condone,
is an
inadequate consideration of the depth of difficulties faced by a
court when confronted with a review in the labour context,
following
the passage of an extensive and unexplained delay of this nature.
While the Court accurately acknowledged its ability
to ameliorate
prejudice to Mr Khumalo in the remedy, it did not adequately consider
the fact that the MEC gave no explanation for
the delay or the extent
to which the delay constrained an accurate review. In the result,
the Court misdirected itself in overlooking
the delay and the grounds
for this Court’s interference with its exercise of discretion
are established. The delay should
non-suit the MEC in relation to
her application for the review of Mr Khumalo’s appointment.
Mr
Ritchie
[70]
In challenging Mr Ritchie’s protected promotion, the MEC sought
to set aside the initial decision to enter into the settlement
agreement. She did not seek to impugn the arbitral award, which gave
authoritative effect to that agreement. Section 145(1) of
the LRA,
which is applicable to the proceedings of the Bargaining Council,
52
provides for the review of arbitration awards:
“
Any
party to a dispute who alleges a defect in any arbitration
proceedings under the auspices of the Commission may apply to the
Labour Court for an order setting aside the arbitration award—
(a) within
six weeks of the date that the award was served on the applicant,
unless the alleged defect involves the commission of
an offence
referred to in Part 1 to 4, or section 17, 20 or 21 (in so far as it
relates to the aforementioned offences) of Chapter
2 of the
Prevention and Combating of Corrupt Activities Act, 2004
; or
(b) if
the alleged defect involves an offence referred to in paragraph (a),
within six weeks of the date that the applicant discovers
such
offence.”
[71]
In oral argument, counsel for the MEC conceded candidly that the
review was framed in relation to the decision to grant the
settlement
agreement (as opposed to reviewing the arbitration award) because his
client was well aware that she had by far exceeded
the time limits in
terms of the LRA in which an arbitration award must be challenged.
[72]
As
section 145(1)(a)
makes clear, the MEC was obliged to bring a
challenge against the arbitration award within six weeks of her being
served the award.
In Gcaba, this Court stressed that if “litigants
are at liberty to relegate the finely tuned dispute resolution
structures
created by the LRA, a dual system of law could fester”.
53
It is contrary to the very purpose of the inclusion of
public-sector employees under labour protections
54
and the very function of arbitration in the context of the LRA
55
for the MEC to be able to fall back on legality to review the
anterior decision in order to avoid the consequence of the time
limits imposed by the LRA. In so doing, the MEC undermines the
protection that the formalisation of settlement agreements, through
making them into arbitration awards, affords to parties through the
LRA. Arbitration awards are an important tool in the structure
of
the LRA to provide for the speedy and inexpensive resolution of
disputes. The circumscription of the right to review an arbitral
award is central to the function that arbitration serves in the
scheme of the LRA.
[73]
Had the MEC wished to challenge the protected promotion, she ought to
have brought it in time in terms of
section 145(1)(a).
In keeping
with her duty to uphold the rule of law, the MEC is not permitted to
circumvent the express provisions of the LRA:
compliance with the
time limit set in
section 145(1)(a)
is a requirement of legality.
The correct approach for her would have been to seek a review of the
arbitration award, for which
application she would had to have sought
condonation for her delay in filing. Accordingly, her challenge to
the decision to grant
Mr Ritchie a protected promotion ought not to
have been considered.
Order
[74]
In the result the following order is made:
1. Leave
to appeal is granted.
2. The
appeal is upheld.
3. The
orders of the Labour Appeal Court and Labour Court are set aside.
4. The
order of the Labour Court is replaced with the following:
“The
application is dismissed.”
5. The
respondent is ordered to pay the costs of the applicants including
the costs of two counsel.
ZONDO
J (Jafta J concurring):
[75]
I have had the opportunity of reading the judgment prepared by my
Colleague, Skweyiya J (main judgment). I agree that the
applicants
should be granted leave to appeal against the decision of the Labour
Appeal Court, that their appeal should be upheld,
that the decisions
of both the Labour Appeal Court and Labour Court should be set aside
and that the order of the Labour Court
should be replaced with an
order dismissing the MEC’s application. However, I am unable
to agree with the reasons and approach
adopted in the main judgment
in deciding the matter. I would also award the applicants costs in
the Labour Court, Labour Appeal
Court and in this Court.
[76]
The main judgment has set out the relevant factual background.
Accordingly, it is not necessary for me to do the same. The
parties
are agreed that this Court has jurisdiction because the case raises
constitutional issues. The matter raises important
issues. These
include the legal standing of the MEC to bring an application such as
the one she brought in the Labour Court, the
reviewability of
decisions made by officials within her department regarding the
promotion and the grant of protective promotion,
whether the MEC
brought her application in the Labour Court in terms of the Promotion
of Administrative Justice Act (PAJA)
56
and whether the Labour Court should have entertained her application
in the absence of an application for condonation and in the
absence
of an explanation for the delay.
[77]
The main judgment deals with the matter on the basis that the MEC
brought the application in the Labour Court in terms of section
158(1)(h) of the Labour Relations Act
57
(LRA) and not in terms of the PAJA. Section 158(1)(h) of the LRA
does not contain any express time-limit requirement for bringing
a
review application whereas section 7(1) of the PAJA contains an
express requirement that a review application be brought without
an
unreasonable delay and not later than 180 days after the person
became aware of the decision sought to be reviewed and the reasons
for that decision. I am unable to agree with the main judgment in
this regard. The MEC brought the application in the Labour
Court in
terms of the PAJA and on the basis that Mr Khumalo’s promotion
and the grant of protective promotion to Mr Ritchie
were both
administrative action. She did not bring that application in terms
of the LRA. Support for this view is to be found
in both her notice
of motion and in her founding affidavit in the Labour Court.
[78]
In her notice of motion the MEC couched the relief she sought in the
following terms:
“
1. Declaring
that the promotion of [Mr Khumalo] to the post of Chief Personnel
Officer at the eThekwini Service Centre of the Department
of
Education: KwaZulu-Natal (the Department) was not lawful, reasonable
or fair and is accordingly invalid.
2. Declaring
that the decision to agree to grant to [Mr Ritchie] protective
promotion in respect of the post of Chief Personnel
Officer at the
eThekwini Service Centre of the Department was not lawful, reasonable
or fair and was accordingly invalid.
3. Setting
aside the promotion of [Mr Khumalo] of the post of Chief Personnel
Officer at the eThekwini Service Centre of the Department.
4. Setting
aside the grant to [Mr Ritchie] of protective promotion in respect of
the post of Chief Personnel Officer at the eThekwini
Service Centre
of the Department.” (Emphasis added.)
[79]
Section 33(1) of the Constitution provides that “[e]veryone has
the right to administrative action that is lawful, reasonable
and
procedurally fair.”
58
Section 33(3) provides for the enactment of legislation to give
effect to the rights provided for in section 33. That legislation
is
the PAJA. Its aim is “[t]o give effect to the right to
administrative action that is lawful, reasonable and procedurally
fair and to the right to written reasons for administrative action as
contemplated in section 33 of the Constitution of the Republic
of
South Africa, 1996; and to provide for matters incidental thereto.”
59
Section 1 of the PAJA defines “administrative action”
as—
“
any
decision taken, or any failure to take a decision, by—
(a) an
organ of state, when—
(i) exercising
a power in terms of the Constitution or a provincial constitution; or
(ii) exercising
a public power or performing a public function in terms of any
legislation; or
(b) a
natural or juristic person, other than an organ of state, when
exercising a public power or performing a public function in
terms of
an empowering provision”. (Emphasis added.)
[80]
The fact that the declaratory orders sought by the MEC were
predicated upon the decisions to promote Mr Khumalo and to grant
Mr
Ritchie protective promotion being “not lawful, reasonable or
fair” reveals that the MEC brought the application
on the basis
that the promotion and the grant constituted administrative action.
A review of administrative action is governed
by the PAJA. I can
understand if the MEC was advised that Mr Khumalo’s promotion
and the grant of protective promotion to
Mr Ritchie constituted
administrative action because an administrative action is defined in
section 1 of the PAJA to include—
“
any
decision taken . . . by—
(a) an
organ of state, when—
.
. .
(ii) exercising
a public power or performing a public function in terms of any
legislation; or
(b) a
natural or juristic person, other than an organ of state, when
exercising a public power or performing a public function in
terms of
an empowering provision,
which
adversely affects the rights of any person and which has a direct,
external legal effect”. (Emphasis added.)
Promotions
in the public service are governed by the Public Service Act
60
(PSA). The grant of protective promotion to Mr Ritchie was in terms
of the PSA read with the LRA.
61
[81]
The MEC disclosed the basis upon which she sought to have Mr
Khumalo’s promotion and Mr Ritchie’s protective promotion
declared invalid and set aside in paragraphs 41 and 42 of her
founding affidavit. The basis upon which she sought to have the
decisions set aside revealed that she intended the application to be
dealt with under the PAJA. In those two paragraphs she said:
“
41. The
circumstances in which [Mr Ritchie] was granted protected promotion
render its grant invalid. The decision to enter an
agreement that
granted him protected promotion was not lawful, reasonable or fair.
42. In
the result, the promotion of [Mr Khumalo] and the grant of protected
promotion to [Mr Ritchie] do not meet the requirement
of just
administrative action, as set out in section 33 of the Constitution.
In addition, the [PAJA] was enacted to promote good
governance and
create a culture of accountability, openness and transparency in the
exercise of public power or the performance
of a public function.
Were I simply to do nothing in the face of what is set out in the
Task Team’s Report, I would be retarding
and discouraging that
culture.” (Emphasis added.)
[82]
The MEC also stated that the official of the Department who entered
into a settlement agreement with Mr Ritchie did not have
the power to
do so and he acted contrary to the principles of the Constitution.
This is not inconsistent with bringing the application
under the
PAJA. This is so because one of the grounds of review of an
administrative action under the PAJA is that the person
or
functionary who took the administrative action did not have the power
to make that decision.
62
[83]
Later, in her replying affidavit, the MEC also asserted:
“
In
addition, because the power to make such appointments is granted to
me by statute, I am under a duty to ensure that such powers
are
exercised as required by the Constitution, and in particular section
33 thereof.” (Emphasis added.)
She
also had the following to say about the decisions she sought to have
set aside:
“
The
decision makers were acting on my behalf. I would expect that when
called upon to justify their decisions they would furnish
explanations and reasons that would satisfy the test for just
administrative action that is set out in section 33 of the
Constitution.
If in the face of allegations that this test has not
been met the decision makers cannot do so, the most reasonable
inference
is the decision does not constitute administrative action.
If that is so, it ought to be set aside.” (Emphasis added.)
[84]
Lastly, on the above aspect, the MEC says that Mr Khumalo’s
appointment should be examined against the background that
it was
made in terms of the PSA and “[a]t that level, it constitutes
administrative action.”
63
She adds:
“
In
order to be valid, it had to be lawful, reasonable and in terms of a
fair procedure. The allegation has been made that it was
not. It is
for [Mr Khumalo] to show that his promotion complied with section 33
of the Constitution.” (Emphasis added.)
[85]
The MEC’s challenge was based solely on the decision to promote
Mr Khumalo and the decision to grant protective promotion
to Mr
Ritchie being administrative action. She expressly states in
paragraph 42 of her affidavit:
“
In
the result, the promotion of [Mr Khumalo] and the grant of protective
promotion to [Mr Ritchie] do not meet the requirement of
just
administrative action, as set out in section 33 of the Constitution.”
[86]
I am unable to agree with the main judgment in so far as it suggests
that this statement by the MEC does not disclose that
she brought the
application under the PAJA but was explaining why she had to do
something about the complaints. It is the statement
that comes after
this one in paragraph 42 that provides that explanation. The
statement I have quoted above shows that she brought
the application
under the PAJA.
[87]
The MEC did not bring the application under section 158(1)(h) of the
LRA. The only place in which the MEC mentioned the LRA
in her
founding affidavit is where she referred to the fact that NUPSAW is a
trade union registered under the LRA. She did not
refer to section
158(1)(h) of the LRA nor did she refer to any ground of review in the
context of the LRA. The main judgment relies
on the MEC’s
written submissions for its conclusion that the MEC based her case on
the principle of legality and that her
application in the Labour
Court was brought in terms of the LRA. It is trite that in motion
proceedings an applicant must make
his or her case in the founding
affidavit. A litigant who has not made his or her case in the
founding affidavit cannot escape
the consequences of that omission by
making it in his or her heads of argument.
[88]
In his answering affidavit Mr Khumalo submitted that, in bringing her
application, the MEC was circumventing provisions of
the LRA and the
Labour Court should not countenance that. After referring to this
criticism in her replying affidavit the MEC
said:
“
I
submit that there is no merit in [Mr Khumalo’s and Mr
Ritchie’s] contentions. This is because of, inter alia, the
following matters. First, the appointment of [Mr Khumalo] was not
made in terms of the [LRA]: It was made in terms of the [PSA].
Second, the [LRA] does not deal with the type of relief I seek in
this application. Third, the fact that the NUPSAW complainants
have
a remedy to claim some relief in respect of the unfairness allegedly
visited upon them does not deprive me of my right or
entitlement to
ensure that administrative action taken in violation of the
Constitution is properly set aside by a forum that has
the authority
to do so legitimately.” (Emphasis added.)
[89]
The statement by the MEC in this extract that the LRA does not deal
with the type of relief she was seeking in the application
is the
clearest disavowal by the MEC of any reliance on the LRA. Therefore,
it is not open to the main judgment to deal with the
matter on the
basis that the application was brought in terms of the LRA.
[90]
The MEC must stand or fall on the pleaded cause of action. As
illustrated above, it is evident that she deliberately chose
to
institute a claim founded in administrative justice. Her disavowal
of reliance on the LRA precludes any court from adjudicating
a claim
based on the LRA, even if the facts pleaded were capable of
sustaining such a claim. In Gcaba
64
this Court rejected the notion that, if pleaded facts sustain a
claim not relied on by an applicant, a court may adjudicate such
claim. The Court said:
“
While
the pleadings – including in motion proceedings, not only the
formal terminology of the notice of motion, but also the
contents of
the supporting affidavits – must be interpreted to establish
what the legal basis of the applicant’s claim
is, it is not for
the court to say that the facts asserted by the applicant would also
sustain another claim, cognisable only in
another court.”
65
[91]
In his written submissions as well as his supplementary written
submissions counsel for the MEC submitted that the MEC also
relied on
the principle of legality to support her application to have the two
decisions set aside. He referred to four paragraphs
in the MEC’s
founding affidavit in the Labour Court as support for this
submission. The word “legality” does
not appear anywhere
in the MEC’s founding affidavit which is where the Court must
look to determine what her case was that
she brought in the Labour
Court. Out of the four paragraphs relied upon by counsel for the
MEC, three of them have nothing to
do with legality outside of the
PAJA.
66
In one of the paragraphs there is mention of the rule of law.
However, the rule of law is mentioned not as a ground upon which
the
MEC sought to have the two decisions set aside, but as a ground to
show that she had locus standi to take the unusual step
of an MEC
bringing an application to court to have decisions taken by officials
of her own Department on her behalf set aside.
The MEC also does not
anywhere in her founding affidavit mention the words “rational”
or “irrational”
or “rationality”. It was
never part of her case that the two decisions were irrational and
should be set aside.
[92]
Once it is accepted that the entire application brought by the MEC in
the Labour Court was based on the proposition that the
decision to
promote Mr Khumalo and the decision to grant Mr Ritchie protective
promotion were administrative action, it follows
that the procedure
for bringing that application to Court was governed by the PAJA.
Section 7(1)
67
of the PAJA required that application to be brought without any
unreasonable delay and not later than 180 days after the MEC had
become aware of the decisions she sought to have reviewed and the
reasons for those decisions.
[93]
The Task Team which the MEC had appointed to investigate the
complaints about Mr Khumalo’s promotion and the grant of
Mr
Ritchie’s protective promotion submitted its report to her on
or about 26 January 2007. Whether one calculates the period
of delay
from that date or from when she received the complaint from NUPSAW,
which was earlier, will not affect the outcome in
this case.
However, I am prepared to assume in her favour that the period should
be calculated from 26 January 2007 when she received
the report of
the Task Team. She was obliged to lodge her application within a
reasonable time and at any rate not later than
180 days from then,
which is six months. The 180 days expired around 25 June 2007. She
had not lodged the review application
by then. She only lodged it in
or around October 2008. That is more than a year and two months
after the expiry of the 180 days
or more than 20 months after she had
become aware of the report of the Task Team.
[94]
The MEC did not bring any application for condonation nor did she
provide any explanation for such an inordinate delay in bringing
the
application. She was obliged to have done so. It is true that, in
the light of the decision of this Court in Gcaba,
68
the MEC’s contention that the decision to promote Mr Khumalo
and the decision to grant Mr Ritchie protective promotion constituted
administrative action is not sustainable as those decisions do not
constitute administrative action. The MEC’s contention
constituted the entire basis of her application in the Labour Court.
However, the fact that the MEC’s contention in this
regard was
wrong, as the main judgment correctly holds, does not mean that her
application was not subject to the time-limit requirement
prescribed
by section 7(1) of the PAJA. The question whether or not those
decisions constituted administrative action would be
considered and
decided on the merits after she had satisfied the Court either that
she had not delayed unduly in bringing the application
or that there
was good cause to condone her delay. The question whether she
brought her application timeously is decided before
that inquiry and
on the assumption that the decisions constitute administrative action
as she contended. However, it is important
to emphasise that the
MEC’s claim was not competent in law.
[95]
As the MEC did not make an application for the condonation of her
delay in bringing the application and did not offer any explanation
for the delay, the Labour Court should have dismissed her application
on this ground alone. The Labour Appeal Court should also
have
upheld the applicants’ appeal on this ground alone. For the
above reasons I would uphold the appeal, set aside the
decisions of
both the Labour Court and Labour Appeal Court and replace the
decision of the Labour Court with an order dismissing
the
application. I would also award the applicants costs in the Labour
Court, Labour Appeal Court and in this Court.
For
the Applicants: Advocate P Blomkamp and Advocate A
Christison
Instructed
by Llewellyn Cain Attorneys.
For
the Respondent: Advocate V Soni SC and Advocate M Makoti
Instructed
by the State Attorney.
1
In
terms of section 4.4 of the Constitution of the General Public
Service Sectoral Bargaining Council, Resolution 2 of 2003
(Bargaining Council Constitution), one of the aims of the Bargaining
Council is to provide mechanisms for the prevention and effective,
expeditious resolution of disputes.
2
In
this context, a protected promotion permits the beneficiary the
advantages of a promotion (for example an increase in salary
or a
change in title). In
KwaDukuza
Municipality v SA Local Government Bargaining Council and Others
[2008] ZALC 93
; (2009) 30 ILJ 356 (LC) at paras 10-1, the Labour
Court described a protected promotion (or “protective
promotion”)
as a form of compensation that would be
inappropriate where there is no evidence that the employee would
have been promoted or
was qualified to be promoted.
3
Proclamation
103 of 1994. Section 9 provides: “An executive authority
may appoint any person in his or her department
in accordance with
this Act and in such manner and on such conditions as may be
prescribed.”
4
In
terms of Item 5 of Schedule 2 to the Constitution.
5
3
of 2000.
6
MEC
Department of Education KwaZulu-Natal v Khumalo and Another
[2010]
ZALC 79
;
2011 (1) BCLR 94
(LC) (Labour Court judgment).
7
Khumalo
and Another v MEC for Education: KwaZulu-Natal
[2012]
ZALAC 26
; (2013) 34 ILJ 296 (LAC) (Labour Appeal Court judgment) at
para 36.
8
See
below n 16 for the full text of section 1 of the Constitution.
9
66
of 1995.
10
The
MEC’s attempt to frame the application, in the supplementary
submissions, as an application for declaratory orders in
terms of
section 158(1)(a), outside of a review, is misplaced. Section
158(1)(a) merely empowers the Labour Court to grant
the remedy that
she sought and does not establish the legal basis of her claim.
11
Section
11(3) was repealed by the
Public Service Amendment Act 30 of 2007
.
12
Section
158(1)(h)
is a generic provision that establishes the Labour Court’s
jurisdiction to decide on review applications. The section
cannot and does not, however, establish the grounds of the review.
13
Fedsure
Life Assurance Ltd and Others v Greater Johannesburg Transitional
Metropolitan Council and Others
[1998]
ZACC 17
;
1999 (1) SA 374
(CC);
1998 (12) BCLR 1458
(CC) at paras
58-9.
14
Id
at para 56.
15
Pharmaceutical
Manufacturers Association of SA and Another: In re Ex Parte
President of the Republic of South Africa and Others
[2000]
ZACC 1
;
2000 (2) SA 674
(CC);
2000 (3) BCLR 241
(CC) at paras 84-6.
29
Section
1 of the Constitution provides:
“
The Republic of South Africa is one,
sovereign, democratic state founded on the following values:
(a)
Human dignity, the achievement of equality and the advancement of
human rights and freedoms.
(b)
Non-racialism and non-sexism.
(c)
Supremacy of the constitution and the rule of law.
(d)
Universal adult suffrage, a national common voters roll, regular
elections and a multi-party
system of democratic government, to
ensure accountability, responsiveness and openness.”
17
Section
209 of the LRA provides: “This Act binds the State.”
18
Chirwa
v Transnet Ltd and Others
[2007]
ZACC 23
;
2008 (4) SA 367
(CC);
2008 (3) BCLR 251
(CC) at para 66.
19
Id
at para 101.
20
The
Supreme Court of Appeal in
Pepcor
Retirement Fund and Another v Financial Services Board and Another
[2003] ZASCA 56
;
2003 (6) SA 38
(SCA) at para 10 emphasized that
public functionaries “may not only be entitled but also bound
to raise the matter in a
court of law”. In
Ntshangase
v MEC for Finance, KwaZulu-Natal and Another
[2009]
ZASCA 123
;
2010 (3) SA 201
(SCA)
,
the
MEC for Finance, KwaZulu-Natal sought to review a decision made by
the chairperson of a disciplinary committee in the course
of
sanctioning an employee for misconduct. The Supreme Court of
Appeal held that the MEC in that matter was bound to raise
the
irregular decision in court as a public functionary exercising a
power in the interests of the public in terms of legislation.
See also
Municipal
Manager: Qaukeni Local Municipality and Another v FV General Trading
CC
[2009] ZASCA 66
;
2010 (1) SA 356
(SCA) (
Qaukeni
)
at para 23.
21
Njongi
v MEC, Department of Welfare, Eastern Cape
[2008]
ZACC 4
;
2008 (4) SA 237
(CC);
2008 (6) BCLR 571
(CC)
at
para 56.
22
Labour
Court judgment above n 6 at para 38.
23
Labour
Appeal Court judgment above n 7 at para 41. The Court cited
Qaukeni
above n 20 as authority for the proposition.
24
Labour
Court judgment above n 6 at paras 30-1.
25
For
example, section 191(1)(b)(i) of the LRA requires an employee to
refer an unfair dismissal to the Commission for Conciliation,
Mediation and Arbitration (CCMA) or a bargaining council for
conciliation within 30 days of the employer making the decision
to
dismiss. Section 191(1)(b)(ii) prescribes that an unfair
labour practice dispute must be referred for conciliation within
90
days from the date it occurred or from which the employee became
aware of the act. Sections 191(4) and (5) give
the CCMA
or a bargaining council only 30 days to resolve the dispute
failing which it may be referred to arbitration or
adjudication.
26
See,
for example,
Weltevrede
Kwekery (Pty) Ltd v Commission for Conciliation, Mediation and
Arbitration and Others
(2006) 27 ILJ 182 (LC) at paras 5-6 and
SACCAWU
obo Manzana and Others v Pick ‘n Pay, Kimberley and Others
[2003] 10 BLLR 1065
(LC) at paras 14-5.
27
The
now-repealed section 39 of the PSA provided:
“
Limitation of Actions
(1)
No legal proceedings shall be instituted against the State or any
body or person in respect of any alleged act in terms of this Act,
or any alleged omission to do anything which in terms of this
Act
should have been done, unless the legal proceedings are instituted
before the expiry of a period of 12 calendar months after
the date
upon which the claimant had knowledge, or after the date on which
the claimant might reasonably have been expected to
have knowledge,
of the alleged act or omission, whichever is the earlier date.
(2)
No such legal proceedings shall be commenced before the expiry of
at
least one calendar month after a written notification in which
particulars as to the alleged act or omission are given, of
intention to bring those proceedings has been served on the
defendant.
(3)
Subsections (1) and (2) shall not be construed as precluding a court
of law from dispensing
with the requirements or prohibitions of
those sections where the interests of justice so require.”
28
40
of 2002.
29
The
long title of the Repealing Act indicates that its purpose is to
harmonise the differing periods of prescription of debts
for which
organs of state might be liable and other matters connected
therewith. The Preamble notes that the Act is promulgated
bearing in mind that: South Africa has moved from a parliamentary
sovereign state to a democratic constitutional sovereign state;
the
Bill of Rights is the cornerstone of our constitutional democracy;
section 34 of the Constitution provides for the right
to have any
dispute that can be resolved by the application of law determined in
a fair public hearing; and that this right may
be limited only in
terms of section 36 of the Constitution.
30
The
inherent power of the Constitutional Court, the Supreme Court of
Appeal and the High Courts to “protect and regulate
their own
processes, and to develop the common law, taking into account the
interests of justice” is preserved under section
173 of the
Constitution. In
South African Broadcasting Corp Ltd v
National Director of Public Prosecutions and Others
[2006] ZACC
15
;
2007 (1) SA 523
(CC);
2007 (2) BCLR 167
(CC) at paras 36 7,
this Court held:
“
The power recognised in section 173 is
a key tool for courts to ensure their own independence and
impartiality. . . .
A
primary purpose for the exercise of that power must be to ensure
that proceedings before courts are fair. It is therefore
fitting that the only qualification on the exercise of that power
contained in section 173 is that courts in exercising this
power
must take into account
the interests of justice.
When
courts exercise the power to regulate their own process it is
inevitable that that power will affect rights entrenched in
Chapter
2 of the Constitution. A court must regulate the way
proceedings are conducted and this will inevitably affect
both the
right to a fair trial (section 35 of the Constitution) and the
right to have disputes resolved by courts (section
34). Courts
are bound by the provisions of the Bill of Rights and therefore bear
a duty to respect those rights.
In exercising the power,
therefore, they must take care to ensure that those rights are not
unjustifiably attenuated.”
(Footnotes omitted; emphasis
in original.)
31
Associated
Institutions Pension Fund and Others v Van Zyl and Others
[2004]
ZASCA 78
;
2005 (2) SA 302
(SCA) (
Van
Zyl
)
at para 46.
32
In
the context of employment, this Court held in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[2007] ZACC 22
;
2008 (2) SA 24
(CC);
2008 (2) BCLR 158
(CC) (
Sidumo
)
at para 98 that the “powers of the Labour Court are directed
at remedying a wrong and, in the spirit of the LRA, at providing
finality speedily.”
33
Van
Zyl
above
n 31 at 46.
34
Gqwetha
v Transkei Development Corporation Ltd and Others
[2005]
ZASCA 51
;
2006 (2) SA 603
(SCA).
35
Id
at para 24.
36
Id
at para 31.
37
Id
at para 24 citing
Setsokosane
Busdiens (Edms) Bpk v Voorsitter, Nasionale Vervoerkommissie
1986 (2) SA 57
(A).
38
See
above at [46].
39
Gqwetha
above
n 34 at para 33.
40
Id
at para 34.
41
Benjamin
“Labour Law Beyond Employment”
(2012)
Acta
Juridica
21
at 21.
42
In
Sidumo
above
n 32, this Court referred to the “famous dictum” of
Kahn-Freund that “the main objective of Labour Law
[is to]
counteract the inequality of bargaining power which is inherent and
must be inherent in the employment relationship.”
43
Section
172 provides for the powers of courts in constitutional matters.
Section 172(1) provides:
“
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.”
44
Gqwetha
above
n 34 at para 33.
45
See
above at [26] for the full text of section 11.
46
Id.
47
Notwithstanding
the provisions of section 11(2).
48
Section
195(1)(b) of the Constitution
49
Id
section 195(1)(h).
50
Id
section 195(1)(i).
51
Counsel
for the applicants raised the Public Service Regulations 2001,
Government Gazette
21951 GN R1, 5 January 2001, as
illustrating that Mr Khumalo’s promotion was appropriate in
meeting the “inherent
requirements” of the job.
Part VII C.1 provides:
“
C.1.1
An executing authority shall determine composite requirements for
employment in any post on the basis
of the inherent requirements of
the job.
C.1.2 An executing
authority shall—
(a)
record the inherent requirements of a job;
(b)
ensure that the requirements for employment do not discriminate
against persons historically disadvantaged; and
(c)
comply with any statutory requirement for the appointment of
employees.”
52
Section
5 of the Bargaining Council Constitution provides that its powers
and functions are provided for in section 28 of the
LRA.
Section 28(1)(d) includes under a bargaining council’s powers
to “perform the dispute
53
Gcaba
v Minister for Safety and Security and Others
[2009]
ZACC 26
;
2010 (1) SA 238
(CC);
2010 (1) BCLR 35
(CC) at para 56.
54
In
terms of section 209 of the LRA.
55
Section
1(d)(iv) of the LRA provides that the purpose of the Act includes
the object to “promote the effective resolution
of labour
disputes.” Section 143(1) of the Act provides that “an
arbitration award issued by a commissioner
is final and binding and
it may be enforced as if it were an order of the Labour Court”.
Section 4.4(iii) of
the Bargaining Council Constitution notes
that one of the objectives of the Bargaining Council is “to
provide mechanisms
for the prevention and effective and expeditious
resolution of disputes between the employer and employees”.
56
3
of 2000.
57
66
of 1995. Section 158(1)(h) of the LRA reads as follows: “The
Labour Court may review any decision taken or any
act performed by
the State in its capacity as employer, on such grounds as are
permissible in law”.
58
Emphasis
added.
59
See
the long title of the PAJA. Emphasis added
60
103
of 1994.
61
The
reference to the LRA in this regard is based on the fact that the
settlement agreement granting Mr Ritchie protective promotion
was
made an arbitration award in terms of the LRA.
62
See
section 6(2)(a)(i) of the PAJA.
63
Emphasis
added.
64
Gcaba
v Minister of Safety and Security
and
Others
[2009]
ZACC 26
;
2010 (1) SA 238
(CC);
2010 (1) BCLR 35
(CC).
65
Id
at para 75.
66
See
fn 3 of the MEC’s supplementary written submissions.
67
Section
7(1) of the PAJA reads:
“
Any proceedings for judicial review in
terms of section 6(1) must be instituted without unreasonable delay
and not later than
180 days after the date—
(a)
subject to subsection (2)(c), on which any proceedings instituted
in
terms of internal remedies as contemplated in subsection (2)(a) have
been concluded; or
(b)
where no such remedies exist, on which the person concerned was
informed of the administrative
action, became aware of the action
and the reasons for it or might reasonably have been expected to
have become aware of the
action and the reasons.”
68
Gcaba
above
n 64 at para 75.