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Feni v The Pan South African Language Board and Another (25170/2016) [2017] ZAGPPHC 1144 (27 June 2017)

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IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION. PRETORIA)

 

(1)           NOT REPORTABLE.

(2)           NOT OF INTEREST TO OTHER JUDGES.

(3)           REVISED.

CASE NO: 25170/2016

DATE: 27/6/2017

 

IN THE MATTER BETWEEN:

 

ZIXOLISILE FENI                                                                                           Applicant

 

and

 

THE PAN SOUTH AFRICAN

LANGUAGE BOARD                                                                                        First Respondent

 

MPHO REGINALD MONARENG                                                                  Second Respondent

 

JUDGMENT

 

1.         In these proceedings the applicant seeks the following relief:

 

i.        Declaring unlawful and invalid the job advertisement of the post of chief executive officer of the first respondent attached to the founding affidavit as annexure " XF4";

ii.       Declaring that the second respondent did not meet the inherent requirements of the position he was appointed to;

iii.      Declaring unlawful, invalid and setting aside the second respondent's appointment as the CEO of the first respondent;

iv.      Declaring unlawful, invalid and setting aside the employment contract entered into by and between the respondents;

v.       That the respondent be ordered and directed to pay the costs of this application jointly and severally.

 

2.         Both respondents oppose the application on the merits and in addition it is their stance that there has been an excessive delay on the part of the applicant in bringing the application, which would have warranted an application for condonation which is not before Court. This issue goes to the characterisation of the application and is a matter I will return to.

3.         There are also Rule 30 proceedings which were brought in relation to a possible amendment of the Notice of Motion and the filing of a Supplementary Affidavit. The parties were in broad agreement that notwithstanding the respondents' objection to the Supplementary Affidavit, the Answering Affidavit deals with the issues raised therein, and the issues canvassed therein are before Court and may be dealt with accordingly. I agree with this stance.

4.         Under these circumstances there is no need to adjudicate the Rule 30 application as nothing of substance turns on it. Its only ongoing relevance may be the question of costs which is a matter I will return to later.

 

Background facts

5.         The applicant is the Head of the Legal Services unit of the first respondent and also served as acting chief executive officer ('CEO') of the first respondent during the period 2014 to 2015. During or about April 2015, the first respondent commenced the process to appoint a CEO and a job advertisement was published with the closing date being the 5th of May 2015. A shortlist of candidates was compiled and interviews conducted during May 2015, whereafter the first respondent resolved to appoint the second respondent as CEO. The second respondent assumed office on the 1st of July 2015.

6.         The applicant seeks the declaratory relief set out in the notice of motion on the following grounds:

i.       He contends that the job advertisement is unlawful in so far as it requires the prospective candidate to be in possession of a 'relevant post graduate degree' . His view is that the advert should have specified the required degree;

ii.       He contends that the second respondent did not meet the inherent requirements of the job and therefore the first respondent was precluded from appointing him if regard is had to the Regulations with regard to the Terms and Conditions for the staff of the Pan South African Language Board gazetted on the I0th of July 1998 in Government Gazette No. 23404 (‘the regulations’);

iii.     He contends that the failure by the first respondent to conduct a competency assessment of the second respondent rendered the appointment unlawful;

iv.     He contends that the employment contract entered into between the first and the second respondents falls to be declared unlawful as Prof. Madiba, who signed the contract on behalf of the first respondent, was no longer a board member of the first respondent when he did so, and the contract is accordingly invalid;

v.      He contends that the failure by the first and second respondents to include a performance agreement as part of the employment contract renders the contract invalid.

 

Condonation and the nature of the proceedings

7.          The respondents argue that notwithstanding that the relief sought is characterised as declaratory relief, in truth and reality what is before the Court is review proceedings and that the Court should deal with it as such. Under such circumstances they argue that the Promotion of Administrative Justice Act 3 of 2000 ('PAJA') would apply and in particular Section 7 thereof which would require the application to have been brought within 180 days from when the applicant became aware of the administrative action, namely the 1st of July 2015 and that under such circumstances an application for condonation would have been necessary.

8.          While there may be some merit in the argument that the proceedings may well in substance resemble a review, the Court in CORDIANT TRADING v DAIMLER CHRYSLER FINANCIAL SERVICES (PTY) LTD 2005 (6) SA 205 (SCA) in interpreting Section 19(1)(a)(iii) of the Supreme Court Act 59 of 1959 [now mirrored in Section 2I(l )(c) of the Superior Courts Act No 10 of 2013], took the view that once the applicant has satisfied the Court that it is interested in an ' existing. future or contingent right or obligation' the Court is obliged by the subsection to exercise its discretion. This did not mean, however, that the Court was bound to grant a declaratory, but that it had to consider and decide whether it should refuse or grant the order following an examination of all relevant factors.

9.         In casu, the applicant as a senior member of staff of the first respondent, clearly has such an interest, and notwithstanding the criticisms levelled against him by the respondents and their urging that the Court should unmask and reveal the true nature of the action, my view is that the applicant is entitled at the very least to seek the relief in the form in which he has elected to couch it.

10.       Under those circumstances the provisions of PAJA would not be applicable and the question of compliance with Section 7 thereof in so far as it relates to unreasonable delay would also not arise.

 

Condonation relative to the respondents' answering affidavit

11.       It is common cause that the respondents' answering affidavit was filed considerably out of time if one has regard to the time periods ordinarily applicable. The stance of the respondents is that after notifying the applicant of their intention to oppose the application and while they were preparing their answering affidavit, the applicant served a Notice of Motion seeking to supplement his founding affidavit.

12.       The respondents took the stance that the Notice of Motion was irregular and the applicant was afforded the opportunity to remove the cause of the complaint. The applicant failed to do this and the respondents then filed proceedings in terms of Rule 30. Their stance is that no further steps were taken in the proceedings so as not to disentitle them to rely on the provisions of Rule 30. What then followed was an exchange of correspondence between the parties which frankly was not helpful in resolving the impasse.

13.       The respondents then filed the answering affidavit and they state that they have done so 'without waiving any of the respondents' rights... and in order for the merits of this matter to come before court so that it can be dealt with expeditiously'. It is to this extent that the respondents seek condonation (if need be) for the late filing of the answering affidavit.

14.      In UNITED PLANT HIRE (PTY) LTD v HILLS AND OTHERS 1976 (1) SA 717 (A), the Court in detailing how the discretion to grant condonation, or not, is to be exercised expressed itself as follows:

"It is well settled that, in considering applications for condonation, the Court has a discretion, to be exercised judicially upon a consideration of all of the facts, and that in essence it is a question of fairness to both sides. In this enquiry. relevant considerations may include the degree of non-compliance with the Rules, the explana1ion therefore, the prospects of success on appeal, the importance of the case, the respondent's interest in the finality of his judgment, the convenience of the Court and the avoidance of unnecessary delay in the administration of justice". (at 720E-F)

 

15.       On what is before me it is clear that the respondents were not male fide, have offered an explanation for the delay and did not act in wilful neglect of the Rules of Court. Importantly the applicant has not complained of any prejudice caused by the late filling of the answering affidavit and in my view a proper case has been made for condonation.

 

The merits

 

Ø The issues for determination

16.       Most of the issues for determination are identical to those in the matter of Joyce Sukumane vs Mpho Reginald Monareng & Another (case 12023/2016

- Gauteng Division, Pretoria) and to the extent that I have already dealt with them in that judgment, they bear repeating in this judgment.

 

•      

Does the advertisement for the post of CEO fall to be set aside on the basis that it is unlawful?

 

16.        There is simply no merit in this contention. It was not even suggested that the advertisement in the form it was published, breached some legal requirement. On the contrary, reference to a relevant degree is capable of ascertainment and can hardly be described as confusing, justifying its setting aside.

 

•     Is the decision of the first respondent to appoint the second respondent as CEO liable to be reviewed and set aside on the basis that he did not meet the inherent requirements of the job?

 

17.        In his founding affidavit the applicant attacks the decision of the first respondent on the basis that it is irrational, that relevant considerations were excluded and irrelevant considerations were considered. Section 2(1) of the regulations provides that 'no person shall be appointed as a member of staff unless he or she is a South African citizen and meets the inherent requirements of the post concerned'.

18.        In the context of this application the advertisement for the post of CEO which was approved by the first respondent, sets out what are described as the requirements as well as the key competency requirements of the post of CEO and in the section dealing with requirements some thirty-two requirements appear and if one has regard to the language of the advert then clearly some of the requirements are couched in peremptory language while others are not.

19.        The requirements that on the face of them appear to be peremptory are:

 

19.1     A relevant postgraduate degree - there is no dispute that the second respondent has such a degree;

19.2     At least 7 years' experience in an executive position - While the applicant argued that this did not appear from the Curriculum Vitae ('CV') of the second respondent, what emerges from the very same CV is that the second respondent was the head of the Language Unit at the University of Johannesburg from 2008 until 2015 and that his duties included the establishment of the Unit, Human resource management of the Unit including the appointment and supervision of staff, preparing and overseeing the budget of the Unit, and advancing the Strategic Development of the Unit.

19.2.1    On the face of it, these are all functions which accord with an executive position and while the term has not been defined in the regulations, neither has the applicant advanced any contention that a specific meaning is somehow to be attached to the term. Under these circumstances there is no reason why the term executive function should not attract its ordinary meaning. In this regard the South African Concise Oxford Dictionary defines executive as 'a person with senior managerial responsibility in a business organisation ' .

19.2.2    There can hardly be any doubt that the second respondent was required to undertake such senior managerial responsibility during his tenure as head of the Language Unit at the University of Johannesburg. That much is evident from a cursory examination of his CV.

 

20.       The final possible peremptory requirement is that the candidate must have knowledge of linguistic rights and language debates. Again the CV of the second respondent attests to this.

21.       That being the case I do not understand that each and every other requirement was peremptory or that an applicant who did not meet every requirement set out in the job requirements would be excluded. Rather, and this much was conceded to by the applicant's counsel, the interviewing panel would have regard to all the requirements and assess how each candidate lives up to them in their totality.

22.       That being the case the Report of the Interview Panel clearly indicates that the panel was alive to 'the key performance areas attached to the CEO position as per the advert and the job profile' and agreed to assess candidates based on this.

23.       In this regard a qualitative assessment was required and indeed made and the following conclusion drawn by the panel on the candidacy of the second respondent is in my view unassailable:

"The candidate showed passion about languages. He articulated himself well with a convincing proposed turn-around strategy. He is well-versed with multilingualism and the constitutional mandate of the organization. He has also acquired training in other areas of management and finances in addition to languages. While he has to refine his corporate governance skills, it was pleasing to note that he is being practically involved with languages in his current working place. "

 

24.      Thus on this leg of the challenge I would conclude that firstly, to the extent that there were peremptory requirements in respect of the job and which I have distilled from the advert, these have all been met and secondly the other requirements set out in the advert were in their very nature requirements that the panel had to consider, apply their mind to, and make a qualitative assessment in their discretion as to whether a candidate met the overall requirements of the job. This could hardly be a mechanical exercise of ticking off the boxes and to that extent that the panel was required to exercise a discretion in this regard.

25.       In BATO STAR FISHING (PTY) LTD v MINISTER OF ENVIRONMENTAL AFFAIRS AND OTHERS [2004] ZACC 15; 2004 (4) SA 490 (CC) the Court cautioned against usurping the functions of administrative agencies in stating the following:

'What will constitute a reasonable decision will depend on the circumstances of each case, much as what will constitute a fair procedure will depend on the circumstances of each case. Factors relevant to determining whether a decision is reasonable or not will include the nature of the decision, the identity and expertise of the decision-maker, the range of factors relevant to the decision, the reasons given for the decision, the nature of the competing interests involved and the impact of the decision on the lives and well-being of those affected. Although the review functions of the court now have a substantive as well as a procedural ingredient, the distinction between appeals and reviews continues to be significant. The court should take care not to usurp the functions of administrative agencies. Its task is to ensure that the decisions taken by administrative agencies fall within the bounds of reasonableness as required by the Constitution.' (at 513B-D)

 

• Did the failure to conduct a PanSALB competency assessment render the decision reviewable?

 

26.       The advertisement is clear in highlighting that "identified candidates will be subjected to the PanSALB specific competency assessment" . It is common cause that no such competency assessment was applied in respect of the second respondent.

The advertisement is clear in so far as it relates to identified candidates and is not a requirement in respect of all candidates. Again if the decision-maker has elected not to subject every candidate to such an assessment, its decision as to which candidate should be included or excluded, as the case may be, will not lightly be interfered with and certainly on the papers before me, there is nothing to suggest that the decision not to subject the second respondent to such an assessment is somehow reviewable.

The challenge on this leg is also destined to fail.

 

I.       Is the contract liable to be set aside on the basis that Prof. Madiba's term of office had expired?

 

27.       There firstly appears to be a dispute as to whether by the date of the signature of the contract, Prof. Madiba, who signed the employment contract on behalf of the first respondent, was still a member of the Board of the first respondent.

28.       Section 6(2) of the Act provides that the first chairperson and the first deputy chairperson of the PanSALB Board 'shall hold office for a term of not more than two years, after which an election shall be held annually. Provided that such chairperson and deputy chairperson shall be eligible for re-election for one further term not exceeding one year'.

29.       The respondents contend that when Board members were appointed in 2014 there did not exist a Board immediately before that, because the previous Board was dissolved by the Minister and that the 2014 Board then was the first Board, with Prof. Madiba holding office for two years. They accordingly argue that when he signed the second respondent's employment contract in 2015 he was chair of the Board. The applicant takes a different view of the matter and contends that the reference to the 'first chairperson' in Section 6 of the Act is a reference to the first Board and not the Board appointed in 2014 and that accordingly Prof Madiba's term of office was limited to one year, which had expired by the 1s t July 2015.

30.        In Mikateko Floyd Chauke v Pan South African Language Board and Others (case 77058/2016, Gauteng Division, Pretoria; 21 October 2016) this Court was called upon to deal with precisely such a dispute in interpretation and the court concluded as follows:

 

"The submission on behalf of the applicant that the board continued to exist perpetually, despite it being dissolved in 2012 has, in my view, no merit. The meeting of the new board held on 17 June 2014 at which Professor Madiba was appointed as chairperson was therefore an appointment for two years."

 

31.       While I understand that an application for leave to appeal has been filed in the Chauke matter, it may not be necessary for me to deal with the differing interpretations that the parties rely on except to state that the judgement in Chauke remains a valid and reasonable interpretation of Section 6(2) of the Act.

32.       The matter in my view can be resolved on the simple basis that on what is before me, it hardly matters whether Prof. Madiba was a member of the Board of the first respondent on the 1st of July 2015. Importantly, the authority to appoint a CEO is vested in the Board, and the Board, as Dr Nkuna confirms, authorised Prof. Madiba to handle matters related to the second respondent's contract of employment with PanSALB. In any event, Prof. Madiba's conduct was ratified by the Board. This is evident from annexure "AA2" to the answering affidavit which is an e-mail sent by Prof. Madiba to the Board, and to which he received no objection. What matters is that he was authorised by the Board of the first respondent to handle matters relating to the employment contract between the first respondent and the second respondent. That being the case, the case for the setting aside of the contract of employment is not sustainable.

 

II.      Does the absence of a performance agreement in respect of the second respondent's duties render the employment contract invalid

 

17.        The applicant contends that the employment contract entered into between the first and the second respondents ' does not include any performance standards as required by section 36(5) of the Public Finance Management Act (Act 1 of 1999) and is therefore unlawful and invalid'.

18.       While it so that no performance agreement has been concluded, the second respondent states that a draft performance agreement was submitted to the Board for approval and in December 2015 the Board resolved to finalise it during its first meeting in 2016. However the Board was dissolved before the first meeting in 2016 and there currently is no Board in place that can negotiate and approve the performance agreement.

19.        In any event when one has regard to the provisions of Section 36(5) of the Public Finance Management Act, it simply provides that such a contract should include performance standards ' where possible'. I do not understand it to be peremptory to include performance standards and the second respondent has proffered a full explanation as to why such performance standards have not been included and finalised.

 

There is no merit in the attack on the contract on this ground.

 

33.         In all the circumstances the application stands to be dismissed.

 

Costs

34.       While on the face of it the applicant may contend that the principle in BIOWATCH TRUST v REGISTRAR, GENETIC RESOURCES, AND OTHERS 2009 (6) SA 232 (CC) should apply in so far as he has sought to advance a matter of genuine constitutional import, my view is that a cursory examination of the facts shows otherwise.

35.       When I have regard to the application as a whole I am of the view that the applicant should be directed to pay the costs of the application. The nature of the relief in some instances was totally incompetent and bad in law, such as the relief sought in the setting aside of the advertisement and reliance on Section 36(5) of the Public Finance Management Act. In addition the basis of his attack on the appointment of the second first respondent was superficial and lacking in any particularity or substance.

36.        This is precisely the kind of case where litigants should be alerted to the reality that calling a matter an assertion of constitutional rights does not automatically make it that. It is hard to discern a matter of genuine constitutional import that has emerged in these proceedings advanced by the applicant. For these reasons my view is that the applicant should be ordered to pay the costs of the application which should include the costs of two counsel.

 

Order

37.         I would accordingly make the following order:

I         Condonation is granted in respect of the late filing of the respondents' answering affidavit

II        The application is dismissed with costs including the costs of two counsel.

 

 

 

HEARD ON: 14 June 2017

 

APPEARANCES

FOR THE APPLICANT: Adv. Z Feni

INSTRUCTED BY:   Makhafola & Verster Incorporated            (ref.: S Makhafola/ZF/SM01631)

 



FOR THE 1ST RESPONDENT: Adv. K PILLAY SC (appearing with Adv. N MUVANGUA)

INSTRUCTED BY: Bowman Gilfillan Inc. (ref.: C Mkiva/6158833)