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Sukumane v Monareng and Another (1203/2016) [2017] ZAGPPHC 466 (27 June 2017)

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IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

CASE NO: 12023/2016

DATE: 27/6/2017

REPORTABLE: NO

OF INTEREST TO OTHER JUDGES: NO


IN THE MATTER BETWEEN:

JOYCE SUKUMANE                                                                                             Applicant

and

MPHO  REGINALD MONARENG                                                            First Respondent

THE PAN SOUTH AFRICAN LANGUAGE  BOARD                         Second Respondent

JUDGMENT

KOLLAPEN J:

1. The applicant  has launched these proceedings in which she originally    sought

inter alia the following substantial relief:

1.         Condonation of the late filing of the application;

2.         Reviewing and setting aside the second respondent' s decision appointing the first respondent as its Chief Executive Officer;

3.         Reviewing and setting aside the first respondent's  appointment by the second  respondent;

4.         Reviewing and setting aside the employment contract entered into by and between the first and second respondent;

5.         Reviewing and setting aside the second respondent' s decision not to shortlist, and to exclude, the applicant from the  interviews;

6.         Reviewing and setting aside the second respondent' s decision not to appoint the applicant as its chief executive officer;

7.         Ordering and directing the second respondent to appoint the applicant as its chief executive officer;

8.         That the first and second respondents pay the costs of this application jointly and severally;

2. At the hearing of the matter counsel for the applicant placed on record that the applicant was not persisting with the relief sought in paragraph 7 of the notice of motion, namely an order that the applicant be appointed as the chief executive officer (‘CEO’) of the second respondent.

Background

3. The second respondent, the Pan South African Language Board, is a juristic person  with  the  mandate  to  further  multilingualism  in  South  Africa  and to advance the development of previously marginalised languages - an important mandate in the context of our young democracy.

4. During April 2015, the second respondent resolved to commence a process to appoint a Chief Executive Officer and following this, an advertisement was put out inviting potential candidates to apply. This was followed by a shortlisting process and interviews for those candidates who were shortlisted culminating eventually in the appointment of the first respondent as CEO.

5. It is this appointment as well as the subsequent employment contract entered into between the first and the second respondents, that the applicant seeks to review and set aside.

6. It is not in dispute that the applicant was one of the candidates who applied for the post of CEO of the second respondent. She, however, was not shortlisted and while she has not persisted with the relief that she be appointed as CEO, she nevertheless takes issue with the failure by the second respondent to shortlist her, alleging that she was excluded purely on account of her age. In support of this, all that the applicant states is that she was reliably informed that she was excluded on account of her age. No further details are given nor does she indicate why she is not able to say who informed her of her exclusion and why such person is unable to depose to an affidavit. In any event the respondents dispute this and contend that she was excluded purely on the basis of the merit of her application. In my view the applicant has failed to prove that her exclusion was premised on her age.

7. Her challenge to the appointment of the first respondent is premised on:

a)     An assertion that the first respondent did not meet the inherent requirements of the post of CEO and that accordingly his appointment was unlawful 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 10th of July 1998 in Government Gazette No. 23404  (‘the regulations’);

b)     That the failure by the second respondent to conduct a specific competency assessment of the first respondent rendered the appointment unlawful.

c)      That the exclusion of the Acting CEO of the second respondent from the selection process meant that the Board of the second respondent was not properly constituted, and invalidated the decision to appoint the first respondent.

8. With regard to the challenge to the setting aside of the employment contract entered into between the first and the second respondent, the stance of the applicant is that the signatory to the contract on the part of the second respondent, Professor Madiba, was no longer a board member at the time the contract was signed and thus was not empowered to contract on behalf of the second respondent.

9. Both respondents oppose the application on the merits and in addition have raised  the issue of the lateness of the application as well as what they   contend is the failure by the applicant to make out a proper case for condonation. It may accordingly be useful to first deal with the question of condonation

Condonation

10. It is common cause that the first respondent assumed his duties as CEO with effect from the 1st of July 2015, his contract of employment  also having  been signed  on  the 1st of  July  2015.  The  stance  of  the  respondents  is  that  this application should have been instituted on or before the 1st of January 2016 but was only launched on the 15th of February 2016. The applicant explains the delay on the basis that she only became aware on the 7th of February 2016 about the interview process and the reasons for her exclusion as being her age, and it was only then that she had a basis to bring the application.

11. The stance of the respondents is that from the tenor of the founding affidavit of the applicant it is clear that she was aware of the process of shortlisting in May 2015 and must have been aware of the appointment of the first respondent during the period May to June 2015. Even if that is the case, on what is before me, the applicant was motivated to act by the news and the basis thereof of her exclusion. This occurred in February 2016 and if that is indeed the case then her application was not out of time and no order for condonation would be required. While I am mindful that that part of her relief has been abandoned, my view is that it was so inextricably linked to the rest of the relief claimed that it would be an artificial exercise to separate the various areas of knowledge that the applicant would have acquired in relation to the different heads of the relief claimed and to conduct a condonation exercise on that basis.

12. The more practical and appropriate approach in my view would be to view the case for the applicant (as originally launched) in its entirety and to determine the need for condonation or otherwise on that basis. Adopting such an approach, my view is that the applicant became aware during February 2016 of her exclusion and the reasons for it and brought the application shortly thereafter and in any event within the 180 day period as contemplated in Section 7(1)(b) of  the  Promotion  of  Administrative Justice  Act  3  of  2000 (‘PAJA’).

The merits

13. The issues for determination are:

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

14. In her founding affidavit the applicant attacks the decision of the second respondent on the basis that it is irrational, that relevant considerations were excluded and irrelevant considerations were considered.

15. 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'.

16. In the context of this application the advertisement for the post of CEO which was approved by the second 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 advertisement then clearly some of the requirements are couched in peremptory language while others are not.

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

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

17.2          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 first respondent, what emerges from the very same CV is that the first 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.

17.2.1          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 '.

17.2.2          There can hardly be any doubt that the first 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.

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

19. 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.

20. 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 advertisement and the job profile' and agreed to assess candidates based on this.

21. In this regard a qualitative assessment was required and indeed made and the following conclusion drawn by the panel on the candidacy of the first 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. "

22. 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 advertisement, these have all been met and secondly the other requirements set out in the advertisement 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.

23. 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?

24. 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 first 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 first respondent to such an assessment is somehow reviewable.

The challenge on this leg is also destined to fail.

•         Did the exclusion of the   Acting CEO from the selection and appointment process render the decision unlawful?

25. It appears that the Board of the second respondent put in place a selection committee to facilitate the selection process and I do not understand that it was mandatory for the Acting CEO to have been part of the selection committee.

With regard to the deliberations of the Board, Section 5(1)(b) of the Pan South African Language Board Act No 59 of 1995 provides that the CEO shall be a member of the Board. It is silent on whether an acting CEO enjoys a similar status and in any event such a person would not enjoy voting rights at Board level.

In my view the inclusion or exclusion of the acting CEO would have no impact on the lawfulness of any decision taken by the selection committee or the Board.

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

26. 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 second respondent, was still a member of the Board of the second respondent.

27. 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’.

28. 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 first respondent's employment contract in 2015 he was  chair of the Board. The applicant take 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 1st July 2015.

29. 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. “

30. 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 reasonable interpretation of Section 6(2) of the Act.

31. 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 second respondent on the 1st of July 2015. What matters is that he was authorised by the Board of the second respondent to handle matters relating to the employment contract between the first respondent and the second respondent. 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 first 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. That being the case, the case for the setting aside of the contract of employment is not sustainable.

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

Costs

33. 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 she has sought to advance a matter of genuine constitutional import, my view is that a cursory examination of the facts shows otherwise.

34. Firstly the applicant persisted in the relief that she be appointed as CEO but elected, wisely in my view, to abandon that relief only at the hearing of the matter. Secondly, she advanced an argument of age discrimination purely on the basis of hearsay and unsupported assertions and in my view did so recklessly and irresponsibly. Thirdly, the basis of her attack on the appointment of the first respondent was superficial and lacking in any particularity or substance.

35. 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

36.   I would accordingly make the following order:

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

12023/2016


HEARD ON: 13 June 2017


APPEARANCES

 

FOR THE APPLICANT: Adv. Z FENI

INSTRUCTED BY: Faku Attorneys

 

____________________

 

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

INSTRUCTED BY: Bowman Gilfillan Inc. (ref.: C Mkiva/6157020)