IN THE LABOUR COURT HELD AT DURBAN 
  Reportable
CASE NO : D749/08

Heard: 14 May 2010 
Order granted: 20 May 2010
 Reasons transcribed: 11 June 2010
 Reasons delivered: 6 July 2010

MEC DEPARTMENT OF EDUCATION KWAZULU-NATAL
versus
N L KHUMALO First Respondent
KRISH RITCHIE Second Respondent

BEFORE THE HONOURABLE 
MADAM JUSTICE PILLAY

REASONS FOR JUDGMENT
PILLAY D, J
Introduction

The Facts

3. Alarmingly, the record of the proceedings that resulted in his appointment is missing. Apparently, no one can account for it.

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5. Ritchie met the requirements of the post, but he was not short-listed. After Khumalo was appointed, Ritchie challenged Khumalo's non-appointment. Of the list of 11 grievants, all met the requirements for the post. Some were even short-listed, but not appointed. 7 At Ritchie's arbitration, officials could not justify Khumalo's appointment allegedly because the record of his appointment was missing. Ritchie did not disclose to them that he had not been short-listed. The MEC urges the Court to set aside Ritchie's promotion because no one had the power to settle the dispute by granting him protected promotion.

The Submissions

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SA 222 (SCA) the promotions should be allowed to stand. 

Issues for Determination

23. The Court addresses the issues for determination in the following 5 order:
a. Does the Labour Court have jurisdiction?
b. Has the claim prescribed?

 e. Terminology
f. The application of the LRA, PAJA and PSA
g. The constitutional principles engaged.
h. The application of the constitutional principles
i. Costs

Jurisdiction
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25. The MEC brought this application in terms of section 158(1 )(h) of the LRA. Section 158(1 )(h) empowers the Court to review any decision taken or any act performed by the State in its capacity as employer, on such grounds as are permissible in law.

26. Section 158(1)(h) is available when no other process is available or special circumstances exist to review an act of the State as employer. It is not a safety net to process disputes in public employment that should have been channelled through some other prescribed provision. Nor is it a licence to bypass the prescribed conciliation, arbitration and review procedures when an applicant has missed the time limits.

27. The relief claimed, namely declarators, is not available through conciliation and arbitration, at least, not without the parties' consent. The Labour Court is empowered to grant declarators in terms of sections 158(1)(a)(iv).

29.Accordingly, the Labour Court has jurisdiction to determine this application.

Prescription
30. 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.

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Res Judicata

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Functus Officio
41the rationale for undoing the injustice.42

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37. Although this opinion is expressed in the context of an administrative law challenge to unconscionable State action in a social pension claim, it applies equally to correcting other infringements of the rule of law.

Terminology
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LRA v PAJA; LRA v PSA
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46. Referring to the LRA and PAJA, the CC pronounced succinctly as follows:
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47. These pronouncements clarify that labour disputes, whether in the public or private sector must be channelled through the dedicated structures and procedures of the Commission for Conciliation Mediation and Arbitration, bargaining councils and the labour courts. The powers of these structures are ring-fenced to resolve labour disputes under the LRA only, not under the common law or any other statute.

48. In short, labour law is not administrative law under PAJA. As labour law embraces elements of administrative law derived from the common law, and acts such as the (de)registration of trade unions are administrative, section 33 of the Constitution applies to labour related administrative acts. However, such application is through the LRA, not
PAJA.

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51. In this dispute concerning promotion, section 33 of the Constitution and PAJA are not engaged, because like dismissal, promotion is not an administrative act but an employment related act justiciable under the LRA and the PSA, read with provisions of the Constitution discussed below.

The Constitutional Connections

The Principle of Legality and Constitutional Values
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55. As a constitutional principle, the principle of legality, derived from our common law, spans across all facets of law and governs the exercise of all public power.59 In other words, this principle is not confined to application within administrative law and administrative action.

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57. Therefore, notwithstanding the overlap between the principles of legality and administrative law, they differ in content and scope of application.

58. For the purposes of this case, the following components of the principle of legality are relevant:

b. The action must be procedurally fair.
c. The action must be rational, not arbitrary or capricious.

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Section 195(1) of the Constitution
60. The provisions of section 195(1) impacting pertinently on employment in public administration are captured as follows:
"Public administration must be governed by 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. ...
d. Services must be provided impartially, fairly, equitably and without bias;
e. .
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."

61. The hallmarks of ethical public administration are:
a. Obeying and implementing the law;
b. Serving the public interest;
c. Avoiding harm;
d. Taking  individual  responsibility for processes  and  their consequences;
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63. Transparency requires officials to provide relevant, accessible and accurate information truthfully and timely.

64. Surprisingly, none of the parties rely on section 195 of the Constitution, which is foundational to public administration.

Section 23(1) of the Constitution
65. Section 23(1) of the Constitution provides:
"Everyone has the right to fair labour practices".
"Everyone" in the context includes the department and other employees or applicants for employment. The public too has an interest in labour practices being exercised fairly not least because of the possibilities of industrial action and litigation costs.

The Intersection of Employment and Administration

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Application of Constitutional Principles
68. The constitutional principles above compel public officials to behave honourably whether they represent the State as employer or pursue rights, benefits and protection for themselves as employees. In this case, on the undisputed evidence, the MEC and officials of the State as employer violated every principle of legality and every tenet of ethical, accountable and transparent public administration discussed above in the promotion of Khumalo and Ritchie.

69. Officials responsible for promoting Khumalo must have known or could reasonably have ascertained from the department's own records of his employment history that he did not meet the minimum requirements for the post when they promoted him. Also from the department's own records they must have known or ascertained that Ritchie and other applicants represented by NUPSAW met the minimum requirements for the post. Therefore, even though the documents relating to the decisions and reasoning of the panels that

recommended Khumalo's promotion were missing, and even if Khumalo and his representatives were unco-operative, the department's Persal system and personnel files for each employee would have had sufficient information to alert the officials that Khumalo did not meet the minimum requirements. Despite Khumalo's obvious unsuitability for the post, officials promoted him.
70. Similarly, officials responsible for appointing Ritchie (who may or may not have been the same persons responsible for Khumalo's promotion) must also have known or could have ascertained that Khumalo's promotion was manifestly unsustainable. Instead of responding ethically, accountably and transparently by conceding the impropriety and undoing it, they attempted to conceal it by settling Ritchie's claim, with both sides avoiding the scrutiny of arbitration.

71. The MEC might not have been aware of both irregularities when Khumalo and Ritchie were promoted. She certainly became aware of them when she received the grievance from NUPSAW on 6 October 2005. She too could have ascertained from the department's records of Khumalo's employment history that his appointment was unlawful. As the settlement agreement with Ritchie was founded on the illegality of Khumalo's appointment, she would have discovered that Ritchie's promotion was also contaminated. She should have invited Khumalo and Ritchie to show cause why their promotions should not have been set aside. As they cannot, in this application, give the Court a single sound reason for upholding the propriety of their promotions, they would not have been able to show good cause to the MEC, who could then have set their promotions aside.

72. Instead, the MEC established an investigative task team. Three of the seven members of the team were members of NUPSAW who, as representative of the grievants, could hardly be seen as impartial and independent. The task team purported to act in terms of Resolution
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73. More than a year later, and after conducting interviews covering 162 transcribed pages, the task team reported that "(n)othing justifies or explains his (Khumalo's) short-listing and appointment" and that the "(s)ettlement agreement leading to the appointment of Mr K Ritchie was not
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74. Neither the task team nor the MEC identify a single official as a person responsible for the unfolding fiasco. That no responsible official is identified is incredible. Public employment is bureaucratic and rule driven. The bureaucracy enables every act and omission to be traceable to a person. The hierarchical nature of public employment creates a trail of actors who mandate and implement decisions. Every act or omission is authorised usually by legislation or some other document.

75. Most, if not all, employees have written job descriptions and assigned functions. Furthermore, promotion is a drawn out process through which applications are sifted to separate those that meet the minimum requirements from those that do not. Some official(s) must have performed this task. Short-listing and interviews are conducted by panels. Panellists must surely be able to name each other. Ultimately, an individual signs the letter of appointment. That individual's identity and signature should be traceable.

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80. The MEC and her officials have a constitutional and contractual duty to advance reasons for Khumalo and Ritchie's promotions. She concedes that there are no lawful reasons for their promotions. Their decisions are therefore unethical, arbitrary, unsupported by any reasons whatsoever and not rationally connected to the information before them. That accounts for the promotion records for Khumalo's application being missing.

83. Ritchie had a duty to disclose that he had not been short-listed. He unethically elicited a settlement to which he was not entitled by not disclosing that he had not been short-listed.

84. In the circumstances, Khumalo and Ritchie behaved dishonourably by claiming and clinging to their unlawful promotions. Their conduct is aggravated by the fact that they were Personnel Officers, and later, Chief Personnel Officers in the Human Resource component of the department. As such, they must have been aware of the impropriety of their own conduct as well as that of other officials involved in their promotion.

85. As members of responsible trade unions, they would have been alerted to the irregularities. At the very latest, if not before, they would have known of the irregularities as soon as this application was delivered. Instead of consenting to correcting the illegalities, they defended them.

86. In addition to the violation of the principle of legality, all those involved in the decisions to promote Khumalo and Ritchie violated other constitutional provisions. The grievants and other job applicants had a right to be considered fairly for promotion. They also had a right to fair labour practices, to their right and value to dignity and equality.

87. Disconcertingly, none of the officials involved in the promotion attest to any of the facts material to the promotion. Equally disconcerting too is the striking silence of the Superintendent-General throughout this application. He offers no explanation as to how these travesties could come to pass and remain unchecked for years, and what, if anything, he did to correct them.

88. No disciplinary action has been taken against any officials for either the acts of promoting Khumalo and Ritchie or their omissions to keep records, to make disclosure and generally to take responsibility. The tendency to present the public service as a bureaucracy of unidentifiable, nameless, faceless functionaries casts a cloak of secrecy that is the very antithesis of an open, ethical, democratic, accountable and responsive public service. The bureaucracy is in fact designed to achieve the opposite result with every act and omission being traceable to a person. Wrongdoers within the public service can be rooted out, provided there is a will to do so.

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90. The MEC invited the Court to intervene. In accepting the invitation, the Court could not turn a blind eye to the shocking lack of good governance in this department.

Costs

in the PFMA.

92. Khumalo and Ritchie also disqualified themselves for a cost award as a result of their dishonourable conduct. However, as a result of the inexplicably lengthy delay, they may retain the remuneration they received while they held the post of Chief Personnel Officer.

The Order
93. In the course of the hearing, it became clear that the order sought in the notice of motion had to be amended. Mr Soni delivered an amended order, which the Court granted in the following terms
a. Declaring the promotion of first respondent, Khumalo, to the post of Chief Personnel Officer at the eThekwini Service Centre of the Department of Education Kwazulu-Natal (department) was not lawful, reasonable or fair and was accordingly invalid.
b. Declaring that the decision to agree to grant the second respondent, Ritchie, protected 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.
c. Setting aside the promotion of the first respondent to the post chief personnel officer at the eThekwini Centre of the department.
d. Directing the applicant, the MEC, within one month of the grant of this order to take the necessary steps to advertise the post of Chief Personnel Officer at the eThekwini Service Centre of the department and thereafter to immediately put in place the prescribed steps to fill that post.
e. Setting aside the grant to second respondent of protected promotion in respect of the post of Chief Personnel Officer at the eThekwini Service Centre of the department.
f. Directing the applicant to investigate which departmental officials, if any, had committed any act of misconduct and, if so, to take the necessary steps to discipline those involved.
g. Directing the applicant, within three months of this order, to deliver a report in respect of the matters referred to in paragraph f above.
h. Notwithstanding the aforegoing, no deductions are to be made from the salaries of the first and second respondents in respect of payments made at a higher salary scale.
i. Directing that each party pays its own costs.

 Pillay D, J