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THE LABOUR COURT OF SOUTH AFRICA, GQEBERHA

 

Reportable

Case no: PR225/2022

 

In the matter between:

 

PREMIER OF THE EASTERN CAPE PROVINCE	First Applicant
DIRECTOR-GENERAL, OFFICE OF THE PREMIER OF THE EASTERN CAPE PROVINCE	Second Applicant
and
SIYABONGILE TIKAYO	Respondent

Heard:  20 March 2024

Delivered:  29 November 2024

 

This judgment was handed down electronically by emailing a copy to the parties. The 29^th of November 2024 is deemed to be the date of delivery of this judgment.

 

JUDGMENT

 

MEYEROWITZ AJ

 

Introduction

 

[1]  On 18 April 2017 the respondent (“Mr Tikayo”) was employed by the Office of the Premier of the Eastern Cape (“the OTP”) as its chief financial officer (“CFO”). More than five years later, on 13 October 2022, the Premier of the Eastern Cape and his Director-General (“the Applicants”), approached this court in terms of section 158(1)(h) of the LRA to set aside Mr Tikayo’s appointment on the basis that the appointment was ultra vires the Public Service Act, 1994 (“the Public Service Act”) read with the applicable regulations. In essence, the Applicants claim that the regulations only allowed for Mr Tikayo to be appointed on a temporary contract of no more than 12 months, and that his appointment to the post on a permanent basis was unlawful.

 

[2]  Mr Tikayo has opposed this matter on a variety of bases, including that the Applicants failed to approach this court within a reasonable time.

 

The facts

 

[3]  On 23 October 2016 the position of CFO in the OTP was advertised to the public at salary Level 14 (which is a very senior level).

 

[4]  On 23 January 2017 the Director-General (“DG”) for the OTP at the time, Ms Mbina-Mthembu (“Ms Mbina”), addressed a memorandum to the Premier at the time, Mr Phumulo Masualle (“Mr Masualle”), requesting him to create the post of CFO as a post “additional to the approved establishment” of positions within the OTP. The title of the memorandum was “REQUEST TO CREATE ADDITIONAL CAPACITY FOR THE POST OF CHIEF FINANCIAL OFFICER”.

 

[5]  In this memorandum Ms Mbina explained that during a previous re structuring exercise the function of CFO had been amalgamated into the post of Deputy Director-General: Corporate and Operational Support (“DDG:COS”), but that for various reasons (including legal reasons that I need not discuss in this judgment) it would be more appropriate for the CFO function to be a stand-alone post inhabited by one employee only. Ms Mbina therefore recommended that the post of CFO be established in terms of Regulation 1.III.G.1 of the 2001 Public Service Regulations. Ms Mbina explained in her memorandum that this regulation provided for “the creation of posts in addition to the approved organisational structure, and filling of such posts within the available budget, where it is necessary for any reason to temporarily increase the staff of a department… Only the [Premier] can approve the creation of posts in addition in the approved post establishment”.

 

[6]  Given the emphasis on the appointment being “temporary” and “additional” to the established staff complement, it was somewhat peculiar for Ms Mbina to then state that “the creation of the chief financial officer post will have additional human resource implications for the department as the post will be filled on a permanent basis. The human resource appointed in this post will be appointed additional to the establishment pending the review of the department’s organisational structure” (my emphasis). On 25 January 2017, the Premier approved the recommendation contained in the memorandum by signing the document and stating “approved”. In doing so the Premier duly created the post of CFO. However, whether he created a permanent or temporary post, and whether he did so lawfully, is something that will be considered later in this judgment.

 

[7]  During March 2017 a selection committee from the OTP interviewed several candidates for the CFO position and, in a memorandum dated 31 March 2017, recommended to the Premier that Mr Tikayo be appointed. On 5 April 2017 the Premier duly approved the recommendation and, by doing so, authorised the OTP to appoint Mr Tikayo to the position of CFO.

 

[8]  On 18 April 2017 Ms Mbina, in her capacity as DG, offered Mr Tikayo the position of CFO subject to a period of 12 months’ probation, which certainly suggests that the appointment was permanent. On the Applicants’ version Mr Tikayo accepted the offer on the same day.

 

[9]  On 19 April 2017 an advisory body to the OTP, known as the PMCT[1], ostensibly “approved” the appointment of certain posts additional to the OTP’s establishment, including the CFO position, apparently on condition that the appointments were limited to 12 month contracts only. However, according to the Applicants, the PMCT is merely an advisory body “formed in response to findings of a bloated public service in the Eastern Cape with a specific mandate to consider any proposed amendments to the approved organisational structures of provincial departments”. There is no suggestion that the Premier was ipso facto obliged to follow the PMCT’s advice and, in any event, it would appear that by 19 April 2017 Mr Tikayo had already been appointed to the position of CFO (with his employment scheduled to commence on 24 April 2017).

 

[10]  The Applicants do, however, suggest that the Premier acted irrationally by not following the PMCT’s advice after receiving same on 19 April 2017, but that is not an issue I need deal with at this stage.

 

[11]  The Applicants then claim, in very vague terms, that after commencing employment as CFO on 24 April 2017, Mr Tikayo “occupied the post for only three months, as he was [then] moved to another post”. The Applicants then state that, on 16 October 2018, Mr Tikayo was seconded to the national Department of Cooperative Governance and Traditional Affairs (“COGTA”) for a period of 12 months, before returning to the Eastern Cape OTP no longer in the position of CFO, but rather in some undefined role involving “managing the Premier's Hotline, dealing with municipal interventions and the eastern seaboard development”.

 

[12]  On Mr Tikayo’s version (which, generally speaking, must be accepted as true under the Plascon-Evans rule), he successfully completed his 12 months probationary period by April 2018, and continued working as the CFO until November 2018 when he was seconded to COGTA for 12 months. Upon his return to the OTP in October 2019, he was not allowed to resume his function as CFO, but instead was “required to sign certain performance agreements so as to reach deadlines. The performance agreements [which he signed under protest] referred to the posts of [Chief Director: Policy, Co-ordination, Monitoring and Evaluation] (“CD:PCME”) and [Chief Director: Special Operations] (“CD:SO”) although [he] was never appointed into any of these posts”.

 

[13]  Mr Tikayo then says that during April 2020 Mr Mbulelo Sogoni (“Mr Sogoni”) was appointed as the new DG in the OTP. The two of them had a conversation in June 2020 whereby Mr Tikayo told Mr Sogoni that he had been “appointed as the CFO and that [his] appointment still stood but that the OTP had been treating [him] as though [he] was "outside of the staff establishment/structure" in that [he] had not been allowed to resume [his] duties as the CFO on [his] return from… secondment”. Mr Sogoni replied saying that Mr Tikayo “need not worry and that things would be resolved. [He] needed to wait for the restructuring exercise to be finalised but that [he] should not worry about [his] job security”.

 

[14]  Mr Sogoni then started the process of reviewing the OTP’s organisational structure. I should point out that the Public Service Act, read with the relevant regulations, allows for government departments to reorganise their respective human resource structures through the creation and abolition of posts, and thereafter to redistribute their staff throughout the public service (in the best interests of the public and at minimal prejudice to the employees involved). This process involves extensive consultation with organised labour, treasury departments, and the national Department of Public Service and Administration (“the DPSA”).

 

[15]  The OTP’s new organisational structure was eventually approved nearly two years later on 31 May 2022. During this time it would appear that Mr Tikayo performed various roles within the OTP according to the various performance agreements that he was required to sign. It would also appear that, during this time, he did not actually perform the function of CFO.

 

[16]  On 13 June 2022 Mr Tikayo first became aware, via a general email, that the new organisational restructure had been finalised. As a result he lodged a grievance on 17 June 2022 stating the following:

“What are you aggrieved about…:

In April 2017, I was appointed Chief Financial Officer on a permanent basis. In November 2018 I was seconded to Provincial COGTA for 12 months. On my return from secondment I was never reinstated to my position. I reported the matter to the executive authority and the Accounting Officer. Attempts were made to resolve the matter with the promise of organisation and restructuring resolving this matter. 

On 13 June 2022, I learned via a general email that the Department intends to implement a new organisational structure and my matter has not been resolved.

What solution do you propose? 

To be reinstated to my position of the Chief Financial Officer”.

 

[17]  The grievance notwithstanding, Mr Sogoni (in his capacity as DG) began allocating the OTP’s staff complement to positions within the new structure. This process involved each staff member re-applying for their previous positions (or applying for new positions if their previous positions no longer existed). As it happened, two people applied for the position of CFO. The first was Mr Tikayo, and the second was a Ms Liziwe Ndzima (“Ms Ndzima”) who at the time held the position of Chief Director: Finance, SCM and ICU (“CD:FSI”).

 

[18]  On 14 July 2022 Mr Sogoni sent Mr Tikayo a letter stating the following:

“PLACEMENT IN TERMS OF NEW ORGANOGRAM PROCESS: YOURSELF

1. I write to you pursuant to your preference to be placed in the post of Chief Financial Officer in the Office of the Premier.

2. As you may recall, you were invited to a session to discuss your placement preference on 11 July 2022.

3. Kindly be informed that your request to be placed in the post of CFO has not been successful.

4. Because you failed to provide an alternative placement request and considering that in the discussion with you on 11 July 2022 you submitted that being CFO is the only role you would be "confident" with, you therefore remain not placed in the new organisational structured.

5. Having considered that in the same discussion you indicated that your expectation was that management would offer you an alternative placement, I hereby offer you placement in the post of Chief Director: Office of the Director General [“CD:ODG”].

6. The current incumbent will be vacating the post on 30 September 2022. Therefore, should you accept the placement offered to you, you will in the meantime be assigned part of work relevant to the Office of the Director General with the intention that you assume the role in full with effect from 01 October 2022.

7. Kindly confirm your acceptance of this placement offer not later than Friday, 22 July 2022, after which, if your response is in the affirmative, you will be assigned work accordingly." (my emphasis)

 

[19]  At 13h71 on 22 July 2022 Mr Tikayo accepted this offer via email saying

“Thank you for the placement, I accept and am grateful for the opportunity to serve as chief director: Office of the Director General”.

 

[20]  Then, approximately one month later on 19 August 2022, Mr Sogoni sent Mr Tikayo a letter stating the following:

“APPOINTMENT ADDITIONAL TO THE STAFF ESTABLISHMENT IN THE OFFICE OF THE PREMIER

As you are aware, the Office of the Premier has begun a process of placing staff in the new structure approved by the Premier on 31 May 2022.

During this process, it came to light that the post of Chief Financial Officer to which you were appointed was created additional to the staff establishment by the former Premier.

In terms of Regulation 57(4) of the Public Service Regulations, "the employment of a person additional to the establishment in terms of subregulation (2)(a) or (b) shall not exceed 12 consecutive calendar months unless otherwise directed by the Minister".

I obtained an external legal opinion to ascertain the legal options available to me as the Accounting Officer.

I am advised to inform you that your tenure in the Office of the Premier should not have exceeded the period of twelve months as prescribed by law.

In the circumstances, I am enjoined to request you to resign forthwith, alternatively I will launch an application to the High Court to seek a declaratory order to terminate your employment.

In view of the aforegoing, I request that you submit the reasons, if any, by close of business on Wednesday, 24 August 2022, why I should not proceed with the court application” (my emphasis).

 

[21]  Mr Tikayo responded to this letter on 24 August 2022 saying “I have no intention of resigning from the Office of the Premier”, and on 25 August 2022 Mr Sogoni replied saying “kindly be advised that finalisation of your placement in the new organisational structure… will be put in abeyance until the review process has been concluded by the court(s)”.

 

[22]  On 16 September 2022 Mr Tikayo referred an unfair labour practice dispute to the General Public Service Sectoral Bargaining Council regarding the failure to reinstate or re-employ a former employee in terms of an agreement (in terms of section 186(2)(c) of the LRA).

 

[23]  It would appear, although I make no finding to this effect, that the bargaining council dispute may be inapplicable given that Mr Tikayo was never actually dismissed and therefore cannot be considered a “former” employee. In any event, on 13 October 2022 the Applicants launched the present application to have Mr Tikayo’s appointment as CFO (in April 2017) reviewed and set aside. They did not apply to have his later appointment as CD:ODG (in July 2022) reviewed and set aside, but the relevance or otherwise of this fact will be discussed below.

 

Mr Tikayo’s employment status

 

[24]  Unfortunately, Mr Tikayo’s current employment status is less than clear. To begin with, it would appear that he is no longer performing the function of CFO. On his version he occupied the position of CFO until he was seconded to COGTA, whereafter, and upon his return to the OTP, he was not allowed to resume his function as CFO but was instead “required” to sign certain performance agreements relating to the positions of CD:PCME and CD:SO (which he apparently signed under protest). It would appear that he then performed the functions of CD:PCME and CD:SO without actually being appointed to those positions.

 

[25]  At the beginning of their founding affidavit the Applicants state that Mr Tikayo is currently employed as the CD:PCME. However, the answering and replying affidavits make it clear that, following the latest restructuring, in July 2022 Mr Tikayo was appointed to the position of CD:ODG. To make matters more complicated, on 19 August 2022 Mr Sogoni requested Mr Tikayo to resign from his employment with the OTP, and after Mr Tikayo refused to do so, Mr Sogoni then said that “your placement in the new organisational structure… will be put in abeyance” (my emphasis) pending the outcome of the present review application. It is not entirely clear what “put in abeyance” actually means from a factual and legal perspective (if it means anything at all), nor whether Mr Sogoni had the necessary legal authority to hold Mr Tikayo’s placement in the new organisational structure “in abeyance”. However, I shall return to these issues towards the end of this judgment.

 

The law regarding a failure to approach court within a reasonable time / undue delay

 

[26]  Referring to the ConCourt decision of Khumalo & Another v Member of the Executive Council for Education: KwaZulu-Natal,[2] the LAC in MEC for Economic Development, Environment & Tourism, Limpopo Province v Mogahlane[3] held that “Although there is no prescribed time-limit for launching a review application under s 158(1)(h) of the LRA, this type of review should be initiated within a reasonable time. A period of six weeks has been regarded by our courts to be ‘within a reasonable time’. In a legality review, the review application must be initiated without undue delay”[4] (footnotes omitted).

 

[27]  The Applicants claim that they have not unduly delayed in this matter because they only became aware of the alleged irregularity on or about July 2022, and then launched this application a few months later on 13 October 2022. At the time of Mr Tikayo’s appointment in April 2017, the Premier and DG were Mr Masualle and Ms Mbina, respectively. By July 2022 these same offices were occupied by Mr Lubabalo Mabuyane (“Mr Mabuyane” – the first applicant herein) and Mr Sogoni (the second applicant herein).

 

[28]  In my view it is incorrect for the Applicants to claim that the calculation of a “reasonable time” must start when they (that is, Mr Mabuyane and Mr Sogoni) first became aware of the alleged irregularity. The OTP constitutes a juristic entity that exists separately from Mr Mabuyane and Mr Sogoni,[5] and thus the calculation must start from the moment the OTP as a juristic entity first became aware of the alleged irregularity. Furthermore (and for the reasons set out below), calculation of a “reasonable time” should not be limited to the OTP’s actual knowledge of the alleged irregularity, but should include when it reasonably ought to have become aware of the alleged irregularity.

 

[29]  In Khumalo (supra) the ConCourt held as follows:

“[44] …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 jurisdiction [in terms of section 173 of the Constitution] to regulate their own proceedings) to refuse a review application in the face of an undue delay in initiating proceedings 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. (my emphasis, footnotes omitted)

 

[30]  Referring to the SCA decision of Gqwetha v Transkei Development Corporation (Gqwetha)[6] (which was also referred to with approval in Khumalo), the LAC in Mogahlane (supra) held that “an assessment of a plea of undue delay involves examining (i) whether the delay is unreasonable or undue, and if so, (ii) whether the court’s discretion should be exercised to overlook the delay and nevertheless entertain the application. In relation to the first leg of the enquiry, the explanation offered for the delay is considered. In the absence of any explanation (or any reasonable explanation), the delay would be unreasonable. Concerning the second leg of the enquiry, the court is required to assess the delay with reference to its potential prejudice to the affected parties and having regard to the possible consequences of setting the impugned decision aside”[7] (my emphasis, footnotes omitted).

 

[31]  The above makes it clear that assessing a plea of “undue delay” in legality reviews is not the same thing as assessing a normal condonation application, but there is significant overlap.[8] When assessing a plea of undue delay the court must determine whether there is a reasonable explanation for the delay, and what effect the delay might have on the parties if the impugned decision is set aside. Patently a calculation of the extent of the delay is still necessary, but in my view the calculation must start from when the applicant first reasonably ought to have been aware of the allegedly defective nature of the impugned decision. By doing so the court holds the applicant to a reasonableness standard, which standard is inherent in the court’s exercise of its discretion to regulate its own process in terms of section 173 of the Constitution.

 

[32]  In SA Broadcasting Corp Ltd v National Director of Public Prosecutions & others[9]; the ConCourt held as follows:

“[36] The power recognised in s173 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 s173 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 (s 35 of the Constitution) and the right to have disputes resolved by courts (s 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”. (my emphasis, footnotes omitted)

 

[33]  In my view, fairness and the interests of justice demand that people act reasonably. This means that when assessing a plea of undue delay in matters of self-review by the State in terms of section 158(1)(h), calculation of a “reasonable time” should be determined from the moment the applicant reasonably ought to have become aware of the allegedly defective nature of the impugned decision (and not only from when the applicant actually became aware of same).

 

Application of the law to the facts

 

[34]  The applicable public service regulations[10] provide for every government department to have an “approved establishment” of permanent staff, which establishment must be reviewed on a regular basis so as to adapt to the changing needs and budgets of each department. The regulations also provide for the appointment of persons additional to the approved establishment under certain circumstances, but generally only for a maximum period of 12 months. I am prepared to accept, obiter dictum, that regulation 57 of the 2016 Public Service Regulations precluded the OTP from appointing Mr Tikayo to the position of CFO for a period of more than 12 months (because the position of CFO, at the time, was extraneous to the approved establishment – the function of CFO had been subsumed into the role of DDG:COS). Nevertheless, it is clear to me that the OTP did in fact appoint Mr Tikayo to the position of CFO on a permanent basis in April 2017.

 

[35]  To some extent I can empathise with the practical problem now faced by Mr Sogoni. He became the OTP’s new DG in 2020 and, after conducting a review of the establishment, he discovered that he had an extra permanent employee “on the books” who, technically speaking, should not have been there. However, this practical problem had already been solved in July 2022 when Mr Sogoni offered Mr Tikayo the position of CD:ODG (which offer Mr Tikayo happily accepted). Thereafter Mr Sogoni did an about-turn and demanded that Mr Tikayo resign because his original appointment as CFO was allegedly irregular.

 

[36]  Mr Sogoni explains his about-turn by saying that, as the responsible functionary, he had a duty to correct the existing irregularity by way of self-review. Mr Tikayo suggests a more sinister motive, but motive is irrelevant. The immediate task before me is to assess the plea of undue delay.

 

[37]  After Mr Tikayo’s return from secondment in October 2019, the OTP prevented him from performing the function of CFO without formally transferring him from the position of CFO into a different position in terms of section 14 of the Public Service Act[11] – this is not genuinely in dispute. Mr Tikayo then continued to be remunerated at salary Level 14, but seems to have performed ad hoc services for the OTP while at the same time protesting that he should be performing the role of CFO. It is therefore more likely than not that, by October 2019, at least one person at the OTP was aware that there was some kind of irregularity with Mr Tikayo’s permanent appointment as CFO – otherwise the OTP would have allowed him to perform the function of CFO (or would have formally transferred him into a new position).

 

[38]  In any event, even if the OTP was not actually aware of the alleged irregularity back in October 2019 (which I very much doubt), a reasonable person in the OTP’s position, when confronted with Mr Tikayo’s irregular treatment and his protestations about such treatment, would have discovered the alleged irregularity following a diligent investigation. Indeed, there is even an argument to be made that a reasonable person in the OTP’s position would have uncovered the alleged irregularity back in April 2019 as soon as the PMCT informed the OTP that creation of the CFO position could not exceed 12 months.

 

[39]  In light of the above, the OTP should have launched these review proceedings within a reasonable time of October 2019 (or arguably even as far back as April 2017, but I will give the OTP the benefit of the doubt and set October 2019 as the applicable date). As it happened, this application was launched a full three years after October 2019 without any explanation for the delay. On the precedent set by Khumalo (where the court refused to condone a delay of some 20 months where no explanation was put forward), the OTP’s delay of three years stands as a significant hurdle in the Applicants’ path to success in these proceedings.

 

[40]  Turning to the issue of potential prejudice to the parties, the delay has quite obviously severely prejudiced Mr Tikayo. Through absolutely no fault of his own, and more than five years after first being employed, he has now received a notice of motion placing his security of employment at risk. To make matters worse, the Applicants have asked this court to declare his employment void ab initio, without any regard to what might be a just and equitable remedy following the requested declaration of invalidity.

 

[41]  Despite the issue not being pleaded, Ms Rawjee and Mr Cetywayo (for the Applicants) discuss just and equitable remedy in their heads of argument. They argue that, instead of invalidity ab initio, an appropriate  remedy would be for this court to set aside Mr Tikwayo’s employment from the date of the court order (as happened in the High Court decision of MEC for the Department of Co-Operative Governance and Traditional Affairs v Nkandla Local Municipality and others and a related matter[12]). In practical terms, this is effectively asking the court to sanction Mr Tikayo’s dismissal from the public service without affording him any of the unfair dismissal protections normally afforded to employees under the LRA. During argument Ms Rawjee softened her position somewhat, suggesting that a just and equitable remedy would be to terminate Mr Tikayo’s employment from the date of the court’s order but to then compensate him “for a period of 6 months within which he can then apply to any other department for a CFO position”.

 

[42]  On the issue of prejudice to the Applicants, Ms Rawjee argued that the State (and ultimately the taxpayer) is currently being prejudiced by having to pay the salary of an employee who was illegally appointed to his position. In my view this prejudice is more apparent than real. According to the panel that interviewed him Mr Tikayo is eminently qualified for the position of CFO (which is now a permanent position in the newly approved structure). This means that, from a matter of principle, paying Mr Tikayo to be CFO would be money well spent – what the Applicants are really concerned about is having an extra permanent employee “on the books”. But in July 2022 the Applicants found a way to accommodate Mr Tikayo in the position of CD:ODG. It therefore seems to me that Mr Tikayo is a valuable government resource who, according to sections 14 and 15 of the Public Service Act, could theoretically be seconded or transferred throughout the public service.

 

[43]  I am therefore not convinced that the Applicants (and perhaps more correctly, the State) will be particularly prejudiced if this court declines to entertain the present application on the basis of undue delay. I appreciate that in the Nkandla case (supra) the court condoned a delay of some 12 months and set aside the appointment of the two illegally appointed municipal managers from the date of the court order, but the facts in that case were markedly different. First of all, the municipal managers were required, by law, to have a minimum of five years’ experience which they did not possess; leaving those two municipalities in the hands of unqualified persons represented significant potential prejudice to the State and to its citizens. Secondly, the delay was only 12 months, and during that time the MEC (the applicant) embarked on a lengthy bureaucratic effort to settle the matter outside of the courtroom – applying to court was a last resort. In the present matter the OTP simply did nothing about the alleged irregularity for at least three years.

 

[44]  I am cognisant of the fact that the Applicants have good prospects of successfully declaring Mr Tikayo’s appointment unlawful, but given the necessity of a just and equitable remedy,[13] their prospects of successfully having him removed from the public service is less certain. After taking all of the relevant factors into account, particularly the considerations of fairness and the interests of justice, I am of the view that the OTP’s’ significant delay in bringing this matter to court should not be excused. In this respect the words of Skweyiya J in Khumalo are apposite:

“[45] …the rule of law is a founding value of the Constitution, and… state functionaries are enjoined to uphold and protect it, inter alia by seeking the redress of their departments' [own] 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… [46] Section 237 [of the Constitution] acknowledges the significance of timeous compliance with constitutional prescripts. 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. 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 [unjust] consequent actions. (my emphasis, footnotes omitted)

 

[45]  Given that this court has now declined to entertain the application to set aside the OTP’s decision, made in April 2017, to appoint Mr Tikayo to the position of CFO, that appointment remains legally valid in terms of the principles set out in Oudekraal Estates (Pty) Ltd v City of Cape Town and Others[14].

 

[46]  What is less clear is Mr Tikayo’s current employment status. At the hearing of this matter it was common cause that Mr Tikayo was still receiving his salary from the OTP. On the facts before me it would appear (although I make no finding to this effect) that Mr Tikayo is currently employed as CD:ODG because Mr Sogoni offered him this position on 14 July 2022, and on 22 July 2022 he unequivocally accepted the offer. In his answering affidavit Mr Tikayo reserved his right to bring a counter-application in due course for a declaration to this effect. It may have been prudent for him to have done so at the time of filing his answering affidavit, but since he has not done so it would be inappropriate for me to make an authoritative determination to that effect in these proceedings.

 

Costs

 

[47]  The principle that costs do not normally follow the result in labour matters unless there is a compelling reason to depart from the norm (such as vexatious conduct by the parties or the bringing of a frivolous case),[15] does not apply in the present matter because the relief sought in not based on labour legislation but rather purely on administrative law.

 

[48]  In any event, Mr Tikayo has been forced to defend these proceedings through absolutely no fault of his own, and there is no reason why costs should not follow the result. Although Mr Tikayo represented himself during the hearing of this matter, he indicated that he had employed counsel during various stages of his defence (and this is indeed apparent from his answering affidavit and heads of argument). He should therefore also be compensated for the cost of counsel.

 

[49]  In the circumstances I make the following order:

 

Order

1.   The application is dismissed.

2.   The first and second applicants are to pay the respondent’s costs of the application, jointly and severally, the one paying the other to be absolved, including the cost of counsel where so employed.

 

Mark Meyerowitz

Acting Judge of the Labour Court of South Africa

 

Appearances:

 

For the First and Second Applicants: Instructed by:	Advocate A Rawjee SC (with Advocate Y Cetywayo) State Attorney, Gqeberha
For the Respondent:	In person

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