Bokaba v MEC Department of Health Northwest and Others (JR1423/20) [2021] ZALCJHB 443 (13 December 2021)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: JR 1423/20

In the matter between:

DIKELE BOKABA Applicant

and

MEC: MADODA SAMBATHA

DEPARTMENT OF HEALTH NORTHWEST First

Respondent

ADMINISTRATOR - J HUNTER

DEPARTMENT OF HEALTH NORTHWEST Second

Respondent

POGOSI MOCHUSI Third

Respondent

MKHOMBO NT Fourth

Respondent

KOTSOKOANE KM Fifth

Respondent

MALEKA NO Sixth

Respondent

RAKGOALE TI Seventh

Respondent

MPHAMO REJ Eighth

Respondent

MATLHATSI MA Ninth

Respondent

MAAKE MJ Tenth

Respondent

Heard: 10 November 2021 (via virtual proceedings)

Delivered: In view of the measures implemented as a result of the Covid-19 outbreak, this judgment was handed down electronically by circulation

to the parties' representatives by email. The date for hand-down is deemed to be 13 December 2021.

Summary: Section 158(1)(h) of LRA – review application to set aside the of unlawful appointments – lack of locus standi – unreasonable delay in instituting these proceedings not overlooked.

JUDGMENT

NKUTHA – NKONTWANA, J

Introduction

[1] In this application, the applicant seeks and order in the following terms:

1.1. Reviewing and setting aside the appointments of the third to tenth respondents by the first and second respondent in terms of section 158(1)(h) of the Labour Relations Act[1] (LRA);

1.2. Directing that the salaries and service benefits paid to the third to tenth respondents be recovered for the period of their respective unlawful appointments.

1.3. Directing the first and second respondents be personally liable for the monies (salaries and service benefits) to be recovered from the third to tenth respondents.

1.4. Directing the first respondent to implement the remedial action recommended by the Public Service Commission of South Africa (PSC) per its resort dated 31 January 2020.[2]

[2] The applicant is employed by the Department of Health: North West Province (Department) which is currently under administration, he hold a position of a Deputy Director: Labour Relations. The applicant impugns the decision of the first respondent to appoint the third to the tenth Respondents on the basis of legality. The crux of his case is that these appointments are unlawful because they were not preceded by advertisement of the vacant positions per Regulation 56(1) of the Public Service Regulations of 2016 (Regulations).

[3] The applicant also impugns the first respondent’s failure to implement the remedial action recommended by the PSC consequent to the grievance that was lodged by on Dr Makhuba, Director: Supply Chain Management in the Department, when he challenged the decision of the Department not to shortlist him for a post of Chief Director: Corporate Services.

[4] The respondents are opposing the application and raise two points in limine which pertains to the jurisdiction of this Court and the applicant’s locus standi.

[5] These proceedings were conducted virtually through Microsoft Teams. Due to poor connection challenges on the side of the applicant during the virtual hearing, the parties agreed supplementary heads of argument to deal specifically with the respondent’s points in limine.

Jurisdiction

[6] The respondents take issue with the delay in instituting these proceedings, which is about 18 months from the date of the impugned decision, and the fact that there is no condonation sought by the applicant. Likewise, there is an unexplained delay of about nine months from the date the PSC issued its remedial directive. As such, the respondents contend that this Court lacks jurisdiction to deal with matter.

[7] In MEC for Economic Development , Environment & Tourism , Limpopo Province v Mogahlane,[3] the Labour Appeal Court (LAC) rejected the notion that where the review application under s 158(1)(h) was more than six weeks late, a formal application for condonation had to be brought. Nonetheless, it stressed that ‘this does not mean that the defaulting party is not required to provide the court with an explanation for the undue delay in initiating the review application under s 158(1)(h) of the LRA, and to persuade it to exercise its discretion in favour of overlooking the delay and entertaining the review application’[4]. The LAC stated further that:

‘[16] Although there is no prescribed time-limit for launching a review under s 158(1)(h) of the LRA, this type of review application should be initiated within a reasonable time. In a legality review, the review application must be initiated without undue delay. Courts have the power, as part of their inherent jurisdiction, to regulate their proceedings, to refuse a review application where there has been an unwarranted or undue delay in initiating proceedings, or to overlook the delay in appropriate circumstances…

[17] In Gqwetha v Transkei Development Corporation[5] (Gqwetha), the Supreme Court of Appeal (SCA) 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.’

[8] In the present case the applicant failed to provide any explanation for the delay in instituting these proceedings and as such the delay is unreasonable. I am not convinced that the delay can be overlooked since there is one other obstacle to the relief sought by the applicant. The respondents impugn his locus standi to institute these proceedings.

Locus standi

[9] The respondents contend also that the applicant should be non-suited for the reason that he has failed to show or allege that he has the locus standi to institute these proceedings. Put otherwise, he has failed allege and prove in his papers that his legal rights or interests are at stake. To fortify this contention, the respondents relied on the decision of the Supreme Court of Appeal (SCA) in Four Wheel Drive Accessory Distributors CC v Rattan NO,[6] where the following was said:

[7] The logical starting point is locus standi – whether in the circumstances the plaintiff had an interest in the relief claimed, which entitled it to bring the action. Generally, the requirements for locus standi are these. The plaintiff must have an adequate interest in the subject matter of the litigation, usually described as a direct

interest in the relief sought; the interest must not be too remote; the interest must be actual, not abstract or academic; and it must be a current interest and not a hypothetical one.[7] The duty to allege and prove locus standi rests on the party instituting the proceedings.[8]

[8] The rule that only a person who has a direct interest in the relief sought can claim a remedy, is no more clearly expressed than in the judgment of Innes CJ in Dalrymple:[9]

‘The general rule of our law is that no man can sue in respect of a wrongful act, unless it constitutes a breach of a duty owed to him by the wrongdoer, or unless it causes him some damage in law.’

[10] The applicant denies that he has not established that he has locus standi to institute this application. He asserts in his replying affidavit that he does not have to benefit from the application or have any of his right affected as the matter is about accountability and the rule of law as South Africa and the public service stands to suffer immeasurable prejudice if everyone sat back and watched rules being flouted.[10] However, the applicant failed to deal with the issue of locus standi in his founding affidavit contrary to the basic tenet that a litigant who is dominus litis should deal fully and squarely with the issue of locus standi in his founding affidavit.[11] In essence, he must stand or fall by his founding affidavit, as it were.

[11] It is also instructive that the applicants seem to suggest, belatedly so, that he is litigating in the public interest without alleging

infringement of any right in terms of the Bill of Rights.[12] Accordingly, the applicant failed to show that he is indeed genuinely acting in the public interest.[13] Upon realising this obvious difficulty, the applicant now attempts to augment his case by raising new issues in his supplementary heads of argument. Unfortunately, his move is impermissible. In any event, the new allegations about his personal contractual rights that had been offended by the first and second respondents are of no assistance to his legality impugn.

[12] In the overall, the applicant failed to demonstrate an interest in the litigation and relief sought. As a result, he failed to establish locus standi.

Conclusion

[13] In all the circumstances, given the unexplained undue delay in initiating proceedings, I am not inclined to overlook the delay and deal with the merits of the review application since the applicant’s failure to prove locus standi dispositive of the entire matter.

Costs

[14] This court has a discretion in terms of section 162 of the LRA to order costs in accordance with the requirements of the law and fairness. It is therefore fair and equitable that each party pays its own costs.

[15] I accordingly make the following order:

Order

1. The application is dismissed.

2. There is no order as to costs.

P Nkutha-Nkontwana

Judge of the Labour Court of South Africa

Appearances:

For the applicant: Self

For the respondents: Advocate ESJ Van Graan SC

Instructed by: M

E Tlou Attorneys & Associates

[1] Act 66 of 1005, as amended.

[2] See: Notice of Motion, pages 1-3 paras 1-4.

[3] (2019) 40 ILJ 315 (LAC) at para 16-17.

[4] Ibd.

[5] 2006 (2) SA 603 (SCA) at paras 33-34.

[6] [2018] ZASCA 124; 2019 (3) SA 451 (SCA) at paras 7-8.

[7] D E van Loggerenberg and E Bertelsmann Erasmus: Superior Court Practice 2 ed vol 1 (loose-leaf) at D1-186.

[8] Mars Incorporated v Candy World (Pty) Ltd 1991 (1) SA 567 (A).

[9] Dalrymple & others v Colonial Treasurer 1910 TS 372 at 379.

[10] See: Replying Affidavit, page 271 paras 24 and 25.

[11] See Minister of Land Affairs and Agriculture v D & F Wevell Trust 2008 (2) SA 184 (SCA) at 200D; Swissborough Diamond Mines (Pty) and Others v Government of the Republic of South Africa 1999 (2) SA 279; Director of Hospital Services v Mistry 1979 (1) SA 626 (A) at 635 H – 636B.

[12] See: Lawyers for Human Rights v Minister of Home Affairs [2004] ZACC 12; 2004 (4) SA 125 (CC); 2004 (7) BCLR 775 (CC) at para 18.

[13] Section 38(d) of the Constitution reads: ‘Anyone listed in this section has the right to approach a competent court, alleging

that a right in the Bill of Rights has been infringed or threatened, and the court may grant appropriate relief, including a declaration of rights. The persons who may approach a court are – . . . (d) anyone acting in the public interest; . . . .’