Ekurhuleni Metropolitan Municipality v Mabusela NO and Others (JR1697/18) [2021] ZALCJHB 105 (1 June 2021)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: JR 1697/18

In the matter between:

EKURHULENI

METROPOLITAN MUNICIPALITY Applicant

and

ADV

T L MABUSELA NO First Respondent

THE SOUTH AFRICAN

LOCAL GOVERNMENT

BARGAINING

COUNCIL

Second Respondent

MANDLA

MAGAGULA Third Respondent

Considered: In chambers

Delivered: 01 June 2021 (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 01 June 2021.)

JUDGMENT

APPLICATION FOR LEAVE TO APPEAL

SNIDER, AJ

Introduction

[1] In preparing this judgment in respect of the application for leave to appeal, I have had particular regard to the application for leave to appeal against the judgment, the judgment itself, the applicant’s written submissions on the leave to appeal application, and the third respondent’s submissions opposing leave to appeal.

[2] The details of the matter have been extensively canvassed in the heads of argument originally filed by the parties, the judgment, the application for leave to appeal and the parties’ written submissions in respect thereof. In order to avoid prolixity I will, insofar as possible, only deal with those facts that are directly relevant to this application for leave to appeal.

[3] I have been reminded by both parties that the threshold for granting leave to appeal has changed and is now contained in section 17 of the Superior Courts Act.[1] In terms of section 17(1) the Court may grant leave to appeal if it is of the opinion that the appeal would have reasonable prospects of success or there is some other compelling reason why the appeal should be heard.

[4] In this instance no “other compelling reason why the appeal should be heard” has been raised and accordingly I deal with this application for leave to appeal based on whether or not the Court is of the opinion that the appeal would have reasonable prospects of success.

[5] Leave to appeal is sought against prayers 3 and 4 of the main judgment which dismissed the review application and granted costs in favour of the third respondent, (Mr Magagula) only in respect of the Rule 11 application and the condonation application brought by the Municipality in respect of its non-compliance with the 60 day time period provided for in Rule 7A(6) of the Rules for the Conduct of Proceedings in the Labour Court.

[6] In essence the matter turned on whether Mr Magagula should be appointed to a position he applied for at the applicant (the Municipality).

[7] The Municipality had in place a recruitment and selection policy (the Policy) of which clause 7.1 was of particular importance, and which reads thus:

“7.1.8 No candidate may be appointed into a position without undergoing the due process.

7.1.9 In order to expedite the filling of positions in exceptional circumstances, an alternate recruitment and selection method/procedure may be determined by the divisional head: workforce capacity management.

…

7.4.2.11The successful candidate is determined by the panel after the interview is finalised.”

[8] One of the “burning”, to use a word utilised by the applicant in its written submissions, issues was whether the deviation as contemplated in 7.1.9 of the Policy could be undertaken once the processes had been completed or whether it could only be undertaken at the outset. If the answer was in the latter, this would be in favour of the appointment of Mr Magagula.

[9] Mr Magagula was not advanced as a candidate by the panel and this is what brings the provisions of clause 7.1.9 into sharp focus.

[10] Critical to the application for leave to appeal is whether the test that ought to have been applied by the Commissioner should have been based on whether a reasonable decision-maker could not reach the relative decision, as per the test enunciated in Sidumo and another v Rustenburg Platinum Mines Ltd and others[2], as expounded by the parties, or whether the test of right or wrong was appropriate.

[11] Similarly the manner in which clause 7.4.2.11 of the Policy was interpreted in the judgment is questioned. For the purposes of this judgment, I do not have regard to the evidence of Ms Mokwena, as I do not believe that such evidence is relevant, it not having been located within the, now trite, principles set out in Natal Joint Municipal Pension Fund v Endumeni Municipality[3] which must be applied in interpretative exercises.

[12] I am satisfied that on the question as to whether Mr Magagula qualified for appointment, an appeal would have reasonable prospects of success. Similarly in respect of the interpretation of clause 7.1.9 of the Policy I am of the view that an appeal would have reasonable prospects of success.

[13] In respect of the interpretation of clause 7.4.2.11 of the Policy the point was made in the judgment that this clause cannot be viewed other than that it simply provides for the advancement of a candidate to the next step of the recruitment process and that the competency assessment is a key element of the recruitment process. It was never in dispute that Mr Magagula was successful in the competency assessment.

[14] I do however recognise that there is a reasonable prospect of success in respect of this ground of appeal notwithstanding the above. This depends very much on the interpretation of clause 7.1.9 and the extent to which another Court may consider whether, when and to what extent an alternative recruitment and selection method to the one described in the Policy may be adopted.

[15] As far as the issue of costs is concerned, I am of the view that I correctly exercised my discretion and that in the particular circumstances the ongoing relationship between the Municipality and Mr Magagula was not a decisive factor in favour of not granting a costs order. On the contrary it would have been grossly unfair for Mr Magagula to continue his employment with the Municipality in circumstances as set out in the judgment where the Municipality was the author of Mr Magagula, an individual, incurring substantial unnecessary costs.

[16] In the premises the following order is made:

Order

1. The application for leave to appeal is granted only in respect to paragraph 3 of the order in the main judgment

2. Costs of this application will be costs in the appeal.

Snider, AJ

Acting Judge of the Labour Court of South Africa

[1] Act 10 of 2013

[2] 2008 (2) SA 24 (CC); (2007) 28 ILJ 2405 (CC)

[3] 2012 (4) SA 593 (SCA)