Kumbe v Department of Cooperative Governance and Others (UM120/23) [2023] ZANWHC 81 (15 June 2023)

IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION, MAHIKENG

CASE NO: UM120/23

Reportable: YES/NO

Circulate to Judges: YES/NO

Circulate to Magistrates: YES/NO

Circulate to Regional Magistrates: YES/NO

In the matter between: -

KGOMOTSO KUMBE

Applicant

And

DEPARTMENT OF COOPERATIVE GOVERNANCE 1st Respondent

MS AVRIL WILLIAMSON (NO- Director General) 2nd Respondent

MS JACKIE MAEPA (NO- Acting Chief Director) 3rd Respondent

MS TINA ANDRES (NO- COGTA official)

4th Respondent

JB MARKS MUNICIPALITY COUNCIL

5th Respondent

Hon Cllr Gaba Kaqhele (No- Executive Mayor) 6th Respondent

THE MEC FOR COOPERATIVE GOVERNANCE 7th Respondent

HUMAN SETTLEMENT AND TRADITONAL AFFAIRS

NORTH WEST PROVINCE

JUDGEMENT

KHAN AJ

[1] The Applicant brings this application as a matter of urgency and seeks an order setting aside the decision of the First Respondent denying the Applicant the opportunity to participate in the competency assessments.

[2] The Applicant seeks an order that the First Respondent allow him Applicant to participate in the competency assessments and that the First and Second Respondents pay the costs of the application on an attorney and client scale, including the costs of 2 counsel.

Factual Matrix

[3] The Applicant is the Acting Chief Financial Officer in the JB Marks Local Municipality ("JB Marks"). JB Marks conducted a recruitment process for the position of municipal manager in August 2022. The Applicant applied for the position of municipal manager and was referred to a competency assessment in November 2022. The competency assessment was conducted by the Assessment Toolbox and the results of the competency assessment was that the Applicant was not competent.

[4] The Applicant did not seek reasons or feedback on the competency assessment until the 10 January 2023, this is despite the fact that he alleges that 2 days after the Assessment had taken place in November 2022, there was already talk in the corridors that he had failed the competency assessment.

[5] On the 10 January 2023, the Applicant requested feedback on the competency assessment from the Assessment Toolbox, he alleges that such request was denied. He alleges that he requested intervention from the Department of Cooperative Governance but none was provided. The intervention that the Applicant required was a formal and official process in the form of a virtual meeting that has a record.

[6] It appears from the Founding Affidavit and the Annexures thereto that the Applicant was given feedback, this was telephonic feedback which the Applicant objected to, it is thus the manner and the duration of the feedback that the Applicant objected to. It further appears that the Applicant was aware that if he required a more detailed session, he would have to carry the costs. The Applicant chose not to utilize this option on the basis that, "it is a measure aimed at deterring those of us we would like to be provided with a detailed feedback of their performance during the assessment".

[7] Eight months later, JB Marks collapsed the recruitment process and launched a new recruitment process in April 2023. The Applicant records that the first recruitment process was never concluded by the municipality and a new recruitment process was initiated. The Applicant once again applied for the advertised position of Municipal manager and was shortlisted, interviewed and referred to a competency assessment scheduled for the 25th and 26 May 2023. According to the Applicant, Tina Andries, ("Andries") interfered with the process by instructing that he should not be assessed because his previous competency assessment from the previous recruitment policy was still valid.

[8] The Applicant then records that his assessment was based on the results from the previous recruitment process, which he had queried. It does not appear from a reading of Annexure "KK4" that the Applicant queried the results, what the Applicant took issue with was the feedback session and how same was to be conducted. The Applicant was advised by Andries in the email dated 25 May 2023, Annexure "KK6", "that being dissatisfied with the feedback cannot form the basis of a request for a re-assessment.”

[9] The Applicant alleges that there is a tendency for the Respondents to sit on their laurels and not address queries referred to them promptly, that he has attempted to exhaust internal remedies before approaching the court on an urgent basis and he will not be able to obtain any substantial redress at a hearing in due course.

[10] It is noted that the Applicant did not pursue the matter after the 18 January 2023, despite acknowledging that the Respondents have a tendency not to respond to queries. There were various options open to the Applicant as far back as January 2023, i.e., to pay for a detailed practice session or to lodge a dispute pertaining to the outcome of the competency session, the Applicant chose to send emails and wait for a response knowing that the Respondents' do not respond to queries.

[11] The Applicant indicates that the impetus to approach this court on the basis of urgency is the refusal to allow him to attend the competency assessment with Gjima on the 24 and 25 May 2023. This refusal cannot be viewed in a vacuum and must be considered in light of the history of this matter and the Applicant's failure to address this issue previously, more especially in light of the fact that the Applicant was aware that the competency assessment is valid for 12 months.

[12] The First Respondent refers to the Competency Manual ("the manual") of the Department and confirms that Regulation 16(1) of the regulations (also referred to by the Applicant) provides that an Applicant must undergo a competency assessment. Paragraph 3 of the manual indicates that the competency-based exercises are valid for a period of 12 months and that the validity of results for a certain period is significant to prevent a learning effect and carry over knowledge from the previous assessment. It is on this basis that a new assessment was refused as the old assessment was still valid.

[13] The law on urgency is abundantly clear. Urgent applications must be brought in accordance with the provisions of rule 6(12) of the

Uniform Rules of Court, with due regard to the guidelines set out in cases such as Die Republikeinse Publikasies Edms Bpk vs Afrikaanse Pers Publikasies (Edms) Bpk[1] as well as Luna Meubelvervaardigers (Edms) Bpk v Makin and Another[2] and Sikwe v SA Mutual Fire & General Insurance [3]

[14] In Mogalakwena Local Municipality v The Provincial Executive Council, Limpopo and others[4] at paragraphs 63 and 64, the Court held:

“I proceed to evaluate the Respondent's submission that the matter is not urgent. The evaluation must be undertaken by an analysis of the Applicant's case taken together with allegations by the Respondent which the Applicant does not dispute. Rule 6(12) confers a general judicial discretion on a court to hear a matter urgently It seems to me that when urgency is an issue the primary investigation should be to determine whether the Applicant will be afforded substantial redress at a hearing in due course. If the Applicant cannot establish prejudice in this sense, the application cannot be urgent. Once such prejudice is established, other factors come into consideration. These factors include (but are not limited to): Whether the Respondents can adequately present their cases in the time available between notice of the application to them and the actual hearing, other prejudice to the Respondent's and the administration of justice, the strength of the case made by the Applicant and any delay by the Applicant in asserting its rights. This last factor is often called, usually by counsel acting for Respondents, self-created urgency.”

[15] The Court, in considering whether the Applicant will not be afforded substantial redress at a hearing in due course the court considered the following.

15.1 The First recruitment process took eight months before same was abandoned and a new recruitment process started. The Applicant alleges that the collapse was caused by the failure of the Department to attend to his case timeously, there is no evidence before this court to support this statement.

15.2 The Applicant alleges that the Municipal council is on its second year of term which leaves the municipal managers terms of office with 3 years and that a municipal manager must be appointed urgently.

1 5.3 That the process of recruitment is at its tail end and he is being forced to compete with his fellow shortlisted candidates using results from a flawed previous recruitment process. As noted previously it is not the process that the Applicant took issue with but the feedback session. As confirmed by the Applicant's email of the 26 May 2023 to Andries, wherein he stated emphatically that he has never wanted to be re-assessed, "l have consistently requested for an intervention of the Feedback session".

15.4 The Respondent filed an unsigned Answering Affidavit deposed to by Mbulelo Tshangana, ("Tshangana") Director General: Corporative Governance. The Court was advised by the counsel for the Applicant and the First Respondent that the parties did not have any objection to the unsigned Answering Affidavit and that same could be considered by the Court. The Affidavit refers to a confirmatory Affidavit by the Fifth Respondent and who indicates that, the selection panel appointed by the municipal council to deal with the screening and interviewing of the candidates after the re-advertisement of the post of municipal manager has not as yet submitted a report and recommendation on the selection process to the municipal council and that the matter had not been referred to the municipal council of the Fifth Respondent for a resolution on the appointment of a municipal manager.

[16] It thus appears that the process of the appointment of a municipal manager is not at its tail end as alleged by the Applicant and there is accordingly no reason why the Applicant will not be afforded substantial redress at a hearing in due course or why this Applicant should be allowed to ignore the rules and seek preference herein. The urgency appears to be self-created having regard to the months of inaction on the part of the Applicant.

Order:

[1] The matter is struck from the Urgent Court roll for lack of urgency, the Applicant is ordered to pay the wasted costs,

ACTING JUDGE OF THE HIGH COURT

NORTH WEST DIVISION MAHIKENG

APPEARANCES:

DATE OF HEARING: 9 JUNE 2023 DATE OF JUDGMENT: 15 JUNE 2023 COUNSEL FOR APPLICANT: ADV MAROPENG MPYA INSTRUCTED BY: Mabapa Attorneys E-mail: mabapaattorneys@gmail.com COUNSEL FOR RESPONDENT: ADV CJ ZWIEGELAAR INSTRUCTED BY: State Attorney Mahikeng E-mail: LMatshinyatsimbi@ustice.gov.za

[1] 1972(1) SA 773 (A) at para 782A - G.

[2] 1977(4) SA 135 (W)

[3] 1977 (3) SA 438 (W) at 440G - 441A

[4] (35248/14) [2014] ZAGPPHC 400; [2014] 4 All SA 67 (GP) (19 June 2014)