Ncube v Musina Municipality - Council and Others (JR 2727/2013) [2014] ZALCJHB 485 (19 December 2014)

REPUBLIC OF SOUTH AFRICA

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Not Reportable

Case No: JR 2727/2013

In the matter between:

MOLOKO ANDREW NCUBE................................................................................................Applicant

and

MUSINA MUNICIPALITY – COUNCIL..................................................................First Respondent

JOHNSON MATSHIVHA – MUNCIPAL MANAHER........................................Second Respondent

MIKE MUKOMA.......................................................................................................Third Respondent

ROBERT TAKALANI RAMBUDA........................................................................Fourth Respondent

PEDRON NNDWA.......................................................................................................Fifth Respondent

RIKA LE ROUX..........................................................................................................Sixth Respondent

Heard: 2 July 2014

Delivered: 19 December 2014

Summary: Review application, application in terms of section 158(1)(h) of the Labour Relations Act 66 of 1995 seeking to review a decision of the first respondent municipality not to employ the applicant in certain capacities which were advertised by the first respondent and to which the third and fourth respondents were appointed. Applicant not making out a case for the relief sought. Application dismissed.

SNIDER AJ

[1] This is an application in terms of section 158(1)(h) of the Labour Relations Act [1] (“the LRA”).

[2] The applicant seeks to –

review and set aside the decision of the first and second respondent (“the respondents”) to appoint the third respondent into the position of Manager: Housing and Community Services commencing on 1 November 2013; and

review and set aside the decision of the respondents to appoint the fourth respondent into the position of manager: Legal commencing on 1 November 2013.

[3] There is much further relief sought and other material in the notice of motion[2] however it is either ancillary relief[3] or in some cases the notice of motion reads more like an affidavit than a notice of motion and it would make no sense to attempt to grant relief in respect of these paragraphs of the notice of motion.

[4] In the event I do set aside the relevant decisions on review the applicant further seeks relief to the effect that I direct the respondents to implement the recommendations of the fifth respondent and appoint the applicant to the position of Manager: Housing and Community Services retrospectively to 1 November 2013 and re-advertise the position of Manager: Legal.

[5] Obviously this immediately raises the question as to what locus standii the applicant would have in respect of his challenge to the appointment of the Manager: Legal. To the extent that he

does not seek to be appointed to this position, I cannot see on what basis he would have locus standii to challenge that appointment.

[6] However the question of relief and locus standii are only relevant in so much as I grant any relief at all in this matter.

BACKGROUND

[7] The applicant has been employed by the first respondent for the past eight years as a Senior Clerical Assistant (Legal).

[8] The respondents are, inter alia, the Musina Municipality, its Municipal Manager, and two individuals who were employed by the first respondent in the positions in respect of which the respondents decision to employ them, the applicant now challenges.

[9] The applicant sets out, at some length, his qualifications and employment history with the first respondent.[4] I do not regard this history as particularly relevant, as focus in this judgment must, initially at least, be placed on the decisions which are challenged.

[10] It appears that during the middle of July 2013 the first respondent advertised two posts which it wished to fill. The two posts were –

Manager: Housing and Community Services; and

Manager: Legal.

[11] The applicant applied for both of these positions, but was unsuccessful. The applicant became aware that he had been unsuccessful in his applications during or about October 2013.

[12] The applicant challenges the manner in which the process of filling the positions was conducted by the respondents.

ANALYSIS OF THE FACTS

[13] The first material allegation made by the applicant in his founding affidavit is that the position of Manager: Housing and

Community Services was advertised with a closing date for applications of 26 July 2013.[5] The applicant alleges that only after that date the application form for the third respondent was added to the other applications.

[14] The third respondent was subsequently appointed into the position.[6] It does indeed appear to be contentious as to whether or not the third respondent’s application was in time. Annexure PN3 to the founding affidavit[7] records the third respondent’s application as having been a “late app” which I take to mean a late application.

If regard is had to the record it is not possible to discern what date the application was in fact received by the first respondent.

[15] I am however, not certain that under these circumstances it would not require more than simply having regard to a late application to render the decision to employ such a late application reviewable. To my mind there would need to be some actual failure of justice in this regard.

[16] I refer here to the decision in Basson v Provincial Commissioner (Eastern Cape), Department of Correctional Services[8] in which it was emphasised that courts will only interfere in administrative decisions by executive organs of state if those decisions are found to be patently arbitrary or capricious, objectively irrational, or actuated by bias or malice, or by other ulterior or improper motive.

[17] Not only does the conduct of the respondents not seem to fall into this category but I must also ask the question as to whether the applicant did not have an alternative remedy, by way of the unfair labour practice jurisdiction in the LRA, which he could have availed himself of in the sense that this matter clearly relates to a promotion of the applicant which is which is one of the rubrics provided for in the said unfair labour practice jurisdiction.[9]

[18] The applicant makes the allegation that not only were the extra applications added but, that, in addition thereto, the second respondent ignored the “lawful outcome” of the panel’s interviewing process of the short-listed applicants and recommendations made by the fifth respondent as Head of Department: Housing and Community Services that the applicant was the successful applicant who should be appointed to the position by virtue of being an internal applicant.

[19] The only corroboration that I can find for these allegations in the papers before me is a letter signed by the fifth respondent but in respect of which no confirmatory affidavit has been filed and which also clearly contains an alteration towards to top of the page. In these circumstances I cannot rely on this document as constituting corroborative evidence in respect of the allegations made by the applicant. In any event the said letter goes no further than to state that the applicant was short

listed for the position of Housing Manager. The documentation simply does not bear out the applicant’s allegations. The fifth respondent appears sympathetic to the applicant’s case and in these circumstances I would have expected a confirmatory

affidavit. The “Notice in terms of Rule 7A(9) of the rules of this Court” signed by the fifth respondent is simply

insufficient. Not only is it not a confirmatory affidavit, but, in addition, the annexure it must refer to “PN1” does not support the applicant’s case in the manner in which he alleges.

[20] Similarly, in regard to the allegations that an application form was faxed to the fax to email number of the second respondent, this allegation is simply unsupported. I can find nothing beyond the bare allegation of the applicant in the documentation before me.

[21] The applicant effectively accuses the second respondent of acting in violation in of section 55(1)(h) of the Municipal Systems Act[10] (“the MSA”) which states –

“(1) As head of administration the Municipal Manager of a municipality is, subject to the policy directions of the municipal council, responsible and accountable for – … the promotion of sound labour relations and compliance by the municipality with applicable labour legislation.“

[22] I do not understand the basis on which this allegation is made by the applicant. Similarly the references to sections 51(1) and 50(m) (which I presume to be 50(2) as there is no such section in the MSA) are simply not sufficiently well articulated and substantiated to enable me to understand how the complaints made by the applicant relate to these sections of the MSA and, by reference, the constitution.

[23] Similarly with relation to the Musina Municipality Labour Policy there is no reference to any particular part of the Labour Policy and, once again, I am left at a loss as to precisely what the applicant’s complaint is.

[24] I do however have regard to the Recruitment Policy set out paragraph 2.2 of the said Labour Policy which states as follows[11] -

“The Council strives, as far as possible, to fill vacancies from within by means of promotions / transfers of persons already employed. In pursuance of this goal, all vacancies are advertised, in writing, for a period of five (5) working days on the notice boards of all premises of Council. The advertisement will stipulate the requirements applicable to the vacant job and will provide the name of the person from whom the application forms can obtained and where completed forms are to be handed in.”

“If the Council is unsuccessful within internal recruiting effort, the following recruitment procedures will be used, as is applicable to the different levels of jobs …”

[25] It must be noted that this is not a prescriptive requirement as the words “as far as possible” appear in the clause, and this in the context of the applicant not having the relevant qualifications for either of the positions advertised. Even on the applicant’s own version;[12] the applicant does not have the requirements for the position Manger: Housing and Community Services. It is quite clearly stated in the advertisement that an appropriate bachelor’s degree or equivalent qualification is required. The applicant holds a National Diploma in Secretarial: Office Administration, a Certificate in Conveyancing Practice and is a Registered Property Valuator. The applicant gives no evidence, especially in light of his lack of qualifications for either of these positions, why it would have been possible to appoint him to one of these positions as would be required in terms of the policy. Absence of the required qualifications must surely be a disqualifying factor.

[26] Similarly the Legal Services position requires an LLB or other law degree, neither of which the applicant has. These disqualifying factors must necessarily weigh against reviewing the decisions taken by the respondents.

[27] The applicant requires the “recommendations” of the fifth respondent to be implemented. There are, simply, no such recommendations before me. I can accordingly not make such an order. There is a letter, with an alteration on it, not supported by a confirmatory affidavit which in itself contains hearsay evidence. It would, with respect, be unconscionable for me to utilise this letter to retrospectively appoint the applicant to the position.

[28] Annexure PN1 to the applicant’s founding affidavit simply does not state what the applicant wishes that it did state. The applicant simply repeats these points over and over in his application in various guises but the matter is taken no further. Numerous allegations are made in relation to the fifth respondent but no confirmatory affidavit is annexed. I cannot accept these allegations. For example it is alleged that the fifth respondent confirmed to the applicant that the fourth respondent had submitted his application form for the position by faxing it to the second respondent’s fax to email number directly. Un-corroborated evidence of this nature cannot be had regard to.

[29] An allegation is made that the fourth respondent’s package was increased before he commenced employment. There is nothing

inherently wrong with this and it cannot possibly constitute a ground of review. The applicant makes no case in this regard.

Similarly the allegation is made that the fourth respondent does not have the experience for the position. This is entirely given the lie by the curriculum vitae of the fourth respondent which indicates that he holds a BProc Degree, an LLB degree, and a Certificate in Labour Relations Management, a Certificate in Legislative Drafting and at the time was enrolled for a LLM degree and a Certificate programme in Local Government Law and Municipal Administration.[13] It is also noted in passing that, from page 67 of the record, it appears that the fourth respondents application was received on the 23rd July 2013. These allegations are accordingly unsupportable.

[30] The application as a whole is of an extremely technical nature and does not point, in my mind, to any failure of justice, failure of natural law, or any other such reviewable irregularity which would move me to the extent of reversing the decisions that were made by the respondents.

[31] In relation to the issue of costs I note that the parties have an ongoing relationship and I think that an order for costs would harden the arteries of such a relationship going into the future.

[32] In light of the above I make the following order:

i. The application is dismissed.

ii. There is no order as to costs.

___________________________

SNIDER, A J

Acting Judge of the Labour Court of South Africa

Appearances - For the Applicant – Adv M S Sebola

Instructed by Nchupetsang Attorneys

For the First and Second Respondents – Adv M Schnehage

Instructed by Attorney A M Carrim

[1] Act 66 of 1995 as amended

[2] Page 2 and 3 of the notice of motion paragraphs 2 to 4

[3] Particularly paragraphs 2.1 to 2.3

[4] Pages 11 and 12 paragraph 5.1 and 5.2

[5] Page 4 of the record

[6] Page 13 paragraph 5.5.1

[7] Page 31

[8] [2003] 4BLLR 341 (LC). See also Pharmaceutical Manufacturers Association of SA: In re: Ex parte Application of the President of the Republic of SA [2000] ZACC 1; 2000 (3) BCLR 241 (CC) - Rule of law requiring that exercise of public power by Executive and other functionaries be rationally related to purpose for which power given - Setting of rationality standard not meaning that Court may substitute own opinions as to what appropriate for opinions of those in whom power vested - Courts not to interfere as long as purpose sought to be achieved by

exercise of public power within authority of functionary and as long as E functionary's decision, viewed objectively, rational - Whether decision rationally related to purpose for which power granted calling for objective enquiry.

[9] Chirwa v Transnet [2008] 2 BLLR 97 (CC). Although this decision dealt with a dismissal, I am of the view that the principle is the same. The applicant was obliged to exhaust his other remedies.

[10] Act 32 of 2000

[11] Page 10 of the record

[12] Page 11 paragraph 5.1

[13] Record page 66