Noe and Others v Premier of the Free State Provincial Division and Others (3607/09) [2010] ZAFSHC 56 (4 June 2010)

Noe and Others v Premier of the Free State Provincial Division and Others (3607/09) [2010] ZAFSHC 56 (4 June 2010)

The court found that the purported permanent appointments of the applicants were made without compliance with the mandatory procedures set out in the Public Service Act and Regulations, specifically the requirements for advertising and selection. The distinction between section 12A and permanent appointments was emphasized, and the court held that the reference to section 9 in the first applicant's contract was a mistake. The Premier was entitled and obliged to reverse the unlawful appointments under section 5(7) of the Act, as the decision was based on an error of law and it was in the public interest to correct it. Waiver, estoppel, and legitimate expectation could not validate the...

Citation
[2010] ZAFSHC 56
Parties
Applicant: Noe E.P.; Applicant: Basson M.R.; Applicant: Khomo M.N.; Applicant: Sedio C.G.; Applicant: Mohapi N.S.; Respondent: Department of Premier Free State; Respondent: The Premier, Free State; Respondent: The Director General in the Office of the Premier; Respondent: The Manager Organisational Development
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
4 June 2010
Case Number
3607/09
Procedural Posture
Review Application / Judgment After Hearing on Merits and Counter Application
Outcome
Applicants' application dismissed with costs. Counter application granted; the decision of the erstwhile Premier to appoint applicants permanently is declared a nullity.
Judges
J.P. Daffue
Legal Topics
Public Service Act, Appointment Procedures, Legality of Administrative Action, Waiver and Estoppel, Legitimate Expectation
Administrative Law Labour Law Public Service Act Appointment Procedures Legality of Administrative Action Waiver and Estoppel Legitimate Expectation

Case Brief

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Parties

Noe E.P.

Applicant

Basson M.R.

Applicant

Khomo M.N.

Applicant

Sedio C.G.

Applicant

Mohapi N.S.

Applicant

Department of Premier Free State

Respondent

The Premier, Free State

Respondent

The Director General in the Office of the Premier

Respondent

The Manager Organisational Development

Respondent

Procedural Posture

Review Application / Judgment After Hearing on Merits and Counter Application

Legal Issues

  1. 1 Whether the permanent appointment of the applicants to posts in the Public Service was lawful and valid.
  2. 2 Whether the Premier was entitled to reverse the decision of the erstwhile Premier to appoint the applicants permanently.
  3. 3 Whether the applicants' contracts of employment were valid and enforceable under the Public Service Act and Regulations.

Ratio Decidendi

The court found that the purported permanent appointments of the applicants were made without compliance with the mandatory procedures set out in the Public Service Act and Regulations, specifically the requirements for advertising and selection. The distinction between section 12A and permanent appointments was emphasized, and the court held that the reference to section 9 in the first applicant's contract was a mistake. The Premier was entitled and obliged to reverse the unlawful appointments under section 5(7) of the Act, as the decision was based on an error of law and it was in the public interest to correct it. Waiver, estoppel, and legitimate expectation could not validate the...

Court Disposition

Applicants' application dismissed with costs. Counter application granted; the decision of the erstwhile Premier to appoint applicants permanently is declared a nullity.

Orders

  • Applicants' application is dismissed with costs.
  • It is declared that the decision of Me Marshoff, the erstwhile Premier, purporting to appoint the applicants to permanent posts in the Public Service was in conflict with the Public Service Act, 1994 and/or the Public Service Regulations, 2001.