Ntapane v MEC for Housing, Local Government and Traditional Affairs (162/2006) [2006] ZAECHC 122 (30 March 2006)

IN THE HIGH COURT OF

SOUTH AFRICA

BISHO

CASE NO. 162/2006

In the matter between:

STANLEY

ZOYISILE NTAPANE APPLICANT

And

MEC FOR HOUSING, LOCAL GOVERNMENT RESPONDENT

AND TRADITIONAL AFFAIRS

________

JUDGMENT

DHLODHLO ADJP:

1. On 23 March 2006 the applicant brought before this Court an urgent application in which he sought relief in the following terms:

“(a) Condoning the non compliance with the Rules of this Honourable Court and directing that this matter be enrolled and heard as an urgent application.

(b) Directing the Respondent to furnish the applicant with the reasons for the decision not to put the applicant’s name in the list of candidates for the post of General Manager, Traditional Affairs, post reference number 4256, forthwith.

(c) Granting the applicant a leave to institute review proceedings against the respondent for the decision to exclude the applicant from the list of candidates for the post of General Manager, Traditional Affairs, post reference number 4256, within 30 days after furnishing with reasons referred to in paragraph 2 above.

(d) Pending the furnishing of the reasons aforesaid and election of the applicant the respondent be and is hereby interdicted and restrained from proceeding with interviews of the General Manager, Traditional Affairs, post number 4256 on Thursday the 23rd March 2006.

(e) Granting the applicant such further and / or alternative relief.

(f) Directing the Respondent to pay costs of this application.”

2. The applicant is an attorney certified in terms of section 4(2) of Act 62 of 1995 and practises in Mthatha. He signed the certificate of urgency.

3. It appears that a post of General Manager: Traditional Affairs in the Eastern Cape Province was advertised and the applicant applied for it. Receipt of his application papers was acknowledged by the Acting Superintendent General of the Department of Local Government and Housing in the Province of the Eastern Cape in his / her letter dated 01 December 2005.

4. The applicant became aware of the fact that candidates were to be interviewed on 15 March 2006 but he later established that interviews would be conducted on a date during the following week.

5. Surprised by the fact that he was not shortlisted, he wrote a letter to the Respondent inquiring why he had not been shortlisted. A copy of the letter was served on the Premier of the Eastern Cape Province.

6. On the 22nd March 2006 the applicant received information that interviews were to be conducted on 23 March 2006. He “immediately wrote another letter to the Respondent requesting him to give me undertaking that if they proceed with interviews they will not continue with the appointment to the post before my complaint is addressed.” He further informed the respondent that if he did not receive his undertaking at or before 14h00 on the same day he would approach the Court for relief.

7. Shortly before 18h00 on that day the applicant received a telefax from the respondent advising him that the matter had been referred to the Acting Head of the Department.

8. The respondent maintains that the respondent’s decision not to invite him for an interview is administrative action, that he is obliged to furnish him with reasons for his decision and that he has failed to do so.

9. The applicant believes that he meets the requirements of the post and that he should have been among candidates who are to be interviewed. It is however not known who the invited candidates are and how they qualify for the post.

10. The applicant’s application was received by the Registrar of this Court on 23 March 2006. According to the notice of motion an application would be instituted on the applicant’s behalf on this date at 08h00.

11. The applicant’s papers were brought to me in my chambers shortly after 09h00, after which the applicant appeared in person to move the application.

12. There was no appearance for the respondent.

13. In his founding affidavit the applicant states that, as a result of extreme urgency of the matter, he was unable to serve papers on the respondent in terms of the Rules of Court and that he served the papers by means of facsimile transmission. He further states that, in any event, he had given the respondent fair notice that this application would be made. According to the transmission result report dated 22 March 2006 29 pages went through. It is unknown whether by the time the application was moved the respondent had received the papers.

14. The draft order attached to the applicant’s papers reads:

“(1) THAT Respondent be and is hereby interdicted and restrained from proceeding with interviews of the post of General Manager, Traditional Affairs, post reference number 4256 on Thursday the 23rd March 2006.

(2) THAT Respondent be and is hereby interdicted and restrained from proceeding with interviews of the post of General Manager, Traditional Affairs, post reference number 4256 before giving Applicant reasons why he is not short listed and telling him criterion used in short listing for this post.

(3) THAT Respondent be and is hereby directed to pay costs of this applicant.”

15. Relief sought by the applicant is not a rule nisi but a final order.

16. I dismissed the applicant’s application.

17. In their letter dated 28 March 2006 addressed to the Registrar of this Court and received by her office on 29 March 2006, the applicant’s attorneys request me to furnish reasons for my order dated 23 March 2006 in which I dismissed the applicant’s application.

18. Rule 6(5) of Uniform Rules provides, among others, that:

18.1 every application other than one brought ex parte shall be brought on notice of motion as near as may be in accordance with Form 2(a) of the First Schedule - - - and all annexures thereto shall be served upon every party to whom notice thereof is to be given.

18.2 in such notice the applicant shall appoint an address within eight kilometres of the office of the Registrar at which he / she will accept notice and service of all documents in such proceedings.

18.3 The address of the applicant is a firm of attorneys in Mthatha which is no less than 150 kilometres away from this Court.

19. The applicant’s application did not meet the requirements referred to in 18.1 and 18.2 of the preceding paragraph.

20. I have already said that when the application was moved it was not known whether or not the respondent had received the applicant’s papers.

21. In its form, the draft order does not take into account interests of other individuals such as invited candidates. Perhaps, by the time the application was being moved, one or two candidates had been interviewed. If not yet interviewed, the candidates might have been waiting to be interviewed. Some might have travelled long distances at considerable expense to where they were to be interviewed.

22. In the circumstances I could not grant the application, hence its dismissal.

_________

A

E B DHLODHLO

ACTING

DEPUTY JUDGE PRESIDENT

30 MARCH 2006