Pityana v Member of the Executive Council of the Department of Education, Eastern Cape Province and Others (803/2007) [2009] ZAECHC 14; (2009) 30 ILJ 2664 (Ck) (5 February 2009)

IN THE HIGH COURT OF SOUTH AFRICA (BISHO) In the matter between: CASE NO: 803/2007 THULANI PITYANA Applicant And THE MEMBER OF THE EXECUTIVE COUNCIL OF THE DEPARTMENT OF EDUCATION, EASTERN CAPE PROVINCE 1st Respondent N KULASHE 2nd Respondent M KHOKA 3rd Respondent P NXUMALO 4th Respondent N GUQA 5th Respondent B F MQINQI 6th Respondent A Z MBASA 7th Respondent N NCWANE 8th Respondent C J REDCLIFFE 9th Respondent JUDGEMENT KEMP AJ [1] The Applicant in this matter sought various orders 1 against the 1st Respondent ("the Department"), the thrust of which was the attempt to set aside the appointment of eight individuals as Registry Clerks. The Applicant contended that an unfair procedure had been followed and that he had been prejudiced as a result

thereof. The 2nd to 9th Respondents were the successful applicants who were eventually appointed. [2] In October 2005 the Department published an Internal Advertisement of Posts, per circular number 46 of 2005 dated 28 October 2005, for the post of registry clerk, which provided, inter alia that: "only current serving employees, interns in the service of the Department and volunteers in the Department may apply for vacancies advertised in this circular. The applications of volunteers must be accompanied by a letter from the relevant director indicating that the applicant is in effect rendering services to the Department on a voluntary

basis." (my emphasis) [3] The Applicant was at all material times an intern employed by the Department at its registry office in Uitenhage. [4] The Applicant applied for the post but was not short listed and consequently not interviewed, as only those candidates who were short listed were interviewed. It then came to his attention that In failing to properly consider all candidates who applied for such posts, by inter alia short listing certain candidates who did not qualify as aforementioned, and thereby precluding other candidates who did so qualify; Be declared as administrative action as envisaged in the provisions of the Promotion of Administrative Justice Act 3 of 2000. Directing that the aforementioned administrative action consisting of the short listing and interviewing process, and the appointments made in consequence therof, to the positions of Registry Clerk District Uitenhage, be judicially reviewed and set aside in terms of Section 5 and 6 of the Promotion of Administrative Justice Act 3 of 2000, be extended upon the basis that the interest of justice so dictate.

Directing that the 180 day period referred to in Section 9 of the Promotion of Administrative Justice Act 3 of 2000, be exteneded upon the basis that the interest of justice so dictate.

Exempting the Applicant from the obligation, if any, of exhausting internal remedies.

Granting further and / or alternative relief.

directing that the Respondent pay the Applicant's costs. some candidates who were short listed should not have been considered as they were neither current employees, interns or volunteers, who I will refer to cumulatively as "unqualified candidates", but were employees of an independent company. He was aware of at least four such candidates. [5] It is common cause that there were eight vacant posts and 5 candidates were shortlisted for each post. It appears also to be common cause that the decision to limit the short list to forty, although an arbitrary decision, was not wrong in itself. The problem, so the Applicant contended, was that if the Department included at least four unqualified candidates in the short list, and if he, for instance had been ranked between numbers 41 and 44 on the list, then he would have been unfairly excluded. Prior to the short listing, the candidates had been ranked in order of suitability for the job. As the Applicant knew about four unqualified candidates it means that if he had been ranked anywhere between from 41 to 44, and if the unqualified candidates had been excluded, that he would have fallen into the short list, and stood a chance of being appointed. [6] His argument appeared to have some merit. There were one hundred and sixty one people identified as applicants but it is unfortunately

not known where the applicant was ranked on that list. Although the Applicant alleged that he met all of the required criteria there is nothing to show that the other candidates did not. The applicants were ranked, and the top forty were eligible for interview. The Applicant could have been ranked anywhere between numbers 41 and 161. [7] The short listing criteria were described by the department as below.2 It is common cause that for various reasons, the last criterion was not applied and at least four unqualified candidates were included in the short list. The reasons given for not applying the last criterion are one of the factors I must consider in order to establish whether the decision to appoint the eight successful candidates is reviewable. [8] The Deputy Director of the Department deposed to an answering affidavit. She conceded that the process had been flawed and gave some background to it. One hundred and sixty one applications had been received. She conceded that she had wrongly assumed that all of the applicants would have read the advert and not applied if they had not been interns, employees or volunteers. She mentioned that during the initial short listing process the panel did not have access to the Persal computer system, which if consulted, would have identified non employees, but not non volunteers. In the case of volunteers, verification of their status was required by way of a confirmatory letter from the director concerned. [9] The Deputy Director then passed on the list of all the applicants to the Chairperson of the short listing committee and advised her, wrongly, she concedes, that all of the applicants qualified. The short listing committee then further reduced the list from 161 to 40 and it was during this process that the Applicant was excluded. It is clear that it is not only the 40 short listed candidates that complied with criteria 4.1 to 4.4, but it is possible that most of, or even all of the 161 candidates may have complied with all of the criteria, except for 4.5, being the one relating to the candidates having to be interns, volunteers or currently serving employees. [10] It is common cause that none of the eight candidates who were eventually appointed were unqualified candidates. [11] After the interviewing process was concluded, the list was further culled to three candidates per post. From a perusal of this list it can be seen that candidates ranked between 4 and 39 made it onto the last list of three candidates per post, and the actual ranking of those appointed appears to have been 4, 6, 8, 10, 20, 32 and 35 and one other position which does not appear to be clear from the record. Annexure M to the Applicants founding affidavit includes a copy of this list on which the successful candidates names appear to be marked with ticks and crosses. What the selection demonstrates, is that the Applicant may well have had a chance of being selected even if he had been ranked at 44. If a person who is ranked at 39 is short listed and a person who is ranked at 35 is appointed, then it seems to follow that a person who was ranked between 41 and 44 may have stood an equally good chance. [12] If the Applicant could have shown that he was indeed ranked between 41 and 44 then his case would have been much stronger. What however appears to be an insurmountable hurdle for the Applicant, on these papers, is the fact that he has not proven that there was a reasonable possibility that his rights were in fact affected. The court will not intervene in a decision which would be sure to cause major disruption to the employment relationships of at least eight other employees if the violation of the Applicant's, orfor that matter anyone else's rights have not been proven. In other words, the court will be slow to invalidate the process if the Applicant may not even have stood a chance had the proper procedures been followed. As indicated above, if the Applicant had shown that he was reasonably high up on the ranking, it would have strengthened his case. However he failed to do so. Although the ranking information must have been available to the Respondent and perhaps it could be argued that they should have disclosed it, as they should have realised that it would be important information, the Applicant bore an onus to prove his case and should have realised that he needed that information and could have obtained it from the Respondent prior to launching his application. He used the procedures provided for in the Promotion of Access to Information Act ("PAJA") 3 to obtain other information he required to prosecute his application. [13] 'Administrative action' is defined in s 1 of PAJA as meaning: "any decision taken, or any failure to take a decision, by - (a) an organ of state, when-(i) exercising a power in terms of the Constitution or a provincial constitution; or (ii) exercising a public power or performing a public function in terms of any legislation; or (b) a natural or juristic person, other than an organ of state, when exercising a public power or performing a public function in terms of an empowering provision, which adversely affects the rights of any person and which has a direct, external legal effect', (my emphasis). [14] Whilst it is certainly possible that the Applicant's rights may have been adversely affected by the administrative action complained about, he has failed to show even a one per cent chance that his rights were adversely affected. After deducting the 40 short listed candidates and the 4 unqualified candidates from the list, the Applicant had as much a chance as any of the balance of the other 161 applicants, which would have given him a one in 117th chance that his rights were adversely affected. [15] If the applicant were to be given his way, the review of the decision would cause major disruption and costs, and if I were to refer the decision back to the administrator for reconsideration, as there is clearly not enough evidence for me to even begin to consider substituting the courts decision for that of the administrator, the prospects are that on these facts exactly the

same people would be appointed and very little chance, less than 1%, that the Applicant would be appointed. The application is accordingly dismissed with costs.

IN THE HIGH COURT OF SOUTH AFRICA

(BISHO)

In the matter between:

CASE NO: 803/2007

THULANI PITYANA Applicant

And

THE MEMBER OF THE EXECUTIVE

COUNCIL OF THE DEPARTMENT OF

EDUCATION, EASTERN CAPE PROVINCE 1st Respondent

N KULASHE 2nd Respondent

M KHOKA 3rd Respondent

P NXUMALO 4th Respondent

N GUQA 5th Respondent

B F MQINQI 6th Respondent

A Z MBASA 7th Respondent

N NCWANE 8th Respondent

C J REDCLIFFE 9th Respondent

JUDGEMENT

KEMP AJ

[1] The Applicant in this matter sought various orders 1 against the 1st Respondent ("the Department"), the thrust of which was the attempt to set aside the appointment of eight individuals as Registry Clerks. The Applicant contended that an unfair procedure had been followed and that he had been prejudiced as a result

thereof. The 2nd to 9th Respondents were the successful applicants who were eventually appointed.

[2] In October 2005 the Department published an Internal Advertisement of Posts, per circular number 46 of 2005 dated 28 October 2005, for the post of registry clerk, which provided, inter alia that:

"only current serving employees, interns in the service of the Department and volunteers in the Department may apply for vacancies advertised in this circular. The applications of volunteers must be accompanied by a letter from the relevant director indicating that the applicant is in effect rendering services to the Department on a voluntary

basis." (my emphasis)

[3] The Applicant was at all material times an intern employed by the Department at its registry office in Uitenhage.

[4] The Applicant applied for the post but was not short listed and consequently not interviewed, as only those candidates who were short listed were interviewed. It then came to his attention that

In failing to properly consider all candidates who applied for such posts, by inter alia short listing certain candidates who did not qualify as aforementioned, and thereby precluding other candidates who did so qualify;

Be declared as administrative action as envisaged in the provisions of the Promotion of Administrative Justice Act 3 of 2000.

Directing that the aforementioned administrative action consisting of the short listing and interviewing process, and the appointments made in consequence therof, to the positions of Registry Clerk District Uitenhage, be judicially reviewed and set aside in terms of Section 5 and 6 of the Promotion of Administrative Justice Act 3 of 2000, be extended upon the basis that the interest of justice so dictate.

Directing that the 180 day period referred to in Section 9 of the Promotion of Administrative Justice Act 3 of 2000, be exteneded upon the basis that the interest of justice so dictate.

Exempting the Applicant from the obligation, if any, of exhausting internal remedies.

Granting further and / or alternative relief.

directing that the Respondent pay the Applicant's costs.

some candidates who were short listed should not have been considered as they were neither current employees, interns or volunteers, who I will refer to cumulatively as "unqualified candidates", but were employees of an independent company. He was aware of at least four such candidates.

[5] It is common cause that there were eight vacant posts and 5 candidates were shortlisted for each post. It appears also to be common cause that the decision to limit the short list to forty, although an arbitrary decision, was not wrong in itself. The problem, so the Applicant contended, was that if the Department included at least four unqualified candidates in the short list, and if he, for instance had been ranked between numbers 41 and 44 on the list, then he would have been unfairly excluded. Prior to the short listing, the candidates had been ranked in order of suitability for the job. As the Applicant knew about four unqualified candidates it means that if he had been ranked anywhere between from 41 to 44, and if the unqualified candidates had been excluded, that he would have fallen into the short list, and stood a chance of being appointed.

[6] His argument appeared to have some merit. There were one hundred and sixty one people identified as applicants but it is unfortunately

not known where the applicant was ranked on that list. Although the Applicant alleged that he met all of the required criteria there is nothing to show that the other candidates did not. The applicants were ranked, and the top forty were eligible for interview. The Applicant could have been ranked anywhere between numbers 41 and 161.

[7] The short listing criteria were described by the department as below.2 It is common cause that for various reasons, the last criterion was not applied and at least four unqualified candidates were included in the short list. The reasons given for not applying the last criterion are one of the factors I must consider in order to establish whether the decision to appoint the eight successful candidates is reviewable.

[8] The Deputy Director of the Department deposed to an answering affidavit. She conceded that the process had been flawed and gave some background to it. One hundred and sixty one applications had been received. She conceded that she had wrongly assumed that all of the applicants would have read the advert and not applied if they had not been interns, employees or volunteers. She mentioned that during the initial short listing process the panel did not have access to the Persal computer system, which if consulted, would have identified non employees, but not non volunteers. In the case of volunteers, verification of their status was required by way of a confirmatory letter from the director concerned.

[9] The Deputy Director then passed on the list of all the applicants to the Chairperson of the short listing committee and advised her, wrongly, she concedes, that all of the applicants qualified. The short listing committee then further reduced the list from 161 to 40 and it was during this process that the Applicant was excluded. It is clear that it is not only the 40 short listed candidates that complied with criteria 4.1 to 4.4, but it is possible that most of, or even all of the 161 candidates may have complied with all of the criteria, except for 4.5, being the one relating to the candidates having to be interns, volunteers or currently serving employees.

[10] It is common cause that none of the eight candidates who were eventually appointed were unqualified candidates.

[11] After the interviewing process was concluded, the list was further culled to three candidates per post. From a perusal of this list it can be seen that candidates ranked between 4 and 39 made it onto the last list of three candidates per post, and the actual ranking of those appointed appears to have been 4, 6, 8, 10, 20, 32 and 35 and one other position which does not appear to be clear from the record. Annexure M to the Applicants founding affidavit includes a copy of this list on which the successful candidates names appear to be marked with ticks and crosses. What the selection demonstrates, is that the Applicant may well have had a chance of being selected even if he had been ranked at 44. If a person who is ranked at 39 is short listed and a person who is ranked at 35 is appointed, then it seems to follow that a person who was ranked between 41 and 44 may have stood an equally good chance.

[12] If the Applicant could have shown that he was indeed ranked between 41 and 44 then his case would have been much stronger. What however appears to be an insurmountable hurdle for the Applicant, on these papers, is the fact that he has not proven that there was a reasonable possibility that his rights were in fact affected. The court will not intervene in a decision which would be sure to cause major disruption to the employment relationships of at least eight other employees if the violation of the Applicant's, orfor that matter anyone else's rights have not been proven. In other words, the court will be slow to invalidate the process if the Applicant may not even have stood a chance had the proper procedures been followed. As indicated above, if the Applicant had shown that he was reasonably high up on the ranking, it would have strengthened his case. However he failed to do so. Although the ranking information must have been available to the Respondent and perhaps it could be argued that they should have disclosed it, as they should have realised that it would be important information, the Applicant bore an onus to prove his case and should have realised that he needed that information and could have obtained it from the Respondent prior to launching his application. He used the procedures provided for in the Promotion of Access to Information Act ("PAJA") 3 to obtain other information he required to prosecute his application.

[13] 'Administrative action' is defined in s 1 of PAJA as meaning:

"any decision taken, or any failure to take a decision, by - (a) an organ of state, when-(i) exercising a power in terms of the Constitution or a provincial constitution; or (ii) exercising a public power or performing a public function in terms of any legislation; or (b) a natural or juristic person, other than an organ of state, when exercising a public power or performing a public function in terms of an empowering provision, which adversely affects the rights of any person and which has a direct, external legal

effect', (my emphasis).

[14] Whilst it is certainly possible that the Applicant's rights may have been adversely affected by the administrative action complained about, he has failed to show even a one per cent chance that his rights were adversely affected. After deducting the 40 short listed candidates and the 4 unqualified candidates from the list, the

Applicant had as much a chance as any of the balance of the other 161 applicants, which would have given him a one in 117th chance that his rights were adversely affected.

[15] If the applicant were to be given his way, the review of the decision would cause major disruption and costs, and if I were to refer the decision back to the administrator for reconsideration, as there is clearly not enough evidence for me to even begin to consider substituting the courts decision for that of the administrator, the prospects are that on these facts exactly the

same people would be appointed and very little chance, less than 1%, that the Applicant would be appointed.

The application is accordingly dismissed with costs.

L D KEMP ACTING JUDGE OF THE HIGH COURT, BISHO MATTER HEARD ON 11th November 2008 Judgment delivered on 5th February 2009 Counsel for the Applicant Adv COLLETT Attorneys for the Applicant Hutton & Cook. Applicant's Attorneys Sutton House KING WILLILAM'S TOWN Counsel for the Applicant Adv CRISP Attorneys for the Respondent The State Attorney Respondent's Attorney 32 Alexandra Road KING WILLIAMS TOWN

L D KEMP

ACTING JUDGE OF THE HIGH COURT, BISHO

MATTER HEARD ON 11th November 2008

Judgment delivered on 5th February 2009

Counsel for the Applicant Adv COLLETT

Attorneys for the Applicant Hutton & Cook. Applicant's Attorneys

Sutton House

KING WILLILAM'S TOWN

Counsel for the Applicant Adv CRISP

Attorneys for the Respondent The State Attorney Respondent's Attorney

32 Alexandra Road

KING WILLIAMS TOWN

1 The relief he sought was as follows: 1. Directing that the conduct of the Department of Education Eastern Cape Province: In short listing as candidates for the posts of registry clerks - Uitenhage District, persons who did not satisfy the prescribed

advertised and short listing criteria for such posts; In interviewing such persons in contravention of the aforementioned advertising and short listing criteria;

1 The relief he sought was as follows:

1. Directing that the conduct of the Department of Education Eastern Cape Province:

In short listing as candidates for the posts of registry clerks - Uitenhage District, persons who did not satisfy the prescribed

advertised and short listing criteria for such posts; In interviewing such persons in contravention of the aforementioned advertising and short listing criteria;

24.1 minimum of Grade 12 Qualification; 4.2 computer literacy; 4.3 exposure to and knowledge of registry administration; 4.4 experience in data capturing and filing; 4.5 interns in the service of the Department, volunteers and current serving employees."

24.1 minimum of Grade 12 Qualification;

4.2 computer literacy;

4.3 exposure to and knowledge of registry administration;

4.4 experience in data capturing and filing;

4.5 interns in the service of the Department, volunteers and current serving employees."

3 Act No 2 of 2000