Sakhisizwe Local Municipality v Tshefu and Others (1611/2019) [2020] ZAECGHC 3; [2020] 2 All SA 299 (ECG) (28 January 2020)

IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION, GRAHAMSTOWN

Case No: 1611/2019

Date heard: 29 November 2019

Date delivered: 28 January 2020

In the matter between:

SAKHISIZWE LOCAL MUNICIPALITY Applicant and NOLITHA TSHEFU First Respondent THE MEMBER OF THE EXECUTIVE COUNCIL: COOPERATIVE GOVERNANCE & TRADITIONAL AFFAIRS, EASTERN CAPE Second Respondent DUMILE MOSES MVULANE Third Respondent THE NATIONAL MINISTER: COOPERATIVE GOVERANCE & TRADITIONAL AFFAIRS Fourth Respondent

JUDGMENT

LOWE, J:

INTRODUCTION

[1] Applicant seeks to review and set aside its own decision to appoint First Respondent as its Director of Integrated Planning and Economic Development as null and void and in contravention of Section 56 of the Municipal Systems Act 32 of 2000 (the Systems Act), and in addition an order declaring her salary package and remote allowance as irregular. First Respondent only

opposes the Application.

[2] This in respect of the main relief sought as to appointment, would require an order setting aside Applicant’s Council Resolution of 13 December 2017 approving the appointment of First Respondent, and an order setting aside the contract of employment between First Respondent (Applicant relying on Section 56(1)(b) and Section 56(2) alternatively Section 57(1)(a)(i) of the Systems Act). In respect of the remuneration issue only an order declaring this as irregular is sought.

[3] The post referred to above was advertised during July 2017, First Applicant applied therefore, and interviews were held on 26 September 2017.

[4] On 13 December 2017 after the candidates had attended a SALGA competency assessment it was noted that three candidates were suitable, one of which was Applicant as first recommended candidate, and she was recommended as the appointee, failing her acceptance then the second candidate.

[5] The minimum requirements for the position as advertised were:

“31. The minimum requirements for the position were that the candidate should possess, amongst other things, the following –

a. Grade 12 (Matric Certificate)

b. A relevant Bachelor’s Degree in Local Economic Development and/or Developmental Studies or relevant qualification at NQF level 7

c. Minimum of 5 years’ relevant experience in senior management level preferably in local government.

To this end I refer the Honourable Court to a copy of the advertisement attached hereto marked as annexure “SLM 6”.”

[6] In fact item c above exceeded the stipulated minimum competency requirements as set out in the Local Government Regulations on Appointment and Conditions of Employment of Senior Managers (which required 5 years relevant experience in middle management not senior management).

[7] Applicant alleges that First Respondent failed to meet the said experience requirement at either level.

[8] First Respondent had the following qualifications on her version:

“21.

Academic qualifications – annexure “SLM7” is my curriculum vitae and it will be noted that I have the following academic qualifications:

21.1 Project Management Diploma from Nelson Madela Metropolitan University (“NMMU”);

21.2 A certificate in Municipal Financial Management (National Treasury minimum competency) from Wits University;

21.3 A National Diploma in Local Government Finance from Walter Sisulu University;

21.4 A B Tech Local Government Finance Diploma from the University of South Africa; and

21.5 A Masters in Business Administration (MBA) from NMMU.”

[9] Apparently well after First Respondent’s appointment Applicant’s Council authorized an investigation into irregular staff appointments. This “found” that First Respondent’s appointment was irregular and in contravention of Section 56 of the Systems Act and Local Government

Regulations relevant to appointments, she lacking the experience component – being 5 years at Middle Management level, also

referring to her salary being in excess of that authorized by the relevant prescripts. Further it is not disputed that the

statutory and regulatory prescripts set the threshold value for salary packages[1]. Regulation 10(1) (2017) set out the upper limits and a remote allowance of 4% of total annual package. At the time of First Respondent taking up employment (12 March 2018) the 2017 upper limits applicable were on scale R741,423 – R906,184 per annum. The advertised package stipulated this as between R700,116 – R855,698 per annum. First Respondent was offered remuneration package of R942,432 (the Municipal Manager issuing a directive accordingly). This included a 4% remote allowance for no apparent reason on the papers. In terms of Regulation 9(2) she qualified for far less than this being a “Minimum Salary Package” – she in fact was given the maximum package plus remote allowance applicable to Managers with more than 10 years experience.

The only response hereto by First Respondent is that she denies that this was improper, says that an offer was made, which she accepted on her qualifications and experience, and that Applicant is a very large Municipality. She cannot and does not dispute the scales or regulations or that the package offered was not authorized thereby. The Municipal Manager did not have the authority or power to approve and offer same. Significantly perhaps her appointment letter referred to an all inclusive remuneration package to be “negotiated”.

[10] On 27 February 2019 Council resolved to rescind its appointment resolution of 13 December 2017.

[11] On 28 February 2017 Applicant gave written notice to First Respondent of intention to terminate her employment as she had not had 5 years experience in Middle Management. It was also added that her salary package was irregular.

[12] It is thus that Applicant seeks the relief referred to.

FIRST RESPONDENT’S EXPERIENCE

[13] First Respondent contends that she had the following experience:

“22.

“22. As I understand Mr Tonzi’s founding affidavit, he does not seriously challenge my academic qualifications for the post and, in any event, I confirm that I am more than qualified academically in terms of the advert.

Experience in middle management – I occupied the position of IDP/PMS Professional, which was renamed to Development Planner at Amathole District Municipality from the 1st of February 2013 to the 30th of June 2014. My management responsibilities were:

22.1 Facilitating the process of Integrated Development Plan (IDP) reviewal and development;

22.2 Coordinating the IDP and Budget integration;

22.3 Monitoring the implementation of the IDP;

22.4 Developing the IDP process plan and ensuring submission to the Council (this includes the process and methodology inclusive of a detailed programme with time-frames, mechanisms, processes and procedures for internal and external stakeholders);

22.5 Interacting with local municipalities, provincial and national representatives to ensure district wide planning;

22.6 Ensuring the alignment of the municipal sector plans, forums and clusters with the IDP;

22.7 Coordinate and provide overall project management of the Annual/bi-annual IDP and Budget Public Hearings;

22.8 Provide support and build capacity of the Local Municipalities with Amathole Jurisdiction in the form of workshops and trainings on issues of planning, monitoring and evaluating performance and compliance with legislation and Council policies; and

22.9 Preparing monthly reports on the development and implementation of the IDP.

23.

I was then appointed to the position of Manager: Development Planning at Amathole District Municipality on the 1st of July 2014 until my resignation on the 7th of March 2018, when I assumed my duties at the municipality where I took over my duties on the 12th of March 2018. I had the following managerial responsibilities at Amathole:

23.1 Ensuring that the IDP strategic, participatory requirements are met and orientation of the implementation process is executed.

23.2 Exercising people management skills through monitoring and controlling outcomes associated with utilization, productivity and performance of personnel within the Development Planning Section.

23.3 Preparing and control expenditure against approved budget allocation for the season.

23.4 Ensuring that the national time frames were adhered to and that the municipal planning was horizontally and vertically aligned to the provincial and national requirements.

23.5 Managing the alignment of Municipal Sectoral Plans.

23.6 Monitoring and ensuring that the IDP aligns to and informs the capital and operational budget.

23.7 Ensure that all core components of the IDP are developed integrated and form part of the municipal IDP (the vision for long-term development of the municipality), assessment of the existing level of development, the identification of priorities and development of objectives; identification of strategies; key performance indicators and targets.

23.8 Provide strategic guidance on the municipal research analysis conducted in the development and implementation of the IDP.

23.9 Management of the District Planning Forum and IDP Steering Committees.

23.10 Prepare regular reports from the Division.

23.11 Develop an action plan for and monitor responses to all Council Resolutions pertaining to the IDP.

23.12 Monitor and manage consultancies involved in the IDP process through developing Terms of Reference, evaluating submission of tenders and facilitating the appointment of consultants.”

[14] In summary Applicant alleges that this does not equate to 5 years Middle Management experience as follows:

“20.1 the Applicant reiterates that the position of Development Planner, that the First Respondent argues she occupied from 1 February 2013 to 30 June 2014, effectively for a period of one year and five months, is not a management position, at best it is a junior management position;

20.2 the First Respondent occupied the position of Manager Development Planning, which is indeed a middle management position, for a period of three years and eight months (1 July 2014 – 7 March 2018);

20.3 Even worse, the First Respondent does not even have the “minimum 5 years relevant experience in senior management level preferable in Local Government” as indicated in the wrong post advertisement (Annexure SLM 6 of the Founding Affidavit and Annexure NT 1 of the First Respondent’s Opposing Affidavit).”

[15] In essence First Respondent has no valid answer hereto.

THE APPROACH TO APPLICATIONS

[16] Generally applications are not designed to resolve factual disputes between the parties and are decided on common cause facts. Probabilities and onus issues are not amenable to being determined in motion proceedings[2].

[17] As is set out in Civil Procedure in the Supreme Court[3]:

“It is well established under the Plascon-Evans rule that where in motion proceedings disputes of fact arise on the affidavits, a final order can be granted only if the facts averred in the applicant’s affidavits, which have been admitted by the respondent, together with the facts alleged by the latter, justify such order. It may be different if the respondent’s version consists of bald or uncreditworthy denials, raises fictitious disputes of fact, is palpably implausible, far-fetched or so clearly untenable that the court is justified in rejecting them merely on the papers.” [4]

[18] The Court has to accept those facts averred by Applicant that were not disputed by Respondent, and Respondents’ version insofar as it was plausible, tenable and credible[5].

[19] This however is not the end of the matter as is pointed out in Harms Civil Procedure in the Supreme Court [6] as follows:

“It is accordingly generally undesirable to endeavour to decide an application upon affidavit where the material facts are in dispute.

In such a case it is preferable that oral evidence be led to enable the court to see and hear the witnesses before coming to a

conclusion.[7] On the other hand, it is equally undesirable for a court to take all disputes of fact at their face value. If this were done a respondent might be able to raise fictitious issues of fact and thus delay the hearing of the matter to the prejudice of the applicant.[8] In every case the court should examine the alleged disputes of fact and determine whether in truth there is a real[9] issue of fact that cannot be satisfactorily resolved without the aid of oral evidence.[10] Whether a factual dispute exists is not a discretionary decision; it is a question of fact and a jurisdictional pre-requisite for the exercise of the discretion given by the rule.[11] It is not a question of any difference of character between the various kinds of claims being enforced, but a question of the proper method of determining in each case the facts upon which any claim depends.[12]”

[20] In this matter there are no relevant irresoluble factual disputes which are real and genuine.

THE ISSUES:

[21] When the matter came before me it was common cause, and correctly so, that this was a legality review and not one subject to PAJA[13].

[22] Despite the various technical issues raised in the papers, what remained for consideration was the issue of the delay in bringing the review, and if this delay was condoned, then the legality issues raised. Added to this is the issue as to whether, even if not condoned, the Gijima principle/rule applies to a contract and/or salary package which is shown to be clearly unlawful, this to be declared invalid in terms of Section 172(1)(a) of the Constitution and set aside.

CONDONATION

[23] Legality Reviews must be brought within a reasonable time[14].

[24] If delay is raised the Court must determine:

[24.1] Whether there was unreasonable delay, and

[24.2] If so, whether in all the circumstances the unreasonable delay ought to be condoned.

[24.3] In any event whether in appropriate circumstances relief should in any event be granted, in constitutional matters.

[25] The delay enquiry is a factual one calling for a value judgment in the circumstances present[15].

[26] The condonation enquiry requires the exercise of a judicial discretion taking into account all relevant circumstances[16].

[27] Relevant traditional considerations are: the explanation given; the absence of prejudice to the complainant; and the public interest in the finality of administrative decisions[17]. This is expanded in Buffalo City Metropolitan Municipality v Asla Constructions (Pty) Ltd [18] as referred to hereafter.

[28] In Waenhuiskrans Arniston Ratepayers Association and Another v Verreweide Eiendomsontwikkeling (Edms) Bpk and Others[19] it was pointed out that a Court will be slow to exercise its discretion in a manner which undermines the principles of legality[20].

[29] Finally it is common cause that a Municipality cannot claim ignorance of the facts where a decision was taken by its own functionaries[21].

[30] In effect Applicant conceded that the delay in this matter, viewed factually, was unreasonable.

[31] This was correctly conceded in all the circumstances. The appointment was approved on 13 December 2017 (and in fact occurred on 12 March 2018). The Review was launched on 23 May 2019. This was a delay of between 14 and 17 months for which there is no reasonable explanation. The factual and legality issues were more than apparent and were not difficult to discern.

[32] The real issues then are condonation in the context set out above, and the Gijima principle/rule as referred to hereafter.

[33] Applicant launched its condonation application very late[22], and in fact only on 22 November 2019, shortly before the hearing relies on:

[33.1] The investigation being the process which brought the irregularity to light;

[33.2] This investigation was launched on 8 November 2018.

[33.3] The fact that First Respondent’s employment is a “continuing wrong”.

[33.4] The fact that after the report, action was taken to negotiate First Respondent’s exit;

[33.5] The fact that aspects of the irregularity are in fact common cause;

[33.6] The allegation that First Respondent in effect misled Applicant, she knowing (or ought to have known) of her experience deficiency.

THE RECENT AUTHORITIES [23]

[34] In Department of Transport v Tasima (Pty) Ltd [24] the Court held as follows:

“[160] The High Court found that because Mr Mahlalela’s letter extending the contract did not comply with section 217(1) of the Constitution and section 38(1)(a)(iii) of the PFMA, it fundamentally undermined the rule of law. The Court further held that this had significant budgetary and management implications for the Department, which impacted negatively on the public purse, and thus also the public interest. Relying on Prodiba, the High Court concluded that this unlawful matrix justified the delay.

...

[163] In Khumalo, this Court emphasised that an important consideration in assessing whether a delay should be overlooked is the nature of the decision.

This was said to require, “analysing the impugned decision within the legal challenge made against it and considering the merits of that challenge”.[25]”

[35] In Khumalo and Another v Member of the Executive Council for Education: KwaZulu Natal [26] the following was said:

“[52] But should we nevertheless overlook the unreasonable delay? On this leg of the test, the majority in Gqwetha held that the delay cannot be evaluated in a vacuum but must be assessed with reference to its potential to prejudice the affected parties[27] and having regard to the possible consequences of setting aside the impugned decision.[28] In the context of public-sector employment, the value of security for employees[29] and in mitigating the arguably inherent inequality of the workplace[30] must be kept in mind.

[53] Under the Constitution, however, the requirement to consider the consequences of declaring the decision unlawful is mediated by a court’s remedial powers to grant a “just and equitable” order in terms of section 172(1)(b) of the Constitution.[31] A court has greater powers under the Constitution to regulate any possible unjust consequences by granting an appropriate order. While a court must declare conduct that it finds to be unconstitutional invalid, it need not set the conduct aside.

The delay was indeed a factor taken into account by the Labour Appeal Court when deciding whether or not to set aside the applicants’

promotions once they had been found unlawful.

[54] In considering the consequences of a possible finding in this matter, it was stressed by counsel for the MEC that her application distinguished between the declaratory relief she sought (to declare the decisions unlawful, unreasonable and unfair) and the consequential relief (to set aside the respective promotion and protected promotion). It is significant in this context that if the full relief is granted in the MEC’s favour, Mr Khumalo will lose his position. Mr Khumalo has gone on with his life, continued in his employment, presumably adapted his expenses accordingly, and invested nine years of his career in this path. At no stage has the MEC sought so much as to imply that Mr Khumalo performs inadequately in his post.

[55] Furthermore, the MEC states candidly that the facts do not disclose any wrongdoing by Mr Khumalo. Even if Mr Khumalo’s promotion is found to have been unlawful, on the facts he bears no responsibility for it but for having the boldness to apply for a position for which he possibly did not qualify. The burden on the public administration and cost to the public purse to recommence the appointment process would be further prejudice to consider.

[56] Considering the courts’ power to grant a just and equitable remedy the impact of a finding of invalidity may be ameliorated by fashioning a remedy that is fair to Mr Khumalo. In considering the factors above, particularly the lack of a complaint against Mr Khumalo’s performance, a just and equitable remedy would in all likeliness result in him keeping his job, if his promotion were found to be unlawful. Therefore, on this leg of the test, the consequences and potential prejudice do not in this case, and ought not in general, to favour the Court non-suiting an applicant in the face of the delay. The application of this aspect of the test set in Gqwetha must be contextualised in the courts’ discretion to grant a just and equitable remedy.

[57] An additional consideration in overlooking an unreasonable delay lies in the nature of the impugned decision.[32] In my view, this requires analysing the impugned decision within the legal challenge made against it and considering the merits of that challenge.”

[36] In Notyawa v Makana Municipality[33]:

“[35] Although there is an overlap in standards for evaluating delay under PAJA and the legality review, those tests differ in some material respects. The distinguishing features of the two tests were adequately defined by this Court in Asla Construction[34] and as a result there is no need to traverse them here. But that distinction has no bearing to the outcome of the present inquiry which depends on whether interference with the exercise of discretion is justified. Here both pathways lead to the same destination.

…

[38] As was noted in Affordable Medicines Trust, what was the ultra vires ground of review under the common law is now a breach of the legality principle under the Constitution.[35] The Constitution demands that all government decisions must comply with it, including the principle of legality which forms part of the rule of law, and which is one of our constitutional founding values. Consequently, the essence of Mr Notyawa’s assertion was that his was a legality review. However, this by no means suggests that the application of PAJA to a particular review depends on the applicant’s characterisation or a reference to it in the papers, as Mr Notyawa has asserted. PAJA’s application depends on the nature of the impugned decision. If it is administrative, PAJA applies. But if it is executive action PAJA does not apply. In those circumstances the matter becomes a legality review.

Reliance on Gijima[36]

[48] While not taking issue with the approach followed by the High Court, relying on Gijima Mr Notyawa contended that despite the unreasonable delay, the High Court should have entertained the review application. It is apparent from the judgment in Gijima that a court has discretion to overlook a delay.[37] And that the discretion must be exercised with reference to facts of a particular case which warrant the overlook.[38]

[49] The nature and extent of the illegality raised in respect of the impugned decision constitutes a weighty factor in favour of overlooking a delay.[39] Where, as in Gijima and Tasima I,[40] the illegality stems from a serious breach of the Constitution, a court may decide to overlook the delay in order to uphold the

Constitution, provided the breach is clearly established on the facts before it.[41] This flows from the obligation imposed by section 172(1)(a) of the Constitution which requires every competent court to declare invalid law or conduct that is inconsistent with the Constitution.[42]

[50] As was noted in Khumalo, prejudice that may flow from the nullification of an administrative decision long after it was taken may be ameliorated by the exercise of the wide remedial power to grant a just and equitable remedy in terms of section 172(1)(b) of the Constitution.[43] At common law, courts avoided prejudice to respondents by declining to entertain a review application. Our law has since moved on and PAJA affords courts the wide remedial power which may be exercised to protect rights of innocent parties. That power mirrors in exact terms the power contained in section 172(1)(b) of the Constitution.

[51] It must be emphasised that when a court exercises the discretion, it must always keep in mind the development brought about by the Constitution and PAJA. The key point being that the issue of prejudice may adequately be regulated by the grant of a just and equitable order. And where the unlawfulness of the impugned decision is clearly established, the risk of reviewing that decision on the basis of unreliable facts does not arise. In an appropriate case the presence of these factors would tilt the decision in favour of overlooking an unreasonable delay. What is important is to note that the exercise of discretion is no longer regulated exclusively by the common law principles which did not permit the flexibility of reversing the unlawful decision while avoiding prejudice to those who had arranged their affairs in terms of the unlawful decision.

[52] However, the present matter is distinguishable from Gijima. It does not involve a serious breach of the Constitution. Nor is the illegality of the impugned decisions clearly established on the facts. On the contrary, it appears that these decisions were taken in compliance with section 54A of the Systems Act.

Another distinguishing factor here is that, unlike in Gijima, the matter was initiated by an individual and not the state in pursuit of having its own decision corrected. And it is not

necessary in these proceedings to determine whether the application of the Gijima principle is limited to cases where the state is the applicant.”

[37] In Buffalo City Metropolitan Municipality v Asla Construction (Pty) Ltd [44] the following passages relate to delay and the consequences thereof:

“[48] Legality review, on the other hand, has no similar fixed period. This Court in Khumalo endorsed the test enunciated by the Supreme Court of Appeal in Gqwetha for assessing undue delay in bringing a legality review application (Khumalo test).[45] Firstly, it must be determined whether the delay is unreasonable or undue. This is a factual enquiry upon which a value judgment is made, having regard to the circumstances of the matter. Secondly, if the delay is unreasonable, the question becomes whether the Court’s discretion should nevertheless be exercised to overlook the delay to entertain the application.[46]

[51] The second difference between PAJA and legality review for the purposes of delay is that when assessing the delay under the principle of legality no explicit condonation application is required.[47] A court can simply consider the delay, and then apply the two-step Khumalo test to ascertain whether the delay is undue and, if so, whether it should be overlooked.

[53] Even if the unreasonableness of the delay has been established, it cannot be “evaluated in a vacuum” and the next leg of the test is whether the delay ought to be overlooked.[48] This is the third principle applicable to assessing delay under legality. Courts have the power in a legality review to refuse an application where there is an undue delay in initiating proceedings or discretion to overlook the delay.[49] There must however be a basis for a court to exercise its discretion to overlook the delay.[50] That basis must be gleaned from the facts made available or objectively available factors.[51]

[54] The approach to overlooking a delay in a legality review is flexible. In Tasima I, Khampepe J made reference to the “factual, multi-factor, context-sensitive framework” expounded in Khumalo.[52] This entails a legal evaluation taking into account a number of factors. The first of these factors is potential prejudice to affected parties as well as the possible consequences of setting aside the impugned decision.[53] The potential prejudice to affected parties and the consequences of declaring conduct unlawful may in certain circumstances be ameliorated by this Court’s power to grant a just and equitable remedy and this ought to be taken into account.[54] The interrelationship between prejudice and delay was explained by Khampepe J in Tasima I:

“But what is the prejudice suffered by Tasima in overlooking the delay? Condoning the delay does not prevent them from enforcing the court orders that have been granted in their favour. In addition, the contract extension itself has already expired. Setting aside the extension at this point should not, therefore, impact negatively on Tasima going forward. It is also a factor that this Court may rely on its section 172(1)(b) powers to ameliorate the prejudice suffered. It bears repeating that Tasima has, in addition, benefitted greatly from the extension. In my view, the prejudice suffered is minimal, particularly in comparison to the prejudice to be suffered by the Department and the Corporation if the counter-application is not condoned. This is consonant with the dicta in Khumalo that, ‘consequences and potential prejudice . . . ought not in general, favour the Court non-suiting an applicant in the face of the delay’.”[55]

[55] A second factor relevant to overlooking delay is the nature of the impugned decision.

[56] This Court has made plain that even within the context of PAJA, the extent and nature of the deviation from constitutional prescripts directly impacts upon an application for condonation in terms of section 7 of PAJA.[56] In the context of a legality review, in Khumalo, Skweyiya J writing for the majority explained that “an additional consideration in overlooking an unreasonable delay lies in the nature of the impugned decision”.[57] Skweyiya J added that this entails analysing the impugned decision and considering the merits of the legal challenge made against that decision.[58] In SANRAL, Navsa JA rejected a suggestion that the question of delay must be dealt with before the merits of the review can be entertained:

“It is true that in [the Supreme Court of Appeal’s judgment in Opposition to Urban Tolling Alliance] this Court considered it important to settle the court’s jurisdiction to entertain the merits of the matter by first having

regard to the question of delay. However, it cannot be read to signal a clinical excision of the merits of the impugned decision,

which must be a critical factor when a court embarks on a consideration of all the circumstances of a case in order to determine whether the interests of justice dictate that the delay should be condoned. It would have to include a consideration of whether the non-compliance with statutory prescripts was egregious.”[59]

[58] Furthermore, it is implicit from this Court’s judgment in Gijima that the extent and nature of the illegality may be a crucial factor in determining the relief to be granted when faced with a delayed review.[60] Therefore, this Court may consider, as part of assessing the delay, the lawfulness of the contract under the principle of legality.

[59] A third factor to consider when deciding to overlook delay is the conduct of an applicant. This is particularly true for state litigants seeking to review their own decisions for the simple reason that often they are best placed to explain the delay. This was recognised by Skweyiya J in Khumalo:

“The fact that the MEC has elected not to account for the delay, despite having had the opportunity to do so at multiple stages in the litigation, can only lead one to infer that she either had no reason at all or that she was not able to be honest as to her real reasons. Had the matter been brought by a private litigant, this aspect of the test might weigh less heavily. However, given that the MEC is responsible for the decision, that she is obliged to act expeditiously in fulfilling her constitutional obligations, and that she should have within her control the relevant resources to establish the unlawfulness of the decision she impugns, the unreasonableness of the unexplained delay is serious.”[61] (Emphasis added.)

[62] Even where the functionary has not acted as a model litigant or “constitutional citizen”,[62] there may be a basis to overlook the delay if the functionary acted in good faith or with the intent to ensure clean governance. In Tasima I, Khampepe J affirmed this principle:

“Merafong also holds that whether the failure to challenge the decision timeously was made in good faith may be a reason for overlooking the delay. The Department in this case, by its own admission, is plagued by poor management. The director-general who deposed to the counter-application admits that it was brought as a means to get the Department’s house in order. Nevertheless, the Department has not acted in bad faith in respect of the administrative decision. Its behaviour has been muddled, but

not malicious.

This is borne out by the Department’s vigorous attempt to have the extension reviewed before the High Court. Not only is the decision-maker who made the decision now opposed to its enforcement, but this also forms part of a conscious effort by the Department to break with its dilatory past.”[63]

[63] The fourth principle stems directly from Gijima. Even where there is no basis for a court to overlook an unreasonable delay, the Court may nevertheless be constitutionally compelled to declare the state’s conduct unlawful. This is so because “[s]ection 172(1)(a) of the Constitution enjoins a court to declare invalid any law or conduct that it finds to be inconsistent with the Constitution”.[64]

[66] When would the Gijima rule apply? Gijima dictates that where the unlawfulness of the impugned decision is clear and not disputed,[65] then this Court must declare it as unlawful.[66] This is notwithstanding an unreasonable delay in bringing the application for review for which there is no basis for overlooking.

Whether an impugned decision is so clearly and indisputably unlawful will depend on the circumstances of each case.

[67] As the second judgment aptly remarks, this creates a certain tension in our law.[67] On the one hand, there is a long line of cases explaining that the state must adhere to the procedural requirements of review, including timeous approaches to courts.[68] On the other hand, Gijima implies that these procedural hurdles, while important, can sometimes yield to the injunction under section 172(1)(a) to declare invalid that which is inconsistent with the Constitution.

[68] The precise contours of this tension need not be drawn here. All that needs to be said is that interpreting and applying the Gijima principle, and the initial three principles detailed in this judgment, must be done with their purpose in mind. That is, to balance the objectives of the rules on delay with those objectives of declaring unlawful conduct as such. In Khumalo, this Court cautioned against allowing procedural obstacles from preventing a court from looking into a challenge to the lawfulness of an exercise of public power. Skweyiya J stated:

“In the previous section it was explained that the rule of law is a founding value of the Constitution, and that state functionaries are enjoined to uphold and protect it, inter alia, by seeking the redress of their departments’ unlawful decisions. Because of these fundamental commitments, a court should be slow to allow procedural obstacles to prevent it from looking into a challenge to the lawfulness of an exercise of public power.”[69]

[69] However, the Court went on to note that the procedural requirement to bring review applications without undue delay serves a substantive purpose. It is based on sound judicial policy and in the public

interest that there be finality and certainty in matters.[70]

[70] In Tasima I, this Court reaffirmed the principle that a court should be slow to allow procedural obstacles to prevent scrutiny of a challenge to the exercise of public power,[71] but went on to emphasise that it is a feature of the rule of law that undue delay should not be tolerated:

“Delay can prejudice the respondent, weaken the ability of a court to consider the merits of a review, and undermine the public interest in bringing certainty and finality to administrative action. A court should therefore exhibit vigilance, consideration and propriety before overlooking a late review, reactive or otherwise.”[72]

[71] The Gijima principle should thus be interpreted narrowly and restrictively so that the valuable rationale behind the rules on delay are not undermined. At the same time, this is not a matter in which the Gijima principle can be ignored and thus impliedly overruled. So the injunction it creates – to declare invalid that which is indisputably and clearly inconsistent with the Constitution – must be followed where applicable.”

THE GIJIMA PRINCIPLE/RULE

[38] In this matter there was clearly unreasonable delay in bringing the Application but this cannot be evaluated “in a vacuum” and the crucial issue is whether the delay should be overlooked[73]. There is a discretion to overlook the delay[74]. There must be a basis justifying the exercise of such a discretion[75]. This arising from the available facts or those objectively available.

[39] This is a flexible approach to a “factual, multi-factor, and context–sensitive framework”[76].

[40] It is a legal evaluation which must take into account the factors set out in Buffalo City[77].

[41] These factors are in summary:

[41.1] To consider potential prejudice to all affected parties as well as the possible consequences of setting aside the impugned decision. As pointed out in Buffalo City[78]:

“The potential prejudice to affected parties and the consequences of declaring conduct unlawful may in certain circumstances be ameliorated by this Court’s power to grant a just and equitable remedy and this ought to be taken into account.[79] The interrelationship between prejudice and delay was explained by Khampepe J in Tasima”.

[41.2] The nature of the impugned decision is to be considered – the deviation and its extent from Constitutional prescripts impacts on condonation (the materiality of deviance). The extent and nature of the illegality may well be crucial in determining the relief to be granted in a delayed review[80]. This requires an analysis of the impugned decision and the legal merits of the challenge against it [81]. The nature and extent of the illegality may be a crucial factor in determining what relief is to be granted (the lawfulness of the contract).

[41.3] The conduct of Applicant is to be considered. The standard against which a State litigant’s conduct is measured is high[82].

[41.4] From Gijima – even where there is no basis for a Court to overlook an unreasonable delay, a Court may still be constitutionally compelled to declare the State’s conduct unlawful as Section 172(1)(a) of the Constitution enjoins a Court to declare invalid any law or conduct inconsistent with the Constitution[83]. As to when this Gijima principle/rule would apply Buffalo City holds as follows:

“[66] ... Gijima dictates that where the unlawfulness of the impugned decision is clear and not disputed,[84] then this Court must declare it as unlawful.[85] This is notwithstanding an unreasonable delay in bringing the application for review for which there is no basis for overlooking.

Whether an impugned decision is so clearly and indisputably unlawful will depend on the circumstances of each case.

[67] ... On the other hand, Gijima implies that these procedural hurdles, while important, can sometimes yield to the injunction under section 172(1)(a) to declare invalid that which is inconsistent with the Constitution.

[68] The precise contours of this tension need not be drawn here. All that needs to be said is that interpreting and applying the Gijima principle, and the initial three principles detailed in this judgment, must be done with their purpose in mind. That is, to balance the objectives of the rules on delay with those objectives of declaring unlawful conduct as such. In Khumalo, this Court cautioned against allowing procedural obstacles from preventing a court from looking into a challenge to the lawfulness of an exercise of public power. Skweyiya J stated:

“In the previous section it was explained that the rule of law is a founding value of the Constitution, and that state functionaries are enjoined to uphold and protect it, inter alia, by seeking the redress of their departments’ unlawful decisions. Because of these fundamental commitments, a court should be slow to allow procedural obstacles to prevent it from looking into a challenge to the lawfulness of an exercise of public power.”[86]

APPLYING THE PRINCIPLES REFERRED TO ABOVE

[42] As pointed out above in respect of her appointment, the lack of midlevel experience in this matter on the part of First Respondent is far from egregious and her appointment was through no fault of hers. She has also apparently worked well and has, it would seem, been more than adequate for the post in every other respect – or at least the contrary is not stated.

[43] In this matter it seems thus that there is absolutely no merit in Applicant’s allegation that First Respondent was complicit in her being wrongly appointed beyond her having the boldness to apply for a position for which she was well academically qualified but for which she lacked a relatively limited portion of the years of experience required.

[44] There is no suggestion that First Respondent is in any way unsuitable in the position or that her performance is inadequate.

[45] No doubt, as in Khumalo, she took the appointment and has apparently acquitted herself satisfactorily, continued in that employment for a year and ten months and no doubt arranged her life and finances accordingly.

[46] She bears no direct responsibility for her appointment predicament properly viewed and is guilty of no wrongdoing.

[47] The consequences and potential prejudice to First Respondent, if she were to be dismissed, are patent for all to see. As to prejudice to Applicant as to her appointment, this would seem to be very limited, she apparently suitable for the work.

[48] Whilst the decision impugned cannot survive scrutiny relevant to the common cause facts and the clear (but not vast) lack of required experience this again is not egregious.

[49] As to the contention that First Respondent was granted a salary package which was irregular, not being the stipulated minimum as provided in Regulation 9(2), the following is relevant. First Respondent ought to have been appointed on a “minimum salary package” but was in fact appointed at a “maximum salary package” with remote allowance, applicable to a person with more than 10 years experience, a substantial difference as set out in detail above.

[50] Even on Applicant’s own case this (though clearly correct) is apparently no fault of hers, though she has no explanation as to why this large disparity in salary occurred, and she must surely have been more than aware thereof. She is not alleged however to have been part of such irregularity nor can it be suggested that there was any wrongdoing in this regard, on her part, although this must be viewed in a serious light being an unjustified draw on the public fiscus and against the public interest.

[51] In any event this salary package “irregularity” can hardly be advanced as reason to terminate her employment completely (nor is this suggested by Applicant) – but one which would at best give Applicant a remedy to regularize same in appropriate proceedings and which in the light of the authorities above is certainly relevant to condonation, being clearly unlawful.

[52] In my view, in respect of her appointment, all these factors and the fact that Applicant is responsible for the entire period of the delay, satisfy me that on the special facts and circumstances of this case and exercising my discretion, the delay in bringing this review on the basis of her somewhat less than required experience cannot be condoned, viewed cautiously, as is required relevant to non-suiting Applicant. This is even more so having regard to Applicant’s apparent attitude to condonation being required (through a condonation application is not essential) this not being dealt with at all in its founding papers but only in a last minute separate application brought at an extremely late stage (a few days prior to argument) and only presumably due to the delay point being raised in First Respondent’s Heads of Argument filed some full month prior to the Application being launched.

[53] The question of deviation thus from Constitutional prescripts, in respect of her appointment, is narrow.

[54] The position in respect of her salary package is, however, another matter entirely. It cannot be gainsaid on the papers that First Respondent is on a salary package far beyond that which should apply to her. This takes on thus a far more important Constitutional imperative considering this in the context set out above and having regard to the factors set out in Buffalo City summarized above:

[54.1] The potential prejudice to Applicant, the public interest, and the fiscus is substantial were First Respondent to continue to earn considerably beyond her regulation level. The prejudice to First Respondent is far less, were this to be corrected, as she should not have been paid the increased salary at all as to the difference between minimum and maximum package.

[54.2] In regard to salary the deviation is egregious and constitutionally objectionable.

[54.3] There is no substantial challenge mounted by First Respondent in this regard at all and there is no defence in simply saying this was not First Respondent’s fault.

[54.4] Applicant’s conduct in appointing First Respondent, at the clearly vastly incorrect salary level, is apparently linked to the pending disciplinary proceedings against the Municipal Manger but is otherwise unexplained. Whilst First Respondent is not said to be complicit herein (which I accept) she surely must have appreciated the incorrect salary level paid to her.

[55] Applying this to the Gijima principle as set out above, and even though an unreasonable delay was conceded, it seems to me that balancing the principles on delay with the objective of declaring unlawful conduct as such, and whilst the Gijima principle must be narrowly interpreted (restrictively), this principle in respect of First Respondent’s salary alone cannot be ignored.

[56] There is considerable merit in respect of the challenge against her salary and against the analysis above. It seems to me that not only does the salary determination fall to be set aside as unconstitutional but that also, in this regard alone, condonation should be granted to Applicant.

[57] That is not to say however that Applicant should be successful in being given condonation in respect of the setting aside of First Respondent’s appointment or that its resolution to rescind same should stand.

[58] To hold accordingly as to her appointment would be unjust and unfair to Applicant. In terms of Section 172(1)(a), however, it seems to me that what should be declared constitutionally invalid is the extent to which her appointment exceeds the salary level at which she should have been appointed and to her present to her present position. This would in my view bring about a just and equitable order relevant to her having been appointed on a substantially higher and unlawful salary level.

COSTS

[59] As to costs Applicant has been substantially unsuccessful in the Main Application and although successful as to the remuneration package of First Respondent, this was through no fault of First Respondent and as such it is just and equitable that Applicant bears the costs of the Application in its entirety, both those of itself and of First Respondent.

ORDER

[60] In the result the following order issues:

1. The Application is dismissed save to the extent appearing below.

2. The Application for Condonation for the late bringing of the Application:

2.1 fails as to the appointment of First Respondent as Director: Integrated Planning and Economic Development

2.2 succeeds as to Applicant having awarded First Respondent a maximum salary package in contravention of Regulation 9(2) of the Upper Limits of Total Remuneration Packages Payable to Municipal Managers and Managers Directly Accountable to the Municipal Manager, 2017, with remote allowance.

3. First Respondent’s employment as Director: Integrated Planning and Economic Development is confirmed.

4. First Respondent’s salary at the maximum salary package with remote allowance in contravention of Regulation 9 and 10 of the Upper Limits of Total Remuneration Packages Payable to Municipal Managers and Managers Directly Accountable to the Municipal Manager, 2017, is set aside and is replaced with a salary at the minimum package as set out in the Regulations of Upper Limits of Total Remuneration Packages Payable to Municipal Managers and Managers Directly Accountable to the Municipal Manager, as presently applicable (2019); but excluding a remote allowance in contravention of Section 60(1)(b) of the Municipal Systems Act, all calculated and relevant to First Respondent’s current status and period of employment.

5. Applicant is to pay the costs of the Application, in respect of First Respondent.

__________________________

M.J. LOWE

JUDGE OF THE HIGH COURT

Appearances:

Obo Applicant: Adv A M Bodlani

Instructed by: NT VUBA Inc, Grahamstown

Obo Respondents:Adv S Cole

Instructed by: Wheeldon Rushmere & Cole, Grahamstown

[1] Regulation 9 The Upper Limits of Total Remuneration Packages Payable to Municipal Managers. .

[2] Plascon-Evans Paints (TVL) Ltd v Van Riebeck Paints (Pty) Ltd [1984] ZASCA 51; 1984 (3) SA 623 A 634 – 635; National Director of Public Prosecutions v Zuma 2009 (2) SA 279 SCA [26]

[3] Harmse (Butterworths) B6.45

[4] Media 24 Books (Pty) Ltd v Oxford University Press Southern Africa (Pty) Ltd 2017 (2) SA 1 (SCA)

[5] Airports Company South Africa Soc Ltd v Airports Bookshops (Pty) Ltd t/a Exclusive Books [2016] 4 All SA 665 (SCA).

[6] Butterworths B6.45

[7] Frank v Ohlsson’s Cape Breweries Ltd 1924 AD 289 294; Plascon-Evans 634-635

[8] Petersen v Cuthbert & Co Ltd 1945 AD 420 428. A hollow denial or a detailed but fanciful and untenable version does not create a dispute of fact: Truth Verification Testing Centre CC v PSE Truth Detection Centre CC 1998 (2) SA 689 (W) 698; Rosen v Ekon [2000] 3 All SA 23 (W) 39; Ripoll-Dausa v Middleton NO [2005] 2 All SA 83 (C), 2005 (3) SA 141 (C).

[9] Rothman v Curr Vivier Inc 1997 (4) SA 540 (C) 551; Peterson v Cuthbert & Co Ltd supra 429; President of the Republic of South Africa v South African Rugby Football Union 2000 (1) SA 1 (CC) pars 234-239. It has variously been called a “genuine” or “bona fide” dispute (“’n werklike of direkte feitegeskil”: Van der Merwe v Meyer 1971 (3) SA 22 (A) 26G) but the meanings are the same. Whether the converse of a “real” dispute is a “mala fide” dispute of fact as suggested in Von Steen v Von Steen 1984 (2) SA 203 (T) is open to doubt. Speculation does not create a real dispute of fact: Standard Credit Corporation Ltd v Smyth 1991 (3) SA 179 (W); Governing Body of Hoërskool Fochville and Another v Centre for Child Law; In re: Governing Body of Hoërskool Fochville and Others (Greenside High School Governing Body as amicus curiae) [2014] 4 All SA 204 (GJ).

[10] Petersen v Cuthbert & Co Ltd supra 428; Administrator, Transvaal v Theletsane [1990] ZASCA 156; 1991 (2) SA 192 (A) 197; G v Superintendent, Groote Schuur Hospital 1993 (2) SA 255 (C).

[11] Ismail v Durban City Council 1973 (2) SA 362 (N) 374A-B; Du Preez v NWK Ltd [2005] 3 All SA 551 (B).

[12] Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1949 (3) SA 1155 (T) 1162; Ter Beek v United Resources CC 1997 (3) SA 315 (C) 329D-E.

[13] State Information Technology Agency SOC Limited v Gijima Holdings (Pty) 2018 (2) SA 23 (CC).

[14] Mandela v Executors Estate Late Nelson Rolihlahla Mandela and Others 2018 (4) SA 86 (SCA) 91A-D.

[15] Mandela (supra) 91D-93C; Khumalo and Another v Member of the Executive Council for Education: KwaZulu Natal 2014 (5) SA 579 (CC) [49] - [52] and [56].

[16] Ouderraal Estates (Pty) Ltd v City of Cape Town 2010 (1) SA 333 (SCA) 364D-F; 347I-348B.

[17] Mandela (supra) 93-97.

[18] 2019 (4) SA 331 (CC).

[19] 2011 (3) SA 434 (WCC) 454D-G.

[20] See also Department of Transport v Tasima (Pty) Ltd 2017 (2) SA 622 (CC); Khumalo (supra).

[21] Cape Town City v Aurecon SA (Pty) Ltd 2017 (4) SA 223 (CC) at 238/9.

[22] Of course this being a legality review no explicit Condonation Application is required Khumalo (supra) [44].

[23] I set out in some length as crucial to the issues relevant in this matter.

[24] 2017 (2) SA 622 (CC).

[25] Khumalo above n 59 at para 57.

[26] 2014 (5) SA 579 (CC)

[27] Gqwetha above n 34 at para 33.

[28] Id at para 34.

[29] Benjamin “Labour Law Beyond Employment” (2012) Acta Juridica 21 at 21.

[30] In Sidumo above n 32, this Court referred to the “famous dictum” of Kahn-Freund that “the main objective of Labour Law [is to] counteract the inequality of bargaining power which is inherent and must be inherent in the employment relationship.”

[31] Section 172 provides for the powers of courts in constitutional matters. Section 172(1) provides: “When deciding a constitutional matter within its power, a court— (a) must declare that any law or conduct that is inconsistent with the Constitution is invalid to the extent of its inconsistency; and (b) may make any order that is just and equitable, including— (i) an order limiting the retrospective effect of the declaration of invalidity; and (ii) an order suspending the declaration of invalidity for any period and on any conditions, to allow the competent authority to correct the defect.”

[31] Section 172 provides for the powers of courts in constitutional matters. Section 172(1) provides:

“When deciding a constitutional matter within its power, a court—

(a) must declare that any law or conduct that is inconsistent with the Constitution is invalid to the extent of its inconsistency; and

(b) may make any order that is just and equitable, including—

(i) an order limiting the retrospective effect of the declaration of invalidity; and

(ii) an order suspending the declaration of invalidity for any period and on any conditions, to allow the competent authority to correct the defect.”

[32] Gqwetha above n 34 at para 33.

[33] [2019] ZACC 43

[34] Buffalo City Metropolitan Municipality v Asla Construction (Pty) Ltd [2019] ZACC 15; 2019 (4) SA 331 (CC); 2019 (6) BCLR 661 (CC) (Asla Construction) at paras 49-53.

[35] Affordable Medicines Trust v Minister of Health [2005] ZACC 3; 2006 (3) SA 247 (CC); 2005 (6) BCLR 529 (CC) at para 50.

[36] State Information Technology Agency SOC Ltd v Gijima Holdings (Pty) Ltd [2017] ZACC 40; 2018 (2) SA 23 (CC); 2018 (2) BCLR 240 (CC) (Gijima).

[37] Id at para 47. See also Khumalo above n 22 at para 45.

[38] Id at paras 48-9.

[39] Asla Construction above n 16 at para 58.

[40] Department of Transport v Tasima (Pty) Ltd [2016] ZACC 39; 2017 (2) SA 622 (CC); 2017 (1) BCLR 1 (CC) (Tasima I).

[41] Asla Construction above n 16 at para 63.

[42] In peremptory terms section 172(1)(a) of the Constitution provides: “(1) When deciding a constitutional matter within its power, a court— (a) must declare that any law or conduct that is inconsistent with the Constitution is invalid to the extent of its inconsistency.”

[42] In peremptory terms section 172(1)(a) of the Constitution provides:

“(1) When deciding a constitutional matter within its power, a court—

(a) must declare that any law or conduct that is inconsistent with the Constitution is invalid to the extent of its inconsistency.”

[43] Khumalo above n 22 at para 53.

[44] [2019] ZACC 15.

[45] Khumalo above n 25 at para 49 referring to Gqwetha v Transkei Development Corporation Ltd [2005] ZASCA 51; 2006 (2) SA 603 at para 33. Gqwetha was also cited with approval in Tasima I above n 24.

[46] Khumalo id.

[47] Khumalo above n 25 at para 44.

[48] Khumalo above n 25 at para 49. See also Tasima I above n 24 at paras 158-9 where the obligatory nature of dealing with both legs is outlined as follows: “In respect of the delay itself, I am therefore persuaded that the approach taken by the Supreme Court of Appeal was correct. The explanation provided by the Department was both porous and lacked the markings of good constitutional citizenship. But this is not the end of the inquiry. The delay cannot be ‘evaluated in a vacuum’. It must now be determined whether there are sound reasons for overlooking the delay.”

[48] Khumalo above n 25 at para 49. See also Tasima I above n 24 at paras 158-9 where the obligatory nature of dealing with both legs is outlined as follows:

“In respect of the delay itself, I am therefore persuaded that the approach taken by the Supreme Court of Appeal was correct. The explanation provided by the Department was both porous and lacked the markings of good constitutional citizenship. But this is not the end of the inquiry. The delay cannot be ‘evaluated in a vacuum’. It must now be determined whether there are sound reasons for overlooking the delay.”

[49] Khumalo above n 25 at para 44.

[50] Gijima above n 3 at para 52.

[51] Id.

[52] Tasima I above n 24 at para 144.

[53] Id at para 52.

[54] Khumalo above n 25 at paras 53 and 56, which read: “Under the Constitution, however, the requirement to consider the consequences of declaring the decision unlawful is mediated by a court’s remedial powers to grant a ‘just and equitable’ order in terms of section 172(1)(b) of the Constitution. A court has greater powers under the Constitution to regulate any possible unjust consequences by granting an appropriate order.

While a court must declare conduct that it finds to be unconstitutional invalid, it need not set the conduct aside. . . . The application of this aspect of the test set in Gqwetha must be contextualised in the courts’ discretion to grant a just and equitable remedy.” (Footnotes omitted.)

[54] Khumalo above n 25 at paras 53 and 56, which read:

“Under the Constitution, however, the requirement to consider the consequences of declaring the decision unlawful is mediated by a court’s remedial powers to grant a ‘just and equitable’ order in terms of section 172(1)(b) of the Constitution. A court has greater powers under the Constitution to regulate any possible unjust consequences by granting an appropriate order.

While a court must declare conduct that it finds to be unconstitutional invalid, it need not set the conduct aside.

. . .

The application of this aspect of the test set in Gqwetha must be contextualised in the courts’ discretion to grant a just and equitable remedy.” (Footnotes omitted.)

[55] Tasima I above n 24 at para 170.

[56] Khumalo above n 25 at para 57; South African National Roads Agency v Cape Town City [2016] ZASCA 122; 2017 (1) SA 468 (SCA) (SANRAL) at para 81; Aurecon above n 27 at para 49.

[57] Khumalo id.

[58] Id.

[59] SANRAL above n 56 at para 81.

[60] Gijima above n 3 at para 52.

[61] Khumalo above n 25 at para 51.

[62] Tasima I above n 24 at para 159.

[63] Id at paras 168-9.

[64] Gijima above n 3 at para 52. See also section 172 of the Constitution which states: “When deciding a constitutional matter within its power, a court— (a) must declare that any law or conduct that is inconsistent with the Constitution is invalid to the extent of its inconsistency; and (b) may make any order that is just and equitable, including— (i) an order limiting the retrospective effect of the declaration of invalidity; and (ii) an order suspending the declaration of invalidity for any period and on any conditions, to allow the competent authority to correct the defect.”

[64] Gijima above n 3 at para 52. See also section 172 of the Constitution which states:

[65] Gijima above n 3 at para 41.

[66] Id at para 52.

[67] Second judgment at [126] to [127].

[68] These all stem from the seminal judgment in Oudekraal Estates (Pty) Ltd v City of Cape Town [2004] ZASCA 48; 2004 (6) SA 222 (SCA).

[69] Khumalo above n 25 at para 45.

[70] Id at paras 47-8, which read: “This requirement is based on sound judicial policy that includes an understanding of the strong public interest in both certainty and finality. People may base their actions on the assumption of the lawfulness of a particular decision, and the undoing of the decision threatens a myriad of consequent actions. In addition, it is important to understand that the passage of a considerable length of time may weaken the ability of a court to assess an instance of unlawfulness on the facts. The clarity and accuracy of decision-makers’ memories are bound to decline with time. Documents and evidence may be lost, or destroyed when no longer required to be kept in archives. Thus the very purpose of a court undertaking the review is potentially undermined where, at the cause of a lengthy delay, its ability to evaluate fully an allegation of illegality is impaired.” (Footnotes omitted.)

[70] Id at paras 47-8, which read:

“This requirement is based on sound judicial policy that includes an understanding of the strong public interest in both certainty and finality. People may base their actions on the assumption of the lawfulness of a particular decision, and the undoing of the decision threatens a myriad of consequent actions.

In addition, it is important to understand that the passage of a considerable length of time may weaken the ability of a court to assess an instance of unlawfulness on the facts. The clarity and accuracy of decision-makers’ memories are bound to decline with time. Documents and evidence may be lost, or destroyed when no longer required to be kept in archives. Thus the very purpose of a court undertaking the review is potentially undermined where, at the cause of a lengthy delay, its ability to evaluate fully an allegation of illegality is impaired.” (Footnotes omitted.)

[71] Tasima I above n 24 at para 160.

[72] Id.

[73] Khumalo (supra) [49] and Tasima (supra) [158-9].

[74] Khumalo (supra) [44].

[75] Gijima (supra) [52].

[76] Tasima (supra) [144].

[77] Supra [54].

[78] Supra [54]

[79] Khumalo above n 25 at paras 53 and 56, which read: “Under the Constitution, however, the requirement to consider the consequences of declaring the decision unlawful is mediated by a court’s remedial powers to grant a ‘just and equitable’ order in terms of section 172(1)(b) of the Constitution. A court has greater powers under the Constitution to regulate any possible unjust consequences by granting an appropriate order.

While a court must declare conduct that it finds to be unconstitutional invalid, it need not set the conduct aside. . . . The application of this aspect of the test set in Gqwetha must be contextualised in the courts’ discretion to grant a just and equitable remedy.” (Footnotes omitted.)

[79] Khumalo above n 25 at paras 53 and 56, which read:

[80] Buffalo City (supra) [57]-[58]; Gijima (supra) [52].

[81] Khumalo (supra) [57]; Buffalo City (supra) [56]-[58].

[82] Buffalo City (supra) [61].

[83] Buffalo City (supra) [63]; Gijima (supra) [52].

[84] Gijima above n 3 at para 41.

[85] Id at para 52.

[86] Khumalo above n 25 at para 45.