THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

Case number: 454/2008

In the matter between:

TSHEDISO MKUMATELA

APPELLANT

and

THE NELSON MANDELA
METROPOLITAN MUNICIPALITY

FIRST RESPONDENT

S V P MAFONGOSI

SECOND RESPONDENT

Neutral citation:
Mkumatela
v
The
Nelson
Mandela
Metropolitan
Municipality (454/2008) [2009] ZASCA 137 (6 November
2009)

CORAM:

Navsa, Brand, Maya JJA et Hurt, Tshiqi AJJA

HEARD:

8 September 2009

DELIVERED:
6 November 2009

SUMMARY:
Review application brought in High Court under
Promotion of Administrative Justice Act 3 of 2000 (PAJA)
in matter concerning labour relationship between organ of
State and employee – held that conduct complained of
does
not
constitute
'administrative
action'
as
contemplated by PAJA.

ORDER

On appeal from:
High Court Port Elizabeth (Revelas J sitting as
court of first instance)
The appeal is dismissed with costs, including the costs of two counsel.

JUDGMENT

BRAND JA (Navsa, Maya JJA et Hurt, Tshiqi AJJA concurring)

[1] This appeal has its origin in an unsuccessful review application by the
appellant against the first respondent municipality in its capacity as his
employer. It raises preliminary issues which have engaged our superior courts
with perturbing regularity in the recent past. They relate to the review
jurisdiction of the High Court in disputes arising from labour relations;
purportedly implicating both the Labour Relations Act 66 of 1995 (‘the LRA’)
and the Promotion of Administrative Justice Act 3 of 2000 (‘PAJA’).

[2] By contrast with the technical intricacies of these preliminary issues,
the background facts can be stated with refreshing simplicity. The appellant
was employed by the respondent municipality when he applied for the position
of assistant manager: waste operations which, for him, would have been a
promotion. He was short-listed as one of four candidates to be interviewed by
an appointment committee. The composition of the committee complied with
the prescriptions of the municipality’s Recruitment Selection and Placement
Policy. In line with the policy document, it comprised of the manager of the
respondent’s waste management unit, Ms Zamxaka, a representative of the
Human Resources Unit, Mr Jamda, a representative of the Employment
Equity Officer and one representative each of the two in-house trade unions.
According to the explicit directions of the policy document, the last mentioned
three representatives had observer status only. Voting rights were thus
restricted to Ms Zamxaka and Mr Jamda.

[3] As it happened, however, the two members with voting rights could not
agree on which candidate they should recommend to the municipal manager,
who had been entrusted with the ultimate responsibility to make the
appointment. Ms Zamxaka awarded the appellant her highest score. Mr
Jamda’s preferred candidate, on the other hand, was the second respondent,
Mr S V P Mafongosi. Ms Zamxaka then proposed that a recommendation
should be made on the basis of the aggregate score awarded by Mr Jamda
and herself. On this basis the appellant’s score would be 83,5 as opposed to
Mr Mafongosi’s 78. But her proposal was not accepted. What happened
instead was that the three members of the committee with no more than
observer status were asked to reveal their scores. From these it became
apparent that all three of them supported Mr Mafongosi. The ‘majority’ vote
thus arrived at was then used as the basis for a recommendation to the
municipal manager. The recommendation was, however, accompanied by a
covering letter informing the municipal manager of how the recommendation
had actually come about, including the fact that the two committee members
with voting rights could not agree and that the issue had been decided
effectively by the scores of those who had no right to score. Despite these
shortcomings, the municipal manager nonetheless appointed Mr Mafongosi.

[4] In the event, the appellant brought a review application in the Port
Elizabeth High Court for an order that the appointment of Mr Mafongosi –
whom he joined as the second respondent – be set aside and that the
appointment process for the position in contention be started anew. Apart
from other lesser complaints, the appellant's main ground of objection against
the recommendation which led to the appointment of his rival was that it was
procedurally flawed in that the prescriptions of the municipality's own policy
document had not been followed. Departing from this premise, he contended
that he had been deprived of his fundamental right to administrative action
which is lawful, reasonable and procedurally fair, as promised in s 33 of the
Constitution.

[5] Mr Mafongosi did not oppose the application. He chose to abide the
decision of the court. The municipality, on the other hand, opposed the
application. Apart from its opposition on the merits, it also raised two points in
limine. First, that the High Court had no jurisdiction to hear the matter in that,
in terms of the LRA, it fell within the exclusive domain of the Labour Court.
Secondly, that the appellant’s case, on a proper analysis, constituted a review
application under PAJA, which was not competent since the procedure
complained of did not amount to ‘administrative action' as contemplated by
the latter Act.

[6] As to the merits, the municipality conceded that the Appointment
Committee had deviated from the procedure prescribed by the policy
document when it allowed its recommendation to be swayed by those who
had observation status only. Nonetheless, so the municipality contended, the
deviation did not affect the validity of Mr Mafongosi’s appointment, essentially
for three reasons. First, because the policy document constituted no more
than a guide. Secondly, because the deviation did not constitute a material
departure from the letter and spirit of these guidelines. Thirdly, because the
final decision to appoint had not been taken by the Appointment Committee,
but by the municipal manager who was fully aware of the flaws in the
recommendation process when he exercised his independent discretion in
favour of Mr Mafongosi.

[7] The court a quo (Revelas J) considered the two points in limine and
found them both wanting. As to the merits, on the other hand, the court was
essentially persuaded by the municipality’s answers. In consequence, the
review application was dismissed with costs. The appeal against that
judgment is with the leave of the court a quo.

[8] In this court the municipality again relied on the same two points in
limine as in the court a quo. The contention that the High Court had no
jurisdiction was squarely based on the decision of the Constitutional Court in
Chirwa v Transnet Ltd 2008 (4) SA 367 (CC); where the majority of the court
essentially decided, so the contention went, that, in terms of the LRA, the

determination of disputes arising from labour and employment relations are in
principle reserved for the exclusive jurisdiction of the specialised labour
tribunals created by that Act.

[9] The court a quo found the answer to this contention in the earlier
decision by the Constitutional Court in Fredericks v MEC for Education and
Training, Eastern Cape 2002 (2) SA 693 (CC), which Skweyiya J, writing for
the majority in Chirwa, found distinguishable from that case (paras 56-61).
Skweyiya J’s explanation of the distinction must be understood against the
background of the fact that Mrs Chirwa's allegation that her employer’s
decision to dismiss her was reviewable under the provisions of PAJA, rested,
inter alia, on the contention that the decision maker had ‘failed to comply with
the mandatory provisions of items 8 and 9 of Sch 8 to the . . . LRA'. .
In this light Skweyiya J said the following (in paras 56, 58 and 61):
‘The applicants [in Fredericks] challenged the refusal of their applications [for
voluntary retrenchment packages] on the grounds that it infringed their rights under
s 9 (the right to equality) and s 33 (right to just administrative action) of the
Constitution.
. . .
Fredericks (supra) is distinguishable from the present case. Notably the applicants in
Fredericks expressly disavowed any reliance on s 23(1) of the Constitution, which
entrenches the right to a fair labour practice. Nor did the claimants in Fredericks rely
on the fair labour practice provisions of the LRA or any other provision of the LRA
. . . .  Ms Chirwa's complaint is that Mr Smith [the decision-maker] "failed to comply
with the mandatory provisions of items 8 and 9 of Sch 8 to the LRA." . . . Thus, unlike
in Fredericks, the applicant here expressly relies upon those provisions of the LRA
which deal with unfair dismissals.'

[10] Departing from the distinction thus formulated, the court a quo found
that the present case falls on the Fredericks side of what it perceived to be the
divide between that case and Chirwa, on the basis that the appellant, as in
Fredericks, and unlike in Chirwa, did not rely on any provision of the LRA, but
founded his case squarely on s 33 of the Constitution read with the provisions
of PAJA. It is true, so the court a quo further held, that the appellant would be
entitled to formulate a cause of action with reference to s 186(2)(a) of the LRA

on the basis that the municipality had committed an unfair labour practice in
not ‘promoting’ him. But, so the court further held, purportedly, in accordance
with Fredericks read with Chirwa, the appellant had a choice as to which court
he wanted to approach.

[11] Not unexpectedly, the argument in this court again turned largely on
what has, since Chirwa, become the stock debate in matters of this kind,
namely, whether the court a quo was right in placing the dispute on the
Fredericks side of the dividing line (see eg also Makambi v MEC for
Education, Eastern Cape 2008 (5) SA 449 (SCA)). But since we have heard
argument in this matter, the train has moved on. What happened in the
meantime is that the Constitutional Court has delivered its judgment in Gcaba
v Minister of Safety and Security [2009] ZACC 26. And in the light of Gcaba,
as I see it, the municipality must succeed on the basis of its second point in
limine, namely that its impugned conduct does not constitute 'administrative
action' as contemplated by s 33 of the Constitution and the provisions of
PAJA.

[12] The Gcaba case, like the present, also resulted from the appellant's
frustrated expectations of promotion. Mr Gcaba was employed by the South
African Police Services. He occupied the position of station commander,
Grahamstown. When the post was upgraded, he applied, was short-listed and
went through the interview proceedings. He was, however, not appointed. In
consequence, he approached the High Court with an application to review the
decision not to promote him. The High Court held, on the basis of the
Constitutional Court's decision in Chirwa, that it lacked jurisdiction to entertain
the application as it related to an employment matter. In the result, the review
application was dismissed with costs. The appeal to the Constitutional Court
was unsuccessful; in essence, because it was held that the decision not to
promote Mr Gcaba did not constitute administrative action as contemplated in
PAJA and that it was therefore not reviewable under that Act. The reasons for
this decision appear to be encapsulated in the following statements by Van
der Westhuizen J (in para 64):

'Generally, employment and labour relationship issues do not amount to
administrative action within the meaning of PAJA. This is recognised by the
Constitution. Section 23 [of the Constitution] regulates the employment relationship
between employer and employee and guarantees the right to fair labour practices.
The ordinary thrust of section 33 is to deal with the relationship between the state as
bureaucracy and citizens and guarantees the right to lawful, reasonable and
procedurally fair administrative action. Section 33 [of the Constitution] does not
regulate the relationship between the state as employer and its workers. When a
grievance is raised by an employee relating to the conduct of the state as employer
and it has few or no direct implications or consequences for other citizens, it does not
constitute administrative action.'

[13] And (in para 66):
'In Chirwa Ngcobo J found [at paras 142 and 150] that the decision to dismiss Ms
Chirwa did not amount to administrative action. He held that whether an employer is
regarded as "public" or "private" cannot determine whether its conduct is
administrative action or an unfair labour practice. Similarly, the failure to promote and
appoint Mr Gcaba appears to be a quintessential labour-related issue, based on the
right to fair labour practices, almost as clearly as an unfair dismissal. Its impact is felt
mainly by Mr Gcaba and has little or no direct consequence for any other citizens.'

[14] In the court a quo, Revelas J found that the conduct complained of by
the appellant did indeed constitute administrative action reviewable under
PAJA. The reasons for this finding, she stated as follows:
'In my view [the municipality] cannot argue that promoting its employees does not
constitute administrative action. It is an organ of state and in promoting employees, it
exercises a public power and it performs a public function in doing so. It clearly
performs an administrative act when acting in terms of its policies and implementing
them'

[15] As I see it, this line of reasoning cannot survive the judgment of the
Constitutional Court in Gcaba. In fact, it is in direct conflict with the views
expressed by Van der Westhuizen J. In short, I can see no basis on which this
matter can be distinguished from Gcaba on the facts. As in Gcaba, the
appellant's complaint also concerns a failure to promote, which Van der
Westhuizen J regarded as 'a quintessential labour-related issue, based on the

right to fair labour practices'. What Revelas J found to be significant
considerations as to why the impugned conduct constituted 'administrative
action', was that the municipality is (a) an organ of state which (b) performs a
public function in promoting its employees. Van der Westhuizen, on the other
hand, believed that these considerations were of no consequence. In fact, this
appears to form the very basis on which Gcaba was decided (see also The
National Director of Public Prosecutions v Tshavungwa [2009] ZASCA
136 para 22). This leads me to the conclusion that, since the conduct
complained of by the appellant did not constitute administrative action, the
review application was rightly dismissed on that ground alone. This renders it
unnecessary to consider any of the other issues raised on appeal, including
those relating to the merits of the impugned decision.

[16] The appeal is dismissed with costs, including the costs of two counsel.

…………………….
F D J BRAND
JUDGE OF APPEAL

Counsel For Appellant:

A BEYLEVELD

B HARTLE

Instructed by:

RANDELL-OSWALD INC

PORT ELIZABETH

Correspondents:

CLAUDE REID INC

BLOEMFONTEIN

For Respondent:

G GOOSEN SC
R B WADE

Instructed By:

CHRIS BAKER & ASSOCIATES

PORT ELIZABETH

Correspondents:

McINTYRE & VAN DER POST

BLOEMFONTEIN