By Duncan Wild on 21 December 2013

The case involves whether the promotions of two persons within the Kwazulu-Natal Department of Education (“the Department”) should be set aside as unlawful.

Mr. Khumalo, the first appellant, applied for and was promoted to the position of Chief Personnel Officer in the Department in April 2004.  Mr. Ritchie, the second appellant in this matter, had also applied for the post but was not shortlisted. He challenged the failure to shortlist him before the General Public Servants Sectoral Bargaining Council on the basis he should have been shortlisted as he met all the requirements for the post.  As a result of this process, Mr. Ritchie and the Department entered into a settlement agreement whereby Mr. Ritchie was granted a protected promotion to the post to which Mr. Khumalo had already been promoted, and Mr. Khumalo was allowed to retain his promotion.

The Labour Court and Labour Appeal Court had set aside both promotions, but the Constitutional Court, in a majority judgment written by Justice Skweyiya, ordered that both promotion be upheld. Justice Zondo, concurred in by Justice Jafta, wrote a minority judgment in which he agreed with the result of the majority but for different reasons. 

In late 2005, the National Union of Public Service and Allied Workers lodged a complaint with the MEC for Education: KwaZulu-Natal (“MEC”) alleging that both Mr. Khumalo and Mr. Ritchie’s appointments where unlawful.  The basis for the complaint was that Mr. Khumalo did not meet the minimum requirements for the post that required a minimum of two years’ experience in a salary level 6 or 7 position, as Mr. Khumalo was level 5 at the time of his promotion.  The complaint regarding Mr. Ritchie was that the he could not be appointed to the post as he had not been shortlisted for it, and therefore the Department did not have the power to enter a settlement agreement appointing him to the post.  A task team was set up to investigate the appointments, and reported in January 2006, effectively upholding the complaint.

The MEC accepted the task team’s findings and approached the Labour Court, albeit only in October 2008, to have both Mr. Khumalo’s and Mr. Ritchie’s promotions overturned.  The Labour Court found that both promotions were unlawful and unreasonable, and set them aside.

The case went on appeal to the Labour Appeal Court but was dismissed, and so the decision to set aside the promotions was upheld.  Although the Labour Appeal Court agreed that the Labour Court had made some factual errors, mainly related to the MEC’s conduct, it was not of the view that the findings which resulted from these factual errors related to the main issue for determination.  The Labour Appeal Court had to consider whether it was appropriate for the Labour Court to have set the promotions aside, despite the MEC having delayed inordinately in bringing the application and without reasonable explanation.  It held that the MEC had been unaware of the irregularities in the promotions at the time of the promotion, and had taken steps to rectify the situation once it was brought to her attention.  The Labour Appeal Court further found that the Labour Court had not considered, as it should have, whether despite the unlawfulness of the decisions to promote Mr. Khumalo and Mr. Ritchie, the court should exercise its discretion to not set aside the decisions.  In particular, the Labour Appeal Court found it relevant that the MEC had delayed for a significant period before approaching the court to set the decision aside, and as a result the appointees could suffer prejudice in the appointments were set aside. After considering this issue the Labour Appeal Court nevertheless held that the prejudice to Mr. Khumalo and Mr. Ritchie could be minimised (by, for example, ordering that despite their promotions being set-aside their salaries were not be reduced), whereas the prejudice to the other candidates who may have met the requirements but were not appointed could not be so reduced.  The Court opined that the setting aside of the appointments would incline more towards the promotion of the principle of legality, and the appointments were accordingly set aside.

The Constitutional Court, in a majority judgment written by Justice Skweyiya in which Moseneke DCJ, Cameron J, Froneman J, Madlanga J, Mhlantla AJ, Nkabinde J and Van der Westhuizen J concurred, found that both promotions should be upheld.

In respect of Mr Khumalo’s promotion the court found that the review of the legality of a promotion under the Public Service Act and not one of administrative action under the Promotion of Administrative Justice Act. The MEC was the appropriate person to bring such a review, and also was responsible for investigating and rectifying irregularities. However, the delay in bringing the action constrained the Court’s ability to assess the lawfulness of the action, and in the absence of a proper explanation for the delay, the Labour Court should not have overlooked it. The Constitutional Court therefore found that the delay was of such a nature that the MEC was non-suited, and therefore not permitted to bring the the application.

In respect of Mr Ritchie’s promotion, the Constitution Court found that the review of arbitration awards is regulated by the Labour Relations Act and therefore the MEC could not side-step those provisions by attacking the settlement agreement. The challenge should have been brought in terms of the Labour Relations Act, and had in any event fallen outside the time limits imposed by that Act.

Justice Zondo agreed with the majority’s outcome, but found that the challenge was brought under the Promotion of Administrative Justice Act, but in any event fell outside the time limits for instituting a review imposed in that Act and so would have dismissed the application to set aside the promotions on the basis that the MEC had not sought condonation for the late filing of its application.

Download the judgment here.