Reportable

the labour court of South Africa, 
held at CAPE TOWN
	
case no: C634/2022
In the matter between:
MINISTER OF SOCIAL DEVELOPMENT,	First Applicant
WESTERN CAPE PROVINCIAL
GOVERNMENT

PREMIER OF THE WESTERN CAPE	Second Applicant
PROVINCE
and
ANNEMIE VAN REENEN		        		     		        First Respondent
LEANA GOOSEN							   Second Respondent
Heard:	8 August 2023
Date of Judgment:  This judgment was handed down electronically by circulation to the parties’ legal representatives by email, publication on the Labour Court website and release to SAFLII. The date and time for handing down judgment is deemed to be 12h00 on 22 August 2023.
Summary: Judicial review in terms of section 172(1) of the Constitution – Applicants appointing respondents into Provincial Government posts, contrary to the prescripts of the Public Service Regulations.  Applicants seeking judicial review of their own decisions and just and equitable relief in terms of section 172(1)(b) of the Constitution.
Held – The applicants’ decisions to appoint the respondents into the posts are inconsistent with the principle of legality in the Constitution and invalid in terms of section 172(1)(a) of the Constitution.
Held – Relief - Justice and equity, the public interest in the finality of administrative decisions and considerations of pragmatism and practicality dictate that the decisions to appoint the respondents should not be set aside.
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JUDGMENT
___________________________________________________________________
CONRADIE AJ 
Introduction
[1]	This is an unopposed application for judicial review in terms of section 172(1) of the Constitution of the Republic of South Africa (‘the Constitution’) and section 158(1)(a) and (h) of the Labour Relations Act  (‘the LRA’).
[2]	In terms of the application the first applicant (‘the Provincial Minister’) and the second applicant (‘the Premier’) wish to review their own decisions to appoint the respondents into their current posts in the Department of Social Development in the Western Cape Provincial Government (‘the Department’).  They wish to do so on the grounds that the decisions were marred by formal, but material, procedural legal irregularities, and consequently the decisions are inconsistent with the principle of legality in the Constitution and as such invalid.
[3]	The applicants seek appropriate declaratory relief in terms of section 172(1)(a) of the Constitution.  In addition, they seek just and equitable relief in terms of section 172(1)(b) of the Constitution which will avoid or mitigate the adverse impact of the declaratory relief on the Department and on the respondents (who are not in any way to blame for the irregularities in making their appointments).
[4]	Although this application is unopposed, the relief sought by the applicants is judicial review of administrative action.  As such, even if the relief is granted, a reasoned judgment is required of this court.
[5]	In Airports Company South Africa v Big Five Duty Free (Pty) Ltd, the Constitutional Court held that:
5.1	a judgment reviewing and setting aside administrative action is a judgment in rem, i.e. one which determines the objective status of the administrative action brought under review and, hence, transcends the interests of only the litigating parties;
5.2	a court of appeal cannot, merely by agreement between the parties participating in the appeal, set aside judicial review relief granted by the court below;
5.3	before granting an order in terms of such a settlement agreement, an appeal court must decide if the settlement accords with the merits; and
5.4	the appeal court must give reasons for its decision.
[6]	In my view the same approach is required where the relief sought is judicial review of administrative action.  In such a case it must not only decide that doing so accords with the merits, but also give reasons for its decision.  In this matter, the applicants also seek just and equitable relief, the granting of which entails the exercise of the true discretion conferred on this Court by section 172(1)(b) of the Constitution.  If this Court grants such relief, it is necessary to state the reasons for doing so with reference to the justice and equity of the case. 
Background
[7]	On 29 June 2020 the posts of Chief Director: Service Delivery Management and Co-ordination and Chief Director: Social Welfare and Restorative Services in the Department (‘the posts’) were advertised in accordance with the Public Service Regulations.
[8]	On 25 August 2020 the Premier, purportedly acting in terms of the Public Service Regulations, appointed a selection committee, comprising of four persons, to recommend two candidates to fill the posts (‘the selection committee’). 
[9]	The Provincial Minister, Ms S Fernandez, was appointed as the chairperson of the selection committee.  Also on the selection committee was Dr R Macdonald, the Head of the Department.
The appointment of the First Respondent (‘Ms Van Reenen’) 
[10]	The post of Chief Director: Service Delivery Management and Coordination attracted 289 applicants of which the selection committee shortlisted four candidates, who were then subjected to a technical exercise and an interview.
[11]	After the conclusion of the interviews, the selection committee recommended that three of the four candidates attend a competency assessment. Once the candidates had done so, the selection committee assessed their knowledge, competency, skills, and experience, in order to assess their suitability for appointment to the post. 
[12]	The selection committee however concluded that none of the candidates would be able to perform the duties associated with the post, which are complex and require scarce skills and a high degree of competence.  
[13]	Consequently, on 15 October 2020, the selection committee recommended to the Premier that the recruitment process be closed out and that a headhunting process for the post be followed.  
[14]	The Premier’s authority to do so was described in a memorandum as follows:
“In terms of the Departmental Delegations approved on 27 May 2019, regarding the Public Service Regulations 2016 (Reg 67(9), the authority to fill posts on [salary] level 14 is vested in the Executive Authority. As the Minister is the Chairperson of this recruitment process, the approval to close-out the current recruitment process and to commence with headhunting is vested in the Premier.”
[15]	The Premier approved the selection committee’s recommendation on the same day and the selection committee thereafter embarked on the headhunting process for the post in accordance with the Western Cape Provincial Government’s Recruitment and Selection Policy, 2018. 
[16]	Two suitable candidates were identified by Dr Macdonald and the Provincial Minister, namely Ms Van Reenen (the then Director: Operational Management Support in the Department) and Ms Tughfa Hamdulay (the then Director: Early Childhood Development and Partial Care in the Department).
[17]	On 3 February 2021 the selection committee sought and obtained approval from the Premier for the inclusion of these two candidates in the shortlist for the appointment to the post. 
[18]	The selection committee described the Premier’s authority to approve its recommendations as follows:
“In terms of Section 67(1) of the Public Service Regulations (2016) as amended, the authority to approve the shortlist has been delegated and is vested in the MEC of the Department. As the MEC is the chairperson during this recruitment process, the approval of the shortlist is vested in the Premier.”
[19]	The two shortlisted candidates were then subjected to a technical exercise and an interview.  Thereafter the selection committee assessed their suitability for appointment to the post and unanimously concluded that although both candidates would be able to perform the duties associated with the post, Ms Van Reenen was the most suitable candidate. 
[20]	In a report dated 11 June 2021, the selection committee accordingly recommended that Ms Van Reenen be offered the post and should she decline that the post be offered to Ms Hamdulay. 
[21]	According to the report, the selection committee’s motivation for recommending that Ms Van Reenen be appointed included the following:
“Ms van Reenen displayed a high-level of insight into the requirements of the post of Chief Director: Service Delivery and Management Coordination and demonstrated the ability and comprehension of the different aspects pertaining to the role. She prepared an excellent presentation for the selection committee’s consideration. Ms van Reenen was able to clearly respond to the formal interview questions as posed to her by the selection committee. Ms van Reenen impressed the selection panel with her vast experience of the policies, legislation and operations of welfare services rendered by the department. The post requires a candidate with excellent people management skills, someone who has vast knowledge and experience working in the various regions serviced by the Department as well as strong experience in managing senior level officials across these regions. Ms van Reenen showed a stronger capability than the alternative candidate in the aforementioned required critical skill set for this post. Ms van Reenen presented to the selection committee how familiar she is with the processes in the regional and local offices of DSD and her ability to co- ordinate, negotiate, communicate, effectively obtain buy-in from staff, manage conflict, motivate staff and manage staff performance. She convinced the selection committee of her ability to lead, mentor and guide the team in achieving the common goals as set out by the deportment.”
[22]	The report, recorded the delegation of the authority to fill the post as follows:
“In terms of the delegations approved on 27 May 2019, regarding the Public Service Regulations 2016 (Reg 67(9), the authority to fill posts on level 9 - 15 is vested in the Minister of the Department, Ms S Fernandez.”
[23]	The report accordingly contained the following recommendations:
“13.1 It is recommended that the Executive Authority, Ms. S Fernandez, approves, in terms of Public Service Regulations 2019, (Reg 67(9)), the appointment of Ms A Van Reenen to the post of Chief Director: Service Delivery and Management Coordination on the approved establishment of the Department of Social Development with effect from date of assumption of duty.
13.2 Should Ms van Reenen decline the post of Chief Director: Service Delivery and Management Coordination, then the post will be offered to Ms Tughfa Hamdulay.”
[24]	The Provincial Minister signed the report on 15 June 2021 and in doing so formally decided that Ms Van Reenen be appointed into the post and authorised the making of an offer of appointment to Ms Van Reenen.  
[25]	At this stage, the Provincial Minister had already referred the matter of the filling of the post to the Western Cape Provincial Cabinet which on 9 June 2021 noted the intention to appoint Ms Van Reenen to the post and failing her acceptance to offer the post to Ms Hamdulay. 
[26]	Ms Van Reenen accepted the offer of appointment and assumed her duties as Chief Director: Service Delivery Management and Coordination on 1 July 2021.

The appointment of the second respondent (‘Ms Goosen’)  
[27]	The post of Chief Director: Social Welfare and Restorative Services attracted 167 applicants of which the selection committee shortlisted three candidates, who were then subjected to a technical exercise and an interview.
[28]	After the interview the selection committee unanimously concluded that Ms Goosen was a suitable candidate for the post.
[29]	In a report dated 19 October 2020 the selection committee accordingly decided to recommend that Ms Goosen be offered the post. This decision was motivated as follows in the report:
“During the interview Ms Goosen confidently displayed her leadership experience as a Senior Manager. During her presentation, she demonstrated her in-depth knowledge of how systems contribute to statutory and policy obligations. It is in this context that she was able to articulate her transformational leadership style and managerial experience, competencies, abilities and skills that had been tested.
The candidate’s current and past work history displays an individual who is able to perform on a highly strategic level and someone who has worked in progressively responsible positions that has given her the opportunity to acquire higher levels of responsibility. She was well prepared for the interview and gave in-depth responses to the questions and showed a keen interest in the position.”
[30]	The report described the delegation of the authority to fill the post as follows:
“In terms of the delegations approved on 27 May 2019, regarding the Public Service Regulations 2016, (Reg 67(9), the authority to fill posts on level 9 - 15 is vested in the Minister of the Department. As the Minister of the Department is the chairperson during this recruitment process, the approval of the nomination is vested in the Premier.”
[31]	The report accordingly concluded with the following recommendation:
“It is recommended that the Premier, Mr. A Winde, approves, in terms of Public Service Regulations 2016, (Reg 67(9)), the appointment of Ms L Goosen to the post of Chief Director: Social Welfare and Restorative Services on the approved establishment of the Department of Social Development with effect from date of assumption of duty.”
[32]	The Premier approved this recommendation on 19 October 2020 and thereafter Ms Goosen accepted an offer of appointment and assumed her duties as Chief Director: Social Welfare and Restorative Services on 1 November 2020. 
The grievance and the Public Service Commission’s investigation report
[33]	On 22 August 2021 Ms Martha Harris, an official in the Department, lodged a written grievance with the Public Service Commission as envisaged by section 196(4)(f)(ii) of the Constitution.
[34]	Ms Harris alleged, amongst other things, that there may have been procedural and substantive irregularities in the appointment of Ms Van Reenen and Ms Goosen to their current posts in the Department.
[35]	The Commission investigated the matter and produced a report which was sent to the Provincial Minister on 12 July 2022. 
[36]	In the report, which only dealt with the appointment of Ms Van Reenen, the Commission found that her appointment was unlawful because the recruitment and selection panel was not constituted in the manner required by regulation 67(1)(a) of the Public Service Regulations.  This was due to the fact that the Provincial Minister was the chairperson of the relevant panel. 
[37]	The Report concludes with the following directions to the Department: 
“12.1.1 That the Department promptly engage Ms A van Reenen for mutual agreement in terms of (sic) her appointment being found to be irregular [see the steps outlined in section 6 and 7 of the Commission’s Guide to Correct Irregular Appointments (June 2016) …].
12.1.2 In the event that Ms Van Reenen does not agree to a transfer or resignation, that the Department makes an application to the Labour Court to declare the appointment null and void [see Khumalo and Another vs Member of the Executive Council for Education KwaZulu-Natal 2014 (3) BCLR 333 (CC)]. This should be made without delay and the affected employee should be informed of the steps taken by the Department.
12.1.3 That the Department immediately revise its recruitment selection policy in order to clarify the role of Executive Authorities serving on the recruitment and selection panels.
12.1.4 That the Minister report to the Commission on the implementation of the directions as prescribed in section 5(8)(a) of the PSA, 1994 (as amended).”
[38]	On 4 October 2022 the Provincial Minister wrote to Mr Leonardo Goosen (‘Mr Goosen’) of the Commission informing him that she had caused the processes relating to the recruitment and selection of the respondents to their current posts to be thoroughly investigated; she had taken legal advice in relation thereto and in relation to the Directions in the Commission’s Report; and, having done so she had taken the steps and decisions set out in the letter. This included the Provincial Minister’s intention to institute the present proceedings before this court.
[39]	On 29 September 2022 Dr Macdonald, as the Head of the Department, held a meeting with the respondents to inform them of the Commission’s findings, recommendations and directives, as contained in its report; as well as of the advice the Provincial Minister had received regarding the lawfulness of their appointments to their current posts and the way forward. 
[40]	The latter also included a recommendation on seeking judicial redress in relation to Ms Goosen’s appointment. This was because the Commission’s main finding applied equally to her appointment as a result of the Provincial Minister’s membership of her selection committee.  Specifically, the respondents were informed of the intention to approach this Court for relief along the lines contained in the notice of motion. 
[41]	During the meeting the respondents informed Dr Macdonald that they were not willing to resign or to be transferred to a lower post as contemplated in the Commission’s directives in relation to Ms Van Reenen. They also indicated that they understood the implications of the legal process to be followed and would await the service of this application on them. 
Evaluation
[42]	State functionaries are enjoined to uphold and protect the rule of law by, amongst other things, seeking the redress of their own unlawful decisions or actions. 
[43]	Accordingly, when faced with an irregularity in the public administration under their supervision and control, in the context of employment or otherwise, members of the executive arm of government must seek to redress it.  This duty is discharged by instituting proceedings in a competent court for judicial review of their own decisions or actions under the principle of legality (i.e. the so-called ‘State self-review’ proceedings). 
[44]	The decisions by the Provincial Minister and the Premier to appoint the respondents into the Chief Director posts infringe on the principle of legality in the Constitution.
[45]	Section 9 of the Public Service Act empowers the executive authority of the Department, i.e. the Provincial Minister in her capacity as such, to “appoint any person in his or her department in accordance with this Act and in such manner and on such conditions as may be prescribed”. 
[46]	Section 1 of the Public Service Act defines ‘this Act’ as including the regulations made in terms of section 41 and ‘prescribed’ as meaning ‘prescribed by Regulation’.
[47]	Public Service Regulation 67(1) provides that “[a]n executive authority shall appoint a selection committee to make a recommendation on the appointment to a post.”
[48]	Public Service Regulation 67(1)(a) applies to selection committees to make recommendations on appointments to posts in the Department other than the Head of Department or of a Deputy Director-General in the Department.  It provides that “the chairperson of the selection committee, who shall be an employee, shall be of a grade higher than the post to be filled.”
[49]	Both of the posts in question, though posts at salary level 14, are not the posts of the Head of the Department or of a Deputy Director-General in the Department. 
[50]	Public Service Regulation 2(2), read with the definition of ‘employee’ in section 1 of the Public Service Act, and with section 8(1) of that Act, has the result that the word ‘employee’ in Regulation 67(1)(a) means a person employed in a post on the establishment of the Department or employed additional to the establishment of the Department.
[51]	Although the Provincial Minister was appointed by the Premier as the chairperson of the selection committee aimed at the filling of the two posts at issue, the Provincial Minister is not an employee as contemplated by the Public Service Regulations generally and in Public Service Regulation 67(1)(a) in particular. 
[52]	Accordingly, the Provincial Minister should have not been appointed as the chairperson of the selection committees which ultimately recommended the appointment of the respondents into the posts in question.
[53]	The position would have been different if we were dealing with the appointment of a Head of a Provincial Department or a Deputy Director-General of a Provincial Department.  In such a case, Public Service Regulation 67(2)(e) provides that the selection committee shall be chaired by the relevant member of the Executive Council and include at least two other members of the Executive Council of the relevant Province and the Head of the Office of the Premier of the Province.  
[54]	Public Service Regulation 67(2)(h)(ii) provides that a selection committee constituted for the appointment of a Deputy Director-General of a Provincial Department shall be chaired by the relevant member of the Executive Council and include at least two other members of the Executive Council of the relevant Province and the Head of the relevant Provincial Department.
[55]	It follows that, in the present case, the selection committee was not lawfully constituted and as such it did not have the powers of a lawfully constituted committee and any purported exercise of those powers is unlawful.  
[56]	It thus also follows that the selection committees of which the Provincial Minister was the chairperson could not make valid recommendations to the executive authority regarding the appointments of persons to the two posts.
[57]	There is a further legal difficulty with the process which culminated in the appointment of Ms Goosen, namely that because the Provincial Minister was the chairperson of the selection committee for the post to which Ms Goosen was appointed, the selection committee’s recommendations were made to, and considered by, the Premier. However, the Premier was the incorrect executive authority in that section 9 of the Public Service Act required that the appointments be made by the Provincial Minister, in her capacity as the executive authority for the Department. For this further reason too, the appointment of Ms Goosen into her Chief Director post is unlawful. 
[58]	In the circumstances, the Provincial Minister’s and the Premier’s decisions to appoint the respondents into the posts are inconsistent with the principle of legality in the Constitution and are invalid in terms of section 172(1)(a) of the Constitution. 
[59]	It remains for me to decide what is the appropriate relief in the circumstances.
[60]	Section 172(1)(b) of the Constitution confers on a court deciding a constitutional matter the wide discretionary power to make any order which is just and equitable.
[61]	In dealing with section 172(1)(b) of the Constitution, the Constitutional Court has held that “[t]he operative word ‘any’ is as wide as it sounds. Wide though this jurisdiction may be, it is not unbridled. It is bounded by the very two factors stipulated in the section – justice and equity.” 
[62]	The interests of all those who might be affected by the order must be considered and appropriately balanced. The balancing process must at least be guided by the objectives of, first, addressing the wrong occasioned by the infringement of the constitutional right (here, the principle of legality); second, deterring future violations; third, making an order that can be complied with; and fourth, fairness to all those who might be affected by the relief. 
[63]	As indicated above, in the present matter, the applicants seek just and equitable relief in terms of section 172(1)(b) of the Constitution which will avoid or (if the alternative section 172(1)(b) relief is granted) mitigate the adverse impact of the declaratory relief on the Department and on the respondents (who are not in any way to blame for the irregularities in making their appointments).
[64]	Where a court finds conduct to be unconstitutional and invalid it need not set the conduct aside.  Setting aside is a discretionary remedy.
[65]	The factors a court will consider in determining whether setting aside a decision is just and equitable include the impact of a setting aside order on other parties and the prejudice it may cause.
[66]	In JFE Sapela Electronics,  while finding that a tender contract was unlawful, the Supreme Court of Appeal declined to set it aside due to the effluxion of time and intervening events. Scott JA explained:
“In appropriate circumstances a court will decline, in the exercise of its discretion, to set aside an invalid administrative act.
… the object of the [unreasonable delay] rule is not to punish the party seeking the review. Its raison d’être was said by Brand JA in Associated Institutions Pension Fund and Others v Van Zyl and Others 2005 (2) SA 302 (SCA) in para 46 to be twofold:
First, the failure to bring a review within a reasonable time may cause prejudice to the respondent. Secondly, there is a public interest element in the finality of administrative decisions and the exercise of administrative functions.
Under the rubric of the second I would add considerations of pragmatism and practicality.
In my view the circumstances of the present case as outlined above, are such that it falls within the category of those cases where by reason of the effluxion of time (and intervening events) an invalid administrative act must be permitted to stand.”
[67]	I have decided to exercise my discretion against setting aside the respondents’ appointment, despite the invalidity of the decisions to appoint them, for the following reasons: 
67.1	There is nothing to suggest that the Provincial Minister’s participation in the selection committees, and the consequent appointments of the respondents by the Provincial Minister and the Premier, were due to any ulterior motive or purpose on their part or on the part of anyone else involved in the process.
67.2	The reasons for the invalidity of the decisions to appoint the respondents are not ascribable to them, but save for the incorrect composition of the selection committee and (in Ms Goosen’s case) the consequent involvement of the Premier, the processes which preceded their appointments were regular. 
67.3	The respondents are now well-established in their posts.  Ms Van Reenen was appointed more than two years ago, in July 2021, and Ms Goosen was appointed nearly three years ago, in November 2020.  Setting aside their appointments may lead to uncertainty and even impair the functioning of aspects of the Department for which they are responsible.  
67.4	Both respondents are senior public servants who, prior to being appointed to their current posts, occupied Level 13 Director posts within the Department which have since been filled. To remove them from their current posts will leave them floating in the public service with no substantial posts as they will be additional to the establishment until they are appointed into new posts.  This may impact on their remuneration and other employment benefits.  
[68]	In the circumstances, I am of the view that justice and equity, the public interest in the finality of administrative decisions and considerations of pragmatism and practicality point away from setting aside the decisions to appoint the respondents.  
[69]	As far as costs are concerned, the applicants have asked for an order that costs be paid by them in their official capacities.
[70]	In the premise I make the following order:
Order
1.	In terms of section 172(1)(a) of the Constitution it is declared that the appointment by the first applicant on 15 June 2021 of the first respondent into the post of Chief Director: Service Delivery Management and Co-ordination in the Department of Social Development in the Western Cape Provincial Government is inconsistent with the principle of legality in the Constitution and invalid.
2.	In terms of section 172(1)(a) of the Constitution it is declared that the appointment by the second applicant on 19 October 2020 of the second respondent into the post of Chief Director: Social Welfare and Restorative Services in the Department of Social Development in the Western Cape Provincial Government is inconsistent with the principle of legality in the Constitution and invalid.
3.	In terms of section 172(1)(b) of the Constitution, and despite the declarations of invalidity in orders 1 and 2 above, the appointments of the first and second respondents into their posts are not set aside.
4.	The costs of this application to be paid by the applicants in their official capacities.

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BN Conradie
Acting Judge of the Labour Court of South Africa

Appearances
For the Applicant: 	A M Breitenbach SC and M A Mc Chesney	 
Instructed by:	State Attorney