ZACC 43
Date of Hearing: 03 September 2019
Judgement Date: 21 November 2019
Post Judgment Media Summary
The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.
On Thursday, 21 November 2019 at 10h00, the Constitutional Court handed down judgment in an application for leave to appeal against an order of the High Court of South Africa, Eastern Cape Division, Grahamstown (High Court). The question to be decided in this matter was whether in refusing to overlook the unreasonable delay on the part of the applicant to institute review proceedings, the High Court had failed to properly exercise its discretion.
The applicant, Mr Mbulelo Paul Gladstone Notyawa (Mr Notyawa), applied for the post of municipal manager of the first respondent, Makana Municipality. Six candidates including Mr Notyawa were shortlisted. These candidates were interviewed by a panel established by the Municipality. They were also required to take a competency test. In March 2015, the municipal council of Makana Municipality resolved to appoint Mr Notyawa as its municipal manager. As required by section 54A of the Local Government Municipal Systems Act (Systems Act), a report on this appointment was submitted to the MEC for Co-operative Governance and Traditional Affairs, Eastern Cape (second respondent). The MEC recorded that he was not satisfied that the appointment complied with section 54 of the Systems Act as Mr Notyawa, in the MEC’s opinion, did not meet the minimum requirements under the Systems Act. The Municipality accepted the MEC’s suggestion that the post be re-advertised and did not confirm Mr Notyawa’s appointment. As a result of these events litigation ensued.
During July 2015, Mr Notyawa launched an application in the High Court in which he sought to have the decisions of the MEC and the Municipality pertaining to the failure to appoint him as municipal manager reviewed and set aside. This application was opposed by the Municipality and the MEC who filed opposing papers in September 2015. Mr Notyawa took no steps to ripen the matter for hearing. The Municipality and the MEC set the matter down for hearing on 12 February 2016, as they had lodged counter-applications for an order declaring Mr Notyawa’s appointment to be null and void. On that date Mr Notyawa requested a postponement. The High Court refused to postpone the matter and Mr Notyawa’s legal team withdrew his review application. The municipality subsequently re-advertised the municipal manager post. Mr Notyawa responded by launching an application to restrain the Municipality from filling the post. Mr Notyawa however did not pursue this application and the matter was removed from the roll.
Soon after this Mr Notyawa instituted another application in which he sought rescission of the Municipality’s decision to re-advertise the post, its decision to reverse his appointment and a declarator that he was lawfully appointed as municipal manager of the Municipality.
The High Court took the view that the impugned decisions constituted administrative actions to which the Promotion of Administrative Justice Act (PAJA) applied and that the delay in bringing the application had to be assessed in terms of PAJA. The High Court pointed out that section 9 of PAJA required a substantive application for condonation and that Mr Notyawa had failed to make that application. The High Court found that even if the matter were approached on the charitable footing that a substantive application was made on the papers, the explanation furnished for the delay was unsatisfactory. In the circumstances, the High Court concluded that the delay was unreasonable. The High Court further concluded that the matter had become moot and that the prospects of success on the merits were poor. The High Court exercised its discretion against condonation. It pointed out that even if the matter were to be approached on the assumption that it was a legality review, it would have come to the same conclusion.
The High Court dismissed the application with costs and refused to grant Mr Notyawa leave to appeal. His petition to the Supreme Court of Appeal was also dismissed for lack of prospects of success. He then applied for leave to appeal to the Constitutional Court.
In a unanimous judgment penned by Jafta J the Constitutional Court held that what needed to be determined was whether it was in the interests of justice to grant leave and this question depended on whether the High Court had exercised its discretion improperly. The Court held that our law vests in the court of first instance the discretion to condone a delay by an applicant in instituting review proceedings. It further held that the intervention of the appeal court may be justified only on narrow specified grounds. The test is whether the court whose decision is challenged on appeal has exercised its discretion judicially
This Court found that all the relevant facts were correctly taken into account by the High Court in determining whether the delay was unreasonable. This Court further held that the High Court followed a two-stage approach in conducting the inquiry. First, it determined whether the delay was unreasonable. Second, once it found that the delay was unreasonable, the High Court considered whether the delay could be condoned. This Court held that the High Court applied the right principles to the correct facts.
A separate concurrence penned by Froneman J agreed that the application for leave to appeal should be dismissed, but for reasons that precede the delay issue. By the time the review was eventually heard in the High Court, the matter had become moot such that any determination on the merits would have no practical effect for either the parties or others. The applicant’s reliance on the possibility of consequential remedy, in the form of a future claim for damages, could not be raised for the first time before the Constitutional Court in an attempt to keep the dispute live. Froneman J concluded that, for these reasons alone, it was not in the interests of justice to grant leave to appeal and there was accordingly no need to entertain questions relating to the High Court’s treatment of the delay enquiry.
In the result, the application for leave to appeal was dismissed.
The Full judgment here