Delay in reviewing South African appointment ‘unreasonable’

The ruling, by the Western Cape Division of the High Court, builds on case law established by the Supreme Court of Appeal (SCA) and provides further guidance on the scope of powers enjoyed by South African public bodies to review and correct their own decisions and how those powers are impacted by delay in the review process.

What the legislation says

An organ of state cannot apply for the review and correction of its own decisions in terms of the Promotion of Administrative Justice Act 3 of 2000 (PAJA) and must do so in terms of the principle of legality, to which the exercise of all public power is subject.

PAJA stipulates a period for launching proceedings. However, where there is delay in instituting proceedings in terms of the principle of legality this requires a determination on whether the delay in launching proceedings was unreasonable and after considering certain factors, whether the unreasonable delay can be condoned.

The case

The law relating to the principle of legality and the reasonableness of delay was considered in the case of George municipality v Van Staden.

Randal Van Standen applied for a vacancy which arose in 2015 which listed certain essential and preferred requirements. The candidate’s appointment was to be based on their ability to satisfy the essential requirements or do so within a reasonable time. Of the 20 candidates that applied for the job, only Van Standen and one other, Mr. Van Rooi, were deemed to have met these requirements. On recommendation from the director of civil engineering services at George municipality, Van Standen was appointed by the municipal manager.

Van Rooi lodged a complaint with the Public Protector in March 2017 alleging that Van Standen did not meet the essential requirements listed in the job specification and that therefore his appointment was irregular. After more than two years, the Public Protector concurred with Van Rooi and directed George municipality to review Van Standen’s  appointment in accordance with PAJA.

The relevant case law

An organ of state, such as George municipality, can only apply for the review and correction of its own decisions in terms of the principle of legality. Accordingly, it must be determined whether the delay in launching proceedings was unreasonable. The leading case law on this issue in South Africa was developed by the SCA in the recent cases of Special Investigating Unit and Another v Engineered Systems Solutions (Pty) Ltd (the SIU case) and Govan Mbeki Municipality v New Credit Solutions (Pty) Ltd (the Mbeki case).

South African courts have the power to refuse a legality review or, in appropriate circumstances, condone it where there has been unreasonable or undue delay. In the case of in Khumalo v MEC for Education, KwaZulu-Natal (the Khumalo case), the Constitutional Court held that whereas section 237 of the South African Constitution provides that all constitutional obligations must be performed diligently and without delay, it elevates the need for expeditious and diligent compliance by organs of state with their constitutional duties, to an obligation which forms a central part of the principle of legality.

The SIU and Mbeki cases emphasised the need to comply with the Khumalo case and the importance of a factual enquiry upon which a value judgement is to be made in the light of all relevant circumstances in determining whether a delay is unreasonable or undue. The cases also highlighted that:

• when an organ of state has delayed approaching a court for an order reviewing a decision it has taken, it must furnish a proper and acceptable explanation which covers the entire period of delay.
• In determining whether the unreasonable delay can be condoned, the court must consider: the likely consequences of setting aside the decision in question, including any potential prejudice that may be suffered by affected parties; the conduct of the applicant; and the nature of the decision that is to be reviewed and the merits of the challenge. In expanding on this, emphasis is added on any failure on the part of the decision-maker to comply with statutory and/or policy prescripts. It must be determined whether that failure was egregious or results in a violation of the Constitution. Furthermore, where there is clear and undisputed unlawfulness or indisputable and clear inconsistency with the Constitution, the court may be compelled to declare the decision invalid, irrespective of the length of the delay involved.

The High Court ruling

The High Court applied these principles from case law to the matter between George municipality and Van Standen.

The court held, in determining the reasonableness of the delay, that the municipality’s explanation was materially unsatisfactory. It considered that the authority had made no attempt to investigate the complaint, follow-up with Van Rooi in reviewing the appointment, nor comply with the directive of the Public Protector despite being aware of the problem and numerous exchanges and meetings prompting it to do so.

According to the ruling, there were further delays in launching proceedings and the finalisation of papers when proceedings were instituted.  The court considered that this highlighted that George municipality was in no hurry to carry out the instruction of the Public Protector. This conduct was deemed to have resulted in delay which was egregious and unreasonable.

In determining whether the unreasonable delay could be condoned, the court held that were the delay to be overlooked and the appointment of Van Standen to be set aside, it would have caused immense, if not irreparable, harm to Van Standen and his career and would have severely prejudiced him. It also considered that it would have severely undermined the underlying rationale of the principles pertaining to unnecessary and unreasonable delay in self-reviews by organs of state. It said this would encourage dilatoriness on the part of organs of state and would reward George municipality for its lackadaisical attitude to its Constitutional responsibilities.

The High Court dismissed George municipality’s application which sought to review and set aside Van Standen’s appointment.

Practical guidance

As reaffirmed in the SIU and Mbeki cases, save in instances of manifest unlawfulness and clear inconsistency with the Constitution, a South African court is entitled to refuse to entertain a legality review at the instance of an organ of state, where there has been an egregious and unreasonable delay.

This case provides a practical example of the application by a lower court of the principles established by the SCA.

Co-written by Muhammed Somrey and Yasteel Balgobind of Pinsent Masons in Johannesburg. To contact Muhammed or Yasteel, please email [email protected] or [email protected].