University of the Western Cape and Others v Member of Executive Committee for Health and Social Services and Others

• Jurisdiction: South Africa
• Judge: Hlophe J
• Judgment Date: 30 April 1997
• Citation: 1998 (3) SA 124 (C)
• Docket Number: 12066/96
• Hearing Date: 17 February 1997
• Counsel: NM Arendse for the applicants CY Louw for the respondents
• Court: Cape Provincial Division

Hlophe J:

The first applicant is the University of the Western Cape (hereinafter referred to as 'UWC') which was established in terms of the University of the Western Cape Act 78 of 1983. The Faculty of Dentistry is one of the many faculties of the university established in accordance with the university's statute. The faculty was I established in 1974 and has performed its duties under the management of UWC. With effect from 1 January 1980 the faculty and those occupying posts in the faculty were transferred to the Department of Health, Welfare and Pensions. The second applicant is Christopher Owen who was appointed professor by UWC in 1989, and who has since 1 April 1988 been the head of the J

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Department of Prosthetic Dentistry. The third applicant is Yusuf Osman who has been the head of the A Department of Conservative Dentistry at the university since 1 October 1991 and Deputy Director of the faculty since March 1993. The fourth applicant is Mohamed Parker who was appointed professor in October 1987 and who has since that date been head of the Department of Maxillo-Facial and Oral Surgery and Radiology at B UWC. The fifth and last applicant is Johannes Hille who, since April 1991, has been the principal specialist, senior lecturer and head of the Department of Anatomical and Oral Pathology at UWC. The first respondent is the MEC for Health and Social Services: Western Cape Province. He is being cited in his capacity as the C Executive Member of the Provincial Cabinet in the Western Cape responsible for the portfolio of Health and Social Services. The second respondent is the Minister of Health who was appointed by the State President in terms of the Constitution of the Republic of South Africa and is a Member of Cabinet responsible for the portfolio of Health. The third respondent is the Public Service Commission and the fourth respondent is the D Western Cape Provincial Service Commission established by s 2(1) of the Western Cape Provincial Service Commission Law of 1994.

It is necessary for purposes of the judgment to sketch out, albeit briefly, the historical background to this application. The posts in question were created in terms of an agreement between the National Health E Department and UWC which came into operation on 1 January 1980 (annexure 'A' to the founding affidavit deposed to by Prof Hobdell, Dean/Manager of the Faculty of Dentistry, University of the Western Cape). Clause 13 of the agreement regulates the procedure to be followed in making appointments to the posts. The procedure was that the Dean/Manager would in writing enquire from other oral health centres/faculties of dentistry whether F or not there were personnel suitably qualified or interested in the posts. Then the Dean would ensure that, if no responses were received from any of the other oral health centres or faculties of dentistry, he would request them to indicate that in writing. Once the applications were received they had to be tabled at a Joint Appointments G Committee meeting. The Joint Appointments Committee would then make recommendations to the Department of Health (personnel section) to approach the Public Service Commission.

The applicants alleged in the founding affidavit that they did follow the procedure referred to above. Professor Hobdell was advised by Dr Smit of the office of the Director-General of the National Department of Health to H advertise within the dental faculties throughout the country on the basis that the posts required specialist academics who had both the academic and professional qualifications. Following that advice, on 15 August 1994, he addressed letters to all dental faculties in the country advertising the fact that vacancies existed in these I posts. Then the Joint Appointments Committee sat on Wednesday, 28 September 1994 to consider the applications. It is common cause that there was only one application received from one Dr Padayachee (from private practice), other than those relating to the second to the fifth applicants. Following the meeting of the Joint Appointments Committee, the latter recommended to the UWC Senate and Council that second to fifth applicants J

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be appointed to those vacant posts with effect from 1 October 1994. That much is not in dispute between the A parties. It is common cause that the posts in question were never advertised inside and outside the public service. As will be seen later in the judgment, the applicants' attitude was that it was not necessary at all to advertise the posts inside and outside the public service. The respondents, on the other hand, adopted the attitude that the B posts had to be advertised in terms of the Public Service Staff Code.

Before turning to the relief sought by the applicants, it is necessary to state that since 1994 several communications took place between the parties. Letters were written about the posts and the respondents indicated that the requirement of advertising the posts was compulsory and that given that they had not been C advertised, the Public Service Commission was not prepared to waive the requirement that the posts should be advertised. In a nutshell the applicants' attitude was simply that they had complied with an agreement entered into between the National Health Department and UWC in terms of which it was not necessary to advertise the posts D inside and outside the public service. The respondents' attitude, on the other hand, was that in terms of the Public Service Staff Code posts in the management echelon must be advertised inside and outside the public service. Given that the posts had not in fact been advertised and that the Public Service Commission was not E prepared to direct that the advertising requirement had to be waived, the first respondent was not prepared to confirm the appointment of the second to the fifth applicants to the posts in question.

As a result of the apparent stalemate between the parties, the applicants brought an urgent application to Court in terms of Rule 6(12) of the Uniform Rules of Court. The founding affidavit was filed on 18 September 1996. The F respondents opposed the application. My learned Brother Ngcobo J ordered, on 16 October 1996, by agreement between the parties, that the matter should be postponed to the semi-urgent roll for hearing on 17 February 1997. I heard the application on that day. Mr Arendse appeared for the applicants. The respondents G were represented in Court by Mr Louw SC.

As appears from the notice of motion, the following relief is sought by the applicants:

(1)

. . .

(2)

The first respondent should be ordered to appoint second to fifth applicants (all currently employees H of the Provincial Administration: Western Cape: Department of Health) to (respectively) the following posts: Chief Specialist: Prosthetic Dentistry; Principal Specialist: Conservative Dentistry; Chief Stomatologist: Oral and Dental Radiology; and, Chief Specialist: Oral Pathology, with effect from 1 October 1994. I

(3)

Alternatively, ordering the second respondent to appoint second to fifth applicants to their respective posts as set out in para 2 above, with effect from 1 October 1994.

(4)

Alternatively, ordering the third respondent to recommend to, and direct, the first and/or second respondent to appoint second J

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to fifth applicants to their respective posts as set out in para 2 above, with effect from 1 October A 1994.

(5)

Alternatively, ordering the fourth respondent to recommend to, and direct, the first respondent to appoint second to fifth applicants to their respective posts as set out in para 2 above, with effect from 1 October 1994. B

(6)

The respondent be ordered to pay the costs of the application. (I have paraphrased and rearranged the language used in the notice of motion).

The Application Was Opposed by the Respondents on Various Grounds. Mr Louw Argued that the Relief Sought by C the Applicants Was Totally Misconceived. in Amplification Thereof He Submitted that in Terms of S 9 of the Public Service Act of 1994 (Proc 103 of 1994) IT Was the First Respondent Who Had the Sole Power to Make Such Appointments. in Doing So the First Respondent Had to Observe the Provisions of S 11 of the Act. Section 11(1) Provides That

'In the making of any appointment or the filling of any post in the Public Service - D

(a)

no person who qualifies for the appointment, transfer or promotion concerned shall be favoured or prejudiced;

(b)

only the qualifications, level of training, merit, efficiency and suitability of the persons who qualify for the appointment, promotion or transfer in question, and such conditions as may be determined or prescribed or as E may be directed or recommended by the Commission for the making of the appointment or the filling of the post, shall be taken into account.'

Mr Louw contended that it was clear from s 11(1)(b) of the Act that the functionary or repository of power had a discretion. Therefore, he argued, it would be improper for the Court to usurp those powers and functions of the F first respondent to appoint suitably qualified officers to the posts in question. All that the Court could do is to compel the first respondent to exercise his discretion in terms of the Act. No suggestion has been made that the first respondent has exercised his discretion under the...