Toto v The MEC for Health (Eastern Cape Province); - Mfene v The MEC for Health (Eastern Cape Province); - Ndalasi v The MEC for Health (Eastern Cape Province); - Madaka v The MEC for Health (Eastern Cape Province); - Ncukana v The MEC for Health (Eastern Cape Province); - Ntsulumbana v The MEC for Health (Eastern Cape Province); - Mlunguza v The MEC for Health (Eastern Cape Province)

• Jurisdiction: South Africa
• Judge: Ebrahim J
• Judgment Date: 11 March 2008
• Docket Number: 185/05, 248/02, 249/05, 250/05, 805/05, 806/05, 815/05
• Court: Transkei Division
• Hearing Date: 11 March 2008
• Citation: 2008 JDR 0283 (Tk)

Ebrahim J:

Introduction

[1] Each of the applicants seeks leave to appeal to the Full Court against the whole of the judgment of this Court, delivered on 16 August Z007, dismissing their applications with costs. The respondents oppose the application.

[2] The applicants also seek condonation for the late delivery of this application. In respect of the application for condonation the respondents' attitude is that the granting or refusal thereof is dependent on whether or not there is a reasonable prospect of success on appeal.

[3] I shall, for the sake of convenience, confine myself to the papers of the applicant T Toto but it should be self-evident that the decision I arrive at will apply equally to all the applicants seeking leave to appeal.

Grounds of appeal

[4] Apart from specifying the principal grounds of appeal, the applicants have expanded thereon with supplementary comments. I have therefore abbreviated these and consider the following to be an adequate summary of the grounds of appeal, which are that:

1.

The Court erred in finding that the Promotion of Administrative Justice Act [1] (PAJA) and the common rule against unreasonable delay in launching review proceedings were applicable when the applicants were

2008 JDR 0283 p3

Ebrahim J

not seeking to review the refusal or delay by the Department of Health to consider them for promotion but seeking to vindicate contractual rights and to enforce the terms and conditions of their employment contracts by way of a declaration of rights, interdict and mandamus.

2.

The Court erred in not finding that there had not been a delay as the decision that they would not be promoted was conveyed to the applicants, after lengthy negotiations, by letter dated 6 June 2004 whereupon the applicants issued a demand in September 2004 and launched proceedings in March 2005.

3.

The Court erred in not finding that the applicants' cause of action accrued before the advent of the PAJA and that its provisions could not be applied retrospectively against the applicants.

4.

The Court erred in not finding that implementation of the Human Resources Operational Project Task Team (HROPT) was underway at the time the applicants launched their applications and, in any event, that the undue delay rule was inapplicable in respect of the challenge to the validity of the HROPT's finding, which was a nullity and ultra vires.

5.

The Court erred in finding that the applicants did not follow the...