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

• Jurisdiction: South Africa
• Citation: 1998 (3) SA 124 (C)

University of the Western Cape and Others v Member of Executive Committee for Health and Social Services and Others
1998 (3) SA 124 (C)

1998 (3) SA p124

Citation	1998 (3) SA 124 (C)
Case No	12066/96
Court	Cape Provincial Division
Judge	Hlophe J
Heard	February 17, 1997
Judgment	April 30, 1997
Counsel	NM Arendse for the applicants; CY Louw for the respondents

Flynote : Sleutelwoorde

Administrative law — Decisions of functionary — Review of — Powers of Court — Courts reluctant to usurp powers of public authorities in whom legislation has vested discretion — Where functionary vested with discretion as to how H statutory duty to be carried out, Court's mandamus extending only to directing functionary to comply with duty of deciding matter properly — Cases in which Courts will depart from this principle and substitute their own decision for that of functionary set out.

Public service — Public Service Staff Code compiled in terms of s 36 of Public Service Act 111 of 1984 — Status of — No I authority for proposition that provisions of Code generally constituting mere guidelines and not mandatory rules — Such proposition flying in face of s 42(3) of Public Service Act Proc 103 of 1994, which stipulates that provisions of Code 'binding upon any department, officer or employee' — Not possible for employees or officers to contract out of provisions of Code. J

1998 (3) SA p125

Administrative law — Decisions of functionary — When audi alteram partem principle applicable thereto — Legitimate A expectation doctrine — Reiterated that no one can have legitimate expectation to do something contrary to law or to prevent functionary from discharging statutory duty — Promises contrary to statutory duties unenforceable.

Public Service — Employee of — Appointment — University faculty transferred to Department of National Health — Staff B appointed to faculty in terms of agreement between Department of National Health and University — Terms of agreement complied with but posts not advertised inside and outside public service as required by Public Service Staff Code compiled in terms of s 36 of Public Service Act 111 of 1984 — Public Service Act Proc 103 of 1994, s 42(3), providing that Code binding upon public service — Doctrine of legitimate expectation not applicable as no one can C have legitimate expectation of doing do something contrary to law or preventing functionaries from discharging their statutory duties — Failure to advertise posts fatal.

Headnote : Kopnota

The second to fifth applicants were appointed to posts in the Faculty of Dentistry of the first applicant ('UWC'). D The faculty had been transferred to the Department of National Health in 1980 and the posts in question created in terms of an agreement between the Department of National Health and UWC ('the agreement'). The agreement regulated the procedure to be followed in making the appointments. The Dean of the faculty was to E advertise the posts at other oral health centres and faculties of dentistry and the applications received tabled at a Joint Appointments Committee meeting which was then to make recommendations regarding suitable appointments. These steps were followed but the posts were never advertised inside or outside the public service as required in terms of the Public Service Staff Code compiled in terms of s 36 of the Public Service Act 111 of F 1984. Applicants' attitude was that the provisions of the agreement had rendered the aforesaid advertising unnecessary, while respondents adopted the attitude that the provisions of the Code had to be followed and accordingly refused to confirm the appointments of the second to fifth applicants. Applicants responded by launching the instant application for an order, inter alia, directing the respondents to appoint the second to fifth applicants to the posts in question. The respondents' case was that the relief sought was misconceived because it G was clear from s 11 of the Public Service Act Proc 103 of 1994 ('the new Act') that a functionary entrusted with the duty of making public service appointments was vested with a discretion which the Court ought not to usurp. It was common cause that, due to respondents' attitude that the posts had never been advertised, first respondent had never exercised any such discretion. H

Held, that a Court will only in exceptional circumstances substitute its own decision for that of a public functionary who was vested with a discretion under an Act. The Court's mandamus will usually only extend to directing the functionary to comply with its duty of deciding the matter properly. However, where the end result was a foregone conclusion, where further delay would cause unjustifiable harm to the applicant, where the I functionary has exhibited bias or incompetence, or where the Court was in as good a position to make the decision itself, the Courts have not hesitated to substitute their own decisions for that of the functionary. (At 130H--131G/H.)

Held, further, that because the instant case did not fall within any of the recognised exceptions to the aforementioned rule and because there were J

1998 (3) SA p126

no exceptional circumstances suggesting that it was inappropriate to refer the matter back for a decision by first A respondent, respondents' contention that the relief sought was misconceived, was correct. (At 132C--E.)

Although this finding meant that it was not strictly necessary to do so, the Court proceeded to deal with the other grounds relied on by applicants in support of their application. These were, inter alia, (1) that the provisions of the B Public Service Staff Code were no more than guidelines; (2) that because applicants had complied with the provisions of the agreement they had had a legitimate expectation to be appointed to the posts in question; (3) that applicants had not known about the requirement that the posts had to be advertised; and (4) that had the advertisement been placed, there would have been no persons other than those working for dental institutions who would have been interested. C

Held, as to (1), that this contention flew in the face of the provision in s 43(2) of the new Act that the Code was binding on all departments, officers and employees. There was no authority for the proposition that the provisions of the Code constituted mere guidelines: non-compliance with the relevant provisions of the new Act and the Code was fatal, and it was not possible for employees and officers to contract out of them. (At 133C--G/H.) D

Held, further, as to (2), that no one could have a legitimate expectation to do something contrary to the law, or to prevent a functionary from discharging his statutory duty. Thus, whatever the source of the expectation might have been in casu, it had not been legitimate: applicants had known that first respondent had a statutory duty to advertise posts, and accordingly their expectation to be appointed to posts which had never been advertised as E per the Public Service Staff Code had been unreasonable. (At 134C/D--I.)

Held, further, as to (3), that it appeared from the evidence that applicants had been aware of the advertising requirement in the Code. (At 135A--B and 136A/B.)

Held, further, as to (4), that it was impossible to know whether other suitably qualified candidates would not have F come forward had the posts been properly advertised. Nor was it an answer to say that advertising would in any event have served no purpose because second to fifth applicants were suitably qualified for the posts: even if this were so, the fact of the matter was that the advertising requirements had not been complied with. In addition, there was no evidence to suggest that second to fifth respondents had been the most suitably qualified persons. (At 136G--137C/D.) G

Held, accordingly, that the application had to be dismissed. (At 138J--139A.)

Cases Considered

Annotations

Reported cases

Administrator, Transvaal, and Others v Traub and Others 1989 (4) SA 731 (A): dictum at 756G applied H

Administrator, Transvaal, and Others v Zenzile and Others 1991 (1) SA 21 (A): dictum at 34F--G applied

Attorney-General of Hong Kong v Ng Yuen Shiu [1983] 2 All ER 346 (PC): referred to

Bonnievale Wine & Brandy Co Ltd v Gordonia Liquor Licensing Board 1953 (3) SA 500 (C): dictum at 503 applied I

Castel NO v Metal & Allied Workers Union 1987 (4) SA 795 (A): referred to

Council of Civil Service Unions and Others v Minister for the Civil Service [1984] 3 All ER 935 (HL): referred to

Crow v Detained Mental Patients Special Board 1985 (4) SA 83 (ZH): dictum at 89 applied

Everett v Minister of the Interior 1981 (2) SA 453 (C): referred to J

1998 (3) SA p127

Johannesburg City Council v Administrator, Transvaal, and Another 1969 (2) SA 72 (T): dictum at 76 applied A

Local Road Transportation Board and Another v Durban City Council and Another 1965 (1) SA 586 (A): dictum at 598--9 applied

Maharaj and Others v Rampersad 1964 (4) SA 638 (A): dictum at 643--4 applied

Muller and Others v Chairman, Ministers' Council, House of Representatives, and Others 1992 (2) SA 508 (C): distinguished B

Nordien and Another v Minister of Law and Order and Others 1986 (2) SA 511 (C): compared

Norman Anstey and Co v Johannesburg Municipality 1928 WLD 235: dictum at 240--3 applied C

Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A): dictum at 634--5 applied

R v Ministry of Agriculture, Fisheries and Food, ex parte Hamble (Offshore) Fisheries Ltd [1995] 2 All ER 714 (QB): dictum at 723--4 applied

Theron en Andere v Ring van Wellington van die NG Sendingkerk in Suid-Afrika en Andere 1976 (2) SA 1 (A): dictum at 31D--E applied

Traube v Administrator, Transvaal, and Others 1989 (2) SA 396 (T): dictum at 408A--F applied D

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