Nkosinathi Lawrence Khumalo and Another v Member of the Executive Council for Education: KwaZulu-Natal

In March 2004, the KwaZulu-Natal Department of Education advertised a post for Chief Personnel Officer requiring a Senior Certificate plus extensive relevant experience and 2 or more years of supervisory experience at level 6 or 7 within human resources. Mr Khumalo (at salary level 5) applied and was promoted to the post in April 2004. Mr Ritchie (at salary level 7) also applied but was not shortlisted. Mr Ritchie lodged a grievance and referred the dispute to the General Public Service Sectoral Bargaining Council for arbitration. On 11 July 2005, the Department and Mr Ritchie concluded a settlement agreement granting him a "protected promotion", which was made into an arbitration award. In October 2005, NUPSAW complained about irregularities in the appointment process on behalf of 11 other employees. The MEC set up a Task Team which submitted a Report in January 2007 finding that Mr Khumalo did not meet the minimum requirements and that the process was unfair, and that Mr Ritchie's protected promotion was not prudent. In October 2008 (approximately 20 months after receiving the Report), the MEC launched an application in the Labour Court seeking to declare both the promotion and protected promotion unlawful and to set them aside. No explanation was given for this delay.

• Whether leave to appeal should be granted
• What is the legal nature of the MEC's challenge to the impugned decisions (administrative action under PAJA vs. legality review under LRA s158(1)(h) vs. common law legality review)?
• Whether there is a duty on a state functionary to rectify unlawfulness committed under their authority
• Whether the Labour Court should have reviewed Mr Khumalo's promotion notwithstanding the MEC's unreasonable and unexplained delay, and whether that promotion was lawful
• Whether the Labour Court should have reviewed Mr Ritchie's protected promotion notwithstanding the delay, and whether it was lawful
• Whether the MEC could circumvent the time limits for challenging an arbitration award under the LRA by challenging the underlying decision to enter the settlement agreement
• What is the appropriate remedy if the promotions are found unlawful

Leave to appeal granted. Appeal upheld. Orders of the Labour Appeal Court and Labour Court set aside. The order of the Labour Court replaced with an order dismissing the MEC's application. The respondent (MEC) ordered to pay the costs of the applicants including costs of two counsel.

The binding legal principles established are: (1) State functionaries have a duty under s195 of the Constitution (accountability, transparency, professional ethics) and s7(2) (obligation to respect, protect, promote and fulfill rights) to investigate and, where necessary through appropriate avenues including courts, rectify unlawfulness in public administration. This duty is also founded in s5(7)(a) of the Public Service Act. (2) This duty must be performed "diligently and without delay" as required by s237 of the Constitution - expeditious compliance with constitutional duties is itself a requirement of legality. (3) Courts retain inherent discretion to refuse review applications brought with undue delay, even in the absence of express statutory time limits, based on the public interest in certainty and finality and where delay impairs the court's ability to assess the matter. (4) In assessing whether to overlook delay, courts must consider: (a) whether the delay is unreasonable (factual enquiry and value judgment in light of all circumstances); and if so (b) whether discretion should be exercised to overlook it, considering: potential prejudice to affected parties, consequences of setting aside the decision (mediated by remedial powers under s172(1)(b) to grant just and equitable orders), the nature of the impugned decision, and the strength of the merits. (5) Arbitration awards under the LRA must be challenged directly within the prescribed time limits (6 weeks under s145(1)(a)) and parties cannot circumvent these limits by attacking the underlying decision - this would undermine the dispute resolution structures of the LRA and the finality that arbitration awards are intended to provide. (6) Section 11(2) of the Public Service Act requires that only persons who qualify for a position may be considered for appointment (unless s11(3) applies allowing departures to promote s195(1) values), and appointing unqualified persons is unfair and not in compliance with transparency and accountability requirements.

The majority judgment made several non-binding observations: (1) That while public sector employment is now largely synchronized with private sector employment under the LRA, the political dimension of the state as employer gives rise to unique characteristics (political rather than commercial considerations, accountability to Legislature, revenue from taxation). (2) That section 11(3) of the PSA (since repealed) allowed executing authorities to approve appointments that departed from stated requirements to promote s195(1) values, and the rationality of such approvals would depend on the reasons given. (3) That fairness in public sector appointments requires the state to be even-handed and transparent not only to employees but also to applicants, and it would be unfair and contrary to transparency and accountability to appoint persons who do not meet the stated requirements. (4) That formulation and application of requirements for posts is a minimum prerequisite for ensuring objectivity of the appointment process. (5) That the repeal of the 12-month prescription period in s39 of the PSA opens actions of public functionaries to ongoing scrutiny and transparency, and means applicants cannot automatically be non-suited based on delay, though courts retain discretion to refuse applications for undue delay. The concurring judgment observed that: (1) It is not open for a court to adjudicate a claim not relied upon by the applicant, even if pleaded facts could sustain such a claim (citing Gcaba). (2) A litigant who has not made their case in the founding affidavit cannot escape consequences by making it in heads of argument. (3) An applicant must stand or fall on their pleaded cause of action.

This case is significant for several reasons: (1) It clarifies the duty of state functionaries under s195 of the Constitution and the rule of law to investigate and rectify unlawfulness in public administration, including through court processes where appropriate. (2) It emphasizes that this duty must be performed "diligently and without delay" as required by s237 of the Constitution, and that delay can be fatal to such applications even where brought in the public interest. (3) It illustrates the tension between upholding the rule of law and procedural requirements/time limits in the labour law context. (4) It confirms that courts have discretion to refuse review applications brought with undue delay, particularly where the delay impairs the court's ability to assess the lawfulness of the decision. (5) It demonstrates the importance of certainty and finality in employment relations, particularly in the public sector. (6) It clarifies that arbitration awards under the LRA cannot be circumvented by challenging underlying decisions - they must be challenged directly within prescribed time limits. (7) The split judgment reveals different approaches to characterizing the legal basis of a claim (PAJA vs. LRA legality review) and the consequences flowing from that characterization. (8) It reinforces that public sector employment is governed by labour law protections while acknowledging unique features of state employment. (9) It illustrates courts' remedial powers under s172(1)(b) to grant just and equitable orders even where unlawfulness is found.