Thembakazi Ntangazana v Member of the Executive Council for the Department of Education, Eastern Cape

The applicant applied for a position as administration clerk at Upper Tabase Junior Secondary School that was advertised by the respondent (MEC for Education) on 13 May 2016. At the time, the applicant was already employed by the school's governing body in that position. She was unsuccessful in her application, but initiated a dispute that disclosed irregularities in the appointment process. The irregular appointment was reversed and the applicant was appointed. She then sued for loss of income, claiming she was the only suitable candidate and would have earned a salary from November 2016 but for the irregularity. The respondent raised an exception to the particulars of claim, which Beneke AJ dismissed on 22 October 2019. The respondent then raised a special plea to the high court's jurisdiction. On 28 June 2022, Majiki J upheld the special plea and dismissed the applicant's claim. The applicant's application for leave to appeal was refused by the high court on 15 November 2022, and two judges of the Supreme Court of Appeal also refused leave to appeal. The Acting President of the SCA referred the matter for reconsideration in terms of s 17(2)(f) of the Superior Courts Act on 7 August 2023, but the applicant's attorneys delayed for almost a year in implementing the directives, causing the application to lapse.

• Whether the applicant should be granted condonation for the delay in prosecuting the reconsideration application
• Whether the reconsideration application should be reinstated
• Whether there were exceptional circumstances justifying reconsideration of the refusal of leave to appeal under s 17(2)(f) of the Superior Courts Act
• Whether the high court had jurisdiction to hear the applicant's claim for loss of income or whether it fell within the exclusive jurisdiction of the Labour Court
• Whether the two conflicting high court judgments (Majiki J and Beneke AJ) presented an exceptional circumstance

1. The application for condonation was granted, and the referral for reconsideration was reinstated. The applicant was ordered to pay the costs occasioned by the condonation and reinstatement applications, including the costs of counsel where so employed. 2. The order dismissing the application for leave to appeal was reconsidered and varied as follows: Leave to appeal was granted to the full court of the Eastern Cape Division of the High Court, Mthatha. Costs to be costs in the appeal.

The binding legal principles established are: (1) Under s 17(2)(f) of the Superior Courts Act, exceptional circumstances exist where there are conflicting judgments from the same court dealing with the same issues and applying the law differently. (2) In condonation applications, good prospects of success may, in appropriate circumstances, excuse an inadequate explanation for delay. This applies particularly where the threshold for reinstatement is met and injustice would result from refusing the application. (3) Following Baloyi v Public Protector, a plaintiff may formulate a claim in different ways (contract vs labour law remedies) to bring it before a forum of choice, provided the claim as formulated is enforceable in that court. The high court has jurisdiction unless the LRA or BCEA confers exclusive jurisdiction on the Labour Court. (4) Weak prospects of success may trump a full and satisfactory explanation for delay, while good prospects of success may excuse an inadequate explanation for delay in appropriate circumstances.

The Court made several non-binding observations: (1) The Court expressed concern about the "kafkaesque story" presented by the facts and "the inexplicable waste of scarce judicial resources" caused by the delays and procedural failures in the matter. (2) The Court noted that it was "remarkable" that the applicant's attorney only received the reconsideration order on the same day he contacted the Registrar to complain about the delay, nine months after it was granted. (3) The Court commented on the inadequacy of blaming the correspondent attorney without providing supporting documentation or dates of communication. (4) The Court noted that the claim may have been dismissed without reference to Baloyi v Public Protector, and that this important Constitutional Court decision "appears not to have been brought to the attention of the high court." (5) The Court observed that despite the kafkaesque nature of the matter and waste of judicial resources, the facts did not justify awarding costs of two counsel.

This case is significant in South African law for several reasons: (1) it clarifies the application of s 17(2)(f) of the Superior Courts Act regarding reconsideration of refusals of leave to appeal in exceptional circumstances; (2) it confirms that good prospects of success may, in appropriate circumstances, excuse an inadequate explanation for delay in condonation applications; (3) it reinforces the principle that conflicting judgments from the same court dealing with the same issues constitute an exceptional circumstance warranting reconsideration; (4) it highlights the importance of the Constitutional Court's decision in Baloyi v Public Protector regarding jurisdictional issues between the high court and Labour Court, particularly where a litigant may formulate a claim in different ways; (5) it demonstrates the court's willingness to prevent injustice even where procedural compliance has been deficient, provided there are sufficiently strong prospects of success.