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

The MEC for the Department of Education, Eastern Cape advertised a vacancy for an administration clerk in May 2016. Ms Ntangazana, who was already employed in that position by the school governing body, applied but was initially unsuccessful due to an irregular appointment process. After she challenged the process, the irregular appointment was reversed and she was appointed. She then sued the MEC in the Eastern Cape High Court for loss of income, alleging that but for the irregularity she would have earned a salary from November 2016. The respondent raised an exception, which was dismissed, and later a special plea that the High Court lacked jurisdiction, which was upheld, leading to dismissal of the claim. Leave to appeal was refused by the High Court and by two judges of the Supreme Court of Appeal. The Acting President of the SCA subsequently referred the refusal for reconsideration under s 17(2)(f) of the Superior Courts Act. The application lapsed due to delay, necessitating an application for condonation and reinstatement.

Condonation and reinstatement of the reconsideration application were granted. The refusal of leave to appeal was reconsidered and varied. Leave to appeal was granted to the full court of the Eastern Cape Division of the High Court, Mthatha. The applicant was ordered to pay the costs of the condonation and reinstatement applications.

The judgment clarifies the application of s 17(2)(f) of the Superior Courts Act and confirms that strong prospects of success may trump an inadequate explanation for delay. It underscores the importance of considering Constitutional Court and SCA authority on concurrent jurisdiction between the High Court and Labour Court, and reinforces that conflicting judgments can constitute exceptional circumstances warranting reconsideration.