J W Mamabolo v Rustenburg Regional Local Council

On 16 May 1995, the appellant was appointed by the respondent Council as an RDP Director subject to a six-month probationary period expiring on 15 November 1995. On 28 November 1995, the Council resolved to extend the probationary period for a further six months. The appellant requested reasons for the extension on 11 March 1996. On 14 May 1996, the Council resolved not to confirm the appellant's appointment and to dismiss him with one month's notice from 16 May 1996. The appellant's appointment was governed by clause 6.2.7 of Regulation No R 1828. On 23 August 1996, the appellant instituted review proceedings seeking to set aside the decision to place him on probation, the extension of his probation, and the termination of his services. Kirk-Cohen J granted orders setting aside both the extension resolution and the termination resolution. On appeal to the Full Bench, the Court found in the Council's favour on the sole ground of unreasonable delay. The appellant appealed to the Supreme Court of Appeal with special leave.

• Whether there was undue delay in bringing the review application
• Whether the Council was entitled to extend the appellant's probationary period for six months after the initial period had expired
• Whether the appellant's employment was validly terminated
• Whether the rules of natural justice and procedural fairness were complied with in the termination process
• Whether the omission to file a full record with the Registrar should result in dismissal of the appeal

The appeal was dismissed with costs.

The binding legal principles established are: (1) Where a respondent deliberately abstains from raising delay as a defence, a court should not lightly raise it mero motu, and if it does, must give the applicant an opportunity to supplement affidavits to address the delay; (2) Even where unreasonable delay is found, a court is obliged to consider whether the delay should be condoned; (3) A decision taken subject to the affected party being given a further opportunity to make representations before implementation may be considered provisional rather than final for purposes of procedural fairness; (4) Procedural fairness requirements may be satisfied by a post-decision hearing where: (a) there is sufficient interval between decision and implementation for a fair hearing, (b) the decision-maker retains an open mind to allow persuasion to change the decision, and (c) the affected individual has not suffered prejudice; (5) An employee on probation who is informed of reasons for non-confirmation and given opportunity to make representations but chooses to address only technical objections cannot later complain of breach of natural justice.

The Court made obiter observations that: (1) The successful invocation of the delay principle in review proceedings would in a sense 'validate' what would otherwise have been an ultra vires act and therefore a nullity; (2) The position contended for by counsel that the appellant should be considered an employee by virtue of the Labour Relations Act 66 of 1995 was an afterthought never raised in the courts below and could not be raised on appeal, especially when it contradicted the case as presented in the affidavits; (3) Even if the extension of probation had been invalid, the appellant had subjectively acquiesced in it or at least led the Council to believe he accepted it by allowing the full second probationary period to run without objection (save for the belated request for reasons).

This case is significant in South African labour and administrative law for establishing important principles regarding: (1) the application of delay principles in review proceedings and the circumstances when courts should raise delay mero motu; (2) the duty to consider condonation even where delay is found; (3) the requirements for procedural fairness in employment termination during probationary periods; (4) the principle that a hearing after a provisional decision may satisfy natural justice requirements where sufficient time exists before implementation, the decision-maker keeps an open mind, and no prejudice results; and (5) the interpretation of probationary employment provisions in local government regulations promulgated under the Labour Relations Act 28 of 1956.