Mkumatela v The Nelson Mandela Metropolitan Municipality

The appellant was employed by the respondent municipality and applied for a promotion to the position of assistant manager: waste operations. He was short-listed and interviewed by an appointment committee. The composition of the committee complied with the municipality's Recruitment Selection and Placement Policy. The committee comprised two members with voting rights (Ms Zamxaka and Mr Jamda) and three observers representing the Employment Equity Officer and two trade unions. The two voting members could not agree on which candidate to recommend - Ms Zamxaka preferred the appellant (scoring him highest) while Mr Jamda preferred the second respondent, Mr Mafongosi. When Ms Zamxaka proposed aggregating their scores (which would have given the appellant 83.5 vs Mr Mafongosi's 78), this was not accepted. Instead, the three observers' scores were considered, all of whom supported Mr Mafongosi. This 'majority' vote was used to recommend Mr Mafongosi to the municipal manager, who ultimately appointed him despite being informed of the procedural irregularities. The appellant brought a review application to set aside the appointment on the basis that the procedure violated the municipality's own policy and his constitutional right to lawful, reasonable and procedurally fair administrative action under section 33 of the Constitution.

• Whether the High Court had jurisdiction to hear the matter or whether it fell within the exclusive jurisdiction of the Labour Court under the Labour Relations Act 66 of 1995
• Whether the impugned conduct constituted 'administrative action' as contemplated by section 33 of the Constitution and the Promotion of Administrative Justice Act 3 of 2000 (PAJA)
• Whether a deviation from the municipality's own Recruitment Selection and Placement Policy rendered the appointment invalid
• Whether the distinction drawn in Fredericks v MEC for Education and Training, Eastern Cape applied or whether the matter fell within the principle established in Chirwa v Transnet Ltd

The appeal was dismissed with costs, including the costs of two counsel.

The binding legal principle established is that a decision by an organ of state not to promote an employee does not constitute 'administrative action' as contemplated by section 33 of the Constitution and PAJA, but rather constitutes a quintessential labour-related issue based on the right to fair labour practices under section 23 of the Constitution. The fact that the employer is an organ of state exercising a public power and performing a public function does not transform employment-related decisions into administrative action. When a grievance is raised by an employee relating to the conduct of the state as employer and it has few or no direct implications or consequences for other citizens, it does not constitute administrative action. Section 33 of the Constitution regulates the relationship between the state as bureaucracy and citizens, not the relationship between the state as employer and its workers.

The court did not need to consider the merits of the appointment decision or the other preliminary issue concerning whether the High Court had jurisdiction or whether the matter fell within the exclusive domain of the Labour Court under the LRA. The court noted that the appellant could have formulated a cause of action with reference to section 186(2)(a) of the LRA on the basis that the municipality had committed an unfair labour practice in not promoting him, but did not elaborate further on this point. The court's discussion of the earlier line of cases (Fredericks v MEC for Education and Training, Eastern Cape and Chirwa v Transnet Ltd) and the debate about which side of the dividing line this case fell on was rendered moot by the subsequent Gcaba decision.

This case is significant in South African administrative and labour law for clarifying the boundaries between administrative action under PAJA and labour-related matters. It establishes that employment-related decisions by organs of state concerning their own employees (such as promotion decisions) do not constitute administrative action reviewable under PAJA, even though the employer is an organ of state exercising public powers. The case affirms and applies the Constitutional Court's principle in Gcaba that section 33 of the Constitution regulates the relationship between the state as bureaucracy and citizens, not the state as employer and its workers. It demonstrates that the nature of the relationship (employer-employee) and the limited public impact of the decision (affecting primarily the employee) are more determinative than the public nature of the employer. This case has been important in delineating the respective jurisdictions of the Labour Court (for labour-related matters) and the High Court exercising review jurisdiction under PAJA, preventing employees of state organs from forum-shopping by characterizing employment disputes as administrative law matters.