CASE NO: CCT115/18
In the matter between:
MBULELO PAUL GLADSTONE NOTYAWA Applicant
and
MAKANA MUNICIPALITY First Respondent
MEMBER OF THE EXECUTIVE COUNCIL:
CO-OPERATIVE GOVERNANCE AND TRADITIONAL
AFFAIRS, EASTERN CAPE N.O. Second Respondent
PAMELA YAKO N.O. Third Respondent
WRITTEN SUBMISSIONS ON BEHALF OF SECOND RESPONDENT
1. This is an application for leave to appeal to the Constitutional Court which has been set down for hearing on Tuesday 3 September 2019.
2. Directions dated 9 May 2019 have been received.
3. Those directions relate, inter alia, to the filing of the “record” by no later than Monday the 24th June 2019. The obligation to file the record is primarily an obligation imposed upon the Applicant.
4. The directions further require written argument (no doubt in respect of the issue as to whether leave to appeal should be granted) and
“argument on the merits of the application” by no later than Monday the 22nd July 2019 (insofar as the Respondents are concerned).
5. In addition the parties to these proceedings have also been directed to file written submissions on or before Monday the 24th June 2019 “on the impact of the cases of State Information Technology Agency SOC v Gijima Holdings (Pty) Limited … 2018(2) SA 23 (CC) and Buffalo City Metropolitan Municipality v Asla Construction (Pty) Limited [2019] ZACC 15, on this matter.”
6. These written submissions are accordingly filed in compliance with paragraph 4 of the directions dated 9 May 2019.
7. As will be seen from the main written argument to be filed by no later than the 22nd July 2019 (in compliance with paragraph 3 of the directions dated 9 May 2019) it is in issue between the parties as to whether the various “decisions” taken by the First and Second Respondents from time to time, are properly to be categorised as “administrative action”, or whether, as apparently contended on behalf of the Applicant, what was before the High Court was a “legality review”.
8. On behalf of the Second Respondent this crucial issue will be fully canvassed in the written argument which will be filed on behalf of the Second Respondent.
9. The decisions sought to be reviewed by the Applicant before the High Court are set out in paragraph [1] of the judgement of Robeson J.
10. Since the application was dismissed by the High Court on the basis of undue delay it remains of relevance whether the decisions complained of are indeed properly to be categorised as administrative action, or whether the delay in instituting proceedings by the Applicant is to be considered within the context of a legality review.
11. In State Information Technology v Gijima Holdings 2018(2) SA 23 (CC) the Constitutional Court, unanimously held, that the Court was concerned, in that matter, with a review based upon the principle of legality. See for example the judgement at [29] ff.
12. Having regard to this finding the Court went on to deal with reviews under legality, at [38] ff.
13. In particular the applicability of an undue “delay” to such a challenge was dealt with at [43] ff.
14. In this regard the Constitutional Court held that legality reviews must also be instituted without undue delay. This is to ensure certainty and to promote legality. The issue of certainty is of direct relevance in the present case.
15. The consequences of protracted delays were dealt with and explained by Cameron J in Merofong City Local Municipality v Anglogold Ashanti Ltd 2017(2) SA 211 (CC) at [73]. This approach was approved and endorsed by the Constitutional Court in the Gijima Holdings matter at [44].
16. It follows that whether Robeson J was correct in finding (as she did) that one or more of the impugned decisions constituted administrative action as envisaged in PAJA, does not have the effect that undue delay would, in any event, not be a proper basis to have dismissed the application even if, properly construed, one or more of the impugned decisions were challenged on the basis of legality.
17. It is of course conceded that the approach to undue delay within the context of a PAJA challenge, as opposed to a legality review is not necessarily the same. Section 7 read with Section 9 of PAJA of course codifies and defines the approach to undue delay when administrative action is sought to be reviewed.
18. Robeson J in paragraph [47] ff of her judgement does indeed contrast the approach to undue delay within the context of a legality challenge as opposed to a PAJA review.
19. It is relevant to point out in this regard that the learned judge ultimately came to the conclusion that she would have found that the delay was unreasonable, even if the application was properly to be construed as a
“legality review”. See the judgement at [61].
20. The question of undue delay and the relevant facts relating thereto will of course be addressed in the main submissions to be advanced on behalf of the Second Respondent.
21. Insofar as the judgement in ASLA is concerned, it is respectfully
submitted that what is of particular relevance is the re-emphasis by the Constitutional Court in that case of the following principles, namely:
21.1. The proper approach to undue delay within the context of a legality review.
21.2. Whether a Court in considering the issue of undue delay should have regard to the “merits”.
22. Insofar as the first aspect is concerned the Court again stated that whilst a legality review has no fixed period (unlike a PAJA review) the test remains whether the delay is “unreasonable or undue”. See the judgement in ASLA at [48] ff.
23. The Court went on to hold that even if unreasonableness had been established the further question which requires consideration is whether the delay ought to be overlooked. See the judgement at [53].
24. In this regard a number of factors must be taken into account. Those factors include, fundamentally, the merits of the legal challenge against the impugned decision or decisions.
25. In ASLA the Court again emphasised that, even within the context of PAJA, the extent and nature of the deviation from Constitutional prescripts directly impacts upon an application for the condonation of an undue delay.
26. The Court in this regard referred to a number of prior decisions of the
Constitutional Court. See the judgement at [56], [57] and [58].
27. In her judgement Robeson J does not refer directly to the aforesaid approach and the authorities reflected in the paragraphs referred to above.
28. Nevertheless the learned judge did indeed have regard to the “merits”
even if no final and definitive decision was made by her in this regard.
29. We refer in this regard, in particular, to paragraph [60] of her judgement where the learned judge held that the Applicant’s prospects of success
“do not appear to be particularly strong”, and goes on to find that there was indeed “merit” in the submissions advanced on behalf of the Respondents.
30. It is accordingly submitted that the “merits” did play a role in the final conclusion by her ladyship that the application should be dismissed on the basis of undue delay.
31. In the further written submissions to be filed on behalf of the Second Respondent the “merits” of the original application, and the question of
“undue delay” will be fully canvassed.
32. It is however submitted that even in the event that the above Honourable Court should find that the “merits” were not afforded due weight in assessing whether there had been an undue delay, this is not a matter which should be referred back to the High Court to decide the “merits”.
33. All of the relevant evidence in this regard is already available. In particular, from the perspective of the Second Respondent, there is no further evidence that would be required to be submitted in order for a finding to be made as to whether the Applicant possessed the prescribed skills, expertise, competency or qualifications as set out in Section 54A(3) of the Municipal Systems Act, Act 32 of 2000, as read together with the Regulations promulgated in terms of that Act.
34. It is of course so that this Court, in rare instances, has ordered that additional evidence be placed before the Court in order to facilitate a final decision by the Constitutional Court. See for example Prince v President, Cape Law Society & Others 2001(2) BCLR 133 (CC). In the present case no further evidence is required and the matter may be finally disposed of on the existing record.
35. It is also relevant to point out that, both in Gijima and ASLA, and notwithstanding other findings which were made by the Court, a declaration of invalidity (but not retrospectively) was handed down. See for example the judgement in the ASLA matter at para [105]. No such declaration is required in the present case. As will be submitted in the main written submissions, the impugned decisions do not fall to be set aside.
36. Under the circumstances the Second Respondent will continue to oppose the application for leave to appeal, and will file further written submissions with regard thereto.
___________________________
R G BUCHANAN SC
_________________________
G APPELS
COUNSEL FOR SECOND RESPONDENT Chambers
Port Elizabeth
