CCT10/13

[2013] ZACC 49

2014 (3) BCLR 333 (CC)

(2014) 35 ILJ 613 (CC)

2014 (5) SA 579 (CC)

Skweyiya J Majority judgment

Zondo J separate judgment

8 August 2013

18 December 2013

http://hdl.handle.net/20.500.12144/3709

Application for leave to appeal against a judgment of the Labour Appeal Court: Khumalo and Another v MEC for Education: Kwazulu-Natal (DA 3/2011) [2012] ZALAC 26; [2012] 12 BLLR 1232 (LAC); (2013) 34 ILJ 296 (LAC) (29 August 2012).

Application for leave to appeal against a decision of the Labour Appeal Court upholding the Labour Court’s setting aside of the applicants’ promotions as unlawful, unreasonable and unfair. The majority considered the case as falling under a legality review in terms of the Public Service Act. The Court held that a responsible state functionary like the respondent is obliged to investigate and to seek to rectify irregularities and unlawful conduct within her institution. However, the respondent had delayed unreasonably in bringing her application. The delay was of a nature that non suited the MEC in relation to her claim against the first applicant’s promotion. Regarding the second applicant’s protected promotion, the Court held that the respondent was not entitled to bypass the provisions of the Labour Relations Act (LRA) that regulate the review of arbitration awards. Her challenge ought to have been made against the arbitration award, which application would have fallen out of the time limits set by the LRA. The Court set aside the decisions of the Labour Court and Labour Appeal Court and permitted the promotions to stand. A separate concurring judgment would have upheld the appeal on the basis that the proceedings were brought under section 33 of the Promotion of Administrative Justice Act 3 of 2000 (PAJA). The application should have been dismissed because the respondent had failed to bring an application for condonation for late filing in the face of an express time limit under PAJA. Majority: Skweyiya J (Moseneke DCJ, Cameron J, Froneman J, Madlanga J, Mhlantla AJ, Nkabinde J and Van der Westhuizen J concurring). Separate concurrence: Zondo J (Jafta J concurring).