Msizi Mhlongo | SchoemanLaw Inc   

Category: Dispute Resolution | Civil Litigation | Employment Law

In the case of Moodley v Public Service Commission, MEC WCape DOH, Min Public Service and Parbhoo, the shortlisted applicant contests whether the successful applicant for the post of CEO of Red Cross Hospital met the criteria set out in the advert—Constitution, ss 33, 40, 41, 195, 196—Labour Relations ACT 66 of 1995, s 157—Public Service Act 103 of 1994.  

The level 14 post of CEO of Red Cross Hospital in Cape Town was advertised, and two of the shortlisted applicants were Dr Moodley and 4th respondent, Dr Parbhoo. Moodley occupied a level 14 post, and Parbhoo a level 12 one, which is not in the senior management service (SMS). The advert requested that applicants have at least five years’ experience at senior managerial level’. The Directive on Compulsory Capacity Development, Mandatory Training Day, and Minimum Entry Requirements for SMS states that applicants for level 14 SMS posts must have at least ‘five years’ experience at senior management level’.  

Parbhoo was successful, and Moodley lodged a grievance that the five-year experience requirement referred to experience at levels 13-16 in the public service or, for private sector applicants, five years of experience at an equivalent level. The MEC rejected the grievance, and it was escalated to the Public Service Commission (PSC), which found the appointment ‘irregular’, but the MEC disagreed with this finding. The PSC subsequently changed its approach, and Moodley sought relief in the High Court, seeking his retrospective appointment as CEO instead of Parbhoo.  

Discussion:  

The legal questions for determination were: whether the findings of the PSC are binding on the executive authority to whom they are directed; -whether the requirement for job applicants of certain years of ‘experience at a senior managerial level’ for entry into the senior management service of public service (level 14-16) means the requisite years of experience at levels 13-16 of the public service, or whether those years of experience at a senior managerial level can be obtained elsewhere; and whether the decision of the MEC was administrative action. The MEC argued that the decision was not administrative action as defined in PAJA. 

Kantor AJ held that the matter satisfied the four requirements for administrative action in the definition in PAJA, and the MEC’s decisions were thus ‘subject to review in accordance with the principle of legality’. On the issue of jurisdiction, in which the MEC averred an absence of jurisdiction by the court, Kantor considered s 157 of the LRA and s 33 of the Constitution and concluded that the court had jurisdiction. ‘The right to administrative justice is a right enshrined in section 33...’. Binding nature of decisions of the PSC: The court traversed the law on the interpretation of statutes, especially s 196(4)(f)(ii) of the Constitution and concluded that the PSC is not empowered to make binding decisions in grievances such as those of Moodley. Section 35 of the Public Service Act reinforces this conclusion.  

On the meaning of the five years of experience, the court found that it would be incongruous to interpret it to mean five years at levels 13-16 in the public service for applicants who are public sector employees and experience at an equivalent level for applicants from the private sector. There is nothing ‘which prevents experience at an equivalent managerial level in an organ of state from satisfying the criterion’. The wording in the directive for level 16 posts ‘contemplates that three years of experience must be with “any organ of state” which…means that the remaining five to seven years can be from somewhere else and is not limited to Level 13 to 16 of the Public Service’.  

Outcome:

The relief sought in the main application was not granted. The Biowatch principle was applied and there was no order as to costs.  

Msizi Mhlongo | SchoemanLaw Inc  
Attorney    
https://schoemanlaw.co.za/our-services/civil-litigation-and-alternative-dispute-resolution/