- December 7, 2022
- |Administrative Law, Concise Law Reports (CLR)
The applicant, a local authority council, sought the review and setting aside of a decision taken by its Management Committee on 19 April 2022 (‘the decision’) and an order remitting the matter to the Management Committee for it to reconsider the impugned decision in the light of the recommendations of the applicant’s Interview Panel respecting the appointment of General Manager: Corporate Services and Human Capital. The second respondent and the third respondent moved to reject the application. The second respondent submitted that an employment relationship was formed between the second respondent and the applicant with effect from 1 June 2022. The third respondent only opposed the application in respect of the relief sought in paragraph 1.2 of the notice of motion and took no issue with paragraph 1.1 thereof.
After considering and finding that the parties were properly before the court, and that the application was properly before it, PARKER AJ considered the matter and stated that: the decision was taken by the applicant’s Management Committee, the first respondent; the impugned decision was the selection of the second respondent for appointment as General Manager of Corporate Services and Human Capital of the applicant; the applicant realized that the Management Committee had acted under a misinterpretation of its powers under the Regulations; the applicant sought to self-review the decision which it realized was ultra vires the Regulations. It is trite that such ultra vires act is unlawful and invalid. The rule of law and the principle of legality require that administrative bodies and administrative officials may only act in accordance with powers conferred on them by law – either by the Constitution itself of by any other law (President of the Republic of Namibia and Others v Anhui Foreign Economic Construction Group Corporation Ltd and Another 2017 (2) NR 340 (SC) para 49).
In respect of the application of the Turquant rule, that ‘[7] we are dealing here with a public authority and not with the issue of internal arrangements of the applicant. The issue at play is that the Management Committee acted ultra vires its statutory powers. No administrative body or administrative office (i.e., a public authority) has the discretion to do that which is not in accordance with the powers conferred upon them by law – either by the Constitution itself or by any other law. Indeed, estoppel, for instance, cannot be used in such a way as to give effect to what is not permitted by law. Invalidity must therefore follow uniformly as the consequence (City of Tshwane Metropolitan Municipality v RPM Bricks (Pty) Ltd 2008 (3) SA 1 (SCA) para 23).
In as far as the second respondent relied on a contract of employment, he failed to ‘state whether the contract is written or oral and when, where and whom it was concluded’, as is required peremptorily by rule 45(7) of the rules of court. The irrefragable conclusion is that there is no such contract in existence whose performance the court is entitled to order. There was no written contract of employment between the second respondent and applicant as required by the Local Authorities Act 23 of 1992 – consequently, court rejected second respondent’s allegation that there was such a contract because of conversations he had with an official of the applicant regarding such matters as the official scheduling a medical examination of the second respondent and the official asking him when he could take up appointment and the official telling him that the applicant would incur the costs of the second respondent relocating to Swakopmund.
Second respondent further relied on the principle of legitimate expectation. To this the court stated:
‘[11] It is not aleatory or insignificant that O’Linn AJA, upon authority of the English case of O’Reilly v Mackman [1982] 3 ALL ER 1124 (HL) at 1126j – 1127a, held that ‘reasonable expectation’ and ‘legitimate expectation’ were to be equated (Minister of Health and Social Services v Lisse 2006 (2) NR 739 (SC) para 24.2). The expectation that calls in aid the doctrine of legitimate expectation must, in the circumstances, be justifiable and reasonable. The second respondent’s expectation could neither be justifiable nor reasonable for these reasons. As I have demonstrated, the second respondent knew or ought to have reasonably known that no written contract of employment existed between him, and the applicant as is peremptorily required by regulation 30 of the Regulations. Secondly the second respondent’s expectation could not be justifiable or reasonable where the decision maker has acted ultra vires the Regulations.’
Even if a contract of employment was entered into, it has been held that a contract of employment involving a local authority council stands to be invalidated by a departure from regulations governing such contracts (RJF Gordon Judicial Review: Law and Procedure (1985) at 131).
The court was thus satisfied that the applicant place before it cogent and sufficient evidence tending to establish that the relevant decision of the Management Committee was ultra vires the provision of regulation 27. It is incontrovertible and trite that such decision by a public authority is unlawful and invalid. The inevitable result, as a matter of law, is that no right, interest, or obligation can lawfully be derived from the decision tainted by ultra vires and illegality. The maxim ex nihilo nihil fit applies.
[14] To allow the tainted decision to stand would be permitting illegality to trump legality and rendering the ultra vires doctrine nugatory. None of that would be in the interest of due administration of justice (City of Tshwane Metropolitan Municipality v RPM Bricks (Pty) Ltd footnote 6 para 24). And it is competent for an administrative body or administrative official to approach the seat of the judgment of the court to seek self-review of its administrative acts (China State Engineering Construction Corporation v Namibia Airports Co Limited 2020 (2) NR 343 (SC)….
[18] …The applicant acted correctly and properly in approaching the court to self-review a decision made vicariously by the applicant. Such conduct should be encouraged to avoid having to wait for an aggrieved person to approach the court to challenge the validity of an administrative action, particularly where such decision, though plainly unlawful, is enforceable unless and until it is declared unlawful and invalid by a competent court.
Held that:
- The rule of law and the principle of legality require that administrative bodies and officials may only act in accordance with powers conferred on them by law – either by the Constitution or any other law.
- Held further that an ultra vires act of an administrative body or official is unlawful and invalid.
- Held further that the Turquant rule cannot apply to keep lawful an ultra vires act of an administrative body or official.
The matter was remitted to the Management Committee of the applicant for the Committee to act in proper accordance with the relevant provisions of the Regulations in the appointment of a General Manager: Corporate Services and Human Capital of the applicant.
Council Municipality SWK v Chairperson Management Committee (HC-MD-CIV-MOT-REV-2022-00351)[2022]NAHCMD 665(7 December 2022)