South Africa: North West High Court, Mafikeng

Okes v Minister of Justice of the Republic of South Africa and Others (288/02) [2003] ZANWHC 1 (1 January 2003)

NKABINDE J:

Introduction:

[1] The applicant filed an urgent application and sought:-

1.1 an interim relief pending the outcome of the main application; and

1.2 a review of the Minister’s decision which is the main application.

The interim relief sought was properly the subject matter of the main application. At the hearing of the case Mr Prinsloo, for the applicant, asked that I hear the application for the relief sought in 1.1 above. In order to avoid a duplication of proceedings and to save the parties a possible needless expense I did not accede to counsel’s request. Besides, the main application was ripe for hearing.

[2] The decision sought to be reviewed was the decision by the Deputy Minister of Justice for not appointing the applicant to the post of deputy sheriff for the Magisterial Districts of Mankwe and Madikwe. The second respondent, the Advisory Committee of the Minister of Justice, and the third respondent, the Minister of Safety and Security, filed no affidavits in opposition of the application. A notice was filed on their behalf to the effect that they would abide by the decision of this Court. The fourth respondent, P B Makhanye, and the fifth respondent, the Board of Sheriffs, filed affidavits to oppose the application. On 25 July 2002 argument was addressed to the Court and after hearing submissions by counsel, I dismissed the application with costs and reserved reasons. The reasons now follows.

Factual background

[3] The applicant is the acting sheriff for the Magisterial district of Mankwe and Madikwe and also the sheriff for the High Court for the said districts. Prior to the applicant’s acting appointment in the said capacity she performed ad hoc sheriff’s work. On 10 April 2000 the post in which the applicant was acting was advertised in terms of regulation 2 of the Regulations under s 62 of the Sheriffs Act, No. 90 of 1986 (“the Act”). I shall deal with the provisions of regulations 2 later hereunder. The applicant applied for the advertised post. The other candidates for the advertised post included the fourth respondent whose application was successful. He had previously worked with the former acting sheriff, Mr Selokela. It is common cause that Mr Selokela was removed from the office due to failure on his part to fulfil legal obligations.

[4] On 13 July 2001 the Committee, under the chairmanship of Magistrate Rampe, held interviews of various applicants for the advertised post. The interviewing panel was properly constituted as required in terms of regulation 2(b)(c) of the Regulations. The applicant and fourth respondent were among the applicants who were interviewed. The factors which were considered by the committee were; age compliance, health, qualifications, legal knowledge, experience, financial ability, office management, personal managements, computers, language capabilities, personalities, background institute for sheriffs. The Committee then recommended the applicant as its first best choice and the fourth respondent as its second best choice.

[5] On 6 December 2001 the Board, in its submissions to the Director General: Justice in terms of regulation 2(9) of the Regulations, indicated its preparedness to issue a Fidelity Fund Certificate to the fourth respondent as its first best choice and to the applicant as its second best choice.

[6] On 17 January 2002 the Director General: Justice, forwarded a memorandum to the Deputy Minister Justice for the appointment. It is necessary, for the sake of completeness, to refer to the following portions of the memorandum:

“ 1 PURPOSE

The purpose of this memorandum is to submit applications for appointment as sheriff for the Lower Courts of Mankwe and Madikwe to the Deputy Minister for an appointment in the vacant offices. The Department recommends the appointment of Mr P.B. Makhanye.

2 BACKGROUND

2.1 The appointment of Mr J L Selokela as Sheriff of the Lower Courts of Mankwe and Madikwe expired on 6 September 2001 in terms of section 4 (3)(b) of the Sheriffs Act, 1986 (Act No. 90 of 1986), when he was removed from the office due to failure to fulfil legal obligations. Mrs M M Okes is the acting sheriff at the Lower Courts of Mankwe and Madikwe.

3. DISCUSSION

3.1 Applications considered

3.1.1 The normal procedure regarding the filling of such vacancies through advertisement as well as the dissemination of information thereof through offices of other sheriffs, was followed. The office of Sheriff of the Lower Courts of Mankwe and Madikwe were advertised and the applications of the applicants were received and considered.

3.1.2 ...

3.1.3 A brief profile of the first three applicants recommended by the Advisory Committee and the Executive Committee of the Board for sheriffs and to whom the Board for Sheriffs is willing to issue Fidelity Fund Certificate, is as follows:

(a) (i) Mrs Okes, a sheriff for High Courts Mankwe and Madikwe, is 38 years of age and obtained Matric. She has the knowledge of the Magistrates’ Court Act, 1944 as well as the High Court Act, 1959 and the relevant rules. She has the finances to set up the necessary infrastructure and she has the necessary knowledge of the duties of a sheriff to make a success of the office. According to her previous employer, her human relations are outstanding.

(ii) The applicant is the Advisory Committee’s first choice for appointment because of her experience.

(iii) The applicant is the Executive Committee’s second choice for appointment.

(b) (i) Mr Makhanye, a deputy sheriff for the Lower Courts of Mankwe and Madikwe, is 48 years of age and obtained Matric. He has 5 years experience as a deputy sheriff and has the knowledge of the relevant legislation. His finances are sound and it would not be a problem for him to acquire the finances to set up the necessary infrastructure. He has the knowledge of the duties of a sheriff to make a success of the vacant office. According to his previous employer his human relations are very good.

(ii) He is the Advisory Committee’s second choice for appointment.

(iii) The applicant is the Executive Committee’s first choice for appointment because of his experience

(c) ...

3.2 COMMENTS BY THE DEPARTMENT

3.2.1 ...

3.2.2 POLICIES OF THE DEPARTMENT

It is the Department’s policy to promote more representative appointments of sheriffs.

3.2.3 Recommendations of the Board vis-a-vis the Advisory Committee:

The Board’s preference list differs with that of the Advisory Committee.

3.2.4 Practical Implications

For practical purposes, the Department is of the opinion that one functionary for both offices of Sheriff of the High and Lower Courts of Mankwe and Madikwe should be appointed. Mrs Okes the acting sheriff for the Lower Court of Mankwe and Madikwe did apply for the vacant offices.

4. Recommendations

4.1 The Department considered the recommendations of both the Advisory Committee and the Executive Committee of the Board for Sheriffs, as well as the policy of the Department to appoint more representative sheriffs both relating to race and gender. Criteria also considered, were experience, suitability, finances, human relations and knowledge. According to these criteria, the Department considers Mr Makhanye to be the most suitable candidate for appointment.

...”.

[7] On 26 April 2002 the Director-General: Justice addressed a letter to the Magistrate of Mankwe wherein he indicated, inter alia, that the fourth respondent was appointed as sheriff of the Lower Court of Mankwe and Madikwe with effect from 1 August 2002 and that the other applicants must be informed in writing that their applications were unsuccessful. On 8 May 2002 a letter was addressed to the applicant wherein she was informed that her application for the advertised post was unsuccessful and that the fourth respondent has been appointed as sheriff of the Lower Court for the areas in question with effect from 1 August 2002.

[8] The Deputy Minister of Justice prepared and signed reasons in Durban on 10 July 2002 for her decision to appoint the fourth respondent to the advertised post of sheriff. As the decision sought to be reviewed was that of the Deputy Minister, I consider it necessary to refer, in some detail, to her reasons. She explained, inter alia, that-

(a) she appointed the fourth respondent in terms of s 2 (1) of the Sheriff’s Act;

(b) her decision to appoint the fourth respondent was taken pursuant to a standing delegation by the first respondent of his powers in terms of the Act and the Regulations;

(c) when she considered the applications the recommendations by the Committee, Board and the Director General were, inter alia, made available to her;

(d) she considered all the facts put before her and more specifically the relevant facts noted by the advisory committee. She stressed that there were no negative facts put before her in respect of anyone of the candidates (the applicant and the fourth respondent);

(e) in her opinion, bearing in mind what was put before her, the applicant and fourth respondent were both candidates of good standing and that anyone of them would, in view of the recommendations before her, be a worthy occupant of the relevant post;

(f) she duly considered the recommendation by the Department that the post of sheriff for the High Court in the said districts should be combined with the post of sheriff for the Magistrate’s Court in those districts but was of the view, bearing all facts in mind, that it would not be proper for her to appoint one occupant for the said posts;

(g) it is the policy of the Department of Justice to appoint, in so far as possible, people of colour from previous disadvantaged communities in the post of sheriff to enable them to get more actively involved in the economy of the country. She stressed that the policy would not be followed where the applicant for the post is by no means suitable to be appointed and in such circumstances, the policy has to make way for the appointment of the best candidate;

(h) the policy is based on the fact that 80% of the sheriffs in this country represents the white male group which indicated to her that the sheriffs are not representative of the people South Africa;

(i) the applicant had already been appointed sheriff of the High Court in respect of the districts in question and that she was already enjoying some income from the profession;

(j) the fourth respondent, who was a worthy candidate, would not enjoy the same income if she were to appoint the applicant also as sheriff for the Lower Court in respect of the said districts; and

(k) in all circumstances she considered it fair, reasonable and proper to appoint the fourth respondent as sheriff for the Lower Court of Mankwe and Madikwe.

[9] Due to the urgency of the matter a faxed copy of the first respondent’s answering affidavit, to which copies of the said reasons and other annexures were attached, was filed of record and served on the applicant. An application for condonation of the late filing of the said documents was subsequently made and granted. The applicant filed a replying affidavit where she indicated, inter alia, that she reserved the right to apply for the striking out of certain or all of the affidavits served in opposition to her application and that the replying affidavit was made without prejudice to her rights. She applied to strike out certain averments in the first and fourth respondents’ affidavits. The fourth respondent filed an application to strike out certain paragraphs in and annexures to the replying affidavit. At the hearing the applicant abandoned her application to strike out. The fourth respondent’s application for striking out paragraphs in and/or annexures to the replying affidavit which did not form part of the founding papers was granted.

[10] On 22 July 2002 the following documents were filed with the Registrar in terms of Rule 53 of the Uniform Rules of Court:

10.1 Advertisement in terms of Regulation 3(2) of the regulations published in terms of Act 90 of 1986, posted on the notice board of the relevant Magistrate’s offices, inviting applications for the office of sheriff in respect of the lower Court of Mankwe and Madikwe dated 10 January 2001;

10.2 Application submitted by Mrs Okes;

10.3 Application submitted by Mr Makhanye;

10.4 Letter dated 30 July 2001 by Magistrate, Mankwe and Madikwe to Director General: Justice, reporting on findings of Advisory Committee

10.5 Typed copy of Magistrate’s notes, made at the sitting of the Advisory Committee on 13 July 2001;

10.6 Handwritten notes of Magistrate made on 13 July 2001;

10.7 Schedules reflecting the points awarded by members of the Advisory Committee in respect of Mrs Okes and Mr Makhanye respectively;

10.8 Recommendation of Advisory Committee as reflected in letter of 27 August 2001;

10.9 Recommendation of Board of Sheriffs;

10.10 Memorandum by Department of Justice and Constitutional Development to the Deputy Minister of Justice and Constitutional Development;

10.11 Letter from the Department of Justice dated 26 April 2002 informing the Magistrate, Mankwe, of the outcome of application;

10.12 Letter informing Mrs Okes of the outcome of her application dated 8 May 2002; and

10.13 Minister’s reasons.

Submission by counsel

[11] The applicant’s case is based on a mixture of complaints. These were manifest in her founding papers as well as in counsel’s submission. Mr Prinsloo submitted that the decision by the Deputy Minister fall within the ambit of administrative decisions which are subject to judicial review in terms of the Promotion of Administrative Justice Act, 2000 (Act 3 of 2000). He submitted further, with regard to the alleged delegated powers, that the Deputy Minister had no authority and discretion to make a decision regarding the appointment of the Sheriff because the terms of the delegation and parameters of the discretion were not given. He further submitted that the second and fifth respondents followed an irregular procedure by failing and/or neglecting to give the Minister all the relevant information. According to him, regulation 9 of the Regulations, broadly interpreted, required the officials of the Board to disclose to the Minister all information, including negative information, about the fourth respondent. He submitted that, the Minister made a further error by relying on statistics which had no rational connection with regard to the aspect of gender: that she did not have statistical data on the percentage of female sheriffs and did not cause same to be investigated. He further submitted that the first and second respondents failed to apply rules of natural justice and/or audi alterem partem principles to whole or portion of the selection and/or appointment process. The further grounds for review set out in the founding papers were, inter alia, that the first, second and fifth respondents-

(a) failed to review or honour the applicant’s contract resulting thereby in the applicant’s rights and/or legitimate expectation being adversely affected, and

(b) were motivated by irrelevant and/or hidden motives in the decisions that affected the applicant’s right and/or legitimate expectation.

[12] Mr Pistor, on behalf of the first respondent, submitted that there is no basis to challenge the Minister’s averments that her decision to appoint Mr Makhanye was taken pursuant to a standing delegation by the Minister of Justice of his powers in terms of the said Act and Regulations. In this regard he submitted that the presumption omnia praesumuntur rite esse acta applied. He submitted further that the delegation was, in any event, not necessary in law for validation of the Deputy Minister’s decision whilst she was assisting the Minister in the fulfilment of his functions. Mr Pistor submitted that the principles of audi alterem partem were adhered to and further that there was no factual and legal basis for the alleged contract and legitimate expectation. He further submitted that the prescribed procedure was followed.

[13] Mr Hendricks, on behalf of the fourth respondent, submitted that the fourth respondent had nothing to do with the procedure and/or manner in which the decision was taken. He submitted that the alleged improper and unprofessional conduct on the part of the fourth respondent was irrelevant to the present proceedings and that the fourth respondent, in any event, denied all such allegations. He submitted that the affidavit of Mr Pearce and notes attached thereto clearly show that the Committee applied its mind to all the facts.

[14] Mr Malindi, for the fifth respondent, submitted that the fifth respondent substantially complied with the provisions of sub-regulation 9 of the Regulations. He submitted further that the composition of the second respondent in terms of regulation 2 (b)(c) does not include the fifth respondent and that it cannot, therefore, be said that the fifth respondent did not follow any selection and appointment process. He further submitted that the fifth respondent played its role properly and adhered strictly to the prescribed procedure.

The law

[15] The decision which is the subject matter of this application is unquestionably an administrative action both under the common law and the Constitution. Section 33 of the Constitution provides as follows:

“Just administrative action

(1) Everyone has the right to administrative action that is lawful, reasonable and procedurally fair.

(2) Everyone whose rights have been adversely affected by administrative action has the right to be given written reasons.

(3) National legislation must be enacted to give effect to these rights and must- (a) provide for the review of administrative action by a court or, where appropriate, an independent and impartial tribunal;

(b) impose a duty on the state to give effect to the rights in subsections (1) and (2); and

(c) promote an efficient administration.”.

[16] Item 23 (2) (b) of schedule 6 to the Constitution provides as follows:

“(b) section (33) and (2) must be regarded to read as follows:

“Every person has the right to-

(a) lawful administrative action where any of their rights or interest is affected or threatened;

(b) procedurally fair administrative action where any of their rights or legitimate expectations is affected or threatened;

(c) be furnished with reasons in writing for administrative action which affects any of their rights or interests unless the reasons for that action have been made public; and

(d) administrative action which is justifiable in relation to the reasons given for it where any of their rights is affected or threatened.”.

[17] In giving effect to the right to just administrative action conferred by s 33, above, the Promotion of Administrative Justice Act No 3 of 2000 (“the Administrative Act”) does several things. It contains a list of grounds of review as well as sections relating to procedure and remedies. I may say that most of these reflect the common law position except s 7(1) which prescribes the time within which the review may be brought and s 7(2) which is more stringent than the common law duty to exhaust domestic remedies.

[18] Furthermore s 9 of the Constitution protects the fundamental human right of equality and states as follows:

“Equality

(1) Everyone is equal before the law and has the right to equal protection and benefit of the law.

(2) Equality includes full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken.

(3) The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.

(4) No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination.

(5) Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair.”.

[19] The Deputy Minister is an administrative functionary in terms of s 239 of the Constitution. The decision she made is clearly not beyond the reach of or except from the provisions of the Constitution. The question arises as to whether her decision was lawful, reasonable and procedurally fair within the context of the Constitution and the relevant legislative enactment. Chaskalson CJ, in Bel Porto School Governing Body v Premier, Western Cape, and Another [2002] ZACC 2; 2002 (3) SA 265 (CC), remarks as follows, at paragraphs 85-86:

“[85] For good reasons, judicial review of administrative action has always distinguished between procedural fairness and substantive fairness. Whilst procedural fairness and the audi principle is strictly upheld, substantive fairness is treated differently. As Corbett CJ said in Du Preez and Another v Truth and Reconciliation Commission:

‘The audi principle is but one facet, albeit an important one, of the general requirement of natural justice that in the circumstances postulated the public official of body concerned must act fairly. ... The duty to act fairly, however, is concerned only with the manner in which the decisions are taken: it does not relate to whether the decision itself is fair or not.’

[86] The unfairness of a decision in itself has never been a ground for review. Something more is required. The unfairness has to be of such a degree that an inference can be drawn from it that the person who made the decision had erred in a respect that would provide grounds for review. That inference is not easily drawn.

[20] In the same case, Mokgoro and Sachs JJ remark as follows at paragraphs 164, 165 and 166, that-

“[164] In our view, the concept of justifiability requires more than a mere rational connection between the reasons and the decision, such as that the general assistants in question were technically not in the employ of the WCED. Although a rational connection would certainly be necessary, it would not on its own be sufficient. All exercises of public power have to have a rational basis, this is one of the foundations of legality, or lawfulness as required by s 33 (a). Justifiability as required by s 33 (d) on the other hand, must demand something more substantial and persuasive than mere rational connection. At the same time justifiability presupposes what could be considerably less than what the Court itself might have considered the best possible outcome if it had had to make the decision. The test in each case for appropriately locating the action between these extremes has to be a flexible one, bearing in mind the problems of the country, the complexities of government and the need for officials to exercise a genuine discretion in the fulfilment of their functions.

[165] Both Court and academic commentators have suggested that when examining whether or not a decision is justifiable, the decision-making process must be sound, and the decision must be capable of objective substantiation by examination of the facts and the reasons for the decision. Put another way, there must be a rational and coherent process that would tend to produce a reasonable outcome. The suitability and necessity of the decision are to be examined, and in this regard, a number of factors might have to be considered: the nature of the right or interest involved; the importance of the purpose sought to be achieved by the decision; the nature of the power being exercised; the circumstances of its use; the intensity of its impact on the liberty, property, livelihood or other rights of the persons affected; the broad public interest involved. It might be relevant to consider whether or not there are manifestly less restrictive means to achieve the purpose

“[166] In our view, the question to be asked is whether, ... the decision can be defended as falling within a wide personable range of discretionary options. In this respect the principle of proportionality is particularly relevant. Ultimately, the issue is a robust one of basic fairness and proportionality, necessitating a contextualised judicial determination of whether the decision is a defensive one on the basis of the reasons given, or whether it is so out of line and tainted with unfairness as to demand judicial intervention.”.

[21] The test, quoted with approval by Mokgoro and Sachs JJ in Bel Porto case at 315C-D, in determining whether the decision under review is rationally justifiable was formulated as follows at 316B-E by Froneman DJP in Carephone (Pty) Ltd v Marcus N O and Others 1999 (3) SA 304 (LAC):

“(36) In determining whether administrative action is justifiable in terms of the reasons given for it, value judgments will have to be made which will, almost inevitably, involve the consideration of the ‘merits’ of the matter in some way or another. As long as the Judge determining this issue is aware that he or she enters the merits not in order to substitute his or her own opinion on the correctness thereof, but to determine whether the outcome is rationally justifiable, the process will be in order.

(37) Many formulations have been suggested for this kind of substantive rationally required of administrative decision-makers, such as ‘reasonableness’, ‘rationality’, ‘proportionality’ and the like (cf, for example, Craig Administrative Law (op cit at 337-49); Schwarze European Administrative Law (1992) at 677). Without denying that the application of these formulations in particular cases may be instructive, I see no need to stray from the concept of justifiability itself. To rename it will not make matter any easier. It seems to me that one will never be able to formulate a more specific test other than, in one way or another, asking the question: is there a rational objective basis justifying the connection made by the administrative decision maker between the material properly available to him and the conclusion he or she eventually arrived at?.”.

The issues and application of the law

[22] Against the backdrop of the provisions of the Constitution and the case law, above, I turn to the question whether or not the Minister’s decision was lawful, reasonable and procedurally and substantively fair. To properly address this it becomes necessary to consider the issues in the instant case but not in the order in which they were raised and argued before me:

(a) Argument about lack of authority

In her reasons the Minister clearly indicated that her decision to appoint the fourth respondent was taken pursuant to a standing delegation by the Minister of Justice of his powers in terms of the Act and regulation. The reasons were attached to the first respondent’s answering affidavit. In her replying affidavit the applicant did not canvas whether or not the Deputy Minister had authority. The challenge to the Minister’s authority was raised for the first time in the applicant’s heads of argument. Therefore the presumption of regularity, omnia praesumuntur rite esse acta donec probetur in contrarium, applied (See Roodepoort City Council v Shepherd 1981 (2) 720 (AD) at 733 D-F). In the view that I took of this matter I considered that nothing really turned on this dispute.

(b) Argument on the existence of contract which gave rife to legitimate expectation.

(i) The applicant’s case was that her appointment to the advertised post was supported by the general majority of the legal fraternity that operated in the districts in question and that Mr Greyling told her not to worry about the appointment of Mr Makgale to the post of sheriff for the High Court for Bafokeng district because she would be appointed as the permanent sheriff for the areas in question. She explained that Mr Greyling gave as the reasons for this certainty the fact that her work was of high standard; that no one else in the region had a professional profile that could remotely match hers; that no complaints were received against her or her work. According to her what Mr Greyling told her constituted a contractual offer which gave rise to legitimate expectation that she would so be appointed. These were raised in the founding affidavit but not raised as an issue by the applicant’s counsel in the heads of argument or during oral argument. Mr Greyling, who is alleged to have made a promise to and/or entered into an oral contract with the applicant, vehemently denied the existence of any such contract and/or having made a promise to her. The appointment of a sheriff, as correctly submitted by counsel for the respondents, is regulated by the Act and regulations. If the applicant’s reliance on the alleged contract or promise was upheld the respondents would have been bound to an act which was clearly ultra vires. To put it simply, this Court would have accorded legal validity to an ultra vires act which is legally untenable (See Strydom v Die Land en Landboubank van SA 1972 (1) SA 801 (A) at 815G-816B). I may add that Mr Greyling, in any event, did not have the necessary authority to make such promise and/or enter into such a contract on behalf of any of the respondents.

(ii) The applicant relied further upon the doctrine of legitimate expectation. The nature, scope and limits of this doctrine are explored in Administrator, Transvaal and Others v Traub and Others (1989) 10 IJL 823 (A). The following remarks by Corbertt CJ, as he then was, at 840A-D are apposite:

“... where an adherence to the formula of ‘liberty, property and existing rights’ would fail to provide a legal remedy, when the facts cry out for one; and would result in a decision which appeared to have been arrived at by a procedure which was clearly unfair being immune from review. The law should in such cases be made to reach out and come to the aid of persons prejudicially affected. At the same time whereas the concepts of liberty, property and existing rights are reasonably well defined, that of legitimate expectation is not. Like public policy, unless carefully handled it could become an unruly horse. And in working out, incrementally, on the facts of each case, where the doctrine of legitimate expectation applies and where it does not, the courts will, no doubt, bear in mind the need from time to time to apply the curb. A reasonable balance must be maintained between the need to protect the individual from decisions unfairly arrived at by the public authority (and by certain domestic tribunals) and the contrary desirability of avoiding undue judicial interference in the administration.”.

(iii) The applicant was appointed in an acting capacity as sheriff for the Lower Courts. She knew and/or ought to have known that the post in which she was acting was impermanent and that such post was going to be advertised. After the post was advertised, she applied and was interviewed. It cannot, therefore, be said that a legal right accrued to her as a result of her acting position. If the applicant had an expectation, assuming in her favour that she had contracted with Mr Greyling, it would not be said, taking into account the fact that she was aware of the procedure for the appointment of sheriffs and that Greyling had no authority to promise her an appointment, that the expectation was reasonable.

(iv) The applicant’s case was that she was the only candidate who had the necessary experience and qualification for the job and who fulfilled her legal obligation as acting sheriff without complaint. I disagree: letters from the Bonthuys Bezuidenhout Incorporated (marked “PBM2") and Gumbo & Co (marked “PBM1") which were attached to the fourth respondent’s answering affidavit clearly revealed that there were complaints about the work performed by the applicant as acting sheriff. She was aware of such complaints. For completeness and ease of reference I quote hereunder the contents of “PBM1" and “PBM2":

“Mrs Oakes Sheriff of Magistrate Mankwe Madam

Re: YOUR ACTING APPOINTMENT AND ANCILLIARY ISSUES

I write to you in my capacity as chairperson of Mankwe Attorneys Association. We have noted that you are acting in the sheriff’s office even if we were not involved nor consulted in the process leading to that appointment. Be as it may, we have noted with grave concern as we go along, interacting with your office, that your fee structure is completely out of bounds, high, totally out of line, unnecessarily exhorbitant, and accordingly ultra fees tariffs applicable especially those used by sheriff’s who were in office before you.

This situation is now untenable and cannot be accepted, and consequently, local attorneys and their correspondents have been advised, and accepted the said advice, to put payment of your accounts on hold, up till this issue is discussed and sorted out.

We therefore eagerly await your response.

Yours faithfully

GUMBO & CO.”

The contents of “PBM2" read as follows:

“The Chief Magistrate

Mr Rampe

BY HAND

Sirs

DE BEER D M/MAKETE D

We refer to the above matter, and wish to confirm that we do not receive a return of service from the Sheriff with regards to our Warrant of Execution. Kindly note that we’ve written several letters to Mrs Okes and we have also reported her at the Board of Sheriffs but receive no response from her. It would be appreciated if you could investigate the matter for us. Your co-operation would be appreciated.

Yours faithfully

BONTHUYS BEZUIDENHOUT INC.”

(v) I share the view expressed by Nettleton AJ in Swanepoel v Western Region District Council and Another (1998) 19 IJL 1418 (SE) at 1423-4 H-J, that-

“ ... what applicant refers to as a legitimate expectation is, in fact, no more that an expression of her expectation based, inter alia, on the support and encouragement she received from within the work place union members and her immediate superiors alike; the fact that she holds a Diploma in Nature Conservation and the fact that she has, without blemish or complaint, fulfilled certain roles within her field of expertise. In the race for employment there must , indeed, be few job-seekers who do not in their own minds, either with or without the encouragement of others, form expectations as to their suitability. These expectations are, however, not ‘legitimate expectations’ upon which applicant could conveniently rely for relief and indeed, such legitimate expectations as applicant may have had were adequately met, as I have said, by giving applicant access to procedurally fair administrative procedures, i.e. a selection process untainted by discrimination or bias of any description and regular and proper in all respects.”.

(c) Argument with regard to irregular procedure and/or failure to apply the audi alterem principle.

(i) The appointment of the sheriff is regulated in terms of regulation 2 of the regulations. I consider it necessary, for ease of reference and completeness, to refer to the regulation in full:

“ 2. Appointment of sheriffs-(1) If a magistrate is or becomes aware of the fact that a person holds the office of sheriff within his area of jurisdiction or an area within his area of jurisdiction has

(a) died; or

(b) given notice of his resignation in accordance with section 4 (4) of the Act

The magistrate shall without delay inform the Director-General of Justice and the Board thereof.

(2) Subject to the provision of subregulation (5), a magistrate who received a written notice from the Director-General of Justice that a vacancy in the office of sheriff of a lower or superior court or an area or areas of a lower or superior court has occurred or will occur as a result of

...

shall within 14 days after receipt of the said notice advertise the office of sheriff by posting advertisements in as many of the official South African languages as is practicable on the notice boards at his seat and, where applicable, on the notice boards at each periodical court and branch court within this area of jurisdiction.

(2A) Advertisement referred to in subregulation (2) shall state

(a) the area of jurisdiction of the lower or superior court or the area or areas of a lower or superior court in respect of which the vacancy occurred or will occur;

(b) the application requirements prescribed by subregulations (6) and (7); and

(3) If the magistrate is requested by the Director-General of Justice in the notice referred to in subregulation (2) to advertise the vacancy concerned in the Gazette too, the magistrate shall, after receipt of such a notice, without delay advertise the vacancy concerned in accordance with the manner prescribed by subregulation (2A) in the Gazette.

(4) The magistrate shall, within seven days after the posting of the advertisement as contemplated in subregulation (2), inform the Director-General of Justice and the Board in writing of the closing date for applications.

(5) The Director-General of Justice may exempt a magistrate from complying with any one or all of the provisions of subregulations (2), (2A) and (4).

(6) (a) Any person who wishes to apply for appointment as sheriff shall complete a form in the form of Form 1 of the Annexure to these regulations in duplicate and lodge the forms with the magistrate concerned.

(b) Any person who wishes to apply for appointment as sheriff in terms of paragraph (a) shall, on the date and at the time and place determined by the magistrate with whom the application is lodged, appear before an advisory committee referred to in paragraph (c).

(c) The advisory committee referred to in paragraph (b) shall consist of-

(i) the magistrate of the district in which the vacancy occurred, who is the chairperson of the committee;

(ii) an attorney nominated by the attorneys’ association of the district or in the absence of such an association, the attorneys’ circle in which the district is situated or the law society of the province in which the vacancy occurred;

(iii) a sheriff nominated by the South African Institute for Sheriffs;

(iv) the Regional Head of the Department of Justice, of the province in which the district where the vacancy occurred, is situated or the person appointed by him or her; and

(v) a fit and proper member of the local community, nominated by the local government of the district in which the vacancy occurred.

(cA) The nomination of a person on an advisory committee in terms of paragraph (c) must, where feasible, be based on the principle of representavity in respect of race and gender.

(d) The advisory committee shall compile a report containing its substantial recommendation in respect of each application and if the advisory committee cannot reach agreement with regard to a specific application, each member of the advisory committee shall compile a report containing his substantiated recommendation in respect of that application.

(7) Each form lodged in terms of subregulation (6) shall be accompanied by

(a) a curriculum vitae of the applicant;

(b) a statement of the assets and liabilities of the applicant on a form in the form of Form 2 of the Annexure to these regulations, supported by documentary evidence; and

(c) a report on a form in the form of Form 3 of the Annexure to these regulations by the applicant’s most recent employer or, if the applicant is unable to obtain such a report, certified copies of two recent testimonials, together with an explanation by the applicant of why he is unable to obtain such a report.

(8) The magistrate shall as soon as possible after the closing date for the applications in question-

(a) forward those applications, together with the report or reports referred to in subregulation (6) (d), complied in respect of each application to the Director-General of Justice; and

(b) forward copies of those applications to the Board.

(9) The Board shall within 30 days after receipt of the applications referred to in subregulation (8) (b) submit the names of the applicants to whom the Board would be prepared to grant fidelity fund certificates in order of preference to the Director-General of Justice for submission to the Minister.

(10) After receipt of the documents referred to in subregulation (9), the Minister may appoint a sheriff for the area concerned.

... .”.

(ii) The aforementioned procedure was complied with. More specifically, the principle of representavity in respect of gender and race was considered by the Committee. The applicant was interviewed and was considered as the first best candidate by the Committee. It is remarkable that Mr Rampe, whom the applicant had accused of impropriety, was the chairman of the committee which, unanimously, considered the applicant to be the best candidate. The Law Society was, on behalf of the legal fraternity, represented in the Committee by Mr Pheto. There was nothing which was indicative of any procedural impropriety that could vitiate the decision of the Minister: I may say that the law merely took its course.

(d) Argument as to whether or not the Minister had a discretion

(i) It was vigorously argued by Mr Prinsloo that the Deputy Minister had no discretion. Sub-regulation (10), above clearly indicates that the Minister “may” appoint a sheriff for the area concerned after receipt of the documents from the Board. According to the recommendation of the Committee, the names of three candidates (i.e the applicant, fourth respondent and one Moobi) were recommended to the Minister in the order of its preference. The Board, in terms of sub-regulation (9) above, indicated its preparedness to give a fidelity fund certificate to the fourth respondent (as its first best choice) and the applicant (as its second best choice). The Minister had to decide who of the two candidates was most suitable to occupy the vacant post. She obviously exercised her discretion in deciding who of the two she had to appoint. I did not find anything indicative of the fact that the Minister did not exercise her discretion properly.

(e) Argument that the Minister considered irrelevant factors.

(i) The Deputy Minister clearly indicated in her reasons what she took into account when she decided to appoint the fourth respondent. The applicant’s case was not that she was discriminated on the basis of race and/or gender. Her complaint during oral argument was that the Minister paid lip-service to the question of gender. It was submitted that she considered irrelevant statistical data relating to white male sheriffs in the country. I disagree. The Minister duly considered the recommendations by the Department and the Committee. Brief profiles of each candidate were given to her. The profile of the applicant clearly indicated the gender of applicant.

(ii) It is plain from paragraph 4.1 of the recommendation by the Department that it was its policy to appoint more representative sheriffs both relating to race and gender. Such a policy can be regarded as one of the measures which are constitutionally recognised (See s 9 above; Stoman v Minister of Safety and Security and Others 2002 (3) SA 468 (T)). Other factors considered include experience, suitability, finances, human relations and knowledge. Can the Minister really be faulted for having chosen the fourth respondent who, according to the recommendations before her, was also suitable for appointment? The Minister applied the policy of representavity in respect of race and gender. She considered the fact that the applicant was already occupying a permanent post as sheriff for the High Court in those areas and already had a fair benefit in the economy. In time and age of high unemployment such as the one this country is facing, it cannot be said that the Minister’s decision was irrational, unfair and disproportionate when she decided to afford each of the two best candidates an opportunity to have a benefit in the economy of this country. Certainly, not everybody would be content that her decision was fair, but on the facts, as a whole, it cannot be said that the exercise of her discretion was so unfair and irrational to justify judicial interference. Chaskalson CJ in Bel Porto above, remarked that “the duty to act fairly does not relate to whether the decision itself is fair or not. The unfairness of a decision in itself has never been a ground for review”. In all the circumstances and when examining the facts and reasons given for the decision, it cannot be said that the Minister’s decision was irrational, so much out of line and unfair to such an extent that interference by this Court would be justified.

(iii) Mr Prinsloo submitted that the fifth respondent was impliedly required in terms of sub-regulation (9) to make a candid disclosure of all negative facts which were within its knowledge or within the knowledge of its officials. Mr Prinsloo was clearly forcing a reading into the relevant sub-regulation. Sub-regulation (9) above clearly spells out the role played by the fifth respondent: nothing more nothing less. It does not require the fifth respondent to enter into the arena of merits at its own instance.

(iv) The affidavit of the Senior Legal Administrative Officer in the Regional Office: Justice, Mr Pearce, shed light about what transpired when the fourth respondent was interviewed. He had taken notes (“MIP1") which revealed that the fourth respondent was questioned about his involvement in the office of the previous sheriff. Mr Pearce indicated that the purpose of the questioning was to establish whether there was anything that he (fourth respondent) could have done as deputy to Selokela, to avoid the dissatisfactory manner in which that office was managed. According to him, the fourth respondent informed the Committee that he was not satisfied with the management of Selokela’s office but that, as an employee, he could not prescribe to Selokela as to how his office had to be managed. It is clear that the Committee applied its mind to all relevant facts including, inter alia, negative information pertaining to the fourth respondent’s involvement in Mr Selokela’s office. A matter for surprise is that the applicant, herself, did not disclose any information of impropriety in respect of the fourth respondent when she was interviewed by the Committee.

(v) Even assuming, for a moment, that the alleged negative information about the fourth respondent existed, the fact of the matter is that such did not constitute accomplished facts. Besides, the alleged negative facts were not put before the Minister and this was conceded by Mr Prinsloo.

[23] Accordingly, I dismissed the application with costs because the facts of the case did not cry out for judicial interference.

B.E NKABINDE

JUDGE OF THE HIGH COURT

ATTORNEYS FOR THE APPLICANTS : MINCHIN & KELLY

ATTORNEYS FOR THE 1^ST RESPONDENT : STATE ATTORNEY