Employment law update – Job applicant seeks to set aside the decision of his prospective employer

October 1st, 2021

Booysen v Beaufort West Municipality and Another (LC) (unreported case no PR160/2019, 15-6-2021) (Van Niekerk J)

The respondent, the Beaufort West Municipality (the Municipality) advertised for the post of Director: Community Services. The applicant, who was not an employee of the Municipality, applied for the post, was short-listed and received the highest score among all the candidates who applied for the position. Despite this, the Municipality decided to re-advertise the post.

On his second attempt the applicant was ranked second, however, the Municipality decided to appoint the second respondent, who immediately prior, had resigned as one of the Municipality’s councillors and applied for the position.

Arguing that the Municipality’s decision was based on political interference and corruption, the applicant approached the Labour Court (LC) seeking an order to review the Municipality’s decision not to appoint him and to further review and set aside its decision to appoint the second respondent.

The Municipality raised the point that the LC lacked jurisdiction to entertain the applicant’s claim.

In dealing only with the point in limine, the court began by unpacking the nature of the applicant’s claim. Having read the applicant’s notice of motion, as well as his founding affidavit, the court concluded that the applicant sought to invoke the legality review as per s 158(1)(h) of the Labour Relations Act 66 of 1995 (LRA),  as well as his constitutional right to fair labour practice relying directly on s 23 of the Constitution and indirectly on s 186(2) of the LRA.

The Municipality argued that irrespective of the nature of the applicant’s claim, the LC lacked jurisdiction on the grounds that the applicant was never an employee of the Municipality. In amplifying its argument, the Municipality relied on the wording of s 158(1)(h), which states that the LC can review any decision taken by the state as ‘employer’. In this case, so it was argued, the Municipality was never the employer of the applicant.

The court firstly addressed the applicant’s claim asserting his constitutional right to fair labour practice in terms of s 23 of the Constitution. To the extent the applicant’s claim was that his right to fair labour practice had been threatened or violated by the Municipality’s actions. The court found it had jurisdiction to hear the matter in terms of s 157(2) of the LRA. Noting that there may be challenges the applicant could face should he pursue such an argument, the court nevertheless found that those issues were issues, which went to the merits of the applicant’s claim and not issues around the court’s jurisdiction.

If, however, the applicant sought to rely on any of the provisions in s 186(2)(a) to (d), that being the instances of unfair labour practices set out in the LRA, the court held that it would not have jurisdiction as it is only the Commission for Conciliation, Mediation and Arbitration (CCMA) or the appropriate bargaining council, which could hear such matters.

Turning to the legality review and in particular the wording of s 158(1)(h), the LC stated:

‘The LRA seeks, amongst other things, to give expression to the constitutional rights to fair labour practices and the freedom of association. Although the definition of unfair labour practices in the LRA is limited to those persons in employment, section 5(2) of the Act protects persons seeking employment against violations of the right to freedom of association. In other words, the LRA recognises that in some circumstances at least, applicants for employment are entitled to statutory protections of their fundamental rights. … Section 158(1)(h) makes no reference to an employment relationship with any particular employee. The absence of the pronoun “an” before “employer” is not insignificant. What this indicates is that the sole determinant is that the impugned decision or act must be one performed in the capacity of an employer, not as the employer of the employee seeking the remedy of review. In short, section 158(1)(h) is a self-standing, jurisdiction conferring provision capable of bearing the interpretation for which the applicant contends.’

Moving on to the applicant’s heads of arguments, the court addressed the notion that there was a ‘contractual dimension’ to the applicant’s claim. While accepting that the court has jurisdiction to hear contractual claims arising out of an employment contract, the court found there was no employment contract between the applicant and the Municipality. Therefore, there was no contractual dispute before the court.

In summary the court found:

‘In so far as the applicant seeks to enforce directly a claim based on the right to fair labour practices, this court has jurisdiction except to the extent that he seeks directly to enforce section 186(2) of the LRA. In so far as the applicant seeks to review and set aside the resolution to appoint a competing candidate on the grounds of legality or the PAJA [Promotion of Administrative Justice Act 3 of 2000], this court has jurisdiction in terms of section 158(1)(h).’

Costs of the in limine were reserved and the registrar was directed to set the matter down on the opposed motion roll.


Moksha Naidoo BA (Wits) LLB (UKZN) is a legal practitioner holding chambers at the Johannesburg Bar (Sandton), as well as the KwaZulu-Natal Bar (Durban).

This article was first published in De Rebus in 2021 (Oct) DR 35.

De Rebus