Professional Documents
Culture Documents
Respondent
----------
JUDGMENT
(d) for such other orders that the Court may deem fit to make.”
2
The initial affidavit in support of the Motion Paper contained seven grounds
for seeking relief but learned Counsel for the PSC stated at the hearing before us
that he would only be insisting on the following three grounds –
We consider that this belated stand of the PSC not to press the other grounds
is reasonable in the light of the fact that the Tribunal’s finding that both co-
respondents were eligible for the post of Road Transport Commissioner is not being
challenged in this application or indeed any cross-application by any of the co-
respondents. We need however to deplore the fact that this stand of the PSC comes
so late in the day; indeed, had the applicant not included the other four grounds in its
initial application, or had it informed the Court and the other parties earlier that it
would not be insisting on same, there would certainly not have been the need for all
of the four subsequent affidavits filed on behalf of the applicant, six affidavits on
behalf of the Tribunal, four affidavits on behalf of the first co-respondent and three
affidavits on behalf of the second co-respondent – an exceptionally high total number
of affidavits in an application for judicial review.
Our final preliminary observation with regard to the affidavits relates to the six
affidavits that the Tribunal has chosen to file. In his very first affidavit, the second co-
respondent took issue with the affidavit filed by the Tribunal at that stage on the
ground that the Tribunal was functus officio and was purporting in its affidavit to
expand materially and substantively on its determination and to emphasise “with
undue favour” the case for the first co-respondent. The second co-respondent
therefore moved that parts of the Tribunal’s affidavits be expunged or disregarded, to
which the Tribunal and the first co-respondent replied in their subsequent affidavits
that the Tribunal was under a duty to put all material facts submitted before it during
the hearing.
At the hearing before us, learned Senior Counsel for the second co-
respondent ably expanded on the issue of the lack of propriety of the Tribunal, as a
quasi-judicial body, purporting to reinforce or qualify its determination in affidavits
filed in this application. Learned Counsel for the Tribunal diffidently replied that the
affidavits of the Tribunal contained no averment over and above what is already in
the determination. We cannot agree. The contents of the Tribunal’s six affidavits,
which spanned over sixty-five A4 pages, were often argumentative in nature and
went far beyond restating the contents of its 19-page determination or objectively
correcting factual inaccuracies in the other parties’ affidavits. Further there was no
personal attack against the members of the respondent, as in Gungah v Sir Cassam
Moollan, QC & Ors [1998 SCJ 192], that might exceptionally have justified the filing
of an affidavit on behalf of a respondent body which is functus officio.
We are of the considered view that, in an application for judicial review of the
determination of a judicial or quasi-judicial body, the determination of the respondent
should speak for itself, unless the Court deems fit to bring up the record. It is most
unbecoming, if not improper, for a quasi-judicial body to enter the fray and seek to
refute particular averments in the other parties’ affidavits and to explain or justify its
determination. We shall therefore disregard averments in the Tribunal’s affidavits
which go beyond setting out factually the contents of the determination, the more so
as all Counsel have agreed that we bring up and consult the record leading to the
determination and we have therefore duly done so for the purpose of determining this
application.
4
The appeal before the Tribunal was made by Mr Khadun, the first co-
respondent, then appellant, against the decision of the PSC to appoint Mr Reesaul to
the post of Road Transport Commissioner at the National Transport Authority. The
operative parts of the five grounds of appeal lodged by the then appellant before the
Tribunal read as follows –
was not questioning Mr Reesaul’s degree in Engineering and Master’s Degree from
the University of Natal, South Africa.
A representative of the PSC deposed before the Tribunal and stated that the
PSC had found both Mr Khadun and Mr Reesaul to be eligible. The Tribunal found
however that the representative of the PSC had given “some very disturbing answers
concerning the eligibility of Co-Respondent” (the underlining is ours). The Tribunal
also requested for and considered confidential information from the PSC regarding
the weightage attached to each criterion and the markings of Mr Khadun and
Mr Reesaul.
The Tribunal stated that the issues which it had to address concerned
eligibility and markings as per relevant criteria. It stated that it had first to consider the
question of eligibility and would then address issues concerning the interview
process and how it was carried out. Since the issues were “intertwined”, the Tribunal
felt it had to delve into the proceedings and documents produced to ascertain which
qualifications were used to decide on the eligibility of the candidates and which ones
were considered to be “relevant additional qualifications” for the purpose of markings.
After directing itself to the provisions of the Public Bodies Appeal Tribunal Act stating
that any appeal to the Tribunal will be based on Grounds of Appeal filed within 21
days of notification of the appointment, the Tribunal went on to consider each ground
of appeal in turn. It is worth highlighting however that, after commenting on each
ground, the Tribunal made no finding as to whether that particular ground failed or
succeeded, except for ground 1(b).
Ground 1(a) was found to deal with the requirement of 5 years’ administrative/
managerial experience and ground 1(b) was discarded as the Tribunal found that it
was not really canvassed during the hearing. Ground 4 concerned reports submitted
on all candidates. Ground 5 was not pressed.
Under ground 2, the Tribunal considered the averment of the PSC to the
effect that Mr Reesaul was eligible under any of three qualifications (that is, the
Fellow of the Chartered Institute of Logistics and Transport (CILT); Bachelor of
Technology in Civil Engineering; and Master of Science in Transportation
Engineering) and found that the only condition for eligibility was Fellowship of CILT. It
took exception to the statement of the representative of the PSC to the effect that all
6
other qualifications questioned by the then appellant were “surplusage” and observed
as follows –
“The fact that the selection panel gave marks to the Co-Respondent
for additional qualifications buttresses the feeling of the Tribunal that
the additional qualifications, which Appellant has put in question (A
degree in Law not recognized by TEC and Doctor in Philosophy
degree from a doubtful institution) tilted the balance in favour of the
Co-Respondent. This is crucial when the total marks of Co-
Respondent was marginally above that of the Appellant”.
The operative part of the determination lies in its five final paragraphs in
which the Tribunal –
(a) finds that neither Mr Khadun nor Mr Reesaul “proved clearly” that he
satisfied the eligibility criteria at the time of the application. However,
the Tribunal declined to delve further into this issue and stated that it
was accepting the stand of the PSC on eligibility;
(c) stated that it “cannot accept the way that the markings were given
under the criterion “relevant additional qualification” for both parties
and found that the process was flawed” in view of the inconsistencies
regarding the exact qualifications assessed for the then co-respondent
as additional qualifications;
(d) acknowledged that it cannot substitute itself for the interviewing panel
but stated that it has wide powers to scrutinise the process; and
(3) The public body shall lodge before the Tribunal its
objections, if any, against such appeal.
(…)
We are of the view that the above provisions of section 6 of the PBAT Act
must be read, in the case of an appeal from a decision of the PSC before the PBAT,
together with the provisions of the Constitution on these two institutions.
The PSC is set up under section 88 of the Constitution, which also provides
for its composition. Section 89(1) of the Constitution provides as follows –
The PSC is to regulate its own procedure subject to regulation 118 of the
Constitution (see section 118(3) of the Constitution). Pursuant to section 118(1) of
the Constitution, the PSC has made regulations for regulating its performance of its
functions. For the purposes of this application, we would only highlight regulation
17(1) of the PSC Regulations, which reads as follows –
The Tribunal, for its part, is set up under section 91A of the Constitution
which was introduced by the Constitution (Amendment) Act [Act No. 9 of 2008],
which must be read together with the Public Bodies Appeal Tribunal Act [Act No.
10 of 2008] (“the PBAT Act”). The latter Act provides for “supplementary and
ancillary matters pertaining to the Public Bodies Appeal Tribunal, including its
jurisdiction, procedure, powers, proceedings and determination” (see sections 3 to 8
of the Act).
It is, in our view, clear from the above provisions of the Constitution that the
provisions of section 6 of the PBAT Act should be read strictly when the Tribunal is
hearing an appeal from a decision of the PSC; the Tribunal can therefore only
entertain a ground of appeal if it is “raised” in the grounds of appeal (see section
6(5)) and each ground of appeal has to be set out “concisely” and “precisely” (see
section 6(1)(a) of the PBAT Act). Although the PBAT is also set up under the
Constitution, it has to operate within the strict statutory parameters laid down in the
PBAT Act. Further, the need for the Tribunal to observe the principles of natural
justice in accordance with section 10(8) of the Constitution and section 7(6) of the
PBAT Act cannot be over-emphasised (see PSC v PBAT [2011 SCJ 382]).
grounds purporting to challenge the decision of the PSC, explicitly and “precisely”
challenges the way in which markings were attributed to Mr Reesaul under the
“relevant additional qualification” criterion for both parties.
Indeed, Grounds 2 and 3, which may possibly have been of some relevance,
both concern the assessment of the suitability and qualifications of the appellant, that
is, Mr Khadun. It is also worth noting that the statement of case purporting to
expatiate on the grounds of appeal refers, under the heading “Failure to assess
qualifications (Part B of the PSC Circular Note)”, to the failure of the interviewing
panel to put mandatory questions to him (Mr Khadun) at the interview stage, which
would have allowed the PSC to assess his skills and abilities for the purpose of Part
B (ii), (iii) and (iv) of the Vacancy Circular Note. This confirms that the “precise”
scope of Ground of Appeal 3 was to challenge the assessment by the PSC of the
suitability of Mr Khadun and not that of Mr Reesaul.
Nowhere is there in the Grounds of Appeal a basis for saying that the PSC
was wrong in the way in which it conducted the screening exercise and gave
“markings” under the criterion “relevant additional qualification” and that the whole
process was flawed as a result. This finding of the Tribunal appears, from the
determination, to be based on its assessment of the PSC’s screening exercise as
being “extremely unprofessional” and its disapproval of “inconsistencies regarding
the exact qualifications assessed” for Mr Reesaul.
It seems to us that at this stage the Tribunal had ceased to consider the
grounds of appeal and had based itself on a purported general power of supervision
over decisions of the PSC. Indeed, before quashing the decision of the PSC, it
states –
“Even if the Tribunal cannot substitute itself for the interviewing panel,
it has very wide powers to scrutinise the process as confirmed in the
case of PSC v PBAT ipo Mrs Man Lan Wong Chow Ming [2011
SCJ 382] (...)”
We therefore hold that the Tribunal acted ultra vires section 6(5) of the PBAT
Act in considering the markings and quashing the decision of the PSC on the ground
that the process was flawed, when those matters were not raised in the grounds of
appeal before the Tribunal. We need not in the circumstances consider the
remaining grounds raised by the applicant.
A.D. Narain
Judge
15 May 2019
-----------------------------