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2014
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[2014] ZAGPJHC 400
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Zwane v MEC for Education and Another (3581/2011) [2014] ZAGPJHC 400 (1 August 2014)
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG LOCAL DIVISION
JOHANNESBURG)
Case No: 3581/2011
DATE: 01 AUGUST 2014
In the matter between:
SARAFINA FIKILE
ZWANE
....................................................
Plaintiff
And
MEC FOR
EDUCATION
..................................................
1st
Defendant
MINISTER OF
EDUCATION
...........................................
2nd
Defendant
JUDGMENT
FRANCIS J
Introduction
1… The plaintiff instituted an
action for damages against the first and second defendants on the
basis of the lex aquilia
after her house was sold in execution by a
commercial bank. She is claiming the current market value of her
house which was sold
by the sheriff at a public auction. She
contended that had the employees of the first defendant sent a letter
to the commercial
bank timeously that she was an employee of the
defendants and that there were some monies due to her, her house
would not have
been sold at an auction. The employees of the
defendants were negligent in the handling of the matter which
constitutes gross
negligence on the part of such employees. The
plaintiff has abandoned her claim for emotional shock, depression and
stress as
a result of her house that was sold.
2. At the commencement of the
proceedings, the court ordered that quantum be separated from the
merits and that the matter proceed
only on the merits.
The evidence led
3. The plaintiff testified and said
that she is a single mother of three children. She commenced her
employment with the Gauteng
Department of Education (the department)
in 1994 and was working at the laundry at King Edward School. In
2002 she was redeployed
and worked as a cleaner at the Isu’Lihle
Primary School which falls under district 14 of the department. She
is earning
about R7 000.00 per month and after deductions about R5
000.00 per month. She bought the house in 1997 for R77 000.00 and
when
it was sold by the bank at an auction, the balance was R30
000.00. She had made improvements on it. She took out a bond for
her
house at 8411 Protea Glen, Extension 11 initially with Saambou
Bank and the bond is now with First National Bank (FNB). She said
that her bond repayments were deducted from her salary and as proof
thereof she submitted BN14 which is her salary advice showing
that
the sum of R1 237.00 was deducted. The plaintiff said that she has
been having high blood since she was 16 years old and
is also
suffering from depression since her mother had passed away. She has
not been cured of her depression and is still on medication.
She
stopped working in 2005 due to her illness and remained at home until
2010. Her salary was stopped sometime between January
and March
2007. She did not receive any salary from 2007 to 2009 and was not
told if she had to work or not. She said that she
is reliant on her
salary from her employer. Whilst she was at home she completed some
forms to be placed on medical retirement
but only discovered in 2010
that her application was unsuccessful. After her salary was stopped
in 2007, she was unaware that
no deductions were made from her salary
for her bond until she had received a letter in 2008 from the bank
informing her that her
bond was not being paid off. After she had
received the letter from the bank, she went to her employer to
enquire whether she
was going to receive her money or if she had been
dismissed. She spoke with Musi Xaba (Xaba) who works in the human
resources
department. She told Xaba that she was sick and that she
was working at the school and had noted that her salary was not paid
to her and that she had received a letter from the bank stating that
her bond was not being paid. She enquired from him whether
her
salary was going to be paid or if she had been dismissed. He told
her to wait for the outcome of her application for medical
boarding
and to tell the bank that she was still waiting for the outcome of
her application for medical boarding. She went to
the department on
many occasions where she spoke with Xaba.
4. The plaintiff testified that as time
went on, she noticed that her salary had not been paid. She went to
see an attorney who
had tried to contact her employer but was but was
told that they were waiting for a response for her application for
medical boarding.
The bank had foreclosed her bond and had taken
legal action and had attached her house. She was notified by the
bank in 2009 that
her house was going to be sold. She went to the
department and told them that she was coming from offices of
president Zuma.
She had telephoned his hotline. She then met a
Ismail at the department who took her to Xaba. Ismail had asked Xaba
if he knew
that her house was going to be sold. He said that he
would telephone and make sure that she would get her money before
December
2009. She returned to the department in December 2009
since she had not received her money but found that the offices were
closed.
She was telephoned by the bank and as told that her house
was going to be sold at an auction on 22 January 2010. She went back
to the department in January 2010 after their offices had opened.
She told Xaba on a Thursday a week before the 22 January 2010
that
her house was going to be sold on 22 January 2010. Xaba told her
that she was going to receive her three years salary on
the same
Thursday of the week that her house was going to be sold but she did
not receive it. She then went to the bank with her
shop steward and
he spoke with the bank. After she had seen Xaba on that Thursday she
went back to the department a day before
the house was going to be
sold. She told Xaba that the house was going to be sold the next day
at 10h00 and he told her that the
money would be paid to her on the
Thursday.
5. The plaintiff testified that on the
day of the sale in execution, she went back with her twins to the
department before it had
opened its offices at 8h00. She had the
auction documents with her. They had been notified by the bank at
what time and hour her
house was going to be sold. She had told them
that the department had said that they were going to pay her the
arrear salary.
She first went to her shopsteward, Cedric who works
at the department. She told Cedric and showed him that her house was
going
to be sold. He took the documents and telephoned the auction
people and spoke to them in her presence and that of her children.
He had put the telephone and speaker phone and she could hear some of
the words that were uttered. They spoke in English and
she could
follow what they were saying. She heard Cedric saying that her house
was going to be sold and he wanted to know what
he could do to stop
the auction. Cedric told the person that he was talking with that
she was going to receive her money on the
Thursday and that it was
going to be paid into her bank account. She heard the other person
saying that he had to write a letter
stating that she would get the
money so that they could stop the auction. Cedric told her that they
had asked for a letter to be
sent to them before 10h00 stating that
she was going to get her money on the Thursday which would stop the
auction from proceeding.
They had given a fax number where the
letter had to be sent to. Cedric later also explained to her in
detail what had been discussed.
From Cedric’s office, she and
her children and Cedric went to Hlengiwe Biyela’s office. Her
twins remained sitting
at the door. Cedric spoke to her in Isizulu
which she understands and speaks. They greeted her and Cedric asked
her if she knew
about her case. She told him that she did. He then
told her that her house was about to be sold but they had requested
human
resources to write a letter. She told them that Xaba would
write it. The three of them went to Xaba’s office who was at
his desk and this was before 9h00. Biyela told him to write the
letter to confirm that she was going to get her money on the
Thursday. Xaba agreed that he would write the letter and Cedric
asked her if she had heard what he had said. She called her children
to witness what he had said. From there Cedric left and she went to
sit with her children and waited for Xaba to write the letter.
Cedric had told Biyela by what time the letter had to be sent namely
that it had to reach the auctioneers before 10h00 which was
the time
when the house was going to be auctioned. Biyela had told Xaba that
if the letter did not reach the auctioneers before
10h00, the house
was going to be sold. Xaba did not complain that he was given short
time to write the letter. She remained seated
with her children and
saw that the time was going on and saw that Xaba did not fax the
letter. She went to Xaba at 9h45 and told
him that they had said
that the letter had to be faxed before 10h00 or that it would be sold
and he responded that nothing has
ever been late. He was busy on his
computer. She went back to sit with her children and Xaba faxed the
letter after 11h00. She
left human resources and went to labour and
told them that Xaba had sent the letter. Cedric asked her if she had
telephoned the
auctioneers. She told him that she did not and he
said that he would telephone them. They said that they got the
letter but it
arrived late and that the house had already been
auctioned. She and her children went back to human resources and
told Xaba that
her house had been auctioned. He responded that it
did not matter since the people at Protea Glen were staying for free
and she
then went to the Chiawelo clinic.
6. During cross examination the
plaintiff denied that she liked to have things for free. She was
questioned about the reasons
for staying away from work which is not
relevant to the issue before me. She agreed that she stayed away
from work in 2003 and
had said that she does not know whether in 2003
she had exhausted all her leave because most of the time she was
informed that
she had no such leave. She said that there was a time
during 2004 and 2005 that she stayed at home for being sick and when
she
was sick she telephoned and said that she was either sick or in
hospital. She said that from 2007 to 2009 she did not receive her
salary. She said that the department adopted the no work no pay
principle. She defaulted with her payments to the bank between
2007
to 2009 and her house was eventually repossessed. She said that in
2008 she received court documents about the repossession
of her
house. She then tried to go to the department to ask for help and
she was already not receiving a salary. She then went
to the
department to ask them if they were going to pay her or they were
dismissing her. She tried to pay amounts of R300 and R500
which was
money that she had received from her children since they were working
temporarily. She agreed that the bank had taken
legal action against
her in 2008. She did not defend the court papers and decided to pay
the above amounts to try and prevent
the house from being sent. She
had a lawyer whose name she had forgotten but she did not defend the
bank’s action. She
then received a document from the bank that
the house had been sold. She did not agree that her house was
attached because she
had failed to defend the papers. It was put to
her that the mortgage agreement was between the plaintiff and the
bank. She agreed
that it could be like that but that when she bought
the house she was not told that it was between her and the bank but
she thought that it was an agreement
between her and the employer. She said that she could say that her
employer bought her the
house, since they were subsidising her. In
2006, she had received a salary and in 2007 and 2008 she received no
salary and she
thought that the department still had to pay off the
bond. It was put to her that the department has no legal basis to
buy houses
for its employees and she said ok. It was put to her that
it was the responsibility of every bond holder to meet their
financial
obligations of the bond with the bank and she said ok. She
agreed that she made her financial obligations since she did not get
an income anymore. When she realised that her house was going to be
sold she approached lawyers for legal assistance besides going
to the
department. When she got the letter that her house was going to be
sold on 22 January 2010, she did not consult an attorney.
It was put
to her that she wanted the department to buy her a house. She said
that she does not want the department to buy her
a house but to give
her a house since it was the department’s fault that her house
was sold. It was put to her that her
house was auctioned because she
had failed to meet her financial obligations to the bank. She agreed
but said that the reason
was that the department did not pay her
salary and when she used to be paid, her bond was up to date. It was
put to her that she
was not paid since she was not working. She said
that she was not rendering service as she was sick. It was put to her
that she
was sick and not incapacitated. She said that she felt
incapacitated and applied for medical boarding. She was questioned
about
her application for medical boarding which is not relevant to
the issue before me. She said that her house problem started in 2007
because she was not getting her salary. She could not honour her
bond due to not being paid her salary. It was put to her that
this
was the reason why the house was repossessed. She said that the
house was repossessed because the department had failed to
send the
letter that her salary would be paid. She said that she did not know
that once there was a court order against her that
she could apply
for a rescission of judgement. She did not approach a lawyer when
she received the letter that her house was going
to be sold in
execution to stay the execution. It was put to her that one of the
most appropriate remedy when a house is to be
sold, is to bring an
application to stay the execution. She said that she did not know it
at the time and she went to the department
to try and stop the
execution. It was put to her that the house was sold because of a
legitimate court order. She said that her
house was sold because the
department had failed to stop the sale by not sending the letter. In
2010 when she received the letter
that the house would be sold in
execution, she went to the department. She agreed that she consulted
the offices of Winnie Mandela.
She did so because she was sick in
hospital and when she was discharged from hospital the doctors found
a social worker for her
and the social worker referred her to Winnie
Mandela’s offices. She went there a month or two after her
house was sold and
discussed the matter with Winnie Mandela. She
went there because she wanted them to assist her with the issue of
her house. They
assisted her by finding her current attorneys for
her. After her house had been sold, she received money from the
department.
She said that the money was going to be used for the
house and that she had spent it. She did not pay the bond because
her house
had already been repossessed and the bank told her to wait
for a while until the issue of the house was sorted out. She used
the
money to pay off her medication. She received R32 000 on the
Thursday and the other came later in two trancts. The first amount
was for R32 258,96 and the second for R68 689.11. She would have
paid for the house had it not been auctioned and it was sold to the
other person. The money was back
pay from 2007 to 2010. It was put
to her that the department owes her nothing. She said that it owes
her. It was put to her
that they paid her for 3 and half years even
though she had rendered no services. She said that the government
paid her and she
went Soweto College to ask what happened to her.
She wants the department to pay her a house because if they had
written the letter
in time, they would not be in this position in
court. She was asked if she was serious about the claim and she said
that she was
and that it was painful to lose a house. She has now
gone back to work in district 14 and is getting a salary. She does
not go
to work every day as is almost sick every day. It was put to
her that her house was repossessed as she failed to meet her
financial
obligations and she said that she could not do it since she
was not getting a salary. It was put to her that they would say that
there was no legal basis to buy houses for employees. She said that
the government gives houses and wanted the question of subsidies
to
be explained to her. She agreed that housing subsidies and bonds are
two different things. The subsidy was from the employer.
It was put
to her that the bond was between employee and the bank. She said
that like she could not pay for the bond and was not
getting a
salary. It was put to her that the issue was her failure to pay the
bond. She said that she could not pay as the government
was not
paying her anymore. She said that she was now working. It was put
to her that she could apply for another house. She
said that she
will not get another house since she does not qualify for a bond.
She is getting a salary and is working. She was
asked whether it was
even though she received R100 000.00. She said that when she
received the money the house had been sold and
she was not paid a
salary for years. She was not paid the money because the house was
repossessed. She was referred to paragraph
8 of B8 which was read
into the record and that FNB did not give her anything. It was put
to her that in her evidence in chief
she said that the agreement made
and an undertaking letter was dispatched to the bank before 10h00 and
the department would deny
that they made an undertaking to send the
letter before 10h00. She said that Biyela and Xaba agreed to send
the letter before
10h00. She was asked if she communicated with the
bank or the lawyers of the bank. She said that she was talking to
the people
of the auction. She was asked if there was anything in
writing about the auction i.e. if they received a letter from the
department
that the house would not be sold. She said no and they
spoke telephonically. She was asked who she had spoken to
telephonically.
She said that Cedric spoke to the person on the
telephone and the day of the auction and she has the papers from them
and his
name appears on it. It was put to her that she does not have
all the details of the transaction on the day of the auction. She
said that they spoke in English and she heard part of it and in
particular she heard that the letter must be sent and received
before
10h00. She was asked if she heard the words ‘before 10h00’.
She said that those are the words in English that
she could hear and
some terms and the others she could not. There was a discussion
between Cedric and the people of the auction.
She was there with her
daughters and Cedric and the phone was on loudspeaker and said that
the letter had to be sent before 10h00.
7.During re-examination the plaintiff
was asked if the letter at C110 is the letter she was testifying
about. She said that she
could not compare it with the one that she
had in her possession. E1 was handed in as evidence and she was
asked if that was the
letter that Xaba sent to the bank. She said
that it looks like the one that he had sent. It was faxed an hour
later than it had
to be faxed. After it was faxed she was given the
letter after she had enquired about what had happened to the faxing.
It was
given to her on the same day by Xaba. He gave her the letter
because she had asked for it. After the letter had been faxed she
went back to Cedric and he telephoned the auctioneers and they said
that the auction had taken place and that the letter came late.
She,
Cedric, and her daughters went to human resources to confirm that the
letter had been faxed and that the house had already
been auctioned.
She said that she knows that the letter was faxed after 11h00 by
Xaba. She had given him the document to whom
the letter had to be
sent to. She was asked if she knew who it was directed to and she
said that she knows who it was directed
to but has forgotten. It was
directed to the auctioneers. She did not see the letter before it
was sent and does not know the
content of the letter.
8.The plaintiff’s first witness
was Amanda Zwane. She said that the plaintiff is her mother and her
house was sold in execution
on 22 January 2010. A day before the
sale in execution, they received a letter that the house was going to
be sold at an auction
on 22 January 2010 at 10h00. Her mother had
received the letter and she read it. The next morning they went to
her mother’s
workplace at the Soweto College. They left their
home at about 6h30 and got there before 08h30 and a lady told them to
wait.
They went to Cedric and explained to him and gave him the
letter. He telephoned the auctioneers and spoke to them and they
said
that they understood and said that they wanted a letter stating
that the house would be paid. He had put the telephone on the loud
speaker and the person on the other side that the letter should be
sent before 10h00. She could hear the conversation which was
in
English. She said that she is comfortable with English and has a
matric. She testified in court in English. They then went
to Biyela
who then took them to Xaba’s office with her mother and Cedric.
Biyela told Xaba that he needed to write a letter
before 10h00
either by email or by fax. She agreed in front of them when she
spoke to Xaba to have the letter typed and Xaba agreed
to do so.
Xaba told them to wait at the side of his office. They then waited.
They could see him from where they were they were
waiting. Before
10h00 she went to Cedric and told him that the letter had not been
faxed. Cedric took them to Musi Xaba and told
him that the letter
had to be faxed and he agreed that he was going to do it now now.
However, it was only faxed at about 11h00.
9.During cross examination she said
that her mother’s house was going to be sold in execution on 22
January 2010 and she went
with her mother to her workplace. She was
later joined by Cedric the shopsteward who telephoned the
auctioneers. A deal was reached
that the letter would be written and
sent to the auctioneers before 10h00. The letter was never faxed at
10h00 and was faxed after
10h00. She said that she does not know who
faxed it and was around his office when he faxed it. She and her
mother were present
and Cedric was not there when he sent it. After
he had sent it, they took the fax confirmation to Cedric. Her mother
should have
the fax confirmation and it was faxed after 10h00. She
saw the contents of the letter. They had stated that they were going
to
release her money but she does not recall what the letter said
about when it was going to be released. She said that the letter
had
to be faxed before 10h00 and this was a deal that was reached between
Cedric and the auctioneer. She said that she was in
Xaba’s
office when the letter was faxed.
10.The plaintiff’s second witness
was Lorraine Zodwa Zwane. She said that the matter was about the
plaintiff’s house
that was sold in execution on 22 January
2010. She is not related to the plaintiff. She knows about the
matter. She was not
involved in the sale in execution but knows that
the house was sold and the plaintiff came to their offices after the
house had
been sold. She is based at Winnie Mandela’s offices
and people come there with different problems. It is not like an
advice
centre. The plaintiff was in hospital and had been to many
places seeking assistance but did not get it. She was referred to
them by social workers after she had been to many places and did not
find any help. She then came to their offices after her house
had
been sold. She had explained to her that she was working at the
Isi’lihle school as a cleaner and had bought a house
whilst she
was still working. She said that her mother had passed away and was
not well thereafter and she stayed away from work
and they knew that
she was ill. Her salary was stopped and she tried to pay the banks
with less money than before. They then
telephoned her and told her
that her house was going to be sold in execution. She told the bank
that she had returned to work
and would be paid her arrears. The bank
requested a letter to confirm that she was back at work and would be
able to pay her arrears.
The house was going to be sold at 10h00 on
22 January 2010. She requested Xaba to write a letter that she had
returned to work
and was getting her salary and would be able to pay
her arrears. Had the bank received the letter before 10h00, it would
not have
sold the house and the bank received the letter after the
house had already been sold. She testified that after the plaintiff
had explained this to her she telephoned Xaba at the department of
education and told him that she was telephoning from Winnie Mandela’s
and was with the plaintiff who was complaining about her house that
was sold by the bank and that he had to send the letter before
10h00
and had sent it late. He admitted that he send the letter late. He
told her that it was not his job and that the plaintiff
had asked him
to send the letter but he was afraid and would write the letter and
she asked him that if he sent the letter why
he was not scared. He
said that he saw that the plaintiff was crying and was not well.
11.During cross examination she said
that the plaintiff contacted their offices after the house had been
sold. Before the house
was sold the plaintiff had not contacted
them. The information that she had was received from the plaintiff.
It was put to her
that her evidence in court was hearsay. She said
that she would not say so because the plaintiff told her something
and as they
went ahead it did not end there and it was the truth but
she had telephoned Musi Xaba and he admitted what the plaintiff told
her.
She was asked if the plaintiff gave her the background of her
problem. She said no but the main problem was that her house had
been sold. She had told her that she was sick and the department had
frozen her salary but she focussed on what she came to her
about the
selling of her house. She had said that she could not go to work
because she was sick. She said that she was told by
the plaintiff
that Xaba sent the letter to the bank and he had admitted to her that
he had sent the letter. She telephoned the
head of department and
was referred to Biyela who worked in the office of the head of
department who admitted that she knew about
the matter. She the
witness said that she does not know at what time the letter was sent
to the bank manager at FNB. It is the
letter of 22 January 2010 but
she was not shown the letter. When asked how she could testify about
a letter that she had not seen
she said that they had a meeting with
the bank managers at FNB, with the person who bought the house and
officials of the department
and them and the manager from FNB said
that he had unfortunately received the letter late and the house had
already been sold and
had they received the letter before 10h00 the
house would not have been sold. He told them that the balance on the
house was R30
000 and they sold the house for R150 000.00. It was
put to her that the plaintiff’s daughter said that the letter
was sent
to the auctioneers. She said that the bank manager said
that the letter was sent after the house had been sold and she was
saying
that it was sent to the bank manager. She was telling the
court what the bank manager told her. It was put to her that she was
not present when the letter was sent to the auctioneer. She agreed
that she was not there and the plaintiff made contact with
them after
the house had been auctioned. It was put to her that she could not
say with certainty that the letter was sent to the
bank. She said
that she could say that it was sent since the plaintiff, Biyela and
the bank managers all said that the letter
was sent late. This
included Xaba too. She was asked whether she was disputing the
plaintiff’s daughter’s version
that it was not sent to
the bank but to the auctioneers. She said that she was testifying
about what the bank manager told her
and she did not speak to the
plaintiff’s daughter. It was put to her that she could not say
with certainty that the letter
was sent to the bank manager. She
said that she was not there and did not know the plaintiff who came
to them after the house
had been sold. It was put to her that Xaba
will testify that they were approached on 22 January 2010 by the
plaintiff who told
him that she wanted a confirmation letter that her
back pay would be paid by the department and the letter that he sent
was addressed
to whom it may concern and not to the auctioneers or
the bank and that he cannot remember at what time it was sent but it
was early
in the morning. She said that if it was sent “To
whom it may concern” and if it came to the auctioneers they
have
would stop the sale. The fax number showed that they had
received it and the bank manager confirmed to her that it was
received.
Xaba would be lying if he says that he sent it early in
the morning. She spoke to him and he told her that he sent the
letter
late. It was put to her that he would say that the bank never
requested any letter from him. She said that the bank did not ask
Xaba for a letter since it was not his house and the bank
had
requested a letter from the employer to state that the plaintiff was
back at work and would be able to pay it back. The bank
told the
plaintiff to request the employer to send a letter. It was put to
her that the defendant will say that no letter was
requested from the
bank or authorities on 22 January 2010. She said that the bank had
asked the plaintiff that they wanted proof
that the plaintiff has
returned to work and the bank saw no need to contact the employer as
it was not their house and they called
the plaintiff and requested
such a letter. She said at the meeting they had with the bank
managers, officials of the department
and with the purchaser of the
house, she was shown the letter which she did not read.
12.The defendant first witness was
Rockland Joubert Mabasa. He testified that he is employed by the
Gauteng Education Department
and is a deputy education specialist for
five years and before that he was a labour relations officer in
Johannesburg Central.
He joined the department as a relations
officer in 2005. He has to ensure the discipline of employees and
that they comply with
policy issues like leave etc. In 2005 he
encountered problems with the plaintiff on the issue of absenteeism
which was brought
to their office by her line manager. She was
absent from work and had taken unauthorised leave from 2003, 2004,
2005 and part
of 2006. There was a long leave of absence and
unauthorised leave. During 2003 to 2006 the department paid her a
salary even
though the leave was unauthorised and it was not normal
to pay her. She was warned about the consequences of being absent.
As
a department, they communicated with her about leave of absence
and that the leave was not unauthorised and her salary was frozen
towards the end of 2006/2007. She was requested to contact them
failing which her salary would be freezed but she failed to do
so.
In 2007 she came to complete her application for medical incapacity
leave and did not return to work after she had completed
the said
forms. She was then absent from work from 2007 to 2010. Her
application was declined sometime in 2008/2009 as the report
that she
had used in support of her application for incapacity leave indicated
that she was fit for work. The documentation was
incomplete. Her
own doctor, Dr Haroon Essa a clinical psychologist stated in the
report that she was fit for work and should not
be boarded. Whilst
she was absent, he did not hear anything from her and he only heard
from her when her house was going to be
auctioned in 2010. As a
department they were not aware that she had a bond with the bank.
They only pay her salary and do not
care what she does with her
salary. He only heard that she had a problem with the bank and that
her house was auctioned because
she did not honour her financial
obligations with the bank. She did not approach the department for
help as early as 2007 when
her salary was frozen. She never
discussed the house issue with the department until her house was to
be sold. Her salary was
reinstated in early 2010 and she got her
other benefits. The back pay was from 2007 to 2010 and he does not
know if it included
her housing subsidy. She was paid about R100 000
and he does not know what she used it for. She was paid because
there was political
pressure from Winnie Mandela’s office and
when her salary was frozen she did not challenge it in court or bring
an application
to compel the department to approve her application to
be boarded off medically. Currently she is on and off from work.
13.During cross examination he was
questioned about issues that are not relevant to the issue before me.
Most of it related to
her being absent from work, her application
for being boarded off and whether she had notified the department
about her absence
and the freezing of her salary. He agreed that he
said that the plaintiff received her back pay when she was absent and
this was
due to political pressure. He agreed that Zodwa Zwane
testified that they became involved after the house had been sold
which
was on 22 January 2010 and that there was a letter of
communication between the Winnie Mandela office and them. The first
payment
was made on 25 January 2010 and the second payment on 7 April
2010 according to exhibits E2 and E3. He said that he became aware
of this matter after the house was sold. The Winnie Mandela office
communicated with them before the hose was sold in execution.
It was
put to him that the plaintiff would not have gone to the Winnie
Mandela office and complain that the house has been sold
and it was
not before 22 January 2010. He said that before the sale in
execution there was communication between head office but
not with
him personally. He said that he can remember a meeting at head
office where he had to explain what had happened. He
was at the
meeting long before the sale in execution. It was put to him that
the first payment was not made on 13 January 2010
and it was three
days after the sale in execution. He said that he was not sure about
when the exactly the payment was made. It
was put to him that the
plaintiff said that the first payment was made three days after the
sale in execution. He said that there
are people who could testify
about it. It was put to him that the balance on her bond was R30
000.00 and if she was paid on 13
January 2010 it would have wiped off
the balance. He said that he did not know when it was made. He said
that he saw that E1
was sent on 13 January 2010. The content of the
letter was read into the record and that it was common cause that it
was sent
on 22 January 2010. He said that he was not the author of
the letter and was not consulted about it. He said that she paid her
back pay because the department had succumbed to political pressure.
14.The defendant’s second witness
was Musi Petrus Xaba. He testified that he is employed by the
Gauteng Education Department
for 10 years. He is a personell officer
and makes appointments and deals with conditions of service. He
knows the plaintiff who
is an employee and is a person with a problem
of absenteeism. He knew her when she came to the office with a
problem of her
house that was going to be auctioned.
She came to see him on the day when her house was going to be
auctioned. She requested a
letter and confirmation that she was
working for the department and to confirm that there were monies due
to her and that her salary
would be paid soon. The letter that he
wrote is exhibit E1. It was addressed “To whom it may
concern”. He signed
the letter on behalf of H Biyela who is the
head of the department and she had to sign it. The letter was urgent
and he drafted
and signed it. He was not told that he had to address
it to a specific person. He said that it was common cause that the
house
was sold on 22 January 2010. There were no requests from any
bank for a letter. After he wrote the letter, the plaintiff provided
him with a fax number and asked him to fax it to. After he had done
so, he gave her the original letter. He does not know who
it was
addressed to or sent to. He had faxed the letter on her behalf on
the morning of the auction and does not know whether
it reached its
destination. He had to confirm that the money that was frozen would
be paid to her. The letter did not mention
when it would be paid and
did not make any commitment about when it would be paid.
15.During cross examination he said
that he knew that the letter was very urgent and that it was
important for it to be faxed as
soon as possible to prevent the house
from being sold. It was put to him that he knew because the
plaintiff told him to send to
avoid the sale in execution. He
disagreed and said that she had requested confirmation and that her
salary would be paid. The
plaintiff came to him with her union
representative and he cannot remember if there was another person
present. Biyela had instructed
him to prepare the letter and to give
it to the plaintiff since she was tied up in a meeting. She told him
to confirm that the
plaintiff was employed and that her salary would
be paid. He did not ask her any further questions and the plaintiff
told him
to fax it to a certain number. He prepared the letter and
gave it to the plaintiff and does not know what she did but she left.
It was the last time that he saw her and she did not return to him
to discuss any issues around the fact that her property was
being
sold. Biyela did not come to him and she had remained in her office.
She had instructed him telephonically to write a confirmation
letter
for the plaintiff. He then typed the letter and signed it and before
he gave it to her she had asked him to fax it and
he did so and gave
her the original letter. He said that the plaintiff came to him in
the morning but cannot remember if it was
at 8h00 or 11h00 and he
cannot say at what time Biyela instructed him to type the letter.
Biyela did not tell him why he had to
prepare the letter and had said
that he should prepare a confirmation letter that she was working and
that her salary would be
paid. The plaintiff did not tell him why it
had to be faxed. He said that when Cedric and the plaintiff were on
their way to
his office, Biyela instructed him but did not tell him
of the reasons. When the plaintiff and Cedric came to his office and
told
him that Biyela had asked them to come to him they did not tell
him why they needed the letter and did not tell him by when the
letter had to be faxed. He prepared the letter, signed it and faxed
it and gave the original to the plaintiff and she left and
he never
saw her again. The plaintiff’s version about what she did on
the morning of 22 January 2010 was put to him and
he said that it is
not true that Biyela and the plaintiff and Cedric walked to his
office and instructed him to write the letter.
He said that she did
not come and if she was there he would not have signed the letter on
her behalf. It was put to him that
the plaintiff’s version was
not challenged and he repeated that Biyela did not come to his office
but had instructed him
telephonically. It was put to him that the
plaintiff’s version was that she came to his office long before
10h00. He said
that he does not know what time it was when he
drafted the letter and that Cedric was present. She did not tell him
that it had
to be drafted and sent before 10h00. It was put to him
that her version was that he said that he would do so and she went
out
of his office and at 9h45 she realised that the time was moving
on and went back to him and asked him to fax it. He said that he
did
the letter immediately when Cedric was not there and does not know
why her version was not challenged. He denied that he told
the
plaintiff that nothing was ever late. It was put to him that her
version was that she went out and set with her daughter and
that the
letter was only faxed after 11h00. He said that it was faxed before
noon. He said that he cannot dispute the plaintiff’s
version
that after he had faxed the letter and had given her the original
that she went to Cedric who telephoned the auctioneer
and was told
that the letter had arrived after the property had been sold in
execution, since he was not a party to the telephonic
conversation.
He denied that she came to him and told
him that the house had been sold and that he told her that it does
not matter since the
people in Protea Glen were staying for free and
that it was not a big deal. It was put to him that her version was
not challenged
and that she went to the Chiawelo clinic. It was put
to him that the plaintiff went to him as she knew that her house was
going
to be sold and she, Biyela and Cedric came to him and told him
that the letter had to reach the other side before 10h00 and he had
failed to do so. He said that Biyela called him and requested him to
do the letter and he did so. It was put to him that the
probabilities are that because she came to his office and that an
undertaking was made and they waited on the chairs for the letter
to
be sent. He said that he was not sure of that. He was asked what he
meant with ‘not sure of that’. He said that
the letter
was given immediately when she came with Cedric and he does not know
why she went to sit on the chairs. He agreed that
E1 indicates that
it was urgent. He said that he does not recall being called by Zodwa
Zwane, the second witness. He said he
cannot deny receiving
telephone calls but cannot recall that she called him about that
incident. They dealt with the head office
and district offices. He
said that it is not true that he told her that he had sent the letter
late. He said that it could have
happened but does not recall if she
called him. He agreed that her version was not challenged. He said
that it is not true that
she came to him on 21 January 2010 and
instructed him to do the letter urgently and told him by what time it
had to be sent and
that he had undertaken to do so and that he had
decided not to comply for his own reasons and that he failed to do so
and faxed
it late long after the sale and she came to him and he told
her that it did not matter since the people were staying for free.
He said that on 22 January 2010 he always arrived at his workplace
before 8h00 and he remembers the incident. He does not know
why she
said that she came to him before 9h00 but she came long after 8h00
but cannot give a specific time but it could have been
an hour or 2
hours after 08h00.
Analysis of the evidence and arguments
raised
16. The plaintiff instituted an action
for damages against the defendants after her house was sold in
execution. Her case before
this court is that the employees of the
defendants were negligent in failing to send a letter to the bank on
22 January 2010 before
10h00. Had the letter been sent to the bank,
the sale in execution would not have proceeded. The bank had
required a letter from
her employer confirming that she was employed
by the department and that her salary was going to be paid to her.
The balance owing
on her bond was R30 000.00 at the time.
17. The plaintiff pleads specifically
in paragraph 12.5 of her particulars of claim that the staff members
of the department were
negligent in handling the matter in the
following respect that the authorities and staff members of the
department ought to have
replied timeously to a request of a letter
from the bank and they failed and/or refused to act timeously which
constituted gross
negligence on the part of their staff members. As
a result of the conduct of the staff members of the department, the
plaintiff
suffered damages to the amount of R500 000 which is the
current market value of her house which was sold by the sheriff at a
public
auction.
18. The defendant’s defence as
pleaded was that it had no legal duty to assist the plaintiff in
paying her bond. The payment
of the bond is a matter between the
plaintiff and the bank and the plaintiff has a duty to meet all her
financial obligations.
19. The plaintiff’s claim is
founded on the lex aquilia. Since the parties have reached an
agreement and this court had ordered
that the issue of liability be
separated from quantum, the issue of causation need not be considered
at this stage.
20. The facts in this matter are not
complicated. It is common cause that the plaintiff is an employee of
the department and that
she had been absent from her workplace during
2003 to 2005 due to her being diagnosed with hypertension and major
depression.
The defendant implemented the no work no pay principle
and there is some dispute about whether this was conveyed to the
plaintiff.
Nothing turns around this. Sometime in 2005 the
plaintiff applied to be medically boarded off and completed the
necessary forms.
She included a report from her doctor who did not
support her application that she was incapacitated. The plaintiff
did not report
for work during 2007 and 2010 and her salary was
stopped. As a result of her salary being stopped she could not pay
back her bond
repayments which resulted in judgment been taken
against he and her bond been foreclosed by the bank. She had
received the banks
court documents but did not oppose the
application. She attempted and made payments to pay the bank
whenever she could with the
assistance of her children.
21. In January 2010 she received a
letter from the bank informing her that her house was going to be
sold in execution on 22 January
2010. She approached her employer
about it and was told that her salary was going to be paid on the
Thursday of the week of the
sale. She then sought the assistance of
her shop steward Cedric. On the morning of the sale in execution her
shop steward telephoned
the auctioneers who were selling her house.
They told him that they needed to be furnished with a letter from her
employer confirming
that she was employed by them and that her money
was going to be paid. The letter had to be faxed to them on the same
day before
10h00. The letter was only faxed to the bank after 11h00.
The bank sold the house at 10h00 when no letter came from the first
defendant stating that the plaintiff was employed by the first
defendant and that she would be paid her arrear salary.
22.The defendants called two witness in
support of their case. The main witness was Xaba. He admitted that
he was approached by
Cedric and the plaintiff for a letter that had
to be sent to the bank. He denied however that he was told by when
the letter had
to be sent. He also denied that Biyela came to his
office but had asked him telephonically to write the letter. There
was no
explanation given why Biyela was not called as a witness. She
was an important witness and should have been called by the
defendants.
She would either have supported the defendants case
about what time she had told Xaba to send the letter. She would have
confirmed
what her exact words to Xaba was.
23. As stated earlier the plaintiff’s
case was that the bank had requested that the letter be sent before
10h00 to stay the
sale in execution. They had approached Biyela who
then took them to Xaba and instructed him to prepare a letter and
transmit it
to the Bank before 10h00. They were told by Xaba to wait
outside his office. They again approached him by 9h45 to enquire
whether
the letter had be sent. He told them things were never late.
They were given a letter after 11h00. She approached her
shopsteward
who then telephoned the auctioneers in her presence.
They were told that the house was auctioned after they had failed to
send
the letter before 10h00. The letter was only received after the
house had been sold.
24. Ms Zodwa Zwane confirmed that she
had spoken to Xaba. She telephoned Xaba who told her that he had
sent the letter late. Her
evidence was not disputed or contested.
The obvious question that arises is why he would have told her that
he had sent the letter
late if the plaintiff did not tell him by when
the letter had to be sent. The plaintiff’s evidence as well
as that of
her daughter that Biyela had told him in their presence to
send the letter by 10h00 was not disputed.
25. The defendants stated that it has
no duty to pay the bond of its employees. The key question is whether
the bank would have
sold the house if it had received the letter
before 10h00. The answer is that if the letter was sent before 10h00
the bank would
not have sold the house. The next question is whether
the defendants knew that the letter had to be sent before 10h00. The
answer
to the question is that the Biyela knew that the letter had to
be sent before 10h00. She had then instructed Xaba to send the
letter before 10h00 which he did not do. It is as a result of his
failure to do so, that the house was sold at an auction.
26. I am satisfied that the plaintiff
has proven on a balance of probabilities that her house was sold as a
result of the defendants
to send a letter confirming that she was
going to be paid her arrear salary. The letter had to be sent before
10h00 on 22 January
2010 and was only sent after 10h00. It is as a
result of this that the house was sold.
27. The defendants are therefore liable
for the damages that the plaintiff may be able to prove at a later
stage.
28. There is no reason why costs should
not follow the result.
29. In the circumstances I make the
following order:
29.1 The defendants are liable for the
damages that the plaintiff may be able to prove.
29.2 The defendants are to pay the
costs of the action.
FRANCIS J
HIGH COURT JUDGE
FOR THE PLAINTIFF : L P MKHIZE
INSTRUCTED BY DUDULA INC
FOR DEFENDANTS : B SHABALALA
INSTRUCTED BY STATE ATTORNEY
DATE OF JUDGMENT : 1 AUGUST 2014