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2023
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[2023] ZAFSHC 123
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Mthimkulu v Head of Department: Department of Agriculture, Land Reform and Rural Development and Another (867/2023) [2023] ZAFSHC 123 (17 April 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
Number 867/2023
In
the matter of:
PETUNIA
MTHIMKULU
APPLICANT
And
HEAD
OF DEPARTMENT: DEPARTMENT OF
AGRICULTURE,
LAND REFORM & RURAL
DEVELOPMENT
FIRST RESPONDENT
MEMBER
OF EXECUTIVE COUNCIL:
DEPARTMENT
OF AGRICULTURE,
LAND
REFORM & RURAL DEVELOPMENT
SECOND
RESPONDENT
CORAM:
NAIDOO, J
HEARD
ON:
27 MARCH 2023
DELIVERED
ON: 17
APRIL 2023
JUDGMENT
[1]
This matter came before me as an urgent application in which the
applicant
sought an order,
inter alia
, declaring the first
respondent to be in contempt of court and committing him to prison
for six months, suspended on certain conditions.
The applicant’s
reason for moving this application on an urgent basis was that the
order from which this application emanates
was granted as an urgent
order. The application was opposed by the first respondent. Adv (Mr)
MS Mazibuko represented the applicant
and Adv (Mr) B Masihleho
represented the first respondent. The second respondent did not
participate in these proceedings.
[2]
The applicant sought an order in the following terms:
“
1
That the applicant’s non-compliance with the prescribed
requirements pertaining
to form, service and time periods be condoned
and that this matter be heard as one of urgency as envisaged in Rule
6(12) of the
Uniform Rules of Court;
2
That the first respondent be declared and/or found to be in contempt
of
the order of this Court granted by Justice Loubser under case
number: 867/2023 on 28 February 2023;
3
That the First Respondent be committed to prison for a period of six
(6)
months, which sanction will be suspended on such terms and
conditions as the Court may deem appropriate, or alternatively a fine
in the amount determined by this Court as appropriate be imposed on
the First respondent;
4
That the first Respondent be ordered to pay the costs of this
application
on the scale of attorney-and-client.”
[3]
The order dated 28 February 2023 was granted by Loubser J in the
following
terms (the Loubser order):
“
1.
The Respondents shall, within 3 (three) days of the granting of this
order, enter and/or
update the applicant’s employment status on
the Personnel and Salary Management System (PERSAL) used for, amongst
others,
the administration of the public service payroll, and shall
carry out all necessary administrative processes to ensure that all
the applicant’s employment benefits are in place effective from
I February 2023, in accordance with the undated letter of
appointment
by the First Respondent which has been attached to the founding
affidavit as annexure “FA2” and accepted
by the Applicant
in writing on 4 January 2023 (hereinafter “the appointment
letter”);
2.
Save for the above orders, this order does not in any way deprive the
parties
of any of their rights and does not constitute an abandonment
or waiver of any of their rights arising from the appointment letter,
whether or not such rights have been raised in these proceedings or
form the subject matter thereof.
3.
The Second Respondent in his official capacity, as cited herein,
shall pay the
costs of the application, excluding the wasted costs
occasioned by the postponement of the application on 24 February
2023”.
[4]
By way of background, the Department of Agriculture, Land Reform and
Rural
Development (the Department) advertised a vacancy for the post
of District Director in the Thabo Mofutsanyana District. The
applicant
applied for the post and was informed that her application
was successful. At the time, she was employed by the national
Department
of Agriculture, Land Reform and Rural Development She was
furnished with an undated letter of appointment which she accepted in
writing, and which she alleges occurred on 4 January 2022. Shortly
thereafter on 26 January 2022, the applicant was called to a
meeting
with officials of the Department and was advised that she had misled
the Department by indicating in her curriculum vitae
(CV) that she
held the post of Head of Office, when in fact she held the post of
Control Resource Auditor. There were also certain
other
misrepresentations that she allegedly made, which only later came to
the attention of the Department.
[5]
She was advised that when her application was considered, the
Department was
under the impression that the position she held with
her former employer was at Deputy Director level, which is the level
that
the Department was looking for. The post that she had held at
the time was at the level of Assistant Director, which was not the
level the Department was looking for. She was asked to withdraw from
the post, which she refused to do, as she was of the view
that she
met the requirements stipulated in the advertisement. Subsequent
interactions with the Departmental officials were not
successful,
leading to the application in respect of which Loubser J granted, on
28 February 2023, the order that I set out earlier.
[6]
It is not in dispute that the respondents were legally represented
and
that officials from the office of the first respondent were
present at court when the Loubser order was granted. The applicant
contends that the first respondent ought to have complied with the
latter mentioned order by 3 March 2023. Her legal representative
directed a letter to the State Attorney, who was representing the
respondents, on 6 March 2023 enquiring if the later had complied
with
the order Loubser order. She received no response and asserts that at
the time of launching this application, the order had
still not been
complied with. The applicant correctly set out in her Founding
Affidavit the requirements for granting the relief
sought in this
matter, namely, the existence of the order, notice of the order to
the respondent and non-compliance with the order.
It is not in
dispute that the order was granted after certain negotiations between
the legal representatives of both parties in
court. It is also not in
dispute that the first respondent had not complied with the order by
3 March 2023. Once notice of
the order on the respondent is
proved, the onus would then shift to the first respondent to prove
that such non-compliance was
not wilful or
mala fides
. What is
in dispute is service of the order on the first respondent
personally, as the applicant seeks an order for the first respondent
to be found guilty of contempt of court, and sentenced accordingly.
[7]
The first respondent, in Answer, set out the legal prescripts
relevant
to the recruitment and appointment of officials in the
public service sector. He asserts that after the letter of
appointment,
relied upon by the applicant, was furnished to her, the
respondents discovered the misrepresentation I referred to earlier.
This
was before the legally prescribed contract of employment was
signed. The matter was then referred to the second respondent (the
MEC) to invoke his powers in terms of the Regulation 67(9)(a) of the
Public Service Regulations, which require the MEC, before
making an
appointment or filling a post, to satisfy herself or himself that the
candidate qualifies in all respects for the relevant
post and that
all claims made by the applicant in his or her application have been
verified. Such verification is required to be
in writing. The
applicant was informed, in January and February 2023, of this step
taken by the first respondent, but she persisted
in launching the
application which resulted in the Loubser order.
[8]
The first respondent alleges that on the day the Loubser order was
taken, he was telephoned
by his legal representative and advised “
on
how they intend to best deal with the matter
”, and expected
that he “
would be favoured with a copy of the end product
”.
I take this latter assertion to refer to a copy of the court order,
which he asserts that he only received on 10 March
2023, after it was
sent to him by his secretary, via electronic mail (email). The latter
only received the email on 9 March 2023,
due to a network malfunction
since 6 March 2023.- The first respondent avers that he was not aware
of the order prior to 10 March
2023. The current application was
served on his secretary on 15 March 2023.
[9]
The first respondent explained that pending the decision of the MEC
regarding the
employment of the applicant, and after receipt of the
Loubser order, Ms Lombaard, the acting Chief Director for Corporate
Services
in his office, attempted to comply with the order, but
experienced difficulties as a result of procedures to be followed in
relation
to the Personnel and Salary Management System (PERSAL). He
explained that each national and each provincial department has its
own unique code on the PERSAL system and only specific users have
access thereto. In the present matter, a two-phase procedure was
necessary. Phase 1 required the releasing department to release the
applicant from the system of the national department and phase
2
would entail the Department completing the transfer of the applicant
by uploading her details onto the provincial PERSAL system.
Ms
Lombaard’s first attempt was unsuccessful, and her second
attempt on 13 March 2023 bore fruit. The transfer of the applicant
was completed on 15 March 2023, the same day that this application
was served on the first respondent.
[10]
Ms Lombaard advised the applicant’s legal
representative on 15 March 2023 of the steps that had been taken in
respect of compliance
with the Loubser order and that the applicant
would receive the outstanding benefits due to her on 23 March 2023,
via a supplementary
salary run to be initiated on 20 March 2023. Ms
Lombaard confirmed her actions in this matter by way of a
confirmatory affidavit
annexed to the Answering Affidavit. The first
respondent therefore asserts that he had fully complied with the
Loubser order on
15 March 2023.
[11]
With regard to urgency the first respondent asserts that the
applicant failed to
show that the court order was served on the
Department. He also complained that although the applicant obtained
the court order
on 28 February 2023, she only galvanised into action
ostensibly from 6 March 2023, and in so doing, placed the respondents
under
extreme time constraints in respect of filing answering papers.
Hence, any urgency she claims is self-created. In view of his
compliance
with the Loubser order and the lack of urgency in the
matter, the first respondent sought an order dismissing the
application,
with costs on the attorney and client scale.
[12]
In Reply, the applicant was at pains to refute that the first
respondent only became
aware of the Loubser order 10 March 2023 and
to point out that he would have had knowledge of the order on the day
that it was
granted, as he indicated that his legal representative
had a discussion with him about the order on that day. She also
pointed
out that Ms Lombaard “strangely” only acted on
receipt of the order on 9 March 2023, by contacting the national
department
at which she was employed, allegedly even before the first
respondent became aware of the order. The applicant also appeared to
refute the first respondent’s version that the Department’s
network malfunctioned between 6 and 9 March 2023, pointing
out that
the document attached in support of this allegation is not proof
thereof. She did not herself rely on any documentation
or other
evidence to refute the first respondent’s version in this
regard. The applicant reiterated that the first respondent
was in
wilful default and acted in bad faith by not complying with the court
order and persisted in the relief she sought.
[13]
In my view, the issue for this court to decide is whether the first
respondent acted
wilfully or in bad faith in not complying with the
court order by 3 March 2023. His assertion that he only became aware
of the
court order on 10 March 2023 seems, at first blush, to be
somewhat strange as, by his own admission, he was aware that an order
was taken or being taken. Having said that, it is not clear what the
exact nature of the discussion between him and his legal
representative was, but he appears to have known that some action was
called for on the part of the Department. His legal representative
advised him on how they intend to best deal with the matter. It is
also unclear as to when on that day this discussion took place
–
before or after the order was granted. While two officials from his
office were present in court when the order was granted,
there is
nothing to suggest that they either participated in the discussions
between the legal representatives of the parties,
or that the content
of the order was either made known to them or read out in open court.
[14]
Not much reliance can be placed on their knowledge of the content of
the court order.
Without any specific averments to this effect or
other evidence in respect of these matters, it is unwise to speculate
about what,
in fact, happened. As I indicated earlier, it seems that
the first respondent may have been aware that some action was
required
on the part of the Department. However, I am constrained to
dismiss his version that the actual order and contents thereof only
came to his attention on10 March 2023. Given Ms Lombaard’s
position, she too must have been aware that some action was required
on the part of the Department and acted as soon as she received the
order on 9 March 2023.
[15]
While it is so that the document attached as proof that SITA
confirmed downtime in respect the
Department’s network is in
fact email communications between what appears to be Departmental
officials, there is mention
in that string of communication that the
network was down and that it was reported to SITA. It is also true
that it does not reflect
the date of the communication, but the first
respondent has indicated under oath that the network was down between
6 and 9 March
2023, and in the absence of evidence refuting this, I
am unable to simply reject it out of hand. I cannot also hold,
against the
first respondent, what is either an oversight or an act
of carelessness on the part of those drafting the Answering
Affidavit,
in incorrectly referring to the annexure as a
communication from SITA. However, I take into account the time
constraints under
which the Answering Affidavit was drafted.
[16]
In deciding whether the first respondent wilfully and in bad faith,
failed or refused to comply
with the Loubser order, it is necessary
to consider the surrounding facts relevant to this matter. The first
respondent’s
version that he discovered, after the letter of
appointment was furnished to the applicant, that certain serious
misrepresentations
were made in the applicant’s application for
the relevant post, is not disputed. She agrees that she was called to
a meeting
where this was drawn to her attention and that she refused
the request for her to withdraw her application. The prescribed
employment
contract had not been signed at that stage, and as a
result, the first respondent followed prescribed procedure and
referred the
matter to the MEC for a decision, which he is
statutorily empowered to make.
[17]
A legal opinion and decision by the MEC were still awaited when the
application,
which served before Loubser J, was issued, in spite of
the applicant being informed that the matter was referred to the MEC
for
a decision. In the public interests and in the interests of good
governance, the recruitment, appointment, transfer and dismissal
of
public service employees is regulated by statute and the regulations
thereto. Compliance with such statutory provisions is mandatory,
as
it was in this case. On receipt of the court order, the Department
acted and secured the transfer of the applicant onto its
system by 15
March 2023. The legal representatives of the applicant were informed
of this and given specific dates by when the
process of paying the
applicant will be initiated and when she would be paid, namely 20
March 2023 and 23 March 2023, respectively.
[18]
The applicant had on that same day served this application on the
first respondent. This matter
was heard on 27 March 2023, some four
days after the date that the applicant was promised payment.
She made no mention
whatsoever either in Reply or in the oral argument in court that she
had received the letter from the first
respondent’s attorney
dated 15 March 2023 or any benefits at all. When the court pointedly
asked this of Mr Mazibuko, he
stated that not all the benefits were
uploaded. The court pursued the matter further and enquired of him if
all the benefits were
uploaded, whether it was the attitude of the
applicant that the first respondent still had to be punished. He
stated that those
were his instructions and added that it goes beyond
the parties and is a matter of public interest if there is
non-compliance.
[19]
As I alluded to earlier, the first respondent disputes service upon
him of the order against
him in his personal capacity, but admits
that after receipt of the email he received on 10 March 2023, he was
part of the initiatives
instituted by Ms Lombaard to comply with the
Loubser order. The prescribed procedure was followed in referring the
matter to the
MEC, and such was brought to the attention of the
applicant, prior to the launch of the application on which the
Loubser order
is based. Similarly, the applicant was advised on 15
March 2023 that her details were uploaded onto the Department’s
PERSAL
system and that she would receive her benefits on the date I
alluded to earlier. The applicant failed to mention that such
benefits
were in fact received by her and proceeded with this
application on the basis that the letter of the Loubser order was not
strictly
followed. Her attitude, as communicated by Mr Mazibuko, is
not only to use the process of court to obtain maximum benefit for
herself
but to punish the first respondent.
[20]
In my view, even if the first respondent was aware of the existence
of the order, there is no
evidence before me that he was aware of the
exact terms of the order. His evidence
that he only
became aware of the content of the order on 10 March
2023 cannot be refuted, and the steps taken by the first respondent
in order
to address the issues that had arisen in this matter are not
indicative of contempt of the Loubser order, or that such actions
were taken in bad faith. In my view, the applicant has failed to
establish all the elements necessary for the grant of an order
for
contempt of court.
[21]
In respect of urgency, while I agree with the submissions of the
first respondent in this regard,
I nevertheless decided to hear the
matter, in the interests of justice, as the expeditious resolution of
the matter would be in
the public interest.
[22]
With regard to costs, the applicant was aware on 15 March 2023 that
her details were uploaded
onto the Department’s PERSAL system,
and that she would receive payment of benefits due to her, a week
later. Her Replying
Affidavit was deposed to and filed on 22 March
2023, a day before she was due to receive payment of her benefits. At
that stage,
she was aware that paragraph 1 of the Loubser order had
been complied with, and instead of reconsidering her position and
avoiding
incurring and unnecessarily escalating costs, she simply
proceeded full steam ahead with this application, arguing
vociferously
for the relief that she sought. Her claim that the
public interest demands the grant of the relief she seeks rings
hollow in the
face of her own conduct and, in my view, there is no
reason for the first respondent to be mulcted in costs either in his
personal
or official capacity.
[23]
In the circumstances I make the following order:
23.1
The application is dismissed with costs, such costs to include the
wasted costs of 17 March
2023
S NAIDOO J
On
Behalf of the Applicants:
Adv
MS Mazibuko
Instructed
by:
Matlho
Attorneys
2
nd
Floor Metropolitan Building
96
Henry Street
Bloemfontein
(Ref:MD
Matlho/MTH1/0001)
On
Behalf of the Respondent:
Adv
B Masihleho
Instructed
by:
T
Moleko
State
Attorney
11
th
Floor, Fedsure Building
49
Charlotte Maxeke Street
Bloemfontein
(Ref:
701/202300175/P5M/tem)