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2023
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[2023] ZAFSHC 265
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Ndlanduleni v Member of the Executive Council Department of Treasury, Free State and Others (3238/2023) [2023] ZAFSHC 265 (29 June 2023)
IN THE HIGH COURT
OF SOUTH AFRICA,
FREE STATE
DIVISION, BLOEMFONTEIN
Case No: 3238/2023
REPORTABLE: YES/NO
OF
INTEREST TO OTHER JUDGES: YES/NO
CIRCULATE TO MAGISTRATES:
YES/NO
In
the matter between:
MURENDENI
NDLANDULENI
Applicant
and
MEMBER
OF THE EXECUTIVE COUNCIL
DEPARTMENT
OF TREASURY, FREE STATE
1
st
Respondent
HEAD
OF THE DEPARTMENT
DEPARTMENT
OF TREASURY, FREE STATE
2
nd
Respondent
MASECHABA
SESING
3
rd
Respondent
HEARD
ON:
28 JUNE 2023
JUDGMENT
BY
:
MHLAMBI, J
DELIVERED
ON:
29
JUNE 2023
[1] The
applicant approached the court on an urgent basis seeking an order in
the following terms:
“
1.
The applicant’s non-compliance with the forms and service and
time periods provided in the Uniform Rules of
Court is condoned and
that this application be heard as a matter of urgency in terms of
Rule 6(12) of the Rules of Court.
2.
It is declared that the applicant’s precautionary suspension
dated 20 June 2023, is unlawful and invalid.
3.
The second respondent is directed to uplift the precautionary
suspension of the applicant with immediate effect,
and restore the
status quo ante.
4.
The second respondent is restrained and prohibited from placing the
applicant on precautionary suspension,
without complying with Chapter
7 paragraphs 2.6 and 2.7(2) of the SMS Handbook.
5.
Third Respondent is ordered to pay the applicant’s costs in her
personal capacity and such costs may
not be recovered from the
department of provincial treasury, in whatever form or manner;
alternatively
6.
Second Respondent is ordered to pay the costs of the applicant on an
attorney and own client scale; and
7.
In the event the second respondent engages the service of an
attorney, a costs order de bonis is moved against
such attorney/s as
well, jointly and severally the one paying the other to be absolved.
8. That the applicant
is granted further and/or alternative relief.”
[2] The
application is opposed by the second and third respondents who
inter
alia
pleaded specially that the application is not urgent and any
alleged urgency was self-created. Furthermore, the applicant failed
to satisfy the requirements of a final interdict. The respondents’
answering affidavit addressed in detail and
ad seriatim
the
allegations contained in the founding affidavit.
[3] The
applicant filed a replying affidavit and a notice in terms of Rule
7(1) of the Uniform Rules of Court
before the start of the
proceedings. The respondents filed a power of attorney and a
confirmatory affidavit by one Rifumuni Bridget
Holeni, an office
manager in the department of treasury. The power of attorney was
signed by the third respondent, nominating and
appointing Rampai
Attorneys to oppose the urgent application on behalf of the second
and third respondents. The applicant contested
the authority of
Rampai Attorneys to act on behalf of the second and third
respondents.
[4] I
was concerned about the urgency of the application and requested the
parties to address me on that point
as it could be dispositive of the
application before adjudicating the merits. Rule 6(12) of the Uniform
Rules of Court provides
as follows:
“
(12)
(a) In urgent applications the court or a judge may dispense
with the forms and service provided for in these rules and
may
dispose of such matter at such time and place and in such manner and
in accordance with such procedure (which shall as far
as practicable
be in terms of these rules) as it deems fit.
(b)
In every affidavit
filed in support of any application under paragraph (a) of
this sub rule, the applicant must set forth
explicitly the
circumstances which are averred to render the matter urgent and the
reasons why the applicant claims that the applicant
could not be
afforded substantial redress at a hearing in due course.”
[5]
A brief background of the facts is as follows: On 08 June 2023, the
third respondent forwarded a letter to
the applicant charging him of
having circulated/carbon copied a letter addressed to her by the
first respondent to other officials
of the department who were her
subordinates. She perceived this act as undermining her authority and
enquired of the applicant
to furnish reasons for the said act on/ or
before 19 June 2023.
[6]
On 20 June 2023, in the absence of the applicant’s response,
the third respondent dispatched to him
a notice of pre-cautionary
suspension from his employment with the Department. On the same day,
the applicant consulted his attorneys
who addressed a letter to the
third respondent on 21 June 2023 demanding the applicant’s
suspension to be uplifted by 22
June 2023, failing which the courts
would be approached for the necessary relief.
[7]
The first respondent replied on 20 June 2023 to the third
respondent’s letter of the same date in which
the former was
advised of the applicant’s pre-cautionary suspension. The first
respondent decried her not having been consulted
about the
applicant’s suspension and gave the third respondent 24 hours
to recall the pre-cautionary suspension as the applicant
“
was
acting out on a request that had been issued directly by her to
carbon copy all the listed officials in the finance, corporate
services and legal units for information and action purposes
.”
The third
respondent was advised by the first respondent on 22 June 2023 that
the applicant was requested to resume office on 23
July 2023.
[8]
The applicant advised the first respondent on 22 June 2023 that he
had noted her instruction and directive
to report for duty. He stated
that he would work from home and attend to his function virtually
with effect from 23 Jun 2023. However,
as his pre-cautionary
suspension was yet to be uplifted by the third respondent, he had
instructed his legal representatives to
approach the court
“
to
have certainty regarding my return to work and the execution of my
functions within the Department.”
[9]
The application was served on the State Attorney on 23 June 2023 on
behalf of the respondents at 15h03 and
15h28. The second and third
respondents filed their notice to oppose through their current
attorneys on the same day at 16h54 and
the answering affidavit on 27
June 2023. The first respondent filed a notice to abide by the
decision of the court and a confirmatory
affidavit to the replying
affidavit on 28 June 2023.
[10]
The question that arises is: should this application have served
before this court at the time and manner that it did?
The applicant’s
founding affidavit sheds some light in this regard. In response to
the letter addressed to him by the third
respondent on 08 June 2023,
the applicant stated that:
“
25.
The letter enquires if I was instructed
to copy the other officials and whether such instruction was lawful
and reasonable. I was
directed to give an answer by 19 June 2023. I
attach a true copy of this letter hereto to marked annexure FA3.
26.
Undeniably, I did not respond to this question as I was not the
author of the letter issued
to the HOD, nor was I responsible for the
issuing of instructions to transmit the MEC’s letter and the
copying thereof to
the Departmental officials. The HOD should have
directed her enquiries to the MEC. I got the distinct impression that
I was being
shot as the messenger and I was now collateral damage
used as a scapegoat.
27.
I was proven correct in my impressions that I was being shot as a
messenger, as without
further ado, I was placed on the so-called
pre-cautionary suspension in a letter dated 20 June 2023, and signed
by the HOD.”
[11]
The applicant admitted that he was placed in possession on 22 June
2023 of the letters from the first respondent to the
HOD dated 20
June 2023 and 22 June 2023 respectively, in which the second
respondent was advised that the latter should recall
the suspension
within 24 hours and that he should report for duty on 23 June
2023.
[1]
[12]
The next question that arises is: at this stage, 22 June 2023, was it
necessary for the applicant to proceed with the
application which was
only launched on 23 June 2023 on the very same day that he was
instructed to return to work by the first
respondent? In my view, the
answer is a resounding no. The suspension was brought about by the
applicant’s own conduct when
he failed to respond to the third
respondent’s letter. His task at the time was a simple one,
namely, to inform the third
respondent that he had acted and
circulated the letter to the officials on the instructions of the
first respondent and/or he should
have informed the first respondent,
whom he considered as the employer, of the third respondent’s
letter. He failed to do
so.
[13]
He also failed to inform the first respondent of the third
respondent’s notice of suspension which he received
on 20 June
2023. Instead of doing so, he decided to approach his attorneys who
then engaged the third respondent through correspondence,
insisting
on the upliftment of the applicant’s suspension. Despite the
instruction by the first respondent that he should
return to work,
the applicant failed to discuss the matter with either the first or
the second respondent to resolve the apparent
conflict of
instructions.
[14]
It was argued by the applicant’s counsel that in the face of an
unlawful suspension and abuse of authority, the
applicant would
suffer a continuous violation of reputational dignity and be the
subject of perpetual abuse of power by the first
respondent if this
matter were not heard as one of urgency. The third respondent had no
power to suspend the applicant as the first
respondent was the
employer and not the third respondent. The third respondent’s
conduct flouted the principle of legality
which required public
functionaries to act within the bounds of the law.
[15]
In
East
Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite (Pty) Ltd
and others,
[2]
it
was stated that the applicant must state the reasons why he claims he
cannot be afforded substantial redress at a hearing in
due course.
The question of whether a matter is sufficiently urgent to be
enrolled and heard as an urgent application is underpinned
by the
issue of the absence of substantial redress in an application in due
course. The correct and crucial test is whether, if
the matter were
to follow its normal course as laid down by the rules, an applicant
will be afforded substantial redress. If he
cannot be afforded
substantial redress at a hearing in due course, then the matter
qualifies to be enrolled and heard as an urgent
application.
[16]
The applicant is of the view that the third respondent is the
employer of employees reporting under her line function,
which
excludes employees in the office of the first respondent.
[3]
The third respondent’s reliance on the SMS Handbook to the
exclusion of his contract of employment with the first respondent,
under whose supervision he serves, is enough evidence that the third
respondent is not his employer.
[4]
However, the applicant prayed in his notice of motion that the second
respondent be restrained and prohibited from placing the
applicant on
pre-cautionary suspension without complying with Chapter 7,
paragraphs 2.6 and 2.7(2) of the SMS Handbook.
[5]
This is strange as the applicant does not consider the third
respondent as his employer.
[17]
The respondent’s counsel argued that the applicant approbates
and reprobates in that the one moment he did not
consider the second
respondent as his employer and yet, in the same breath, he expected
her to comply with the provisions of the
SMS Handbook to effect a
precautionary suspension. The SMS Handbook applied only if the
decision was taken by the employer. Paragraph
2.8 of the SMS Handbook
defines an employer as (i) the head of the department in respect of
all members (excluding heads of department
in their capacity as
employees) or any member of his or her department designated to
perform the specific action and (ii) in respect
of heads of
departments, the relevant executing authority. Consequently, the
second respondent’s suspension of the applicant
was not illegal
and the applicant’s reliance on the principle of legality as
infusing the application with urgency is misplaced.
[18]
The respondents’ counsel contended that the applicant failed to
disclose in the founding affidavit the impediments to
his return to
his office or workplace now that he had been instructed to return to
work by the first respondent. It would appear
to me that the only
reason is that the third respondent refused to uplift the
suspension.
[6]
If an application
lacks the requisite element or degree of urgency, the court can, for
that reason, decline to exercise its powers
under rule 6(12) and the
matter would then not be properly on the roll. The appropriate order
under such circumstances is to strike
the application from the roll.
If a case has lost its urgency as a result of an interim arrangement
between the parties, the case
will not be enrolled otherwise than in
accordance with the rules.
[19]
In
Luna
Meubel Vervaardigers (Edms) Bpk v Makin (t/a Makin’s Furniture
Manufacturers)
[7]
it
was stated that:
“
Practitioners
should carefully analyse the facts of each case to determine, for the
purposes of setting the case down for hearing,
whether a greater or
lesser degree of relaxation of the Rules and of the ordinary practice
of the Court is required. The degree
of relaxation should not be
greater than the exigency of the case demands. It must be
commensurate therewith. Mere lip service
to the requirements of Rule
6 (12) (b) will not do and an applicant must make out a
case in the founding affidavit to
justify the particular extent of
the departure from the norm, which is involved in the time and day
for which the matter be set
down.”
[19]
In this matter, I am not persuaded that the
application is so urgent that it should be placed on the urgent roll
and stands to be
struck off for lack of urgency. It has failed to
comply with the provisions of Rule 6 (12) (b). I am of the view that
the respondents
were entitled to oppose the application taking into
account the circumstances and the prayers sought in the notice of
motion.
[20] It is trite
that the successful party is entitled to the costs. It was
unnecessary for the applicant to approach the
court in the manner
that they did on 23 June 2023 as he had received substantial redress
through the first respondent who had ordered
him to resume his duties
immediately.
[21] In the
premises, the following order issues:
Order:
The application is struck
from the roll with costs.
MHLAMBI, J
On
behalf of the Applicant:
Adv
Masihleho
Instructed
by:
Phatshoane
Henny Attorneys
35
Markgraaf Street
Bloemfontein
On
behalf of the 2
nd
& 3
rd
Respondent:
Adv.
H Molotsi SC
Instructed
by:
Rampai
Attorneys
82
Kellner Street
2
nd
Floor
Westdene
Bloemfontein
[1]
Paragraphs
36 and 38 of the Answering Affidavit.
[2]
2011
ZAGPJHC 196 (23 September 2011).
[3]
Paragraph
43 of the Replying Affidavit.
[4]
Paragraph
42 of the Replying Affidavit.
[5]
Prayer
4 of the Notice of Motion.
[6]
Paragraph
69 of the Founding Affidavit.
[7]
1977
(4) SA 135
(W).