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2023
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[2023] ZAFSHC 259
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Sani v MEC: Department of Economic, Small Business Development, Tourism and Environmental Affairs, Free State Province and Others (785/2022) [2023] ZAFSHC 259 (3 July 2023)
IN THE HIGH COURT OF SOUTH
AFRICA,
FREE STATE DIVISION,
BLOEMFONTEIN
Case No: 785/2022
REPORTABLE: YES/NO
OF
INTEREST TO OTHER JUDGES: YES/NO
CIRCULATE TO MAGISTRATES: YES/NO
In the matter between:
MBUYISELO
SANI
Applicant
and
MEC:
DEPERTMENT OF ECONOMIC,
SMALL
BUSINESS DEVELOPMENT,
TOURISM
AND ENVIRONMENTAL AFFAIRS,
FREE
STATE PROVINCE
1
st
Respondent
HOD:
DEPERTMENT OF ECONOMIC,
SMALL
BUSINESS DEVELOPMENT,
TOURISM
AND ENVIRONMENTAL AFFAIRS,
FREE
STATE PROVINCE
2
nd
Respondent
THE
PUBLIC SERVICE COMMISSION
3
rd
Respondent
HEARD
ON:
13 FEBRUARY 2023
CORAM:
NAIDOO J
et
BOMELA,
AJ
JUDGMENT BY
:
NAIDOO J
DELIVERED
ON:
03 JULY
2023
[1] The
applicant comes before us in terms of Uniform Rule 53, seeking to
review and set aside the
decision of the second respondent who
refused his application for examination leave. The first and second
respondents filed a Notice
of Intention to Oppose the application.
They, however, failed to file an Answering Affidavit. The third
respondent filed a Notice
to Abide by the decision of the court. The
applicant sought no relief against the third respondent and cited it
in this case, as
it may have a substantial interest in these
proceedings. For convenience I will refer to the first respondent as
“the MEC”
or “the first respondent” and the
second respondent as “the HOD” or “the second
respondent”.
Adv P Chaka represented the applicant. There
was no appearance on behalf of the first and second respondents. The
applicant
sought an order in the following terms:
“
1.
That the decision of the Second Respondent, dated 31 January 2020 to
refuse the leave request duly
submitted by the Applicant for the
period of 5 February 2020 until 17 February 2020 on the basis that it
does not fall within the
ambit of paragraph 6.1.2 (“Examination
leave”) of the Special Leave Policy is reviewed, corrected
and/or set aside.
2
It is declared that the Applicant’s field of Study (Theology)
is in the interest
of the Public Service as stipulated in the
provision of paragraph 6.1.2 of the Special Leave Policy.
3.
In so far as may be necessary, the period of one hundred and eighty
(180) days referred to
in Section 7(1) of the Promotion of
Administrative Justice Act (“PAJA”) is extended to the
date of the launch of this
application.
4.
The cost of this application be paid by the First and Second
Respondent jointly and severally,
in the event of opposition.”
[2] The
applicant, who is currently retired, was prior to such retirement,
employed in the department
of the second respondent as a Chief
Director for Strategic Planning and Research. On or about 31 January
2020, the applicant submitted
a written request to the second
respondent for special leave for the period 5 February to 17 February
2020, being nine (9) days,
to enable him to write and complete his
examination for a qualification in Theology. The HOD refused the
request, and addressed
a letter to the applicant and stated in
paragraph 2 thereof:
“
Kindly take
note that your application for leave for examination for the period 5
February 2020 until 17 February 2020 is not approved
as per paragraph
6.1.2 of the Special Leave Policy. However you can use your normal
leave days for this purpose”
[3] The
Special Leave Policy for the Department of Economic, Small Business
Development, Tourism and
Environmental Affairs (DESTEA), was attached
to the papers and referred to by the applicant in oral argument and
in his Heads of
Argument. The applicant relies on paragraph 6.1.2
thereof, headed “
Examination Leave
”, as the basis
for the relief he seeks. It reads:
“
(a)
One working day special leave with full pay may be granted to an
employee for each day on which he/she
sits for a final examination
which, in the opinion of the Head of Department,
(i)
has the objective to better equip the
person concerned for a career in the public service, irrespective of
whether it relates to
his/her immediate field of work or not, or
(ii)
is in a field of study, which is in full or
in part in the interest of the public service.
(b) The
examination referred to above may include ordinary School subjects up
to Grade 12.
(c) If
the special leave above granted precedes and follows a day of rest,
such day(s) of rest must
be disregarded when calculating the number
of special leave days to be granted to an employee.
(d) Two
working days special leave with full pay may be granted to an
employee for preparation in
connection with his/her final
examination.
(e) This
provision may be applied
only once
in respect of a
re-examination or an examination which an employee failed and which
he/she has to repeat.
(f)
One day’s special leave may be granted to employees for
supplementary examinations
. This provision is may (sic)
be applied only
once
to the same subject and if the
employee repeats the subject and is subject to supplementary
examination, vacation leave may be
utilised,
(g)
Special leave may only be granted for bona fide final examinations.
Final examination include
(sic) all examination that lead to the
conclusion of a subject (including semester courses)”.
[4] The
applicant met with and discussed the matter with the second
respondent’s Labour Relations
Representative who merely advised
him that the HOD has the discretion to grant or decline the leave.
He escalated the matter
for consideration by the first respondent,
who did not respond. The applicant then lodged a grievance with the
third respondent,
who called for reasons from the HOD for refusing to
grant the applicant special leave. The reasons were furnished to the
third
respondent, based upon which, it found that the applicant’s
allegations in respect of the HOD’s the non-approval of
his
examination leave to be unsubstantiated. He thereafter launched the
current application.
[5]
The applicant alleges that while he was studying Theology, it
enabled him to perform certain services, which
included officiating
at marriages, providing pastoral counselling at certain government
departments as part of the employee wellness
programme and providing
spiritual services as a chaplain at various Correctional Services
Centres, Department of Health and Department
of Social Development. I
note that he did not indicate whether these services were undertaken
in the course of his employment or
in his private capacity
[6] The
applicant does not dispute that the HOD has the discretion to approve
or refuse an application
for examination leave. He hinges his
challenge on the fact that the examination leave policy does not
specify or define what studies
are in the public interest or better
equip a person for a career in the public service. The HOD had not
indicated what factors
he took into account in refusing the request
for examination leave, and in the absence of such reasons, the
applicant argues that
it was evident the decision to refuse
examination leave was taken in bad faith and/or arbitrarily and/or
capriciously. The applicant
further alleges that the provisions of
the Leave Policy are irrational as they entitle the HOD to take any
decision he sees fit
with the result that an affected employee will
have no right of recourse, as the HOD has exercised his discretion
with impunity.
[7] The
applicant argues that the decision of the HOD in this matter is
materially flawed and cannot
be considered justifiable in terms of
section 6(2)(e)(v) of the Promotion of Administrative Justice Act 3
of 2000 (PAJA). He therefore
relies on the following grounds in his
quest for the review and setting aside the impugned decision of the
HOD:
7.1 The
discretionary power conferred on the HOD is manifestly arbitrary;
7.2 The policy
does not define what constitutes “
interest of the public
service
”;
7.3 The policy
does not define the career that is considered to better equip an
employee in the public service.
[8] DESTEA furnished the
record relevant to this matter and the reasons for the HOD’s
decision, upon request by
the applicant. The decision to refuse the
application for examination leave was communicated to the applicant
in a letter dated
31 January 2020. DESTEA was requested by the third
respondent, in a letter dated 18 August 2020, to furnish reasons for
the non-approval
of the applicant’s application for examination
leave. Their response, dated 27 August 2020, was,
inter
alia
,
that in view of the fact that the applicant’s “
application
for examination leave was to pursue course
(sic)
in Theology,
the Department is of the opinion that the field of study is not in
the interest of the department or the public service
in general
”.
The third respondent on 25 November 2020, addressed a letter to the
applicant communicating its decision that his claim
was
unsubstantiated. The additional reasons furnished by DESTEA/the HOD
in its Record and Reasons furnished to the applicant are:
“
1
Paragraph 6.1.2 of the Special Leave Policy
2
Special leave is granted by the discretion of the HOD or his delegate
and it is not
a right.
3
The Applicant, Mr Sani, was already leaving the Public Service as he
went on pension
during November 2020, thus he was not going to serve
the interest of the public.
4
The Applicant ended up filling the annual leave form as mentioned in
the letter dated
31 January 2020”
[9] The
applicant did not take issue with the reasons or the record furnished
by DESTEA. It is apparent
from the record that, following upon the
decision of the HOD, communicated to him on 31 January 2020, the
applicant did indeed
apply, on 4 February 2020, for annual leave in
respect of the very period which was not approved as special leave by
the HOD. The
applicant alleges that he was not paid for the period of
leave that he applied for, but provided no proof of this. He has in
addition
not alleged or proved that he has suffered any prejudice.
When this was pointed out to Mr Chaka and he was asked what would be
the purpose and effect of an order made three years after the event,
he replied that the applicant is entitled to be paid for the
9 days
leave, for which he received no payment. It therefore appears that
the primary objective of the applicant is to secure payment
for the 9
days’ leave that he utilised in 2020. Mr Chaka also conceded
that the initial application for special leave by
the applicant, did
not, in any event, comply with the provisions of 6.1.2 (a) or (d),
which the applicant relies on.
[10] It is trite that the onus rests
on the applicant to make out a case for the relief he seeks. In this
matter, the applicant
did not even deal with the fact that he applied
for annual leave, and that he was not paid for such leave, nor did he
dispute or
challenge the validity of the reasons advanced by the HOD,
namely that the applicant had applied for annual leave, that he was
due to retire a few months later, in November 2020, and in fact did
so, and that in the opinion of the HOD, Theology was not a course
of
study that would be in the interests of the public service. As I
indicated earlier, it is unclear whether the pastoral and religious
services that the applicant rendered to certain government
departments was a private service or at the behest of his employer,
or any other government source, in his official capacity
[11] The applicant
applied for the extension of the period of 180 days stipulated in
section 7(1) of PAJA, within
which to bring an application to court
for the review of an administrative action. The applicant relies on
the provisions of section
6(2) (v) and (vi) of PAJA in that he
alleges in Founding that the decision taken by the HOD, absent any
reasons therefor, was taken
in bad faith and/or arbitrarily and/or
capriciously. After such reasons were furnished, the applicant did
not apply for leave to
file a Supplementary Affidavit to deal with
such reasons, so that this court must accept the applicant’s
acquiescence in
the validity of such reasons. In view thereof, it
becomes unnecessary to deal with the relief sought in terms of PAJA,
I accordingly
refrain from doing so. Even if the applicant did
counter the reasons furnished by the HOD, he has not adequately
explained or justified
the delay in bringing these proceedings to
court.
[12] With regard to costs,
the applicant sought costs only in the event that the respondents
opposed the application.
Although the M EC and HOD filed a Notice to
Oppose, they took the matter no further and the hearing proceeded on
an unopposed basis.
I am of the view that no costs order is necessary
in this matter
[13] In the
circumstances, the following order is made:
The application is dismissed, with no
order as to costs
NAIDOO. J
I concur
L BOMELA AJ
On
behalf of the applicant:
Adv
P Chaka
Instructed
by:
Matlho
Attorneys
2
nd
Floor, Metropolitan Building
96
Henry Street
Bloemfontein
(Ref:
NM Masalla/SAN1/0001)