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[2023] ZAECBHC 34
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Spannenberg v Member of the Executive Council, Department of Health, Eastern Cape Province and Another - Application for Rescission (803/2020) [2023] ZAECBHC 34 (25 May 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, BHISHO)
CASE
NO. 803/2020
NOT
REPORTABLE
In
the matter between:
VERONA
VERONICA SPANNENBERG
Applicant
And
THE
MEMBER OF THE EXECUTIVE COUNCIL,
DEPARTMENT
OF HEALTH,
EASTERN
CAPE
PROVINCE
First
Respondent
THE
HEAD OF THE DEPARTMENT,
DEPARTMENT
OF HEALTH,
EASTERN
CAPE PROVINCE
Second
Respondent
JUDGEMENT
IN RESPECT OF
APPLICATION
FOR RESCISSSION
HARTLE
J
[1]
The first and second respondents (as cited in the application for
judicial review) sought a rescission of an order of this court that
was granted on 16 March 2021 (“the review order”)
in the
following terms:
“
1. The decision of
the Department of Health, Eastern Cape Province pronouncing that the
applicant experienced a break in her service
as an employee of the
Department of Health, Eastern Cape Province for the period 01 May
2011 to 31 July 2016 is reviewed and set
aside.
2. The first
respondent, Nomakhosazana Meth in her capacity as the Member Of The
Executive Council of the Department
of Health, Eastern Cape Province
and Dr Sibongile Zungu in his capacity as the Head of Department,
Department of Health, Eastern
Cape Province are ordered to take such
administrative steps as may be necessary, to submit an appropriate
Z102 Form to the Government
Employees Pension Fund recording the
applicant’s uninterrupted tenure of service commencing February
1985 and terminating
on 31 July 2016, within 60 days of service of
this Order upon the respondent.
3. The 90
(Ninety) day period referred to in
Section 5
(1) of the
Promotion of
Administrative Justice Act 3 of 2000
is extended in terms of
Section
9
(1) of the aforesaid Act on the basis that the interests of justice
so dictate.
4. The first
and second respondents are ordered to pay the applicant’s costs
jointly and severally, the one paying
the other to be absolved.”
[2]
It is abundantly plain that the respondents were absent when the
review order was granted although there can be no question that they
were properly served after the applicant had issued out the
application for judicial review in terms of the provisions of the
Promotion of Administrative Justice Act, No 3 of 2000. (“PAJA”).
[3]
Indeed, the applicant put up proof in this respect that her
application
had been served on the office manager of the
Superintendent General of the Department of Health (“the
Department”),
Mr. Viwe Tshangana, who it appears from the
sheriff’s official returns of service accepted receipt of the
initiating process
on behalf of both respondents on 4 December 2020,
one day after the issue of the application.
[4]
Although evidently patently unknown to the respondents - well at
least to the current incumbents of their offices, when the present
application was launched, service of the initiating process
was
additionally effected on the State Attorney as is the peremptory
requirement in terms of the provision of
section 2
(2) of the
State
Liability Act, No. 20 of 1957
, as amended. In this respect the
papers were served upon a Mr. Stuurman on 12 December 2020 who
according to the sheriff
was ostensibly a responsible employee not
less than 16 years of age and in control at the office of the State
Attorney at the East
London office.
[5]
No notice to oppose was received by either respondent. The matter
was
consequently enrolled as an unopposed application for hearing on 16
March 2021.
[6]
A comprehensive notice of set down advising when the matter would
be
heard and foreshadowing what relief would be asked for was also
served by the sheriff on 10 February 2021.
[7]
Once the review order was granted by this court, it too was served
per sheriff on 23 March 2021 by handing it to a Ms. Zipho Mphelo who
accepted service on behalf of both respondents.
[8]
It is common cause
that for more than a year after the grant of the review order the
respondents failed to comply with its purported
terms more especially
as directed by prayer 2 thereof (giving credence to the claim that
the current incumbents of their offices
were unaware of it) and in
consequence the applicant launched further proceedings under case
number 291/2022 to compel compliance
after having placed the
Department on terms.
[1]
[9]
It was only on 18 August 2022, some 17 months after the review order
was granted, that the respondents applied in the present matter for
an order “
(r)escinding the Order… that was issued on
16 March 2021 and replac(ing) it with an Order dismissing the
application.”
(Sic)
[10]
The application was supported by the founding affidavit of Ms. Rolene
Wagner who is the
Superintendent General of the Department and the
responsible accounting officer. She explains that she was
appointed to the
position on 1 August 2021. The incumbent of
the first respondent, Ms. Nomakhosazana Meth, although named in the
review order,
took up her appointment in the same month it was
granted. She emphasises that the process in the review application
was served
before either of them “
took control of the
Department.”
[11]
Initially one of the bases upon which the application for rescission
- ostensibly pursuant
to the provisions of “Rule 42 of the
Uniform Rules of Court” was premised, is that the state
attorney was not served
with the review application which, so it was
contended in the founding papers, was the reason for their absence
from court when
the order was “erroneously” granted.
[12]
However, despite this claimed irregularity, at the heart of the
matter is the respondents’
all-pervading complaint that the
order sought to be rescinded is also a nullity, or invalid, or
legally incompetent. The
respondents aver in this respect that
it would be unlawful for them to carry out its terms because the
applicant’s salary
was “frozen” for the period
indicated in prayer 1 of the review order between 1 May 2011 and 31
July 2016. The
applicant was therefore not entitled to the
claim she made that the Department was obliged to record an
uninterrupted tenure of
service during this impugned period with the
Government Employees Pension Fund.
[13]
Ms. Wagner avers especially that the award of the
Public
Service Coordinating Bargaining Council (“the Bargaining
Council”) that purportedly provided the underpinning
for the
applicant’s claimed entitlement to have approached this court
for the judicial review of the Department’s supposed
“decision”
that the applicant “experienced a break in her service as an
employee” (“the award”)
cannot lawfully oblige the
Department to do what the review order purports to because the award
did not carry with it an order
to pay her a salary in respect of this
hiatus in her service.
[14]
The respondents aver that not only does the award
not order the payment of the applicant’s salary for this
period, the Commissioner
having pertinently not pronounced on the
issue, but that the applicant also tried unsuccessfully before the
Labour Court under
case no P119/16 for the same relief, failed, and
then moved on to this court “by way of forum shopping” to
obtain the
review order (the subject matter of the present
application) on the premise of alleged unfair administrative action.
[15]
Without any prior declarator or order that the
applicant was entitled to be paid during her extended absence from
work on sick leave,
so the respondents aver, any attempt in 2021 to
claim a salary (or as the applicant’s papers otherwise
suggested an advantage
in respect thereof impacting upon her
pensionable interests) would further in any event have prescribed.
They submit additionally
that the applicant further failed to meet
the requirement postulated by section 3 of the Institution of Legal
Proceedings Against
Certain Organs Of State Act, No 40 of 2002
(“ILPACOSA”) obliging her to have given notice to the
Department within
six months “of the claim arising”
before “instituting” the claim against it as an organ of
state.
[16]
The suggest that they will, if granted condonation
and an opportunity to oppose the application for judicial review,
likely successfully
raise all of these defences against the
applicant’s “claim” implicated by the review
challenge and offered that
the Department would have done so but for
the fact that the State Attorney was not served, leaving the
Department unrepresented
in court when the review order was granted.
They argued against this premise that they were therefore not
in wilful default
for not opposing and attending court when the
application was disposed of on a default basis.
[17]
They further seek the condonation of this court
for the late filing of the present application.
[18]
It was tersely acknowledged by Ms. Wagner that negligence probably
existed in the handling
of the matter since there was no trace of the
relevant documents in either of the respondent’s offices.
Ms. Brenda
Tongo from the State Attorney’s office additionally
confirmed unequivocally in an earlier affidavit that the State
Attorney
was
never
served with the process.
[19]
The applicant
opposed the application (as initially formulated) pointing out that
there could be no suggestion that the order was
“erroneously
sought” or “erroneously granted” as envisaged in
terms of the provisions of rule 42 (1) (a)
of the Uniform Rules of
Court. The respondents were properly served and afforded
sufficient
dies
in terms of the
court rules to challenge the review application, but by obvious
implication chose not to do so. The applicant
further pointed
out the number of other ways in which the Department’s
attention would have been drawn to the proceedings,
which notice had
not exactly inspired it to question or challenge the fate of the
application, or its consequences once the review
order had been
granted on a default basis, until the predicament posed by case
number 291/2022 was staring them in the face.
[2]
[20]
Certain technical
points were taken and legal arguments raised.
[3]
The applicant however principally honed in on the evidently false
allegation laid claim to by Ms. Wagner and Ms. Tongo that
the
application had
never
been served upon
the State Attorney by producing the sheriff’s return of service
to disprove such fact.
[21]
One searches in vain however to find any reference by the applicant
in her answering affidavit
to the respondents’ claim that the
impugned review order was a nullity for the peculiar reasons advanced
by Ms. Wagner and
Ms. Tongo, the applicant merely asserting that the
respondents had by their ill-conceived application and abuse of the
court process
sought disingenuously to defeat her “
bona fide
efforts to enforce an order lawfully and validly granted.”
The applicant also failed to deal with the allegation that she
had failed to achieve in 2016 in the Labour Court what she
later
purported to get around by the judicial review application in 2021.
[22]
On 19 September 2022 the respondents filed a “Notice of
Intention to Amend Documents
in terms of Rule 28 of the Uniform Rules
Of Court” in which they pray “
(t)hat the Respondents
be granted leave to amend their Notice of Motion and admit the
supplementary Affidavit that accompanies this
Notice in support of
the application for the rescission and setting aside of the…
order issued on 16 March 2021”
.
[23]
Attached to this
notice was a brief supplementary affidavit by Ms. Tongo
[4]
which in essence confirms the respondents’ intention to invoke
the provisions of Rule 42 (1)(a), firstly, on the basis that
the
review order was erroneously sought or erroneously granted in their
absence (although this time not relying on the supposed
nonservice of
the application on the state attorney) and, secondly, placing
reliance on the common law for the rescission and setting
aside of
the review order. In the latter respect she repeated the averment
that the order sought to be rescinded is a nullity,
by reason of the
fact that:
“
It would have been
unlawful for the Respondents to pay the Applicant’s pension
contributions for the period May 2011 to July
2016 while her salary
was frozen for that period.”
[24]
The applicant
immediately took issue with the purported notice of intention to
amend by filing a notice in terms of Rule 30 complaining
that the
notice constituted an irregular step but it is common cause that she
did not follow through with the threatened application
to set aside
the irregular proceedings.
[5]
[25]
This was followed
up by the delivery of the respondents’ amended notice of motion
on 17 October 2022 and further supplementary
affidavits that
purported to set matters straight.
[6]
[26]
Ms. Wagner in her supplementary affidavit did not withdraw her prior
averment that the
sheriff had not been served. She however now
positively asserted that it was only on 27 May 2022 when the State
attorney was served
with the papers comprising the contempt
proceedings (in case no 291/2022) that her office had been alerted to
the existence of
the earlier review application. She repeated
her assertion of the absence of any wilful default at least on her
part for
the delay in filing the rescission application but now
attributed apparent negligence in the proper handling of the matter
to the
officials of both the respondents’ offices as well as
that of the State Attorney.
[27]
In further amplification of the contention that the review order was
invalid, she pointed
out that the Bargaining Council’s 2014
award had been fully complied with which in fact resulted in the
Department approving
the applicant’s ill-health retirement on
31 July 2016. She further alluded to the relevant documentation
exchanged between
the applicant and the Government Employees Pension
Fund pursuant thereto as proof that the applicant was paid the
pension monies
“to which she is entitled.”
[28]
Ms. Mphelo an employee in the office of the second respondent
confirmed that she had no
recollection of receiving the process,
neither could she trace any of the documents served at the
Department’s offices. She
claimed that it was unknown what must
have happened.
[29]
She also clarified that Mr. Viwe Tshangana was no longer in the
employ of the Department.
[30]
Ms. Tongo too filed a further supplementary affidavit in which she
could offer no explanation
for why the process (which she appears to
presently accept was in fact served on Mr. Stuurman) went astray but
emphasised that
this had in fact resulted in the non-representation
of the respondents in court on 16 March 2021 when the review order
was granted.
She further explained that it was the receipt of the
contempt application that had finally galvanised their office into
action,
and that there had been a further delay in the procurement of
counsel and research into the matter before they came on board to
oppose the contempt application and bring the present application.
[31]
She reiterated that the application for condonation was made
bona
fide
and that good cause exists in granting the rescission order
essentially on the basis that the applicant’s claim in the
application
for judicial review has “no legal basis”
because of the underlying premise that she is not entitled to any
salary in
respect of the period under contention in prayer 1 of the
review order.
[32]
Despite the
applicant’s purported objection to the amended notice of
motion,
[7]
she delivered a
supplementary answering affidavit in which she made capital of the
“patently false allegation” previously
made by both Ms.
Wagner and Ms. Tongo that the State Attorney had not been served as a
deliberate premise for the recission application
which had now been
abandoned without any real explanation or account given to the court
as to why.
[33]
Conspicuous by its absence however the applicant again omitted to
deal with the respondents’
suggestion that the impugned order
as it was framed was not legally competent, except to assert the
following:
“
As for the attempt
to challenge the merits of my case which culminated in the granting
of the court order, on the basis that my
salary “was frozen
between 1 May 2011 and July 2016” this would in any event not
have constituted a defence because
it was the respondents own
administrative action freezing my salary. The Respondents cannot rely
upon their own prior unlawful
administrative action as a defence.”
[8]
[34]
In order to
understand the respondent’s argument that the impugned order
was incompetently granted it is necessary briefly
to canvas the
circumstances under which the Public Service Coordinating Bargaining
Council’s 2014 award came to be issued.
[9]
[35]
The applicant was employed by the Department since February 1984 as a
staff nurse.
[36]
During 2005 she started to suffer from a major depressive disorder
for which she received
treatment by
inter alia
psychiatrists
and a psychologist. She last worked in June 2006. Her salary
was stopped during May 2011.
[37]
She applied for ill-health retirement on three occasions in 2007,
2008 and 2010 but the
Department evidently failed to process any of
these requests.
[38]
In the meantime, she successfully challenged the Department’s
failure in the Bargaining
Council to consider her application for
temporary incapacity leave for the period 1 September 2006 to 30 July
2012 as a contravention
of clause 7.5.1 (b) of the Public Service
Coordinating Bargaining Council Resolution 7 of 2000 (as amended).
[39]
On 8 April 2013 an award was issued in her favour against the
Department under case
number PSCB 340-12/13 ordering it within 90
days to reconsider and properly conduct an assessment of her
temporary incapacity leave
applications for this period as prescribed
in terms of paragraph 7.3.5 of the Department’s Policy
Incapacity Leave Ill-health
Retirement (“PILIR”).
[40]
This would according to the Commissioner have required the health
risk manager to conduct
a secondary assessment to investigate, verify
or expand upon information received, and to have provided further
independent and
impartial opinions on the nature and extent of the
applicant’s condition so as to have ascertained more precisely
the functional
implications of the conditions of her work
performance.
[41]
As a consequence of the department’s non-compliance with that
mandamus
, the applicant approached the Labour Court on 13
March 2014 to make that award an order of court.
[42]
Still the
Department failed to comply with the Bargaining Council’s order
in that the health risk manager did not conduct
the secondary
assessment to move the processes along as it ought to have. The
Commissioner added that the Department had
also failed to reconsider
or properly conduct an assessment of the applicant’s temporary
incapacity leave applications as
prescribed by paragraph 7.3.5 of
PILIR.
[10]
[43]
The Department on 20 March 2014 issued the applicant with an
instruction that she should
return to work by 31 March 2014 failing
which she would be charged with misconduct or her services would be
terminated with effect
from 27 April 2006. The applicant
co-incidentally learnt from Mrs. Hugo, the head of Human Resources,
that her application
for temporary incapacity leave had in fact been
declined and she advised her of the Labour Court order that had
required the Department
to reconsider her application for temporary
incapacity leave.
[44]
Despite drawing attention to the order of the Labour Court that
required the Department
to reconsider her application for temporary
incapacity leave, the Department yet forwarded a second
“uncommunicated absence”
letter to the applicant calling
on her once again to report for duty or face the consequences.
[45]
Despite interventions by her attorney, uncertainty continued to
prevail until a further
dispute was lodged with the Bargaining
Council to compel the Department to deal with the applicant’s
application for ill-health
retirement on a final basis. In the
meantime, she continued to reserve her position that her temporary
absence was attributable
to her ill-health.
[46]
She continued to provide medical certificates booking her off, and
also lodged a grievance
in respect of the temporary incapacity leave
application declined for the period 1 July 2013 to 20 September
2013. She further
continued to apply for temporary incapacity
leave and on 18 July 2014 the Department at least acknowledged
receipt of her temporary
incapacity leave applications received by
them on 10 June 2014. The letter furthermore advised the
applicant that the head
of Department in terms of the authority
vested in him/her in terms of the Determination on Leave of Absence
in the Public Service
conditionally approved temporary incapacity
leave for the period 17 June 2014 to 1 August 2014, but this was
subject to the outcome
of an investigation into the nature and extent
of the illness/injury described in her temporary incapacity leave
application.
[47]
The applicant’s
cause of action before the Bargaining Council under the last referral
to the Bargaining Council on 8 December
2014 under case number PSCB
198-14/15 was said to relate to “the interpretation and
implementation of clause 7.5.2 (c) of
PSCBC resolution 7 of 2000 in
refusing the applicant’s
application
for ill-health retirement
”
.
[11]
[48]
After hearing
evidence and interpreting the relevant paragraph to mean that the
Department did not have a discretion whether to
grant or refuse
permanent incapacity leave and ill-health retirement,
[12]
the Bargaining Council concluded that the applicant would not be able
to perform any type of duties at her level or rank. It
found
that the Department had failed to comply with the relevant provisions
of the PSCBC resolution 7 of 2000 in declining her
application for
ill-health retirement and declared that she was entitled to proceed
with an application for ill-health retirement
in terms of the Pension
Law of 1996. The Department was further directed within 30 days to
initiate the process of ill-health retirement/ill-health
benefits in
terms of the Pension Law.
[49]
Prefatory to the award the Commissioner noted the following important
qualification:
“
The Applicant
seeks an order directing the Respondent to approve her application
for ill health retirement and pay her salary with
effect from date
her salary was stopped (May 2011) until such time as her application
for ill-health retirement is finalised.
It
is unfortunate that the claim for salary based on permanent
incapacity leave did not form part of the applicant’s referral
and therefore this issue was never conciliated
.
[13]
Therefore, I lacked jurisdiction to entertain the Applicant’s
claim for permanent incapacity leave
as
regulated in terms of paragraph 7.5.2 (a) and (b) of the PSCBC
Resolution 7 of 2000 as amended.
”
[14]
(Emphasis added)
[50]
The relevant paragraph dealing with disability leave provides as
follows:
“
7.5
Disability management leave:
7.5.1
Temporary disability leave:
(a)
An employee whose normal sick leave credits in a cycle have been
exhausted and who, according
to the relevant practitioner, requires
to be absent from work due to disability which is not permanent, may
be granted sick leave
on full pay provided that:
(i)
her or his supervisor is informed that the employee is ill; and
(ii)
a relevant registered medical and/or dental practitioner has duly
certified in advance
as temporary disability except where conditions
do not allow.
(b)
The employer shall, during 30 days, investigate the extent of
inability to perform normal
office official duties, the degree of
inability and the cause thereof. Investigations shall be in
accordance with item 10 (1) of
Schedule 8 in the
Labour Relations Act
of 1995
.
(c)
The employee shall specify the level of approval in respect of
applications of for disability
leave.
7.5.2
Permanent disability leave:
(a) Employees
whose degree of disability has been certified as permanent shall,
with approval of the employee, be granted
a maximum of 30 working
days paid sick leave, or such additional number of days required by
the employer to finalize the process
set out in (b) and (c) below.
(b) The
employee shall, within 30 working days, ascertain the feasibility of:
(i)
one alternative employment; or
(ii)
adapting duties or work circumstances to accommodate the disability.
(c) If both
the employer and the employee are convinced that the employee will
never be able to perform any type of
duties at her or his level or
rank, the employee shall proceed with application for ill health
benefits in terms of the pension
law of 1996.”
[51]
It is common cause that the Department ultimately processed the
applicant’s application
for ill-health retirement, although she
alleges that she was first obliged to approach the Labour Court to
have the award made
an order of court and when it still failed to
comply with the Labour Court’s order was obliged to seek the
intervention of
this court to enforce its provisions.
[52]
The applicant failed to state in the review application what further
steps she took if
any to deal with the issue of her entitlement to
incapacity leave (whether temporary or permanent) in the period
between her last
day of working due to ill-health and her ill-health
retirement. It appears from the provisions of paragraph 7.5 of
Resolution
7 of 2000 however that paid sick leave due to disability
under either category cannot arise automatically but must be applied
for,
failing which the employee will be deemed to have been on unpaid
leave for the period he/she was absent from work due to incapacity
up
until the date that ill-health retirement is approved.
[53]
There is therefore merit in the respondents’ submission that
this is the default
position that applies (the respondents referred
to the situation as the applicant’s salary having been “frozen”
in respect of this period), and because the Department will not have
paid over contributions to the Pension Fund in the relevant
interlude, no fiction in the prescribed form Z102 to the effect that
there was an “
uninterrupted tenure of services”
can change that reality unless the issue of her underlying
entitlement to any paid incapacity leave during this hiatus has first
been legally pronounced upon.
[54]
The gravamen of the applicant’s complaint of unfair
administrative action in the
year 2020 when the review application
was launched, was described in the following terms:
“
In this
application I request this Honourable Court’s assistance in
addressing certain unfair administrative action on the
part of the
Department in dealing with my pensionable service as an employee of
the Department. Essentially in forwarding the relevant
documents to
the Government Employees Pension Fund upon my retirement on grounds
of ill-health on 31 July 2016, the Department
submitted the relevant
form Z102, which for official purposes and especially for purposes of
calculation of my pension benefits,
records incorrectly that I had
allegedly experienced a break in service for the period 1 May 2011 to
31 July 2016.”
[55]
The applicant appears to have assumed that the approval by the
Department of her retirement
automatically dispensed with the need to
finalise the separate issue of her entitlement to incapacity leave
during the relevant
period:
“
Although the
last-mentioned period had coincided with my ill health and had thus
prevented me from discharging my duties,
my
ill health retirement in fact vindicated my absence
.
This was made clear by the Public Service Coordinating Bargaining
Council, whose Commissioner issued an arbitration award on 8
December
2014.”
[15]
[56]
The applicant went on to state in the review application that:
“
Although the
Department ultimately recognized my ill-health retirement, its
officials made no attempt to correct the record which
had been
furnished to the Government Employees Pension Fund which resulted in
denying me a substantial portion of my pension benefits.
The
Department has persisted in this failure.”
[57]
Even recognizing that there may well be merit in the applicant’s
contention that
the Department (by obvious implication) conceded that
she must have suffered from the same disability in the interim that
persuaded
it to accept ultimately that she should be discharged on
the basis of her ill-health, it appears that the applicant did not
take
any formal steps to close the gap as it were. In the
result it may have been stretching it somewhat to suggest that the
Commissioner’s
award made the nexus between the approval of her
retirement and her entitlement to incapacity leave in the preceding
period “clear”.
[58]
It is not evident what exact steps were taken on behalf of the
applicant between the date
of the issue of the Bargaining Council’s
award and the ultimate approval of her application for ill-heath
retirement, or
thereafter before she once again approached this court
for judicial review.
[59]
In this respect
Ms. Wagner averred that the applicant had filed a further application
in the Labour Court on 19 May 2016 pursuant
to the Commissioner’s
award of 2014 “for the same relief” in that forum.
According to her this application
was dismissed per order granted on
29 July 2016 under case number P119/16. A perusal of the
relevant order put up by her
as an annexure to her supplementary
affidavit involving the same parties as in the review application
suggests that a chamber book
application was made culminating in an
order that “the application is incompetent and consequently
dismissed”.
[16]
[60]
The applicant chose not to deal with these allegations in reply or to
disclose the nature
of that application leaving it open to be
inferred that possibly she took no steps consequent to the 2014 award
to again conciliate
the issue recognized by the Commissioner to still
be extant and requiring adjudication (that is assuming that she could
still have
sought her redress in the Bargaining Council after her
discharge from service), or in any other court for that matter.
[61]
As an aside
though,
the
whole unfortunate saga of the applicant seeking to be compensated for
incapacity leave over a period straddling more than a
decade is
replete with serial disregard by the Department of its lawful
obligations in terms of the applicable Resolution and PILIR,
awards
of the Bargaining Council, and orders of the Labour Court. The
audacious reservation of the respondents of their right
to plead
prescription (in the event that rescission is granted) against this
troubled history is indeed quite astounding especially
since the
Department has, so it appears, avoided dealing with its lawful
obligation to have considered the applicant’s entitlement
to
any incapacity leave whatsoever before it got around to making its
much anticipated decision at least (two years after
the Bargaining
Council’s injunction to get on with it) to approve of her
application for ill-health retirement. The unlawfulness
of the
Department in not meeting it legal obligations in this respect has
consistently been decried by the applicant. On the other
hand, the
Department has not even brought itself to the bargaining table,
[17]
let
alone acknowledged or disavowed that it has fallen short of its
obligation to have applied fair and just administrative action
in
bringing the issue of the applicant’s entitlement to incapacity
leave to a close, rendering it necessary for her to have
resorted to
this court to review and set aside its unlawful action. As indicated
above, however, it is unfortunate that the manner
in which the relief
was cast in the review application put the cart before the horse so
to speak.
[62]
The
Department would do well to remind itself of the warning of the
constitutional court in Njongi v The MEC for Welfare, Eastern
Cape
[18]
that
decisions by the State whether or not to invoke prescription (in
instances where Constitutional rights are sought to be engaged)
must
be informed by the values of our Constitution.
[19]
[63]
Rule 42 (1)(a) affords this court a discretion, in addition to any
other powers it may
have,
mero motu
or upon the application of
any party affected, to vary or rescind an order “erroneously
sought or erroneously granted in
the absence of the party affected
thereby” which order is otherwise regarded as final in effect.
[64]
One of the bases
upon which an order might also be erroneously granted is if it was
not legally competent for the court to have
made such an order.
[20]
[65]
I have already expressed some thoughts above why the review order as
framed (particularly
in prayer 2 thereof) is invalid or meaningless
in relation to the Fund’s involvement on the basis ordered in
the absence
of any prior legal pronouncement in favour of the
applicant that the Department’s failure to have properly
considered her
application(s) for incapacity leave falls to be
reviewed and set aside. It is only once such an order has been
made that
her purported claim to have been paid a salary during the
impugned period (or incapacity leave) as a result can be enforced as
an inevitable remedy flowing from the claimed unlawful administrative
action. There can certainly be no legal obligation on the
Pension
Fund in my view to pay pension benefits to the applicant on the basis
of a fiction by the Department noting that there
was no break in her
service during the impugned period. A mere assertion to
such affect cannot order the payment of
her salary/incapacity leave,
and the absence of payment in turn will not put contributions there
that do not exist. The Pension
Fund is further bound to do what
the Pension Law and its Rules narrowly prescribe.
[66]
The obvious
obstacle standing in the way is the Department’s stance that
the applicant’s salary for this period is and
remains “frozen”
whereas it has certainly taken no steps in the direction of deciding
if it should be “unfrozen”
to use its own expression.
[21]
[67]
That having been said, I am satisfied that the review order as
it was framed and
granted by this court was a nonstarter. It is
incapable of being enforced and was therefore granted erroneously as
envisaged
in Rule 42 (1) (a).
[68]
Further, as opprobrious as it is that the respondents come to this
court at the last moment
when they are called to personally account
for their contempt of a court order and have their backs against the
wall as it were,
they were undeniably not “present” and
represented by the State Attorney when the matter was called on 16
March 2021.
I daresay that even a legal argument advanced on behalf
of the respondents raised from the bar on 16 March 2021 that the
order
sought was invalid or meaningless or otherwise legal untenable
might have scuppered the grant of the review order.
[69]
Section 2
of the
State Liability Act provides
in no uncertain terms
what the expectation is of both the executive authority of a
department of state sued in an action or other
proceedings and the
State Attorney as follows:
“
2. Proceedings
to be taken against executive authority of department concerned. —
(1) In
any action or other proceedings instituted against a department, the
executive authority of the department concerned
must be cited as
nominal defendant or respondent.
(2) The
plaintiff or applicant, as the case may be, or his or her legal
representative must—
(
a
)
after any court process instituting proceedings and in which the
executive authority of a
department is cited as nominal defendant or
respondent has been issued, serve a copy of that process on the head
of the department
concerned at the head office of the department; and
(
b
)
within five days after the service of the process contemplated
in paragraph
(
a
)
,
serve a copy of that process on the office of the State Attorney
operating within the area of jurisdiction of the court from which
the
process was issued.
(3)
Upon receipt of the process contemplated in subsection
(2), the State Attorney must—
(
a
)
without undue delay, send a written request to the head of the
department concerned to provide
the State Attorney with written
instructions regarding the proceedings; and
(
b
)
within 10 days of receipt of the process, provide the head of
department with legal advice
on the merits of the matter.”
[70]
The relationship between the Head of the Department and the State
Attorney in such a situation
is a critical one with mutual
obligations. He or she must provide the State Attorney with
written instructions regarding
any
proceedings (not just that
which the Head of the Department
chooses
to be of interest to
him or her to involve themselves in), and the State Attorney, in
turn, must provide him/her with legal advice
on the merits of the
matter.
[71]
All of this must
be done within a short space of both having been served with the
process with a view to taking a firm legal position
in the
matter.
[22]
[72]
It is no surprise that the recent amendment to this section
introduced by the Judicial
Matters Amendment Act, No. 8 of 2017
implicating the State Attorney in a co-responsible litigation role
was aimed at reducing the
high rate of default judgments against
government departments. Indeed, the stated object of the
Judicial Matters Amendment
Act Bill, 2016, as described in the
Memorandum with regard to clause 3 thereof which founded the basis
for the substitution of
section 2
of the
State Liability Act dealing
with proceedings against the State, provides as follows:
“
2.3
Clause 3 substitutes section 2 of the State Liability Act, 1957(Act
No. 20 of 1957), dealing with proceedings
against the State.
2.3.1
The Rules Board for Courts of Law has suggested that section 2(1) be
amended by removing the words ‘‘by
virtue of the
provisions of section 1’’. The Rules Board argues that
the deletion of this wording will address the
restrictive application
of the Act to proceedings arising out of contract or delict and will
make it applicable to all proceedings,
for instance joinder and
review applications.
2.3.2
Various default judgments are obtained against Government departments
due to the fact that departments fail to
oppose litigation against
them. In most instances this happens because court process is served
on persons who fail to bring this
to the attention of the persons who
are supposed to deal with litigation against the State. In order to
address this state of affairs,
the State Attorneys proposed
amendments to
section 2(2)
of the
State Liability Act, 1957
, in order
to make provision for a dual service of court process.
Section 2(2)
is amended in order to provide that—
(a)
court process should be served on the head of the department
concerned; and
(b)
a copy of the process should, within 5 days after the service of
process contemplated in paragraph
(a), also be served on the State
Attorney operating within the area of jurisdiction of the court from
which the process was issued.
This amendment aims to
ensure that both the department and the State Attorney have knowledge
of any pending litigation against the
department concerned. The
period of 5 days is consistent with the current procedural approach
of multiples of five.”
[23]
[73]
Further, although not so stated in the Memorandum, the careful and
timeous consideration
by both the second respondent and the State
Attorney of the legal merit of any proceedings instituted against the
Department will
in my view conduce to a very necessary saving of
costs of litigation. This court has bemoaned the waste of its
resources
and the deleterious effect of the costs of litigation on
the public pursue in so many matters, it hardly seems necessary for
me
to stress to responsible heads of department or the State Attorney
that they should be mindful of their statutory and constitutional
obligations in this respect.
[74]
Although the amendment to the
State Liability Act is
a recent one,
the Joint Rules of Practice of this Division have for a long while
now similarly recognized the need for the State
Attorney to be
apprised of the set down of an application against the State in which
orders are sought to be obtained on a default
basis.
[75]
Paragraph 23 (m) of the practice rules provides as follows:
“
In all cases in
which judgment by default is sought against the State (which will
include applications where the State has failed
to timeously file
either a notice of opposition or its opposing papers) a notice of set
down is to be served on the State attorney
at least five days prior
to the hearing.”
[76]
Section 3 (1) of the State Attorneys Act, No. 56 of 1957, further
behoves the office of
the State Attorney to carry out its mandated
statutory function which entails
“
the
performance in any court
or in any
part of the Republic of such work on behalf of the Government of the
Republic
as is by law, practice or
custom performed by attorneys, notaries and conveyancers
”.
Subsection (2) also provides that “there may also be performed
at the offices of State Attorney
like
functions for or on behalf of the administration of any province
,
subject to such terms and conditions as may be arranged between the
Minister of Justice and Constitutional Development and the
administration concerned”.
[77]
The prejudice to the Department by the failure of
the Office of the State Attorney to have advised it in respect of the
merits of the application for judicial review are patently
obvious.
[78]
But even though the State Attorney became legally responsible to
advise the second respondent
by the amendment to
section 2
of the
State Liability Act, the
Department apparently could not have been
bothered before this juncture to apply its mind to the legal merits
of the applicant’s
claim for temporary incapacity leave going
right back to her pursuit before the Bargaining Council of at least
two matters for
conciliation/arbitration which were disposed of in
its absence.
[79]
Had the Department properly considered the applicant’s claim
shat she was entitled
with reference to the relevant provisions of
the PILIR and Resolution 7 of 2000 to have had her applications for
incapacity leave
properly considered, this whole unfortunate saga
could have been avoided, costs would have limited, the resources of
the court
would not have been wasted and, most significantly, the
applicant would not have had to endure the indignity by the treatment
suffered
at the hands of the Department that she has had to put up
with.
[80]
Whilst this court is obliged to recognize the entitlement of the
Department to be properly
and efficiently represented in proceedings
against it and to have meaningful access to court in the process,
there comes a time
when officials belatedly seeking to enforce their
constitutional obligations in the professed interest of the public
pursue or
other noble institutional integrity objectives will be
shown the door. In this instance however I will address the
ostensibly
blatant disregard for the court and the applicant’s
rights to finality in her litigation by an appropriate punitive costs
order.
[81]
To return to the
requirements that the respondents are obliged to establish, I find
that Ms. Wagner has explained why it is necessary
as an accounting
officer to question the review order and as best she can, albeit
rather curtly, why the Department missed the
boat in the first place.
I further accept that she brought the present application within a
reasonable time of establishing the
fact of the error or erroneous
state of affairs contemplated by
rule 42
(1)(a) causing the conundrum
facing the Department by prayer 2 of the review order.
[24]
[82]
She would do well however to reflect upon her ostensible flippancy in
failing to have given
anything more than a perfunctory account to
this court for having abandoned the initial premise of this
application that the State
Attorney had not been served with the
process. Whilst she was clearly mistaken in this respect and
relied on poor advice
given to her, the unfortunate impression
created by her officiousness is that she has little respect for this
court or for the
interests or dignity of the applicant at the
receiving end of the Department’s and the State Attorney’s
collective
mishandling of the matter.
[83]
Finally, where an
applicant for rescission such as in this case relies solely on the
respondents’ claim ultimately that the
order is a nullity,
there is no requirement under
Rule 42
(1)(a) that the showing of
“sufficient cause’ by such an application is a necessary
requirement.
[25]
[84]
In National Pride
Trading 452 v Media 24
[26]
the
court explained why it believed that it was also a consideration of
policy why it is not a requirement that an applicant raising
a
procedural irregularity under
Rule 42
(1)(a) has to show a
bona
fide
defence
under the sub-rule, as follows:
“
[56]
There is, I believe, also a consideration of policy why it is not a
requirement that an applicant has to show a
bona
fide
defence under
Rule 42
(1) (a), and that
is this: Any order or judgment made against a party in his absence
due to an error not attributable to him, is
such a profound
intervention in his right to a fair trial and right to be heard,
that, for this reason alone, the judgment or order
should be set
aside without further ado.
[85]
In conclusion, I am satisfied that the respondents
have established the necessary requirements for the relief that they
seek.
[86]
In the result I issue the following order:
1.
The
late issue of the application for rescission is condoned.
2.
The
order of this court dated 16 March 2021 is rescinded.
3.
The
respondents are to pay the applicant’s costs of opposing the
application on the scale of attorney and client.
B
HARTLE
JUDGE
OF THE HIGH COURT
DATE
OF HEARING
23
March 2023
DATE
OF JUDGMENT
25
May 2023
Appearances:
For
the applicant:
Mr.
Maseti instructed by Nolands Law c/o Hutton & Cook, King
William’s Town (ref. Mr G C Webb).
For
the respondents:
Mr.
A Nyondo instructed by the State Attorney, East London (ref. Ms. B
Tongo).
[1]
I
was advised by the parties that the determination of the contempt
application has been suspended by agreement between them,
pending
the hearing of the present application.
[2]
See paragraphs 6, 7 and 8 above.
[3]
T
he
applicant complained, for example, that the promised supporting
affidavit of Mr. V Tshangana was not attached, the respondents
had restricted themselves to the ambit of
Rule 42
rather than the
common law remedy governing the recission of judgments yet had
“confusingly” sought to advance arguments
on the merits
of her original case whereas these had already been determined, they
had prayed for substantive relief unheard
of in a recission
application that the review application be dismissed outright, had
demonstrated a lack of
bona
fides
evident
from the “reckless conduct” and “false testimony”
of the deponents to the effect that the state
attorney had never
been served, had made a poor showing of explaining away their
default and inordinate delays pointing to a
reckless disregard for
her rights and the sanctity of the review order, and had not
identified which sub-rule of
Rule 42
was in contention or how such
sub-rule had in fact been breached entitling them to an order of
rescission. She however firmly
resisted the respondents’
suggestion that they had been “absent” in the manner
contended for by
rule 42
(1) (a) which appeared, by implication, to
be the rule relied upon by them in the earliest iteration of their
application.
[4]
It
was contended on behalf of the applicant at the hearing that this
affidavit had not been served but it appears to have been
sent by
email to
lee@hutto.co.za
on
16 September 2022.
[5]
When
the matter was argued before me counsel for the applicant conceded
that the objection had not formally been acted upon.
[6]
Evidently
the respondents purported to deal with some of the complaints raised
by the applicant in her answering affidavit by
supplementation or
correction, apart from obliquely dealing with the issue of the
purported nonservice on the State Attorney.
[7]
Rule
30
(2) (a) behooves a litigant raising an objection in terms of this
rule not to take any further step in the proceedings with knowledge
of the irregularity, which action by necessary implication renders
the complaint academic and overtaken as it were by the next
formal
step taken in the proceedings effectually advancing the matter.
[8]
This passage appears to confirm that it is the act of not having
paid the applicant’s salary (because she was on
unapproved
paid sick leave) that was the real gravamen of the matter. Reading
between the lines this is indeed the underlying
obligation that the
applicant had hoped to enforce or bring to the fore by the judicial
review proceedings.
[9]
I
refer in this regard to the history set out by the Commissioner of
the Bargaining Council in the award, which background does
not
appear to be contentious as between the parties in the present
application.
[10]
This
paragraph deals with the assessment process by a Health Risk
Manager.
[11]
This
sub-paragraph deals specifically with
applications
for ill-health benefits in terms of the Pension Law of 1996
entailing ill-health retirement.
[12]
The
word “shall” in paragraph 7.5.2 was construed to be
peremptory.
[13]
In
this respect the Commissioner referred to the provisions of
section
136
(1)(a) and
section 24
(4) and (5) of the
Labour Relations Act,
No. 66 of 1995
.
[14]
As
will be seen from the excerpt in paragraph [50] above, these
provisions deal with the salary to which the applicant might still
have been entitled (over and above the maximum of 30 working days
paid leave) covering the period from the moment when her degree
of
disability was certified as permanent and continuing up until the
date when her application for ill-health retirement was
expected to
be finalised. This must be what the Commissioner had in mind when
referring to it as “
salary
based on permanent incapacity leave”
.
It is not difficult to appreciate that that her notional entitlement
to a salary for this period would not have been conciliated
as yet
between the parties because the future was still uncertain.
Although only paragraph 7.5.2 is referenced by
the
Commissioner, by obvious implication the provisions of paragraph
7.5.1 relating to temporary capacity leave would also have
been
applicable concerning the period from the date when the applicant’s
salary had stopped, presumably up until the date
of certification
envisaged by paragraph 7.5.2 (a). Although it does not appear clear
to me, I believe it is safe to assume though
from the terms of the
award granted that
no
salary was ordered thereby to be paid
.
It is further not clear from a reading of Resolution 7 of 2000
whether, once the certification envisaged by paragraph
7.5.2 (a) is
granted, it can by implication vindicate the applicant’s
preceding absence from work (during the temporary
incapacity period)
as a result of the same ill-health culminating in her final
ill-health retirement. The mischief which the
Commissioner seemed
intent on avoiding however is making any pronouncement in favour of
the applicant with regard to a legal
entitlement to a salary during
the impugned period absent a necessary prior conciliation between
the parties.
[15]
This
is evidently the same award under discussion above.
[16]
It
appears to me to be inconceivable that the applicant would have
sought any substantive relief via a chamber book application.
[17]
It
appears that it failed to attend any conciliation or arbitration in
the Bargaining Council, neither did it oppose any of the
applications issued out of the Labour Court.
[18]
[2008] ZACC 4
;
2008 (4) SA 237
(CC) at
[79]
.
[19]
In
this instance the right of the applicant to assert fair and just
administrative action pertains.
[20]
Master
of the High Court Norther Gauteng High Court, Pretoria v Motala
2012
(3) SA 325
(SCA) paras 11-13, City of Johannesburg v Changing Tides
74 (Pty) Ltd & Others
2012 (6) SA 294
(SCA); Moriatis
Investments (Pty) Ltd and Others v Montic Dairy (Pty) Ltd and Others
2017 (5) SA 508
SCA at footnote 4; Minister of Rural
Development and Land Reform v Normandien Farms (Pry) Ltd and Others,
Mathyibane and
Others v Normandien Farms (Pty) Ltd and Others
2019
(1) SA 154
(SCA) at par 53; Travelex Limiter v Maloney
[2015] ZASCA
128
; and MEC for the Department of Public Works & Others v
Ikamva Architects and Others
2022 (6) SA 275
(ECB) at [21].
[21]
The
Department appears to concede by the use of the expression that it
is a temporary not a permanent obstacle, but for the fact
that it
now claims, quite unconscionably so in my view, that the applicant’s
claim for her salary has prescribed.
[22]
See
section 2
(3) of the SLA.
[23]
See
Judicial Matters Amendment Bill [B14 B – 2016] and related
parliamentary briefings in respect thereof.
[24]
Even applications in terms of
Rule 42
(1) (a) must be brought within
a reasonable time of establishing the fact of the error or erroneous
state of affairs contemplated
by the sub-rule and that the delay
ought to be fully explained in all the circumstances. See in this
regard
Minister
of Home Affairs & 2 others v Zuma
(3014/2017)
[2002] ZAECMHC 33 (13 August 2020 at [8]).
[25]
This has been authoritatively decided in Lodhi 2 Property
Investments CC and Another and Bondev Developments (Pty) Ltd
2007
(6) SA 87
(SCA) at para [27] where the court held that “(t)he
existence or non-existence of a defence on the merits is an
irrelevant
consideration” under the sub-rule. See also
National Pride Trading 452 Media 24
2010 (6) SA 587
at para [55] and
unreported judgment of the SCA in Rossiter v Nedbank Limited dated 1
December 2015, case no 96/2014, at [16].
[26]
Supra
,
at paras [56] – [59].