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[2023] ZAECBHC 12
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MEC for the Department of Education, Eastern Cape and Another v Mxoli (729/2017) [2023] ZAECBHC 12 (20 June 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
[EASTERN
CAPE DIVISION – BHISHO]
CASE
NO.: 729/2017
In
the matter between: -
MEC
FOR THE DEPARTMENT OF EDUCATION,
EASTERN
CAPE
1
ST
APPLICANT
THE
HEAD OF DEPARTMENT, DEPARTMENT OF
EDUCATION
2
ND
APPLICANT
And
THANDIWE
ROSEMARY MXOLI
RESPONDENT
JUDGMENT
NORMAN
J:
[1]
The parties have been cited in the manner they appeared in one of the
cases. This may create confusion
in relation to the relief sought. I
shall accordingly refer to the respondent as Ms Mxoli and the
applicants as the “department”.
Ms Mxoli brought an
application on 24 June 2023 seeking the following order:
“
Directing that
the abovenamed applicant take such administrative or other steps as
may be necessary:
1.1
To
comply with, alternatively, to facilitate compliance with, the
purport and substance of the order granted on 10 July 2019 in
terms
of which the applicants were ordered to reinstate the Respondent as
an educator in terms of
section 14(2)
of the
Employment of Educators
Act 76 of 1998
.
1.2
To
comply with paragraph 6 of the further order granted on 10 June 2021,
directing the Applicants to procure payment to the Respondent
of the
arrear salaries due to her.
2.
Condoning
the Respondent’s non-compliance with the order of 10 June 2021
which directed her to travel to Mthatha “…
for purposes
of completing the Assumption of Duty form with the school principal
of the said school within fifteen (15) days from
date of this order.”
1.3
Directing
that the Applicants pay the costs of this application, including
those costs reserved on 10 June 2021.”
Background
facts
[2]
On 10 July 2019 Ms Mxoli brought an application against the
respondents, namely, the Member of
the Executive Council Department
of Education and the Head of Department of Education (the department)
wherein she sought an order
that:
“
1.
The second respondent’s decision declining the applicant’s
request for reinstatement
be set aside.
2.
The applicant is reinstated as an Educator in terms of the provisions
of section 14(2) of
the Employment of Educators Act No.76 of 1998
(the Act). and
3.
The respondents are to pay the applicant’s costs jointly and
severally.”
[3]
Ms Mxoli alleged that on 29 August 2017, the department invoked the
provisions of section 14(1)
of the Employment of Educators Act 76 of
1998 (the EEA) and dismissed her. She appealed against that decision
but the appeal was
refused. She then approached the court challenging
the department’s decision refusing her reinstatement. She was
successful
and the order sought was granted by Hartle J, on 10 July
2019 (2019 order).
[4]
She alleged that the department failed to comply with the order
instead it raised administrative
issues which they argue needed to be
satisfied before they procure her reinstatement. Thereafter the
department brought a substantive
application under the same case
number for an order in terms of Rule 42(1)(b) contending that the
order granted by Hartle J in
its current form requires interpretation
in terms of its practical implementation as it is obscure, ambiguous
and uncertain.
[5]
The department argued that to comply with the order of reinstatement
the applicant would have
to attend at the Vulindlela Senior Secondary
School in Port St. Johns to complete an assumption of duty form. She
opposed the relief
that the department sought and contended that the
department was in fact deliberately obstructing the implementation of
the order.
An order was issued by Stretch J, on 10 June 2021 (2021
order). It appears that the order was consented to by both
parties.
The order reflects that both parties were legally
represented. Mr Mayekiso represented the department and Ms Burger
represented
Ms Mxoli in the proceedings, before Stretch J.
[6]
The Order reads:
“
IT IS ORDERED
BY CONSENT THAT:
1.
Respondent
is to report at KD Matanzima Building, Mthatha for purposes of
completing the assumption of duty form with the school
principal of
the said school within fifteen (15) days from the date of this order.
2.
Respondent
is ordered to facilitate submission of relevant documentation for her
reinstatement including banking details forms duly
completed for
submission at OR Tambo Coastal District offices of the Department in
Mthatha.
3.
If
the respondent feels incapacitated or sick she is required to apply
for incapacity leave or sick leave immediately after finalisation
of
submission of reinstatement documentation and completion of
assumption duty forms.
4.
If
the respondent intends to apply for medical boarding she is required
to complete the necessary application forms and follow the
process in
terms of the applicable policies and prescripts.
5.
Applicants
and respondent are duly authorised to communicate with each other
directly as employer and employee whether through telephone
communication or other means in order to speedily finalise the
reinstatement process.
6.
Applicants
are ordered to pay the arear salary due to the respondent.
7.
The
issue of costs is reserved.”
[7]
On 28 June 2021, Nolands Law, Ms Mxoli’s attorneys wrote to the
state attorney wherein they
stated that in terms of the order agreed
to by the parties their client was expected to travel to Mthatha from
Port Elizabeth to
complete certain documents. Given the fact that
their client had been deprived of her income for years and is
destitute she would
not be able to comply with the order. Once the
arrear salary is paid she will be able to do so. They then requested
the state attorney
to expedite payment so that the rest of the order
may be implemented.
[8]
On 6 July 2021 another letter was written to the state attorney by Ms
Mxoli’s attorneys
advising the state attorney that because of
the department’s failure to pay their client’s salary,
her bank account,
has been frozen. They stated that First National
Bank required her to open another account. They accordingly attached
a copy of
the customer information agreement dated 1 July 2021 which
reflected Ms Mxoli’s new bank details. The state attorney was
then requested to communicate those bank details to the department.
[9]
On 31 August 2021, the state attorney wrote to Ms Mxoli’s
attorneys, and recorded the following:
“
We
refer to your letter dated 28 June 2021 in the matter and respond as
follows:
Your client has not
complied with paragraph 1 of the court order in that she has not
reported to KD Matanzima Building, Mthatha
for purposes of completing
an assumption of duty form with the school principal and a period of
fifteen (15) days from the date
of the order has lapsed. Your client
has to be reinstated in order for the Department to be able to pay
her arrear salary. Your
client will have to communicate with the
Department to finalise the reinstatement process and the Department
will be able to process
payment of her arrear salary.
Kindly therefore
advise your client accordingly.
NP Yako
State Attorney, East
London.”
[10]
Nolands Law attorneys responded and stated the following:
“
We
refer to our prior letter of 6 July 2021 and our subsequent letter of
13 August 2021 copies of which are annexed hereto. We respectfully
suggest to you that your client’s contention that our client
must travel to Mthatha notwithstanding that your client has
deprived
her of all forms of income for literally years is disingenuous. If
your client does not comply with paragraph 6 of the
order of 10 June
2021 within fourteen (14) days we propose launching contempt
proceedings. We will do so without further notice.”
[11]
On 2 November 2021, Ms Mxoli’s attorneys wrote again to the
state attorney suggesting that the
assumption of duty forms must be
forwarded to them and they would ensure that their client completes
the forms. They would
then send them back to the state
attorney. They also contended that payment of arrear salary was not
dependent on their client
travelling to Mthatha to sign an assumption
of duty form. They insisted that the monies should be paid to their
client or alternatively,
the department should send money to Ms Mxoli
to enable her to travel to Mthatha.
[12] On
21 February 2022, Ms Mxoli’s attorneys wrote again and
threatened that if there was no compliance
with their demand they
would lodge further proceedings.
Ms Mxoli’s case
[13] On 05 December 2022
the current proceedings were launched. In these proceedings, Ms Mxoli
contends that she is destitute. She
stated that she does not
have money and is not able to raise monies to travel to Mthatha. She
accordingly seeks payment of arrear
salary due to her. She also seeks
an order directing the department to comply or facilitate her
reinstatement in terms of the 2019
order.
[14]
All the correspondence exchanged between the parties is attached to
Ms Mxoli’s papers.
Department’s
case
[15]
The Acting Head of department, Mr Mahlubandile Qwase deposed to the
answering affidavit on behalf of the
department. The department
contends that the applicant has failed to honour the court order
because she failed to report for duty.
She failed to complete her
assumption of duty form with her district office being the OR Tambo
Coastal District office at KD Matanzima
Building in Mthatha where she
was stationed before the invocation of the deemed discharged
provision, which was later set aside,
by the court. She also failed
to honour a further court order where the parties had agreed on
certain terms as contained in the
2021 order.
[16]
The department contends that Ms Mxoli failed to report at the KD
Matanzima Building for purposes of completing
the assumption of duty
form with the school principal of Vulindlela Senior Secondary School
(Vulindlela) in Port St. Johns within
fifteen (15) days of granting
of that order. Ms Mxoli has not submitted documents necessary to
facilitate her reinstatement, which
included, among other documents,
the banking details forms duly completed which must be submitted in
person to the district office.
She had not submitted any sick leave
or incapacity leave application forms to the school principal of
Vulindlela or to her district
office at KD Matanzima Building in
Mthatha. She has simply absented herself from 10 July 2019 to date of
deposing to the affidavit.
[17]
The department alleged that Ms Mxoli has committed another episode of
abscondment because she has failed
to report for duty despite having
been reinstated on 10 July 2019 by an order of court, and thus has
not been at work for a period
in excess of three (3) years. She has
again offended the provisions of section 14(1) of the EEA. She has
been absent from work
for a period in excess of fourteen (14) days
without any permission or authorisation from her employer. The
department contends
that Ms Mxoli is not entitled to any remuneration
or salary due to her unauthorised absence from work during the period
commencing
from 10 July 2019 to the date of the affidavit.
[18]
The department further alleged that Ms Mxoli was abusing the court
processes because she went to court to
seek relief but failed to
comply with the orders issued by the court. It concluded that Ms
Mxoli is not willing to render services
as an educator to the
department. The deponent stated that all the employees of the
department are treated equally and Ms Mxoli
cannot expect special
treatment in flagrant disregard of the policies and prescripts of the
department.
[19] An
employee is expected to offer her services to the employer in
exchange for remuneration and the respondent
has failed to do so for
three (3) years since her reinstatement. The procedural steps that
they mentioned in the affidavit are
necessary in order to procure
reinstatement of Ms Mxoli into the persal system of the department.
No salary can be processed if
an employee has not assumed duty and
signed all the relevant assumption of duty forms in person at a
designated district office.
[20]
The department had extended a favour to Ms Mxoli by stating that she
must report at the district office in
Mthatha because ordinarily she
is required to report at her school being her workstation at
Vulindlela. They asked for the application
to be dismissed with
costs. He stated:
“
26.6
I wish to reiterate that a person who is not on the persal system
cannot receive a salary and further that in order to
be loaded in the
persal system an employee was removed through a deemed discharged
must physically report for duty at her work
station in order to be
reinstated, when a court has so ordered through signing the
assumption of duty forms and other related documents
as outlined
above.”
[21]
The department contends that Ms Mxoli has abandoned the various court
orders. In responding to the allegation
that Ms Mxoli’s
attorneys had asked that the forms be sent to them, he stated that,
forwarding of a bank printout is not
in compliance with the
reinstatement requirements, because there are banking detail forms of
the department which must be completed
and stamped by the relevant
banking institution of the employee. Thereafter those forms must be
submitted back to the department.
He contends that reporting to a
relevant workstation cannot be substituted because it is necessary to
do so in order to avoid the
issue of having ‘ghosts’ as
employees.
[22]
The department submitted that Ms Mxoli has failed to make out a case
for the relief sought and her application
must be dismissed with
costs, alternatively, the court must declare that she has abandoned
the court orders which were granted
in her favour and that she be
deemed to have been discharged.
Reply by applicant
[23] In
reply Ms Mxoli stated that because she has not been reinstated yet,
she is not an employee and is thus
not subject to the EEA.
Ms Mxoli’s legal
submissions
[24]
In argument Mr Maseti appeared for Ms Mxoli and Mr Mayekiso appeared
for the department. Mr Maseti submitted
that Ms Mxoli has brought
this application to enforce the 2019 order. In the proposed draft
order Ms Mxoli seeks an order condoning
her failure to comply with
the 2021 order; that the department pay the arrear salaries in
compliance with the 2021 order within
30 days of the granting of the
order, and that the department should pay costs of the application
including costs reserved on 10
June 2021. Mr Maseti submitted that Ms
Mxoli’s failure to attend to Mthatha to complete the assumption
of duty forms must
be condoned and that the department should pay
costs of the application including those of 10 June 2021. He argued
that the department
and its officials are recalcitrant and lack
accountability, efficiency and professional ethics. He relied on
Matjhabeng
Local Municipality v Eskom Holdings Limited & Others
[1]
,
Mkhonto & Others v Compensation Solutions (Pty) Ltd
[2]
for the submission that the order proposed in the draft order is
appropriate, namely, that Ms Mxoli’s conduct of not reporting
for duty be condoned; and that the department pay costs. The cost
order, he submitted, would be consistent with the reasoning in
those
decisions. He submitted that where it was contemplated that in
dealing with public officials who fail to comply with court
orders,
those principles ought to be applied. He also relied on
Federation
of Governing Bodies for South African Schools (FEDSAS) v Member of
the Executive Council for Education, Gauteng
[3]
.
Department’s
legal submissions
[25]
Mr Mayekiso, on behalf of the department submitted that the main
issue upon which this court is called to
decide is whether a salary
backpay can be enforceable before an employee is reinstated, meaning,
prior to Ms Mxoli tendering her
services. It was submitted that the
court must decide whether an employee who refuses to tender services
to the employer has not
in effect abandoned the judgment and a court
order which reinstated her in the first place. The other issue that
the department
raised is for this court to determine whether the
purported contempt proceedings are appropriate to enforce the arrear
salaries.
[26]
Relying on the legal principles applicable on reinstatement, it was
submitted that an employee’s entitlement
to arrear salary to a
reinstatement court order is dependent on the restoration of the
contract of employment between the parties.
In this regard, reference
was made to
Kubeka
& Others v Nida Transport (Pty) Ltd
[4]
.
It was further submitted that the contract of employment is revived
only when the formally dismissed employee tender her services
pursuant to a reinstatement order
[5]
.
[27]
Relying on the same judgment the department contends that in the
Kubeka
matter the court dealt with the requirements that must
be met before a formally dismissed employee can claim salary backpay.
A requirement
that a back pay is only due and payable on
reinstatement is in keeping with the remedial scheme and purpose of
section 193 of the
Labour Relations Act (the LRA). As Mr Watt-
Pringle, counsel for the respondents correctly submitted, if an
employee in receipt
of a reinstatement order could on the strength of
the order alone claim contractual payment for the retrospective part
of the order
without actually seeking reinstatement (tendering
prospective services). It would convert a reinstatement remedy which
requires
a tender of services into a compensation award (which does
not, in excess of the statutory limitation on compensation awards.
Such
an outcome would be inconsistent with the purpose of section 193
and 194 of the LRA. An unfairly dismissed employee must elect his
or
her preferred remedy and if granted reinstatement must tender his or
her services within a reasonable time of the order becoming
enforceable. If reinstatement has become impracticable through a
reflection of time, for instance where the employee has found
alternative employment, he or she should seek to amend his or her
prayer for relief to one seeking compensation.
[28]
It is submitted on behalf of the department that based on those
authorities an employee is barred or precluded
from claiming any
perceived arrear wages until he or she tenders her services to the
employer within a reasonable time after the
reinstatement court
order. In this case, Ms Mxoli refused to tender her services to the
employer within a reasonable time and thus
is not entitled to the
relief she is seeking. He then submitted that the Court should
dismiss Ms Mxoli’s case with costs
and to incorporate the
declarations that are proposed that she must be regarded as having
abandoned the court orders and also as
having absconded because she
has absented herself without authorisation.
Discussion
[29]
As aforementioned, Ms Mxoli has stated in reply that because she has
not been reinstated yet, she is not
an employee and the EEA does not
apply to her. Section 14 (2) of the EEA provides that:
“
(2)
If an educator who is deemed to have been discharged under paragraph
(a) or (b) of subsection (1)
at
any time reports for duty,
the
employer may, on good cause shown and notwithstanding anything to the
contrary contained in this Act, approve the reinstatement
of the
educator in the educator’s former post or in any other post on
such conditions relating to the period of the educator’s
absence from duty or otherwise as the employer may determine.”
[30]
This section places the obligation of taking the step of ‘reporting
for duty’ on the employee.
In casu
, the reinstatement
was ordered by court. Ms Mxoli’s reinstatement cannot be
effected until Ms Mxoli has reported for duty.
She has decided to
make reporting for duty conditional upon payment of her arrear
salary. Despite several advices from the department
and even when she
agreed to report for duty, as per the 2021 court order, she still
refused to do so until her arrear salary has
been paid.
[31]
By her actions she is making it impossible for the department to
comply with its obligations in terms of
both court orders. The issue
of reporting for duty is not only administrative but it restores the
contract of employment between
Ms Mxoli and the department.
[32]
In the case of
Kubeka,
supra,
at paragraph 35 the Labour
Appeal Court remarked as follows:
“
[35]
The decision of the Constitutional Court in Hendor therefore
leaves little doubt that a reinstatement
order does not restore the
contract of employment and reinstate the unfairly dismissed
employees. Rather, it is a court order directing
the employees to
tender their services and the employer to accept that tender. If the
employee fails to tender his or her services
or the employer refuses
to accept the tender, there is no restoration of the employment
contract. If the employer fails to accept
the tender of services in
accordance with the terms of the order, the employee’s remedy
is to bring contempt proceedings
to compel the employer to accept the
tender of services and thereby to implement the court order.”
[33]
In
National
Union of Metalworkers of South Africa and Others v Hendor Mining
Supplies (a division of Marschalk Beleggings (Pty) Ltd
[6]
,
the Constitutional Court made it clear that there were reciprocal
obligations. The employee had obligations to present her or
himself
for work and the corresponding obligation to accept him or her to
workflows from the court order. In the NUMSA case the
employees
reported for duty as directed by the court order but the employer
refused to reinstate them. This case stands on a different
footing as
the employee in whose favour the reinstatement order was made in the
2019 order, refuses to report for duty, even when
the employer has
agreed that she reports at the district office instead of Port St.
Johns. Ms Mxoli now seeks condonation for her
failure to report for
duty. That unfortunately is not an answer to the reinstatement issue.
No reinstatement will take place until
she reports for duty. No
court is empowered to condone her failure to report for duty because
her failure to do so does not
revive the contract of employment with
the department.
[34] Ms
Mxoli has approached court for her reinstatement but has since the
grant of the order failed to take steps,
such as reporting for duty,
to ensure that the order is effected. She agreed to the 2021 order
which also sought to give effect
to the 2019 order in a more
practical way. She still refused to report for duty.
[35] Ms
Mxoli is legally represented and has been so represented throughout
this litigation. It is not clear to
me what advice she is being given
and if she rejects it, the basis upon which she does so.
[36] I
am not satisfied that a case has been made out for this court to come
to the aid of Ms Mxoli, again, who
refuses to report for duty to
date. I am not inclined to dismiss the application since this is a
matter that relates to her employment.
I shall simply strike
the matter off the roll in the hope that she will, after reading this
judgment, realise that she is putting
her career and livelihood at
risk by not reporting for duty. Since she has placed under oath that
she is indigent, I will not order
that she pays costs of this
application.
ORDER
[37] I accordingly
make the following Order:
37.1. The
matter is struck from the roll.
37.2. Each
party is to bear its own costs.
T.V. NORMAN
JUDGE OF THE HIGH
COURT
Matter heard
on:
15 June 2023
Judgement Delivered
on: 20 June 2023
APPEARANCES
For
the APPLICANTS:
MR
MAYEKISO
Instructed
by:
THE
STATE ATTORNEY
c/o:
SHARED LEGAL SERVICES
OFFICE
OF THE PREMIER
KING
WILLIAMS TOWN
REF:
899/17-P10
TEL:043 706
5100
FAX:
043 722
0926
EMAIL:
noyako@justice.gov.za
For
the RESPONDENT:
MR
MASETI
HUTTON
& COOK INC.
75
ALEXANDRA ROAD
KING
WILLIAMS TOWN
TEL:
043 642 3410
REF:
Mr GC WEBB/LC
[1]
2018
(1) SA 1 (CC).
[2]
2018 (1) SA 1
(CC).
[3]
[2016] ZACC 14
;
2016 (4) SA 546
(CC);
2016 (8) BCLR 1050
CC.
[4]
2021 42 ILJ 499 (LAC).
[5]
See
NUMSA
obo Fohlisa & Others v Hendor Mining Supplies (Pty) Ltd
2017 38 ILJ 1560 (CC).
[6]
[2017] ZACC 9.