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[2023] ZAECBHC 20
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Soga v Member of the Executive Council for the Department of Health , Eastern Cape and Another (8 August 2023) (518/2022) [2023] ZAECBHC 20 (8 August 2023)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, BHISHO)
NOT REPORTABLE
Case no: 518/2022
In
the matter between:
LUVUYO
SOGA
Applicant
and
MEMBER
OF THE EXECUTIVE COUNCIL
FOR
THE DEPARTMENT OF HEALTH,
First
Respondent
EASTERN
CAPE
MINISTER
OF FINANCE
Second
Respondent
JUDGMENT
Govindjee J
Background
[1]
The
applicant was employed by the Eastern Cape Department of Health (‘the
Department’) in 1986, and occupied a position
at Assistant
Director level until he retired early, at the age of 55 years,
effective from 1 January 2021. His primary complaint
is that he was
penalised in respect of pension benefits upon early retirement, and
that the respondents acted unlawfully by contravening
s 16(6) of the
Public Service Act, 1994 (‘the Act’). That section
provides for state employees to retire before the
normal age of 60
years, and without imposition of any pension penalties, subject to
the approval of the executive authority.
[1]
A circular from the Department: Public Service and Administration
(‘DPSA’), dated 25 February 2019, (‘the circular’)
explains the workings of the system. The applicant seeks to ‘enforce’
the circular by way of a legality review challenging
a decision of
the first respondent (‘the MEC’) to refuse an application
for early retirement without pension penalty
on 8 December 2020. The
applicant also challenges the decision, dated 10 December 2020, to
impose pension penalties upon his retirement.
The circular
[2]
The
authority to grant early retirement without pension penalties vests
in the relevant executive authority, in this case the MEC.
[2]
National treasury agreed to ‘assist in providing additional
funding to departments and governmental components, both nationally
and provincially’ in order to operationalise s 16(6) of the
Act.
[3]
National treasury set
conditions for funding instances where departments chose to utilise
the option of early retirement without
pension penalties.
[4]
The circular highlights the following:
‘
5.1
In terms of section 16(6) of the PSA, the relevant EA or his / her
delegated authority, is empowered to, upon receipt of a request
from
such employees, approve ER applications without pension penalties, if
sufficient reasons exist for the retirement based on
criteria.
5.2 The approval of any
ER application without pension penalties, in respect of employees
from the age of 55 to 60 years, shall
be subject to the pension laws,
criteria and conditions determined by the employer
and the
availability of funding
, supported by NT.’ (own emphasis).
[3]
Attached to the circular was a DPSA
‘Guideline on Managing Early Retirement in the Public Service’
(‘the DPSA
Guidelines’) and national treasury ‘Guidelines
for the 2019 MTEF Period Criteria for Early Retirement Funding
Provision
to Departments (‘the NT Guidelines’), which
explained the processes and conditions for the provision of
supplementary
funding to support early retirement applications. It is
readily apparent from notes to these documents that the intention was
for
the documentation to be read together.
[4]
The
circular provides that, subject to conditions, pension expenditure
incurred as a result of granting early retirement without
pension
penalties would be funded by national treasury for departments who
applied for such funding. Where funding was required
from national
treasury, departments were to demonstrate how the granting of such
early retirement to employees would yield potential
future savings in
terms of national treasury conditions.
[5]
[5]
The
circular informed qualifying employees wishing to apply for early
retirement without pension penalties to submit their application
to
their human resource office, ‘[to] be considered based on the
management plans and criteria set by relevant departments’.
[6]
The DPSA Guidelines
[6]
The
DPSA Guidelines confirm that employees aged between 55 and 60 years
may retire from the public service subject to pension penalties.
[7]
Each executive authority enjoys the discretion to approve early
retirement requests for qualifying employees without pension
penalties,
‘based on reasonable criteria set by that executive
authority’.
[8]
[7]
Approval
of early retirement applications was not automatic on application and
was to be considered on its own merits and measured
against criteria
provided for in the DPSA Guidelines as well as contextual factors, to
be considered by each executive authority.
[9]
In determining the criteria for early retirement applications within
their respective departments, each executive authority was
obliged to
ensure, inter alia, that there would be no negative impact on the
delivery of services by the department and that potential
future
fiscal savings would be realised in terms of national treasury’s
conditions.
[10]
[8]
While
the approving department was usually required to bear the financial
costs of any consequent pension penalties, the DPSA Guidelines
provided for the associated financial implications to be funded by
national treasury, ‘[making] special provision to support
such
initiatives, if it is in the interest of fiscal savings and
supporting Human Resource (HR) Planning within a department’.
[11]
The NT Guidelines canvass eligibility and funding criteria, also
explaining the limitations of the funding support to be provided
by
national treasury to departments.
[12]
Furthermore, departments benefiting from national treasury assistance
were expected to generate permanent future savings linked
to the
resultant vacant posts and a permanent reduction in the average unit
costs of personnel.
[13]
[9]
There are various disputes of fact on the
papers that require resolution in accordance with the accepted
approach to determining
applications for final relief on motion. For
present purposes, it may be noted that it is the MEC’s
contention that the applicant
was one of approximately 200 employees
of the Department who applied for early retirement without pension
penalties. The Office
of the Premier was asked by the Department to
make application for funding to the DPSA and national treasury. The
applications
were remitted to the relevant provincial treasuries and
the Eastern Cape Provincial Treasury required the respective
departments
to fund pension penalties associated with approved early
retirement. Departmental circular, 10/2021, seemingly signed on 17
February
2021 but dated 8 April 2021, (‘the departmental
circular’) explains the following:
‘
In
July 2020, due to the advent of the COVID-19 pandemic, National
Treasury issued communique that departments will now take
responsibility
of all the costs arising out of the Early Retirement
without Penalty process. This was due to diversion of the funds that
were
earmarked for this process to fighting of COVID-19.
Based on the above
paragraph, the department will not be able to process applications
for Early Retirement without Penalization
of pension Benefits in
terms of section 16(6) of the Public Service Act, 1994 due to lack of
funding.’
[10]
Prior to that, on 8 December 2020, the
Deputy Director-General: HR and Corporate Services, corresponded with
the applicant as follows:
‘
Application
for Early Retirement With Penalisation from the Public Service in
terms of Public Service Act, 1994, as amended, section
16(6):
Yourself
1.
The MEC for Health has not approved your
application for Early Retirement Without Penalisation in terms of the
Public Service Act,
1994, as amended, section 16(6) based on the
following reasons:
(a)
Based on the precarious financial position
of the Department, projected into the MTEF, there are insufficient
funds available to
pay the resultant penalties to the Government
Employee Pension Fund.
2.
Please note that you are welcome to apply
for Early Retirement with penalties in terms of the Public Service
Act, 1994, as amended,
section 16(6)(a).
3.
Please also be informed that should you
choose to opt for point 2 as mentioned above, there will be a
downscaling of 4% per annum
on pension benefit.’
[11]
Ms Thembeka Nqumashe, the Human Resource
Manager of the Department, responsible for employee service benefits
and exit management
benefits for employees in the position of the
applicant, deposed to an answering affidavit on behalf of the MEC.
The affidavit
confirms that the deponent had been involved in the
process leading to the applicant’s retirement. It is averred
that after
he was informed of the non-approval, the applicant did not
want to continue in employment after December 2020. He verbally
communicated
that the Department should proceed to approve early
retirement with penalty. The applicant denies this. This was approved
by way
of correspondence dated 10 December 2020, and the applicant’s
last day of duty was at the end of that month.
[12]
It is relevant to add that the applicant
had drafted correspondence to the District Manager of the Department
some seven weeks prior
to this, as follows:
‘
Forced
application for early retirement with penalisation of pension
benefits to be payable by Eastern Cape Department of Health’
After non-approval and or
delayed approval on time of all my earlier submitted applications for
Early Retirement without Penalisation
of Pension Benefits for reasons
better known by the Department, I now wish to apply for the
processing of Early Retirement with
Penalisation of Benefits with a
sin qua non (sic) that such penalisation will be paid by the
Department.
I therefore grant
authority for the processing of my benefits accruing from such
retirement and that I be regarded as having been
retired as from 1
December 2020. All letters for payment of the penalties have been
submitted to the office of the Honourable MEC
for Health who I had a
telephone contact with today, Acting SG Dr Zungu and also the DDG Mrs
Mavuso.’
[13]
More than 19 months after retiring, and
some 17 months after receiving payment of his pension gratuity from
the Government Employees’
Pension Fund, the applicant launched
the present application, also contending that he would have remained
in employment until normal
retirement age in the absence of approval
of early retirement without pension penalties.
[14]
One of the points
in
limine
taken by the MEC is undue delay
in launching the application for review.
Undue delay
[15]
The founding affidavit fails to address the
issue of delay and the following factual averments on the part of the
MEC are not contested
in reply. The applicant became aware that he
had been placed on early retirement with the imposition of pension
penalties by no
later than 14 December 2020. His last day on duty was
at the end of that month. His early retirement commenced with effect
from
1 January 2021 and the GEPF paid his pension gratuity on 23
March 2021. Only at the end of August 2022 did he launch the present
application.
[16]
In response to the point, the applicant
avers only that the parties ‘have been engaging on the matter
until it was clear that
the first respondent is not relenting on
their stance not to pay my penalised pension benefits’ and that
the ‘last
encounter was in November 2022 when first
respondent’s officials requested me to consider going back to
work at lower salary’.
In amplification, the applicant refers
to paragraphs of the answering affidavit that ‘sets out the
encounters that ensued
between the Department and I’.
Those paragraphs, however, refer only to the circular dated 17
February 2021, a prior
complaint to the Director-General in the
Office of the Premier about the delay in obtaining a response to the
application, seemingly
during 2020, and an application to the
District Manager, apparently also during 2020. No further explanation
is offered by the
applicant. The applicant argues that there is no
prejudice suffered by the MEC as a result of the alleged delay.
Inexplicably,
he adds only that that the departmental circular puts
paid to the point.
[17]
The
applicant seeks to review the decisions to refuse his request for
early retirement without pension penalty and to impose a penalty
on
his pension benefits as unlawful. Courts have the power to regulate
their own proceedings and to refuse a review application
if the
aggrieved party has been guilty of unreasonable delay in initiating
the proceedings.
[14]
The first
part of the rationale for this is that failure to launch a review
within a reasonable time may cause prejudice to the
respondent. There
is, secondly, also a public-interest element in the finality of
administrative decisions and the performance
of administrative
functions.
[15]
The application
of the rule requires consideration of whether there was an
unreasonable delay and, if so, whether the delay should,
in all the
circumstances, be condoned.
[16]
[18]
The
reasonableness or unreasonableness of a delay is dependent on the
facts and circumstances of each case. It requires a value
judgment,
in light of all the relevant circumstances, based on a factual
enquiry and bearing in mind the nature of the challenged
decision.
[17]
The relevant
circumstances to be considered includes any explanation that is
offered for the delay. Put differently, it requires
an investigation
into the facts of the matter in order to determine whether, in all
the circumstances of the case, the delay was
reasonable.
[18]
Mr
Zono
,
for the applicant, conceded that the delay in launching the
application was unreasonable. This concession was properly made
considering
the lengthy period of time that has elapsed and the
absence of any cogent explanation for this.
[19]
[19]
Exercising
the discretion whether or not to condone the delay cannot be
evaluated in a vacuum and must be informed by constitutional
values.
[20]
In
Department
of Transport and Others v Tasima (Pty) Ltd
,
[21]
the point was made that a court should exhibit ‘vigilance,
consideration and propriety’ before exercising its discretion
to overlook a late review. There must, however, be a basis for a
court to exercise its discretion to overlook the delay and that
basis
must be gleaned from the facts made available by the parties or
objectively available facts.
[22]
As indicated, the applicant has failed to address the unreasonable
delay whatsoever in his founding affidavit. In reply, he has
satisfied himself with the barest of responses to the point raised by
the MEC, including only vague allegations of attempts to
settle the
dispute.
[20]
In
doing so, the applicant appears to operate under the misapprehension
that the MEC was obliged to detail the prejudice suffered,
and that
in the absence of that the point is technical. This point receives
further consideration, below. Furthermore, the applicant
appears to
attempt to obfuscate the issue by referring to engagements that
predate the impugned decisions, rather than addressing
his own
inactivity subsequent to being placed on early retirement with
pension penalty. It is the delay in instituting the review
that
requires explanation. The applicant concedes that the delay was
unreasonable. Yet he has failed to advance any basis for the
exercise
of a discretion in his favour. The bald hint of subsequent
engagements with the MEC is wholly inadequate. Similarly,
the
suggestion that he was left astonished and dumbstruck by the 10
December 2020 correspondence is belied by his subsequent inaction.
Given the absence of a proper basis for condoning the delay, to do so
would be baseless and in the manner deprecated by the highest
court.
[23]
That on its own
should be the end of the matter.
[21]
There
is also authority that the nature of the second impugned decision,
which had the effect of terminating the applicant’s
employment,
should itself have precipitated a prompt review, before the
consequences of that decision became entrenched.
[24]
In the context of an Assistant Director employed by the Department,
and whose position would need to be filled immediately once
vacated,
[25]
the reasons for
that are obvious. Instead, the applicant has not advanced any serious
basis to suggest that he had not acquiesced
in the decision to be
placed on early retirement, even when it became clear to him that
this was with pension penalty. Dilly-dallying
suggesting acquiescence
requires explanation.
[26]
As
in
Gqwetha
v Transkei Development Corporation Ltd and Others
[27]
(‘
Gqwetha
’),
the applicant’s difficulty is the failure to advance grounds
for overlooking the unreasonable delay, and the court’s
inability to discern any basis for doing so from the papers.
[22]
In
the event that I am mistaken in this respect, or the approach adopted
is considered overly strict, an enquiry involving a flexible
factual,
multi-factorial and context-sensitive framework yields the same
result.
[28]
In
Sakhisizwe
Local Municipality v Tshefu and Others
,
[29]
Lowe J extracted, inter alia, the following dimensions of the
approach to condoning an unreasonable delay from
Buffalo
City Metropolitan Municipality v Asla Construction (Pty) Ltd
(‘
Asla
’):
[30]
a.
It
must be assessed with reference to its potential to prejudice the
affected parties and having regard to the possible consequences
of
setting aside the impugned decision.
[31]
b.
The nature of the impugned decision is to
be considered – deviation and its extent from constitutional
prescripts impacts
on condonation, requiring analysis of the impugned
decision and the legal merits of the challenge against it.
c.
The conduct of the applicant is to be
considered.
[23]
The
court’s discretion is broad and is to be exercised in the light
of all relevant facts.
[32]
It
must be noted that proof of actual prejudice to the respondent is not
a precondition for refusing to entertain review proceedings
because
of undue delay. In
Gqwetha
,
Nugent JA explained that this is because of the inherent potential
for prejudice, both to the efficient functioning of the public
body,
and to those who rely upon its decisions, if the validity of its
decisions remains uncertain.
[33]
In the present circumstances, a successful review of the second
decision would inevitably necessitate the applicant’s return
to
work, as
Mr
Zono
acknowledged.
The papers reflect that the final decision was that applicant’s
position ‘would need to be filled immediately
hence the
approval [of early retirement without pension penalty] could not be
made’. The inherent potential of prejudice
to the MEC in the
event that the review succeeds is self-evident in these
circumstances. It is also important to acknowledge that
the passage
of a considerable period of time may weaken the court’s ability
to assess an instance of unlawfulness on the
facts.
[34]
[24]
That
notwithstanding, even accepting that the MEC’s failure to
detail such prejudice is a relevant consideration in favour
of the
applicant is not sufficient on its own for purposes of overlooking
the delay. While that may have been decisive had the
delay been
‘relatively slight’, this is not the case for reasons
already canvassed and conceded.
[35]
In addition, consideration of the nature of the impugned decision is
also relevant, as is the extent to which the delay constrained
an
accurate review.
[36]
This
requires analysis of the ‘impugned decision within the legal
challenge made against it and considering the merits of
that
challenge’.
[37]
[25]
Those
merits must be determined on the accepted approach to factual
disputes in applications for final relief.
[38]
A final order reviewing the impugned decisions can only be granted if
the facts averred in the applicant’s affidavits, which
have
been admitted by the respondents, together with the facts alleged by
the latter, justify such order.
[39]
The papers must be considered in this way. Doing so reveals that the
applicant was one of a number of department employees who
applied for
early retirement without penalisation of pension benefits. Those
applications were not funded by the DPSA and national
treasury and
were remitted to the relevant provincial treasuries. The Eastern Cape
Provincial Treasury transferred the duty to
fund the penalties on
pension benefits to the respective department to which applications
for early retirement without penalisation
had been made. The
Department determined that it lacked the funds to support
applications for early retirement without penalisation.
The
departmental circular is attached to the MEC’s answering
affidavit and explains the position, as described. This is supported
by correspondence from the Director-General of the DPSA, dated 12
October 2020 and attached to the second respondent’s papers.
That correspondence, which is uncontested, confirms that ‘[w]ith
respect to provincial applications, the Technical Committee
on
Finance has taken a decision to have provincial cases processed at
the respective provinces. All provincial applications have
therefore
been handed over to the respective Provincial Treasuries’.
[26]
The point is that national treasury
commitment to assist provinces with funding applications for early
retirement without penalty,
subject to various conditions, had been
overtaken by events during 2020. The MEC based the decision to refuse
the application for
early retirement without penalty on the
Department’s funding constraints. The applicant’s reply
to the second respondent’s
answering affidavit is particularly
revealing. Here, in direct contradiction to his reply to the MEC’s
answering affidavit,
he accepts that the Department lacked funds ‘and
is in precarious financial position’.
[27]
He
persists nonetheless, seemingly on the basis of an unqualified
entitlement that the second respondent was obliged to fund any
penalties once application had been made. The applicant contends,
untenably, that ‘[h]ad it been true that the respondent[s]
experienced inadequacy of funds they should and could not have
invited the application of that nature’. His contention that
his application for early retirement had been approved and that,
given that he had applied for early retirement without pension
penalisation, pension penalty funding was obligatory, is equally
far-fetched considering the facts available. The court cannot
be
satisfied as to the inherent credibility of the applicant’s
factual averments related to such submissions. The denials
of the
respondents to such averments, even absent foolproof supporting
documentation, are not so far-fetched or clearly untenable
to warrant
this court’s rejection on the papers.
[40]
In the circumstances, the prospects of the applicant succeeding in
reviewing the decision to refuse his application for early retirement
without pension penalty are remote.
[28]
A
robust, common-sense approach to the dispute of fact as to whether
the applicant opted for early retirement with pension penalty,
resulting in the letter dated 10 December 2020, also favours the
respondents. Part of the reason for this is the applicant’s
own
averments and the contents of correspondence attached to the founding
papers.
[41]
This reveals that
the applicant was fully aware of the option of early retirement with
penalisation of benefits, and that pension
benefits would ordinarily
be penalised in cases of early retirement. He himself applied for
this specifically on 6 November 2020,
granting authority for the
processing of retirement benefits and seeking to retire with effect
from the following month. The applicant
added only that he wished the
Department to take responsibility for the penalties that he knew
would accrue and that he had already
submitted correspondence in
support of that.
[29]
It is clearly apparent that the
correspondence dated 8 December 2020 explains that the application
for early retirement without
penalty had been refused based on the
Department’s lack of available funding. That correspondence
indicated that it was nonetheless
open to the applicant to apply for
early retirement with penalties in terms of the Act. The MEC’s
case is that the applicant
did not want to continue in service
post-December 2020 and therefore communicated verbally that the
Department should proceed to
approve early retirement with
penalisation, which was subsequently approved. The applicant’s
version is that he had never
applied for early retirement with
pension penalty. Attached to his founding affidavit is the memorandum
from the Department’s
Acting Deputy Director: Human Resources
to the Deputy Director-General: Clinical Services, dated 10 December
2020, seeking approval
for early retirement with penalty. The
recommendation makes reference to an application letter from the
applicant, but this is
not attached. That recommendation includes
signatures indicating approval from various senior personnel, and
must be considered
as the trigger for the correspondence addressed to
the applicant on 10 December 2020, indicating that he would be
retired from
service with penalty with effect from 1 January 2021.
[30]
Whether this was based on his verbal
request must also be considered against the backdrop of what occurred
subsequently, namely
the failure to protest upon receipt of that
correspondence, the acquiescence to the stipulated last day of
service on 31 December
2020, receipt of pension benefits, with
penalty deduction, on 23 March 2021, and the subsequent inaction
until the application
was issued on 30 August 2022. It is certainly
not the behaviour of a person taken by surprise at having his
employment terminated
by early retirement, to say the least. Again,
the merits of the challenge against the second impugned decision
appear to favour
the respondents. Considering the circumstances, the
conduct of the applicant, including the lengthy period of inaction
and the
paucity of factual information he has provided, also counts
against granting condonation for the delay.
[31]
In
Gqwetha
,
the court that heard the application had exercised a discretion to
condone an unreasonable delay of 14 months, for which there
was no
adequate explanation. The court had overlooked the delay on the basis
that the period was ‘not very long’ and
the applicant was
‘quite strong on the merits’. That approach was
criticised as being unduly narrow:
[42]
‘
As
to the first ground … I do not think that a delay that is
unreasonable in its extent can simultaneously, and without more,
serve as the basis for overlooking it. What the learned Judge
overlooked, as correctly pointed out by the court
a
quo
, was the inherent potential for
resultant prejudice if the decision was set aside. It needs also to
be borne in mind, when evaluating
the potential for prejudice, that
the consequential relief that the appellant sought was an order
reinstating her in her employment,
which, if granted, would require
the first respondent to return her to her former position, and not
merely to appoint her to some
other unidentified position … As
to the second ground … it is the prospect (or lack of it) of a
meaningful consequence
to the setting aside of an administrative
decision, rather than merely the prospect of the administrative
decision being set aside,
that might be a relevant consideration to
take into account … In my view it was in the nature of the
decision to dismiss
the appellant that any challenge to it ought to
have been brought promptly, before its consequences were entrenched.
No adequate
grounds have been advanced by the appellant for
overlooking her default and I am able to discern none.’
[32]
In sum, the respondents have failed to
detail the prejudice caused by the delay and it may be accepted, in
favour of the applicant,
that there is nothing on the papers
suggesting that the delay constrained an accurate review. The
possible consequences of setting
aside the impugned decisions are
self-evident. That aside, the considerations in favour of granting
condonation are roundly outweighed
by the nature of the impugned
decisions linked to the assessment of the merits of the application,
and by the conduct of the applicant.
There is also no other basis,
constitutional or otherwise, for granting the relief sought.
[33]
The
Constitutional Court has highlighted that legality reviews must be
initiated without undue delay and that courts have the power,
as part
of their inherent jurisdiction to regulate their own proceedings, to
refuse a review application in the face of an undue
delay in
initiating proceedings, or to overlook the delay.
[43]
The applicant has failed to provide any satisfactory explanation for
the delay and there is an insufficient basis for overlooking
the
delay when considering all the circumstances. The court is therefore
inclined to exercise its discretion to refuse the application.
This
is consistent with the sentiment that the procedural requirement to
bring a review application without delay serves a substantive
purpose, based on sound judicial policy and in the public interest,
that there be certainty and finality in matters and that undue
delay
should not be tolerated in the absence of good reason.
[44]
Order
[34]
The following order will issue:
1.
The application is dismissed with costs.
A GOVINDJEE
JUDGE OF THE HIGH
COURT
Heard:
27
July 2023
Delivered
:
08
August 2023
Appearances:
For
the Applicant:
Mr
AS Zono
Attorney
for the Applicant
Instructed
by:
AS
Zono & Associates
Suite
153,1
st
Floor
ECDC
Building
Mthatha
Email:
zono@telkomsa.net
For
the First Respondent:
Adv
T Coto
Chambers,
East London
Instructed
by:
State
Attorney East London
Attorneys
for the First Respondent
Old
Spoornet Building
No.17
Fleet Street
East
London
Email:
kp.mosia86@gmail.com
For
the Second Respondent:
Adv
MD Sekwakweng
Chambers,
Johannesburg
Instructed
by:
State
Attorney Pretoria
Attorneys
for the Second Respondent
Salu
Building
255
Francis Baard Street
Pretoria
Email:
zzenani@justice.gov.za
[1]
Section 16(6) of the Act provides as follows:
(a)
An executive authority may, at the request of an employee, allow
him or her to retire from the public service before reaching the
age
of 60 years, notwithstanding the absence of any reason for dismissal
in terms of section 17(2), if sufficient reason exists
for the
retirement.
(b)
If an employee is allowed to so retire, he or she shall,
notwithstanding anything to the contrary contained in subsection
(4),
be deemed to have retired in terms of that subsection, and he
or she shall be entitled to such pension as he or she would have
been entitled to if he or she had retired from the public service in
terms of that subsection.
[2]
Para 1.4 of the circular.
[3]
Para 1.5 of the circular.
[4]
Para 1.6 of the circular.
[5]
Para 5.3 of the circular.
[6]
Para 5.5 of the circular.
[7]
Para 1.1 of the DPSA Guideline.
[8]
Para 1.3 of the DPSA Guideline.
[9]
Para 2.1 of the DPSA Guidelines.
[10]
Para 3.1 of the DPSA Guidelines.
[11]
Paras 1.1 and 1.4 of the DPSA Guidelines.
[12]
Paras 5.3 – 5.5 of the NT Guidelines. For example, each
respective department would still be obliged to fund pro-rata
service bonus pay, balance of capped leave over 160 days and unused
annual leave from within their baseline budgets when approving
early
retirement applications.
[13]
Paras 5.8, 5.9 and 6 of the NT Guidelines.
[14]
Associated
Institutions Pension Fund and Others v Van Zyl and Others
2005 (2) SA 302
(SCA);
[2004] 4 All SA 133
;
[2004] ZASCA 78
(‘
Van
Zyl
’)
paras 46-47.
[15]
Madikizela-Mandela
v Executors, Estate Late Mandela and Others
2018
(4) SA 86
(SCA) (‘
Madikizela-Mandela
’)
para 9. It can be contrary to the administration of justice and the
public interest to allow such decisions or acts to
be set aside
after an unreasonably long period of time has lapsed:
Wolgroeiers
Afslaers (Edms) Bpk v Munisipaliteit van Kaapstad
1978 (1) SA 13
(A) at 41E-F.
[16]
Ibid.
[17]
Gqwetha
v Transkei Development Corporation Ltd and Others
[2006] 3 All SA 245
(SCA) (‘
Gqwetha
’)
para 24.
[18]
Madiizela-Mandela
above n 15 para 10. In
Van
Zyl
,
the court emphasised that while this involved the exercise of a
value judgment, it was not to be equated with the judicial
discretion involved in the next question, dealing with condonation:
Van Zyl
above
n 14 paras 48, 49.
Van
Zyl,
it
may be emphasised, was an ordinary appeal against a finding of fact
and law and did not involve an appeal against the exercise
of a
judicial discretion by a court of first instance.
[19]
See
Setsokosane
Busdiens (Edms) Bpk v Voorsitter, Nasionale Vervoerkommissie en ‘n
Ander
1986 (2) SA 57 (A).
[20]
Khumalo
and Another v MEC for Education, KwaZulu-Natal
2014 (5) SA 579
(CC) (‘
Khumalo
’)
paras
44, 52 and 53. It must be noted that, in the context of
public-sector employment, the value of security for employees, and
mitigating the arguably inherent workplace inequality, are to be
kept in mind, together with a court’s power to grant an
‘appropriate order’ in mitigating the effects of a
declaration of invalidity
[21]
Department
of Transport and Others v Tasima (Pty) Ltd
2017
(2) SA 622
(CC) (‘Tasima’) para 160.
[22]
State
Information Technology Agency SOC Ltd v Gijima Holdings (Pty) Ltd
2018
(2) SA 23
(CC) para 49.
[23]
Ibid
.
[24]
Gqwetha
above n 17 para 36.
[25]
Para 51.2 of the MEC’s answering affidavit, and reference to
the post being critical and would need to be advertised, at
p 98 of
the bundle.
[26]
MEC for
Health, EC v Kirland Investments
2014 (3) SA 481
(CC) pars 70 - 72;
Merafong
City v Anglogold Ashanti
2017 (2) SA 211
(CC) para 40.
[27]
Gqwetha
above n 17 para 36.
[28]
Tasima
above
n 21 para 144.
[29]
Sakhisizwe
Local Municipality v Tshefu and Others
[2020] 2 All SA 299
(ECG) para 41.
[30]
Buffalo
City Metropolitan Municipality v Asla Construction (Pty) Ltd
[2019]
ZACC 15
(‘
Asla
’)
para 54.
[31]
Gqwetha
above
n 17 para 34.
[32]
Oudekraal
Estates (Pty) Ltd v City of Cape Town
2010 (1) SA 333
(SCA) para 57.
[33]
Gqwetha
above n 17 para 23.
[34]
Khumalo
above
n 20 para 48.
[35]
Ibid.
In
Khumalo
,
the potential prejudice to the employee, who had been promoted
despite not meeting the minimum requirements for the job, did
not
favour non-suiting the MEC (as the applicant seeking condonation) in
the face of the delay.
[36]
Khumalo
above n 20 para 69.
[37]
Khumalo
above
n 20 para 57.
[38]
Plascon-Evans
Paints Ltd v Van Riebeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
(A) at 634E – 635D.
[39]
The position may be different if the respondent’s version
consists of bald or uncreditworthy denials, raises fictitious
disputes of fact, is palpably implausible, far-fetched or so clearly
untenable that the court is justified in rejecting them
merely on
the papers:
Media
24 Books (Pty) Ltd v Oxford University Press Southern Africa (Pty)
Ltd
2017
(2) SA 1
(SCA). In the present instance, there are no relevant
irresoluble real and genuine factual disputes which prevent the
dispute
being determined on the papers.
[40]
See
Associated
South African Bakeries (Pty) Ltd v Oryx & Vereinigte Bäckereien
(Pty) Ltd en Andere
1982 (3) SA 893
(A) at 924A.
[41]
As was the case in
Asla
,
many of these documents speak for themselves:
Asla
above
n 30 para 94.
[42]
Gqwetha
above n 17 paras 33 – 36.
[43]
Khumalo
above
n 20 para 44, citing
Van
Zyl
above n 14 para 46.
[44]
Khumalo
above
n 20 paras 47-48;
Tasima
above n 21 para 160.