Madzhadzhi and Others v President of the Republic of South Africa and Others (160/09) [2010] ZASCA 57; [2010] 4 All SA 1 (SCA) ; 2010 (12) BCLR 1309 (SCA) (1 April 2010)

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[2010] ZASCA 57
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Madzhadzhi and Others v President of the Republic of South Africa and Others (160/09) [2010] ZASCA 57; [2010] 4 All SA 1 (SCA) ; 2010 (12) BCLR 1309 (SCA) (1 April 2010)

Links to summary

THE
SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
JUDGMENT
Case
No: 160/09
In the
matter between:
N N
MADZHADZHI
FIRST APPELLANT
N M
MUDALAHOTHE
SECOND APPELLANT
R
R SUMBANA
THIRD APPELLANT
R
A RAMUGONDO
FOURTH APPELLANT
v
PRESIDENT
OF THE RSA FIRST
RESPONDENT
PREMIER
OF THE LIMPOPO PROVINCE SECOND RESPONDENT
MEMBER
OF THE EXECUTIVE COUNCIL OF THIRD RESPONDENT
LIMPOPO
CHARGED WITH LOCAL GOVERNMENT
AND
HOUSING
MINISTER
OF PROVINCIAL AND LOCAL FOURTH RESPONDENT
GOVERNMENT
INDEPENDENT
COMMISSION FOR THE FIFTH RESPONDENT
REMUNERATION
OF PUBLIC OFFICE BEARERS
MINISTER
OF FINANCE SIXTH
RESPONDENT
Neutral citation:
Madzhadzhi
v President of the RSA
(160/2009)
[2010]
ZASCA 57
(1 April 2010).
Coram:
Mpati
P, Cloete, Cachalia, Malan et Tshiqi JJA
Heard: 11
March 2010
Delivered: 1
April 2010
Summary:
Section 5
(2) of the
Remuneration of Public Office Bearers Act 20 of 1998
prohibits
traditional leaders from being paid two incomes for holding two
‘public offices’ simultaneously, but it does not prohibit
them
from being paid a salary as a traditional leader if they are also
employed in the public service – Section 219 (1) of the
Constitution recognises that national and provincial governments have
concurrent legislative and executive competence over traditional
leaders, but their salaries must be determined by national framework
legislation. Where such salaries are determined by a provincial
statute, the provincial determination is valid in the absence of a
constitutional challenge to the statute. – Application for
declaratory
relief. Declaratory order not affecting the consequences
of an invalid decision, which remains valid until set aside –
Declarator
refused.
________________________________________________________________
ORDER
________________________________________________________________
On appeal from:
North Gauteng
High Court (Pretoria) (Phatudi AJ sitting as court of first
instance).
The following order is made:
(1) The appeal is dismissed.
(2) The cross-appeal is upheld to the extent that the
order of the high court is amended as follows:
‘
The application is dismissed, each party to pay its
own costs.’
________________________________________________________________
JUDGMENT
________________________________________________________________
CACHALIA
JA
(Mpati P, Cloete, Malan and Tshiqi JJA
concurring):
[1] This is an appeal against a judgment of the Northern
Gauteng High Court (Phatudi AJ) refusing declaratory relief to the
appellants.
It concerns a dispute over the remuneration of headmen
and headwomen, who are traditional leaders, in Limpopo Province. It
is convenient
to refer to them as headmen. There are several hundred
headmen who have an interest in the outcome of these proceedings. The
four
appellants were selected to bring test cases. The second and
third respondents oppose the relief sought. It would be convenient to
refer to them together as the respondents or the provincial
government. The first, fifth and sixth respondents elected to abide
the
decision of the court. No relief is sought against the fourth
respondent.
[2] The four appellants fall into three categories –
the first and fourth appellants are in the first. The first appellant
is, in
addition to being a headman who is paid from the public purse,
employed by the province as a public servant under the Public Service
Act 1994 (the PSA).
1
The second, who is a headman, was, but no longer is, a public
servant. Their dispute with the provincial government arose after
their
salaries as headmen were terminated on the ground that s 5(2)
of the Remuneration of Public Office Bearers Act 20 of 1998 (REPOB)
2
precluded their being paid salaries. In the high court they sought a
declaratory order to the effect that the section did not debar
them
from receiving salaries as traditional leaders even though they were
also being employed and paid as public servants.
[3] The second and fourth appellants fall into the
second category. (The fourth appellant falls into both the first and
second categories).
The second appellant was recognised as a headman
after 1 October 2002. His complaint is that the provincial government
determined
his earnings at R13 000 per annum, which is lower than the
R30 000 per annum paid to headmen appointed before this date. The
relief
he seeks is to secure the higher salary of R30 000. I mention
at this stage that the fourth appellant retired from the public
service
on 31 March 2005. His salary as a headman was then
reinstated, but at the newly determined rate of R13 000. His
grievance is that
his salary ought to have been reinstated at R30
000, which is what he was earning before 1 October 2002. I deal with
his case in
paras 30 and 31.
[4] The third appellant became a headman before 1
October 2002. He earned R30 000 annually and falls into the third
category. His
complaint is that he is entitled to salary increments,
which the President has determined periodically for kings and chiefs
(whose
status is higher than that of headmen) – a grievance shared
by the other appellants who earn R13 000.
The present dispute
[5] In 2001 the provincial government undertook an
investigation into the appointment and remuneration of headmen in the
province.
It emerged that some were being employed as public servants
under the PSA. They were thus receiving two incomes – as headmen
and
as public servants. So, on 29 July 2002, the Senior Manager for
Traditional Affairs took steps to stop this. He addressed a letter
to
the first appellant in these terms:
‘
1. In terms of our records,
you are earning a salary as a Traditional Leader and also as a
government employee.
2. According to the Public
Office Bearers Act 20 of 1998
3
,
section 5(2) a “traditional leader, member of a Provincial House of
Traditional Leaders or a member of the National House of Traditional
Leaders who holds different public offices simultaneously, is only
entitled to the salary, allowance and benefits of the public office
for which he or she earns the highest income.” This implies that
Traditional Leaders who are employed in the Public Service must
only
get a salary which is the [higher] of the two to avoid dual
remuneration.
3. . . . [You] are requested to
indicate to this office on or before 30 August 2002 which salary
should be stopped failing which [your]
salary as a Traditional Leader
will be terminated with effect from 30 September 2002 . . . ’
[6] Similar letters were addressed to other headmen who
fell into this category. Neither the first appellant nor any of the
other
headmen to whom the letters were sent responded. So on 30
September 2002 the provincial government terminated the salaries they
were
earning as headmen as it had threatened to do.
[7] The investigation also revealed that most of the
functions and responsibilities of headmen have been reduced – and
are being
performed by government authorities and local councillors.
And so, after consulting with traditional leaders, the provincial
government
decided to reduce the salaries of headmen from R30 000 per
annum to R13 000 per annum with effect from 1 October 2002.
However,
headmen appointed before this date would continue to receive
R30 000. The appellants claim to be unaware of this decision, but
nothing
turns on this. There were no further developments for more
than three years after these decisions were implemented.
[8] On 14 December 2005 attorneys representing all these
headmen wrote to the Premier. They complained that the termination of
their
clients’ salaries was unlawful and should be reinstated with
retrospective effect – from 1 October 2002. They also demanded the
termination of ‘the discriminatory system’ of remunerating
headmen and the initiation of ‘a process in terms of which the
salaries
and allowances of all traditional leaders will be determined
by the President in terms of s 5 of [REPOB]’.
[9] On 25 January 2006 the provincial government, by
letter, requested the appellants’ attorneys to provide details of
all the headmen
they represented, their current status and copies of
the letters received by their clients purporting to terminate their
remuneration
as headmen. The attorneys provided the information on 14
March 2006, but not the letters. The province then undertook a
verification
exercise of the names that the attorneys had provided –
there were several hundred. By 7 August 2006 the matter had not
progressed
any further. So, the attorneys gave the province 14 days
to respond. They failed to do so and on 1 December 2006 the
appellants launched
the present proceedings in the high court.
The proceedings in the high court
[10] In the high court the appellants sought declaratory
relief in terms of s 19(1)(a)(iii) of the Supreme Court Act 59
of 1959
in these terms:
4
‘
(a) that the First and
Fourth Applicants (and all other headmen and headwomen who find
themselves in a similar position to the First
and Fourth Applicants)
are and were at all relevant times –
(i) not debarred by the
provisions of section 5(2) of the Remuneration of Public Office
Bearers Act, 1998 (Act 20 of 1998), from receiving
remuneration as
headmen and headwomen;
(ii) entitled to [their
remuneration, together with] increments at such times as increments
were granted to Kings and Chiefs, as headmen
and headwomen;
[notwithstanding their
employment as officers or employees in the public service;]
(b) that the Second, Third and
Fourth Applicants (and all other headmen and headwomen who find
themselves in a similar position to
the Second Applicant) are and
were at all relevant times entitled to receive in their capacities as
headmen or headwomen remuneration,
together with increments at such
times as increments were granted to Kings and Chiefs, similar to the
remuneration that was paid
to headmen and headwomen appointed before
2002.
. . .’
[11] The relief is claimed in two parts: the first and
fourth appellants seek an order that s 5(2) of REPOB
5
did not permit the provincial government to terminate their salaries
as headmen even though they were also receiving salaries as
public
servants. Secondly, the second, third and fourth appellants claim an
entitlement to be paid a salary of R30 000, which is
what headmen who
were appointed before 1 October 2002 are being paid (not the R13 000
that some currently receive) together with
increments.
[12] The learned judge agreed with the interpretation
contended for by the appellants that the reference to ‘public
office’ in
s 5(2) of REPOB referred only to elected officials in
any of the three spheres of government or to traditional leaders; it
did not
include public servants. However, he then characterised the
dispute as a review under the Promotion of Administrative Justice Act
3 of 2000 (PAJA). And, having done so, he found that because the
first appellant had not instituted review proceedings within 180
days
after becoming aware of the decision to terminate their salaries as
headmen, as required by s 7 of PAJA, she was not entitled
to the
relief claimed. It appears that the judge inadvertently omitted to
deal with the fourth appellant’s claim on this aspect.
[13] It seems that the judge also rejected the first and
fourth appellants’ applications on the merits by finding that they
‘would
not have been . . . entitled to claim any additional
remuneration in respect of their official duty or work (as
traditional leaders)
without permission granted by the relevant
executing authority’. There is no indication in the judgment that
the judge considered
the second part of the relief claimed by the
second, third and fourth appellants. In the event, he dismissed the
application but
ordered the respondents to pay the costs. The
respondents cross-appeal the costs order.
Legislative background.
[14] One of the central issues in the dispute, which has
a bearing on both parts of the relief claimed, is whether the
authority over
the remuneration of traditional leaders in the
province (and particularly headmen) was vested in the President by
virtue of s 5(1)
of REPOB,
6
or in the provincial government. It is therefore necessary to examine
the legislative history of the remuneration of traditional
leaders in
the province.
[15] Before South Africa’s democratic transition in
1994 the responsibility for regulating the affairs of traditional
leaders lay
with various ‘self-governing territories’. In the
Venda territory, which is now part of the Limpopo Province, chiefs
and headmen
were appointed under legislation administered by the
former Venda Government. Their remuneration was determined under s 19
of the
Venda Traditional Leaders Proclamation 29 of 1991 (the Venda
Proclamation). According to Proclamation 109 of 19 June 1994, under
the Constitution of the Republic of South Africa Act 200 of 1993 (the
Interim Constitution), the determination of traditional leaders’
salaries fell within the province’s competence in terms of s 126
read with schedule 6.
7
The administration of the Venda Proclamation was assigned to the
province, which was then known as the Northern Province. Following
the assignment of the Venda Proclamation to the Northern Province,
its Executive Council, the Council for National Unity, on 8 April
1994 and by resolution 10/94, determined a uniform salary to be paid
to chiefs at R46 311 per annum and to headmen at R30 000 per
annum.
[16] The following year the national government was also
given the power to determine the remuneration of traditional leaders
in terms
of
s 2
of the
Remuneration of Traditional Leaders Act 29 of
1995
– though this law did not remove the provinces’ power over
remuneration.
8
Remuneration paid by the national government was to be additional to
any salaries traditional leaders received from a province.
9
So, while the national government was given authority to determine
salaries for traditional leaders, the province’s authority to
pay
the salaries of chiefs and headmen under the Venda Proclamation
continued. A dual system of remuneration existed. The preamble
to Act
29 of 1995 specifically acknowledged this duality by stating:
‘
. . .
AND WHEREAS the
subjects and followers of particular tribal hierarchies do not
necessarily all reside in a single province and the
constituencies of
traditional hierarchies transcend provincial boundaries;
AND WHEREAS the need for members
of traditional hierarchies to be supported, maintained and
remunerated in respect of their tribal
roles from national
governmental level and from national funds as opposed to the
provincially administered statutory functions they
may fulfil and in
respect of which they may be remunerated by provincial or local
governments is recognised.’
[17] The final Constitution
10
(the Constitution) came into force on 4 February 1997. Traditional
leadership is included in Schedule 4 and is subject to Chapter
12. It
is thus a function over which national and provincial governments
have concurrent legislative and executive competence. However,
in the
Certification
judgment,
11
the Constitutional Court stated that even though the provinces
retained most of their powers and functions over traditional leaders
in the Constitution, a significant diminution in their authority
occurred when the framework for their remuneration was transferred
from provincial to national legislation by s 219(1)(a).
12
But this did not mean that there was any constitutional impediment to
national legislation retaining the existing dual system of
remuneration, which followed the introduction of Act 29 of 1995
referred to above. Nor did it prevent provinces from implementing
national legislation. This much is clear from s 219(4) of the
Constitution.
13
[18] REPOB was the national framework legislation passed
to comply with s 219(1)(a) of the Constitution. It commenced
operation
on 23 September 1998. Section 5 deals with the remuneration
of traditional leaders. It provides:
‘
5
Salaries, allowances and benefits of traditional leaders, members of
local Houses of Traditional Leaders, members
of provincial Houses of
Traditional Leaders and members of National House of Traditional
Leaders.
–
(1) Traditional leaders, members
of any local House of Traditional Leaders, members of any provincial
House of Traditional Leaders
and members of the National House of
Traditional Leaders shall, despite anything to the contrary in any
other law contained, be entitled
to such salaries and allowances as
may from time to time be determined by the President after
consultation with the Premier concerned
by proclamation in the
Gazette
,
after taking into consideration –
(a) any
recommendations of the Commission;
. . .
(2) Despite the provisions of
subsection (1), a traditional leader, a member of a local House of
Traditional Leaders, a member of
a provincial House of Traditional
Leaders or a member of the National House of Traditional Leaders who
holds different public offices
simultaneously, is only entitled to
the salary, allowances and benefits of the public office for which he
or she earns the highest
income, but –
(a) this subsection shall not
preclude the payment of out of pocket expenses for the performance of
functions other than those for
which such office bearer receives such
highest income; and
(b) where only an allowance has
been determined in terms of subsection (1) in respect of a
traditional leader’s membership of a
local House of Traditional
Leaders, a provincial House of Traditional Leaders or the National
House of Traditional Leaders, such
a traditional leader shall be
entitled to such an allowance in addition to his or her salary,
allowances and benefits as a traditional
leader.
. . .
(4) The amount payable in
respect of salaries, allowances and benefits to traditional leaders,
members of local Houses of Traditional
Leaders, members of provincial
Houses of Traditional Leaders and members of the National House of
Traditional Leaders shall be paid
from monies appropriated for that
purpose by Parliament in respect of the National House of Traditional
Leaders and by a provincial
legislature in respect of traditional
leaders, members of local Houses of Traditional Leaders and members
of provincial Houses of
Traditional Leaders, as the case may be.’
[19] REPOB’S effect is that the authority for deciding
the salaries for traditional leaders now vests in the President, who
must
consult the Premier concerned and consider any recommendations
of the Independent Commission for the Remuneration of Office Bearers,
envisaged in s 219(2) of the Constitution, before making a decision.
REPOB repealed Act 29 of 1995,
14
but not the Venda Proclamation. So while REPOB contemplates that the
President will determine the salaries of traditional leaders,
the
province retained the authority over the remuneration of chiefs and
headmen – notwithstanding s 5(1) of REPOB. There is no
constitutional challenge to the Venda Proclamation. So we must accept
that the province’s determination of salaries for headmen
in 2002
was valid. This is because s 2(1) of Schedule 6 of the Constitution,
which deals with transitional arrangements, provides
that all law
that was in force when the Constitution took effect continues to
remain in force subject to amendment or repeal and
consistency with
the Constitution.
[20] In 2005 the provincial legislature promulgated the
Limpopo Traditional Leadership and Institutions Act 6 of 2005. In
terms of
s 34 read with Schedule 1 of that Act, the Venda
Proclamation was repealed with effect from 1 April 2006.
15
Section 21(1) provides that the salaries of traditional leaders would
thereafter be dealt with under REPOB – in other words, by
the
President. This brought the dual system of remuneration of
traditional leaders in the province to an end.
[21] Since then it appears that the President has from
time to time determined
16
salaries for kings, chiefs and also chairpersons and deputy
chairpersons of the National House of Traditional Leaders, who are
all
senior leaders in the traditional leader hierarchy, but has not
done so for headmen, who are not. Headmen continued to receive the
same salary that the province determined on 1 October 2002.
[22] I turn to consider the first part of the relief
claimed, which deals with the dispute over the interpretation of s
5(2) of REPOB.
It is not in dispute that at the time the province
stopped paying salaries, which the first and fourth appellants were
receiving
as headmen, they were also being paid as public servants.
The reason that the province gave for terminating their salaries was
that
s 5(2) of REPOB prohibited them from receiving salaries both as
traditional leaders and as public servants.
17
However, in its answering affidavit, the province gave a different
reason – that s 30 of the PSA precluded the payment of salaries
to
anyone who performed any other remunerative work without the relevant
department’s permission. In his written argument, Mr Tokota,
who
appeared for the respondents, relied on both grounds to justify the
decision. As I understand his submission it was that the
purpose of s
5(2) of REPOB is to prevent traditional leaders and other public
office bearers from earning ‘double salaries.’
Being employed in
the public service constitutes the ‘holding of public office’ as
contemplated by s 5(2). To interpret it in
any other way, so the
submission went, would defeat the purpose of s 5(2) of REPOB and
bring it into conflict with s 30 of the PSA.
[23] Section 5(2) of REPOB and s 30 of the PSA
18
serve different purposes. The former is concerned with preventing
persons who hold more than one ‘public office’ from receiving
more than one salary. The latter is aimed at preventing public
service employees from performing remunerative work outside their
employment in the relevant department if this conflicts with their
responsibilities in the public service. The executive authority
may,
however, grant permission for the employee to do other paid work if
this does not interfere with his or her employment or otherwise
contravene the public service code of conduct.
[24] It is apparent that even though ‘public office’,
as the term is used in s 5(2) of REPOB, is not defined an ‘office
bearer’
referred to in s 5(2)(a) is defined in s 1. It refers
only to elected officials and traditional leaders.
19
And from s 5(2) of REPOB it is clear that the reference to ‘holders
of public office’ means ‘office bearers’ who are traditional
leaders or who hold some office by virtue of their position as
traditional leaders such as members of the National or Provincial
House of Traditional Leaders. In the PSA an employee is defined and
does not include any one of the categories of persons to whom
the
definition of ‘office bearer’ in REPOB may apply. So a ‘holder
of public office’ as envisaged in s 5(2) clearly cannot
include a
public service employee.
[25] But the most telling explanation for why a ‘holder
of public office’ in s 5(2) can refer only to traditional leaders
(and
not public servants) is because of the mischief at which s 5(2)
of REPOB is aimed. From the legislative history which I traced
earlier,
both REPOB and its predecessor, the
Remuneration of
Traditional Leaders Act 29 of 1995
, contemplated a dual system of
remuneration (by national and provincial government) for traditional
leaders. This meant that some
traditional leaders could be drawing
more than one salary – one from national government and the other
from a province, or possibly
two salaries from the same sphere of
government.
Section 5(2)
of REPOB was probably aimed at preventing
this mischief. Its object was not to prevent public servants from
being paid for their
responsibilities as traditional leaders. That
problem is adequately provided for in
s 30
of the PSA. And if the
provincial government is of the view that the remunerative work
performed by headmen conflicts with their
duties in the public
service, it may take steps to end the practice under the relevant
provisions of the PSA.
20
The provincial government was therefore not entitled to invoke
s 5(2)
of REPOB when it stopped paying salaries to headmen in this category.
It used this power for an unauthorised purpose.
21
I should add that during oral argument before us Mr Tokota properly
conceded that his written submissions to the contrary were not
sustainable. It follows that the high court’s interpretation of the
relevant provisions was correct.
[26] This brings me to the question whether the first
and fourth appellants are entitled to the first part of the
declaratory relief
requested. As I mentioned earlier, the high court
characterised the application for a declarator as a review and then
dismissed it
on the ground that the appellants had unduly delayed
their application.
[27] Even though the appellants could have reviewed the
decision under PAJA, this does not mean that their application was a
review
under PAJA. But the fact that a litigant has an alternative
remedy is relevant to the exercise of a court’s discretion as to
whether
a declaratory order should be granted.
22
The high court erred in this regard. I turn to consider whether the
appellants are entitled to the order.
[28] During argument it was put to counsel for the
appellants, Mr Wessels, that the first part of the relief claimed, in
its present
form will have the consequence that the appellants
receive salaries as headmen and the provincial government will be
obliged to continue
paying them as public servants notwithstanding
s
30
of the PSA, which is aimed at preventing persons undertaking other
remunerative work where this conflicts with their work as public
servants. In response the appellants applied to amend the terms of
the relief claimed by deleting the words in square brackets.
23
We approved the amendment and must consider whether the relief can be
granted in its present form.
[29] The first and fourth appellants have established
that
s 5(2)
was no bar their right to receive salaries as headmen.
The question now is whether we should grant or refuse the declaratory
order
they ask for. The major impediment to granting such an order is
that it will not validate the decision not to pay them or undo its
consequences. No purpose will therefore be served by granting an
order.
[30] A part of the fourth appellant’s dispute with the
respondents is over the reduction of his salary from R30 000 to R13
000,
after he resigned from the public service on 31 March 2005. He
was appointed as a headman in 1985. In this capacity he earned a
salary
of R30 000 until 1 October 2002 when it was terminated
unlawfully. He remained in the public service. When he retired from
the public
service his salary as a headman was reinstated – but at
the revised amount of R13 000. The respondents do not aver that he
ceased
being a headman during this period. They, however, deny that
he is entitled to a salary of R30 000 because, they say, he was
‘reappointed’
as a headman after he retired from the public
service and was thus only entitled to the revised salary. They
provide no details of
his alleged reappointment. Their bare denial
that his salary was reinstated creates no genuine dispute of fact. He
would appear therefore
to be entitled to his original income of
R30 000, which other headmen who were appointed before 1 October
2002 continued to
receive. In his case declaratory relief is sought
in the second part of the relief claimed.
[31] However, for the reason given in para 29, the grant
of a declaratory order would also be inappropriate for this part of
his case.
It should be pointed out that the fourth appellant had an
opportunity to review two decisions. The first was the decision to
terminate
his headman’s salary of R30 000 on 1 October 2002; the
second was the decision to reinstate his salary, but at the reduced
amount
following his retirement from the public service on 31 March
2005. He failed to institute proceedings in good time on both
occasions
and cannot complain belatedly that an injustice is being
done to him.
[32] I turn to consider the rest of the relief claimed
in the second part – that the provincial government unfairly
discriminated
against the second, third and fourth appellants in this
category by determining a salary of R13 000 for headmen appointed
after 1 October
2002, but did not reduce the salaries of those
appointed before this date – they were still paid R30 000; and that
the President
unfairly discriminated against them by not determining
salary increments for them, as he did for kings and chiefs.
[33] The appellants’ allegations regarding where the
authority for the determination of the salaries of headmen lay on 1
October
2002 are contradictory. They allege that this authority was
vested in the President by virtue of
s 5(1)
of REPOB – not the
province. But they then contradict this allegation by complaining
that the provincial government discriminated
against them by making
the determination. However, I have pointed out earlier that the dual
system of remuneration continued in the
province until the Venda
Proclamation was repealed with the commencement of the Limpopo
Traditional Leadership and Institutions Act
6 of 2005 in April 2006 –
a fact of which neither the parties nor their respective legal
representatives appear to have been aware.
So this means that the
province retained the authority to determine salaries of traditional
leaders, at least until April 2006 –
and had the authority to do so
in 2002, notwithstanding s 5(1) of REPOB. The appellants’ case in
this regard can therefore only
be that the provincial government –
not the President – unfairly discriminated against them by
determining a salary of R13 000
in 2002.
[34] However, the appellants’ case discloses no cause
of action. The founding affidavit contains no factual or legal basis
for the
assertion that headmen who were appointed after 1 October
2002 had a right to receive a salary of R30 000, or to be given
increments
thereafter, either by the provincial government or by the
President. And the fact that the President determined increments for
senior
traditional leaders did not confer any such right on the
appellants, or impose any obligation on the provincial government,
which
remained responsible for their remuneration until April 2006,
to grant increments to them.
[35] The case the appellants make for unfair
discrimination is in any event not sustainable. From the equality
jurisprudence that
the Constitutional Court has developed,
differentiation between people or categories of people is permissible
if it bears a rational
connection to a legitimate governmental
purpose.
24
[36] It appears from the respondents’ answering
papers, though admittedly not completely clearly, that the province
made a policy
decision, which I have referred to in para 7, to reduce
the salaries of headmen because the diminution of their functions and
responsibilities
with the advent of the new constitutional order no
longer justified a salary of R30 000 – hence its decision to pay
headmen appointed
after 1 October 2002 a reduced salary of R13 000.
If this is so, the decision was rationally made for a legitimate
governmental purpose.
But it suffices to say that the second, third
and fourth appellants have not established that the provincial
government discriminated
unfairly against them.
[37] It follows that the appellants have failed to
establish any basis for the relief claimed. Regarding costs, the
judge a quo,
as I have mentioned, made the respondents liable for the
costs despite having dismissed the application. He did so because, in
his
view, the respondents had been remiss in failing to resolve the
dispute with the appellants amicably, choosing instead to defend
the
case in court. That was not a proper exercise of his discretion. Once
the respondents had disputed the claims that were advanced
by the
appellants, there was no way in which the respondents could have
resolved the dispute save to agree to the appellants’ demands.
They
were not obliged to do so for the reasons I have given. However, the
first and fourth appellants were entitled to go to court
because the
provincial government had wrongly terminated their salaries. And in
the case of the fourth appellant, his salary as a
headman was, in
addition, unlawfully reinstated at R13 000 instead of R30 000 after
he retired from the public service. So the respondents
were not
blameless. In the circumstances the appropriate costs order, both in
this court and the court below, should be that the
parties pay their
own costs.
[38] I therefore make the following order:
(1) The appeal is dismissed.
(2) The cross-appeal is upheld to the extent that the
order of the high court is amended as follows:
‘
The application is dismissed, each party to pay its
own costs.’
______________
A CACHALIA
JUDGE OF APPEAL
APPEARANCES
APPELLANTS: J K Wessels (with him W T B Ridgard)
Instructed by Mathobo Rambau & Sigogo, Pretoria
Matsepe Attorneys, Bloemfontein
SECOND, THIRD AND
FOURTH RESPONDENTS: B R Tokota SC (with him D T Skosana)
Instructed by State Attorney, Pretoria
and Bloemfontein
1
Proclamation 103 published in GG 15791, 3 June 1994.
2
Quoted in para 18.
3
This is obviously a reference to REPOB, quoted below in para 18.
4
The reason for the square brackets appears from para 28 below.
5
Quoted in para 18.
6
Q
uoted
in para 18
.
7
Ex Parte Speaker of the
Kwazulu-Natal Provincial Legislature: In re Kwazulu-Natal Amakhosi
and Iziphakanyiswa Amendment Bill of
1995; Ex Parte Speaker of The
Kwazulu-Natal Provincial Legislature: In re Payment of Salaries,
Allowances and Other Privileges
to the Ingonyama Bill of 1995
[1996] ZACC 15
;
1996
(4) SA 653
(CC) para 8 and
Ex
Parte Chairperson of the Constitutional Assembly: In re
Certification of the Constitution of the Republic of South Africa,
[1996] ZACC 26
;
1996
1996 (4) SA 744
(CC)
para 433.
8
Section 2: ‘
Remuneration
and allowances of traditional leaders
(1)
Notwithstanding any other law, a traditional leader may be paid out
of the National Revenue Fund such remuneration and allowances
as the
President may determine after consultation with the Council of
Traditional Leaders established by section 184(1) of the
Constitution and the Commission on Remuneration of Representatives
contemplated in section 207 of the Constitution.
(2)
For the purposes of subsection (1), the President may –
(a)
on the grounds of the status and powers of traditional leaders
differentiate between different categories of traditional leaders;
and
(b)
determine that the remuneration and allowances payable to
traditional leaders in different categories may differ.’
9
S Woolman et al
Constitutional
Law of South Africa
2 ed
(2009) p 26-32.
10
Act 108 of 1996.
11
See above n7 at para 409.
12
Section 219(1): ‘An Act of Parliament must establish a framework
for determining –
(a)
the salaries, allowances and benefits of members of the National
Assembly, permanent delegates to the National Council of Provinces,
members of the Cabinet, Deputy Ministers, traditional leaders and
members of any councils of traditional leaders.’
13
Section 219(4): ‘The
national executive, a provincial executive, a municipality or any
other relevant authority may implement
the national legislation
referred to in subsection (1) only after considering any
recommendations of the commission established
in terms of subsection
(2).’
14
Section 10: ‘
Repeal of
laws.
– The Payment of
Members of Parliament Act, 1994 (Act No. 6 of 1994), the
Remuneration and Allowances of Executive Deputy Presidents,
Ministers and Deputy Ministers Act, 1994 (Act No. 53 of 1994), and
the Remuneration of Traditional Leaders Act, 1995 (Act No. 29
of
1995), are hereby repealed.’
15
Provincial
Gazette 1240, 31 March 2006.
16
See for example; GN R36,
GG
19901, 1 April 1999 and GN R23,
GG
22182, 30 March 2001.
17
The reason appears from the letter in para 5.
18
Section 30 of the PSA provides: ‘
Other
remunerative work by employees
.
(1)
No employee shall perform or engage himself or herself to perform
remunerative work outside his or her employment in the relevant
department, except with the written permission of the executive
authority of the department.
(2)
For the purposes of subsection (1) the executive authority shall at
least take into account whether or not the outside work
could
reasonably be expected to interfere with or impede the effective or
efficient performance of the employee’s functions in
the
department or constitute a contravention of the code of conduct
contemplated in section 41(1)(
b
)(v).
(3)
(
a
)
The executive authority shall decide whether or not to grant
permission, contemplated in subsection (1), within 30 days after
the
receipt of the request from the employee in question.
(
b
)
If the executive authority fails to make a decision within the 30
day period, it would be deemed that such permission was given.’
19
“Office bearer”
means a Deputy President, a Minister, a Deputy Minister, a member of
the National Assembly, a permanent delegate, a Premier, a
member of
an Executive Council, a member of a provincial legislature, a
traditional leader, a member of a local House of Traditional
Leaders, a member of a provincial House of Traditional Leaders, a
member of the National House of Traditional Leaders and a member
of
a Municipal Council.
20
See for example s 31 of the PSA.
21
Minister of Education v
Harris
2001 (4) SA 1297
(CC) para 17.
22
Lion Match Co
Ltd v Paper Wood & Allied Workers Union
2001
(4) SA 149
(SCA) para 25.
23
See above in para 10.
24
Harksen v Lane & others
[1997] ZACC 12
;
1998 (1) SA 300
(CC);
National Coalition for Gay
and Lesbian Equality v Minister of Justice & others
1999
(1) SA 6
(CC).