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[2022] ZAECBHC 26
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Dingezweni v Member of the Executive Council, Department of Education, Eastern Cape Province and Another (536/2016) [2022] ZAECBHC 26 (27 September 2022)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE LOCAL
DIVISION, BISHO)
CASE NO: 536/2016
REPORTABLE:
YES / NO
OF
INTEREST TO OTHER JUDGES: YES/NO
REVISED.
In the matter between:
BETTY
MAMOREMA
DINGEZWENI
Plaintiff
and
THE MEMBER OF THE
EXECUTIVE COUNCIL,
DEPARTMENT OF
EDUCATION, EASTERN
CAPE
PROVINCE
First
Defendant
THE HEAD OF
DEPARTMENT, DEPARTMENT
OF
EDUCATION, EASTERN CAPE PROVINCE
Second
Defendant
J U D G M E N T
DREYER
AJ
[1]
The
Eastern Cape Department of Education (“the Department”)
employed the plaintiff, Mrs Betty Dingezweni, on a
fixed-term
contract for the period 9 February 2015 to 31 December 2015, to teach
life sciences at the Luvuyo Leruma High School
in Queenstown,
Eastern Cape. Mrs Dingezweni was appointed as a substitute
educator as a substitute educator as the incumbent,
a Mr Mana,
was on incapacity sick leave as he had had a stroke and was diagnosed
with dementia.
[2]
Mrs Dingezweni
was recommended to the post by the Luvuyo Lerumo High School
selection panel, chaired by its principal Mr Tyilana.
[3]
Mrs Dingezweni’s
appointment was approved by three Department of Education Eastern
Cape officials (the circuit manager,
deputy director human relations
management and the district director) The approval recorded that
Mrs Dingezweni’s appointment
was in addition to the
establishment of the school.
[4]
The
term “
establishment
of a school
”
relates to the post-establishment of a school, a metric used by the
Department of Education to determine the number of educators
required
at any particular public school.
[5]
Mrs Dingezweni
was informed of her appointment on 9 February 2015. She
completed and signed her assumption of duty documentation.
Mrs Dingezweni commenced teaching that day.
[6]
Mrs Dingezweni
testified that Mr Tyilana gave her a letter in March 2015 from
the Eastern Cape Department of Education,
dated 19 March 2015
(“appointment letter”). The appointment letter recorded
her employment at the Luvuyo Leruma High
School for a fixed term
period from 1 February 2015 to December 2015, the rate of her salary,
and the option to be paid an allowance
of 37% of her annual salary in
lieu of benefits. The term contract was in accordance with the
provisions of
section 7(2)(b)
of the
Employment of Educators Act
1998
. The allowance was payable as her term contract was longer than
6 months.
[7]
Though
Mrs Dingezweni taught life sciences in February, March and April
2015, the Department of Education did not pay her.
Mrs Dingezweni
approached the principal, Mr Tyilana, to enquire whether the
school could advance her a loan until such
time as the Department
paid her salary. Mr Tyilana in turn, approached the School
Government Body (“the SGB”).
The SGB agreed to pay
Mrs Dingezweni a R5 000 stipend per month. Mrs Dingezweni
was required to repay SGB the stipend
when the Department paid her
salary.
[8]
Mr Tyilana
had a cheque drawn in favour of Mrs Dingezweni on the SGB’s
bank account for the sum of R5 000 for
the months of May, June,
July, and August 2015. For the record keeping of the school,
Mr Tyilana signed off on a cheque requisition
form recording the
payment of R5 000 to Mrs Dingezweni from the cost centre
entitled “
fund
raising
”.
A document called a “
pay
slip
”
was issued in the name of Mrs Dingezweni. This document records
a date and a signature. Mr Tyilana testified that
the date when
the cheque was provided to Mrs Dingezweni and the signature that
the cheque was received by her. Mrs Dingezweni
acknowledged
receipt of the cheques. She recognised her signature on certain of
the pay slips, but not on others.
[9]
Mr Mana
died in April 2015.
[10]
On
20 August 2015, the Department of Education paid to Mrs Dingezweni
the equivalent of three months’ basic salary. Mrs Dingezweni
testified that she repaid the SGB the R15 000 that had been
advanced to her. This is not refuted by Mr Tyilana.
[11]
Mrs Dingezweni
testified that she did not receive payment of her allowance in lieu
of benefits. She queried this shortfall
with Mr Tyilana.
[12]
Mrs Dingezweni
testified that Mr Tyilana approached the Department of Education
to obtain clarity regarding Mrs Dingezweni
‘s salary. On
his return, Mr Tyilana informed Mrs Dingezweni that the
Department had terminated her contact as
Mr Mana had died.
Mrs Dingezweni testified that Mr Tyilana suggested to her
that she seeks advice as he had not
encountered such an issue before.
[13]
This
is where the evidence of the parties diverges.
[14]
Mr Tyilana
refuted that Mrs Dingezweni was only informed of her termination
of employment in August 2015. His evidence
was that Mrs Dingezweni
had been informed that her position was terminated in May 2015, when
Mr Tyilana informed the
Department of Mr Mana’s
death. Mr Tyilana did not testify as to the exact date when the
Department was so informed
or when he informed Mrs Dingezweni
that her contract had been terminated.
[15]
Mrs Dingezweni
testified that following Mr Tyilana ’s suggestion, she
sought legal advice. On the strength of this
advice, in September
2015 Mrs Dingezweni tendered her continued services to the
school to teach life sciences for the balance
of her fixed-term
contract to the end of December 2015. Mrs Dingezweni testified
that Mr Tyilana accepted her tender
and told her that the SGB
would continue paying her the R5 000 stipend, which would be
repayable to the SGB when she was paid
her salary by the Department.
[16]
Mrs Dingezweni
testified that she lodged a grievance with the Department of
Education, recording that she had not been paid
her full salary for
the period February, March and April 2015 and had not been paid at
all since May 2015. She handed the written
grievance to Mr Tyilana,
as a representative of the Department. Mr Tyilana acknowledges
that he received the grievance
on behalf of the Department.
Mrs Dingezweni heard nothing further from the Department
relating to this grievance. Her full
salary for the period February
to April 2015 was paid on 1 October 2015.
[17]
Mr Tyilana
‘s evidence was that he informed Mrs Dingezweni of the
SGB’s decision to appoint her as an educator
in the life
sciences post at a salary of R5 000 a month, for the balance of
the year, which Mrs Dingezweni accepted.
It is unclear when the
SGB made this decision or when Mr Tyilana told Mrs Dingezweni
of this decision. Mrs Dingezweni
vociferously denied that she
was employed by the SGB in an SGB post.
[18]
Mrs Dingezweni
testified that she received an amount of R2 500 per month from
the SGB in September, October, November,
and December 2015 in the
same manner that she had received the R5 000 monthly stipend
advanced to her by the SGB as a loan.
Mrs Dingezweni denied that
the signature which appeared on the documents headed “
pay
slip
”
was hers. Mr Tyilana testified that the document “
pay
slip
”
is proof that Mrs Dingezweni was employed by the SGB.
[19]
There
was no evidence that Mrs Dingezweni was paid R5 000 monthly
as the “salary” for the SGB post.
[20]
The
nub of dispute is whether Mrs Dingezweni was employed by the
Department in the period May to December 2015 or the SGB.
[21]
Mrs Dingezweni
‘s claim is a pecuniary one for payment of the balance of her
fixed-term contract, namely, from 1 May
2015 to 31 December
2015.
[22]
The
jurisdiction of the High Court to determine such monetary claims,
arising from a fixed-term contract, was recognised in the
matter of
Fedlife
Assurance Limited v Wolfaardt
[1]
where the Supreme Court held that the
Labour Relations Act 1995
[2]
did not interfere with the common law right to pursue such a claim in
the High Court.
[23]
Section
157(2)
of the
Labour Relations Act recognises
the duality of the
Labour Court and the High Court to consider such monetary claims. The
section reads:
(2)
The Labour Court has concurrent jurisdiction with the High Court in
respect of any alleged or threatened
violation of any fundamental
right entrenched in Chapter 2 of the Constitution of the Republic of
South Africa, 1996, and arising
from –
(a)
employment and from labour relations;
(b)
any dispute over the constitutionally of any executive or
administrative act or conduct, or any threatened
executive or
administrative act or conduct, by the State in its capacity as an
employer; and
(c)
the application of any law for the administration
of which the Minister is responsible.
”
[24]
Similarly,
section 77(3) of the Basic Conditions of Employment Act 1998
recognises the duality in jurisdiction between the Labour
Court and
the High Court.
The
Labour Court has concurrent jurisdiction with the civil courts to
hear and determine any matter concerning a contract of employment.
irrespective of whether any basic condition of employment constitutes
a term of that contract.
”
[25]
The
Labour Appeal Court, in
Buthelezi
v The Municipal Demarcation Board
,
[3]
held that a premature termination of a fixed-term contract, on the
grounds of operational requirements, was substantively unfair
as:
25.1
at
common law, a party to a fixed-term contract has no right to
terminate the contract in the absence of repudiation or a material
breach;
25.2
the
principal that a fixed-term contract may not be unilaterally
cancelled has not been altered by labour legislation.
[26]
The
Buthelezi
decision was approved and followed by the Constitutional Court in
The
Association of Mineworkers and Construction Union v Royal Bafokeng
Platinum Limited and Others
.
[4]
[27]
I
am bound by these decisions. If Mrs Dingezweni’s fixed
term contract with the Department was terminated prematurely,
it is
liable to pay her the balance of the contract.
[28]
The
Department of Education pleads, that it was an implied term of the
contract that Mrs Dingezweni was appointed as a substitute
against the post of Mr Mana and, consequently, on his death,
Mrs Dingezweni’s employment came to an end.
[29]
An
implied term is one implied by law. In the locus classicus of Alfred
McAlpine, the Appellate Division (as it then was) couched
an implied
term as one which
“…
is
used to describe the unexpressed provision of a contract which the
law imports therein, generally as a matter of course, without
reference to the actual intention of the parties. The intention of
the parties is not totally ignored. Such a term is not normally
implied if it is in conflict with the express provisions of the
contract. Implied terms in context simply represent a legal duty
(giving rise to a correlative duty) imposed by law unless excluded by
the parties
.”
[5]
[30]
Mrs Dingezweni’s
employment contract specified that she was appointed by virtue of
section 7(2)(b)
of the
Employment of Educators Act. This
section
recognises that an educator can be employed for a fixed term either
on a full time or part time basis, subject to the
Labour Relations
Act.
[31
]
The
implied term contended for by the Department (namely the termination
of Mrs Dingezweni employment within the fixed term)
is at odds
with
section 7(2)(b)
of the
Employment of Educators Act.
[32]
The
Employment of Educators Act identifies
three circumstances for an
educator’s employment to be terminated. These are
retirement,
[6]
resignation
[7]
and the discharge.
[8]
[33]
The
discharge of educators is subject to the provision of the
Labour
Relations Act.
[9
]
There are
three categories applicable to the discharge of educators for
ill-health,
[10]
at the end of
a probation period
[11]
and
those educators who are deemed to have been discharged.
[12]
The deeming provision only applies to permanently appointed
educators. Mrs Dingezweni was not permanently appointed nor
appointed
with a probation period, nor was she discharged because of
ill-health. Mrs Dingezweni could only be lawfully discharged as
an educator, in terms of the prescribed procedures under the
Labour
Relations Act. There
was no evidence that that these procedures were
followed.
[34]
At
common law, the premature termination of a fixed-term contract is
unlawful. This common law position was an implied term to the
fixed-term contract concluded between Mrs Dingezweni and the
Department. Had the parties wished to exclude the consequence
of a
fixed-term contract, they would, as recognised in the
Alfred
McAlpine
matter, have had to exclude this term expressly. The parties did not
do so.
[35]
I
find that there was no implied term that Mrs Dingezweni ‘s
fixed-term contract with the Department of Education would
terminate
on the death of Mr Mana.
[36]
Two
version of the appointment letter were tendered in evidence. The
first relied on by Mrs Dingezweni recorded the fixed term
contact for the period 9 February 2015 to 31 December 2015. The
second relied on by the Department, had a manuscript correction
to
the date 31 December 2015 date, amending this to 30 April 2015.
The manuscript correction was signed. No evidence was led
regarding
the identity of the person who made the amendment. Mrs Dingezweni
denied receiving that version appointment letter
in 2015. She saw
this version her evidence was, in these proceedings.
[37]
The
contemporaneous documentary evidence supports Mrs Dingezweni ‘s
version. Mrs Dingezweni was only entitled to
the 37% allowance
in lieu of benefits in the event that her appointment was for a
period equal to or exceeding six calendar months.
Mrs Dingezweni
‘s evidence was that she signed the election to receive the 37%
benefit payment in cash on 25 August
2015. The Department approved
benefit payment in cash on 1 September 2015. On 1 October 2015, the
Department and paid Mrs Dingezweni
the equivalent of the benefit
for 3 months. Had the contract expired on 30 April 2015, as contended
by the Department, and testified
by Mr Tyilana it is improbable
that the Department would approve the payment of the allowance in
September 2015 or paid it
in October 2015. Mrs Dingezweni’
would not have been entitled to the benefit. Her fixed term contact
would have lapsed
three months before such payment was triggered. I
accept Mrs Dingezweni ‘s evidence.
[38]
The
Department contends that it was not liable to pay Mrs Dingezweni
as she was not employed by the Department from 1 May 2015.
Mr Tyilana
supported this testifying that Mrs Dinesen was employed by the
SGB in a SGB post.
[39]
Section
20(10) of the South African Schools Act exonerates the Department of
Education for “
any
act or omission by a public school relating to its contractual
responsibility as the employer in respect of staff employed in
terms
of subsections (4) and (5)
”.
[40]
Subsection
4 and 5 referred to above, relate to SGB posts. All school governing
bodies may “
establish
posts for educators and employ educators additional to the
establishment determined by the members of the executive council
in
terms of section 3(1) of the Educators Employment Act 1994
”.
[13]
When an SGB establishes these posts, the posts must be funded in the
school’s annual budget.
“
When
presenting the annual budget contemplated in section 38, the
governing body of a public school must provide sufficient detail
of
any posts envisaged in terms of subsections (4) and (5) including the
estimated costs relating to the employment of staff in
such posts and
the manner in which it is proposed that such costs will be met.
”
[41]
Mr Tyilana
testified that the SGB had included provision in the school’s
annual budget approved in September 2014, for
funds required to pay
relief teachers, like Mrs Dingezweni. This was the full extent
of his evidence.
[42]
The
requirements of the South African Schools Act are specific. A school
governing body bears the responsibility, firstly, to establish
posts
additional to the establishment and then, secondly, to make provision
fund the posts in the annual budget as approved by
the parents and/or
natural guardians of the learners.
[43]
There
was no evidence that the SGB had approved a life sciences post
outside the establishment of the school or that this post was
specifically funded. Mr Tyilana could give no explanation as to
why the SGB only paid Mrs Dingezweni a salary of R2 500.00
per
month from September 2015, when this post was funded.
[44]
This
evidence is in sharp contrast to the letter Mr Tyilana addressed
to the District Director in January 2015 requesting that
the
Department provide a substitute teacher for Mr Mana. Had the SGB
established a funded post for the life sciences as Mr Tyilana
testified, such a request would not have been made to the Department.
[45]
The
terms of employment of educators in SGB posts are governed by the
Labour Relations Act. It
would be contrary to the
Labour Relations
Act to
employ an educator at monthly salary of R5 000 or to
unilaterally reduce the monthly salary to R2 500.
[46]
Mr Tyilana
‘s evidence that Mrs Dingezweni was employed by the SGB is
highly improbable. Mrs Dingezweni ‘s
evidence is more
probable.
[47]
I
find that Mrs Dingezweni was not employed by the SGB in the
period May 2015 to December 2015. Mrs Dingezweni was employed
by
the Department in terms of her fixed term contract. The Department
failed to pay Mrs Dingezweni for the period May to December
2015.
[48]
Having
found that there was no implied term in Mrs Dingezweni ‘s
fixed term contract that it terminated on the death
of Mr Mana,
and that Mrs Dingezweni was not employed by the SGB, it is not
necessary for me to deal with Mrs Dingezweni
‘s alternate
enrichment claim.
[49]
In
the result, I make the following order:
49.1
the
first and/or second defendants unlawfully breached the fixed-term
contract concluded with Mrs Dingezweni for the period
9 February
2015 to 31 December 2015;
49.2
the
defendants are to pay the plaintiff the following sums, jointly and
severally, the one paying the other to be absolved:
49.2.1
the
sum of R255 513.74;
49.2.2
interest
at the prescribed legal rate a tempore morae calculated on each
monthly payment for the period May to December 2015, when
each
payment fell due on the last day of each month to date of payment;
49.3
costs
of suit.
DREYER
AJ
ACTING
JUDGE OF THE HIGH COURT
Representation for
plaintiff
Counsel:
Adv Burger
Instructed
by:
Hutton & Cook
King William’s Town
Representation for
defendants
Counsel:
Adv Nebela
Instructed
by:
The State Attorney
King William’s Town
Date
of hearing:
10,11 & 25 August 2022
Date
of judgment: 27 September 2022
[1]
[2002]
2 All SA 295 (A).
[2]
Act
66 of 1995
[3]
(2004)
25
ILJ
2317 (LAC)
[4]
2020
(4) BCLR 373
(CC) at [64]
[5]
Alfred
McAlpine & Sons (Pty) Ltd v Transvaal Provincial Administration
1974
(3) SA 506
(A) at 531E-H
[6]
Section
10
[7]
Section
15
[8]
Section
11 to 14
[9]
Section
11(1)
[10]
Section
12
[11]
Section
13
[12]
Section
14
[13]
Section
20(4)
of the
South African Schools Act 1996