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[2021] ZALMPPHC 48
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Head of Department Education Limpopo and Another v Lekganyane and Another (7591/2019) [2021] ZALMPPHC 48 (19 August 2021)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
CASE
NO: 7591/2019
REPORTABLE:
YES/NO
OF
INTEREST TO OTHER JUDGES: YES/NO
REVISED
In
the matter between:
THE
HEAD OF DEPARTMENT EDUCATION LIMPOPO
FIRST
APPLICANT
THE
MEC FOR EDUCATION
SECOND
APPLICANT
And
LEKGANYANE
RAMOKONE CYNTHIA
FIRST
RESPONDENT
SGB
PRIMARY SCHOOL
SECOND
RESPONDENT
JUDGEMENT
KGANYAGO
J
[1] The
first respondent together with other candidates were interviewed for
the vacant position of an educator
at Moria Primary School. After the
interviews were concluded, the second respondent recommended for the
appointment of the first
respondent to the vacant position.
[2] The
normal procedure is that before the appointment of the first
respondent can be formalised,
several officials must first comment on
that recommendation on route form for appointment. The circuit
manager supported the recommendation
of the first respondent. The
senior personnel practitioner recorded on the route form that the
first respondent was previously
employed and had resigned on 1
st
November 2007. The assistant director as well as the deputy director
corporate services did not support the appointment of the
first
respondent, but supported the appointment of one Mmathi RW.
[3] On
28
th
May 2019 the district director of education approved
the appointment of Mmathi RW to fill the vacant post at Moria Primary
School.
On 29
th
May 2019 an official from the district
director’s office with the name of Mr Mashiane MJ generated an
appointment letter
appointing the first respondent to fill the vacant
post at Moria Primary School. That letter was presented to the
district director
for signature. The district director signed that
appointment letter that was addressed to the first respondent. That
appointment
letter was transmitted to the first respondent who
resumed duties at Moria Primary School based on that appointment
letter.
[4] The
normal pay date for educators of Limpopo Province is the 22
nd
of each month. However, on 22
nd
June 2019 the first
respondent did not receive payment of her salary, and when she
enquired from the officials of the department,
she was told that
there was a technical error as the system did not load his salary and
that she will be paid in July 2019. On
19
th
July 2019 the
school principal of Moria Primary School informed the first
respondent that the department had phoned her (principal)
to notify
her that the applicant will not be paid her salary as she was blocked
by the Waterberg District.
[5] On
8
th
November 2019 the applicants launched the present
application seeking orders that it be declared that the appointment
of the first
respondent as an educator at Moria Primary School in
terms of an appointment letter dated 29
th
May 2019 is null
and void, and that it be declared that there was no valid contract
between the applicants and first respondent.
The applicants avers
that during the preparation of the appointment letter, Mr Mashiane
erroneously addressed the appointment letter
to the first respondent.
It is the applicants’ contention that the appointment of the
first respondent as an educator was
a material mistake, and that the
district director had lacked the intention to contract with the first
respondent.
[6] According
to the applicants, it was discovered that the first respondent was
dismissed at her previous
employment as an educator on 1
st
November 2007, and that it was the reason why her details could not
be fed into the persal system. It is the applicant’s
contention
that the employment of the first respondent as recommended by the
second respondent would have been in contravention
of circular 125 of
2018.
[7] The
first respondent is opposing the applicant’s application and
has raised five points in
limine. The first point in limine is that
of lack of jurisdiction; second non compliance with regulations
governing administration
of oath or affirmation; third non-signature
and/or initial on pages; fourth no cause of action for a declaratory
relief; and fifth
misjoinder-lack of supporting affidavit.
[8] On
the first point in limine it is the first respondent’s
contention that the termination
and/or cancellation of employment
contract falls squarely within the jurisdiction of the dispute
resolution mechanism provided
for in the LRA, namely the Education
Labour Relations Council (Bargaining Council in education sector)
and/or Labour Court. The
first respondent further submitted that the
remedy sought by the applicants is to terminate or dismiss the first
respondent which
dispute lies within the specific and exclusive
jurisdiction of the Labour Court in terms of section 186(2) read with
section 188
of the LRA and the Basic Conditions of Employment Act.
[9] On
the second point in limine the first respondent has stated that it is
not clear as to what is the
gender of the deponent of the founding
affidavit and that she is having a reasonable suspicion that the
deponent never appeared
before the alleged commissioner of oaths. On
the third point in limine, the first respondent had submitted that
the confirmatory
affidavits by both MM Mashiane and T Nkuzana are not
signed on all pages more especially the first pages by both the
deponents
and commissioner of oaths. On the fourth point in limine
the first respondent has stated that the applicant had failed to meet
the legal requirements of a declarator. On the fifth point in limine,
the first respondent has submitted that there are two applicants
in
this application and by implication of law and practice, if a party
is an applicant and/or respondent in a matter, his/her supporting
affidavit and/or statement must be filled and deposed to in such
proceedings. It is the first respondent’s contention that
the
second applicant did not depose a supporting affidavit that she/he
support the application.
[10] On
the merits of the application the first respondent submitted the
applicants had her information at
their disposal before the interview
and that with that information, they should have disqualified her
from been shortlisted. It
is the first respondent’s contention
that it has been the intention of the interviewing panel to appoint
and to recommend
her for the position of the teacher and that same
was confirmed by the score sheet and the recommendation memo to the
employer.
The first respondent submit that she had received her
appointment letter on 29
th
May 2019 and resumed duties the
same date and had been performing her duties since that date up to
the date of signing of her answering
affidavit. It is the first
respondent’s contention that she had a legitimate expectation
that she will be remunerated for
the services that she had rendered.
[11] Regarding
the first point in limine of lack of jurisdiction, it is trite that
labour disputes must be
resolved within the dispute resolution
mechanisms provided for in the
Labour
Relations Act
[1]
(LRA).
In
Fedlife
Assurance LTD v Wolfaardt
[2]
Froneman AJA said:
“…
s 157(1)
does not purport to confer exclusive jurisdiction upon the Labour
Court generally in relation to matters concerning the
relationship
between the employer and employee. Some of the implications were
recently discussed by Zondo JP in Langevelt v Vryburg
Transitional
Local Council and Others (2001) 5 ILJ 116 (LAC) ([2001]
5 BLLR 501).
Its exclusive jurisdiction arises only in respect of ‘matters
that elsewhere in terms of this Act or in terms of any
law are to be
determined by the Labour Court’. Various provisions of the 1995
Act identify particular disputes or issues
that may arise between
employers and employees and provide for such disputes and issues to
be referred to the Labour Court for
resolution, usually after the
attempts at conciliation have failed (see for example ss
9,24(7),26,59,63(4),66(3),68(1),69 etc).
In my view, those are the
‘matters’ that are contemplated by s 157(1) and to which
the Labour Court’s exclusive
jurisdiction is confined.”
[12] It
is the first respondent’s contention that the applicants’
action of trying to declare the appointment
letter of the first
respondent null and void, amount to a dismissal. Unfair dismissal
disputes are regulated by section 191 of
the LRA. Job seekers are
also protected by the LRA. The issue which has been brought for
determination is whether a valid employment
contract has been
concluded between the applicants and the first respondent. The
dispute is not about the fairness of the termination
of the first
respondent’s employment contract, but whether that contract
ever validly existed. This dispute does not fall
within the ambit of
section 191 of the LRA, and therefore does not fell within the
exclusive jurisdiction of the Labour Court.
The first respondent’s
point in limine stand to be dismissed.
[13] The
second and third point in limine will be dealt with at the same time.
Justice
of Peace and Commissioners of Oaths Act
[3]
(JPCA)
and the
Regulations regarding the administering of oaths, affirmations and/or
declarations. In
S
v Msibi
[4]
the court said:
“
In a suitable
case, where the requirements have not been complied with, the court
may refuse to accept the affidavit concerned as
such or give effect
to it. The question should in each case be whether there has been
substantial compliance with the requirements.”
[14] The
founding affidavit has been duly signed, each page initialled by the
deponent and the commissioner of
oaths has also initialled each page
and thereafter signed and commissioned it. However, the commissioner
of oaths has omitted to
scratch whether the deponent was a male or
female. There are two confirmatory affidavits attached to the
founding affidavit. The
two confirmatory affidavits consists of two
pages. Both the deponents and commissioner of oaths did not initial
the first page
of both confirmatory affidavits. However, the last
pages of both confirmatory affidavits have been duly signed by both
deponents
and commissioned by the commissioner of oaths. In my view,
there has been substantial compliance with the requirements of JPCA
and Regulations, and therefore the omissions by the deponents and
commissioner of oaths are not that fatal. Therefore, the two points
in limine stand to be dismissed.
[15] The
first respondent’s fourth point in limine is not a point in
limine as it goes to the merits of the
application. With regard to
the fifth point in limine, a confirmatory affidavit will be necessary
where the deponent of the founding
affidavit refers to crucial
evidence which originate from a certain person which are relevant to
the matter in which the founding
affidavit has been deposed. In that
case, it will be vital for the source of that evidence to depose a
confirmatory affidavit confirming
that version, failing which that
piece of evidence will be treated as hearsay without any probative
value. (See
Drift
Supersand (Pty) Ltd v Mogale City Local Municipality
[5]
).
[16] In
the case at hand there is nowhere in the founding affidavit deposed
by the first applicant where he/she
refers to any evidence which
originates from the second applicant. The second applicant has been
joined to the proceedings as a
party with substantial interest in the
matter as the first applicant is accountable to the second applicant
on all issues affecting
educators. Despite been cited as a party to
the proceedings, it not always necessary for him/her to depose a
confirmatory affidavit,
unless there is an issue which is within
her/his knowledge which had been referred to in the founding
affidavit. The first respondent’s
point in limine is misplaced
and it therefore stand to be dismissed.
[17] Turning
to the merits of the application, it is the applicants’
contention that the appointment of the
first respondent as an
educator was a material mistake and that when the district director
signed her appointment letter, she (district
director) lacked the
necessary intention to contract with the first respondent. The
applicants’ case is basically based on
justus error
.
[18]
In
George
v Fairmead
[6]
Fagan CJ said:
“
When can an error
be said to be
justus
for
the purpose of entitling a man to repudiate his apparent assent to a
contractual term? As I read decisions, our Courts, in applying
the
test, have taken into account the fact that there is another party
involved and have considered his position. They have, in
effect said:
Has the first party – the one who is trying to resile –
been to blame in the sense that by his conduct
he has led the other,
as a reasonable man, to believe that he was binding himself?... If
his mistake is due to a misrepresentation,
whether innocent or
fraudulent, by the other party, then, of course, it is the second
party who is to blame and the first party
is not bound.”
[19] In
the case at hand there is no allegation of any misrepresentation
associated to the first respondent which
led to the district director
signing the appointment letter addressed to the first respondent. The
mistake which allegedly occurred
was between the district director
and Mr Mashiane. Even though the applicants in the founding affidavit
have stated that the first
respondent was barred from been
reappointed as an educator as she was previously appointed as an
educator and had resigned, it
is not the applicants contention that
the appointment of the first respondent was as a result of the first
respondent’s failure
to disclose during the interviews that she
had initially resigned as an educator. The fact that she had
initially resigned was
picked up at an early stage, hence they
disqualified her and approved the appointment of Mmathi RW.
[20] In
determining whether the applicants have succeeded in proving that the
error which occurred amounted to
justus
error
,
the court had to consider the circumstances under which the
appointment letter was signed. In
National
and
Overseas
Distributors v Potato Board
[7]
Schreiner JA said:
“
Our law allows a
party to set up his own mistake in certain circumstances in order to
escape liability under a contract into which
he has entered. But
where the other party has not made any misrepresentation and has not
appreciated at the time of acceptance
that his offer was being
accepted under a misapprehension, the scope for a defence of
unilateral mistake is very narrow, if it
exist at all. At least the
mistake (error) would have to be reasonable (
justus
)
and it would have to be pleaded.”
[21] In
the case at had hand the applicants have stated in their founding
affidavit that Mr Mashiane had erroneously
addressed the appointment
letter to the first respondent which led to the district director
signing it. There are no details given
in the founding affidavit as
to what led to Mr Mashiane committing this alleged error. The
district director had approved the appointment
of Mmathi RW on 28
th
May 2018 and signed the appointment letter on 29
th
May
2018 appointing the first respondent. The appointment letter was
signed a day after the approval, and the signature on the
appointment
letter was by same person who had approved a day before. The time
period that had lapsed after the approval and appending
of the
signature was not that long. The applicants have failed to state in
the founding affidavit the circumstances that led to
the district
director not noticing that she was signing an appointment letter not
addressed to the person she had approved for
appointment a day
before, in order to enable this court to determine whether the
alleged mistake was reasonable and justifiable.
In my view, with the
time period that had lapsed between the date of approval and date of
signature, a reasonable person in her
position who was acting
diligently and carefully, would have noticed the discrepancy as the
facts were still fresh in her mind.
[22] In
my view, the district director has took it that Mr Mashiane had
generated an appointment letter addressed
to the correct person and
carelessly signed without reading and verifying its correctness. In
Ex Parte
Rosenstein
[8]
Nesser J said:
“
The question is,
however, whether his mistake was reasonable and justifiable. It may
be that his conduct in not paying attention
to the conditions of sale
being read was reasonable and justifiable, more particularly in that
there was apparently no announcement
that the sale of erf 527 had
been withdrawn. His conduct, however, in signing the conditions of
sale without reading the document
which he was signing cannot be held
to be either reasonable or justifiable. See
Patel
v Le Clus (Pty) Ltd
.,
1946 T.P.D. 30.
According to that
decision even if applicant was mistaken when he signed the conditions
of sale, he is bound by the contract because
the mistake was due to
his own carelessness and inattention.”
[23] In
the case at hand the mistake that led to the appointment letter been
signed even though it was not for
the intended person was as a result
of the carelessness of the district director failure to read that
appointment letter to verify
whether information on that letter were
correctly captured as per her previous approval a day before. The
applicants are therefore
bound by that mistake as they have failed to
show that the mistake was reasonable and justifiable. The applicants’
application
therefore stand to fail.
[24] With
regard to costs, both parties were partially successful. All the
first respondent’s points in limine
were not upheld, whilst the
first respondent was successful with her defence on the merits. It
will therefore be appropriate if
each party pays its/her own costs.
[25] In
the result I make the following order
25.1 All the first
respondent’s points in limine are dismissed
25.2 The applicants’
application is dismissed.
25.3 Each party to pay
its/her own costs.
KGANYAGO
J
JUDGE OF THE HIGH
COURT OF SOUTH
AFRICA, LIMPOPO
DIVISION, POLOKWANE
APPEARANCES:
Counsel
for the applicants
Adv
Nkwana
Instructed
by
Office
of State Attorney Polokwane
Counsel
for the first respondent
Mr
Buthane
Instructed
by
Buthane
Rasemana Attorneys
Date
heard
4
th
August 2021
Electronically
delivered on
19
th
August 2021
[1]
66 of 1995
[2]
2002 (1) SA 49
(SCA) at para 25
[3]
16 of 1963
[4]
1974 (4) 821 (T)
[5]
[2017] ZASCA 118
(22 September 2017) at para 31
[6]
1958 (2) SA 465
(A) at 471A-D
[7]
1958 (2) SA 473
(A) at 479G-H
[8]
1952 (2) SA 324
(T) at 326H-327A