About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Bhisho
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Bhisho
>>
2021
>>
[2021] ZAECBHC 39
|
|
Ndudane v Premier of the Eastern Cape & Another (20/2020) [2021] ZAECBHC 39; (2022) 43 ILJ 439 (ECB) (1 June 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
[EASTERN
CAPE DIVISION: BISHO]
CASE NO: 20/2020
In
the matter between
SIPHOKAZI
NDUDANE
Applicant
And
THE
PREMIER OF THE EASTERN CAPE
First
Respondent
MEMBER
OF EXECUTIVE COUNCIL FOR
Second
Respondent
THE
EASTERN CAPE DEPARTMENT OF RURAL
DEVELOPMENT
AND AGRARIAN REFORM
JUDGEMENT
Maswazi
AJ
Introduction
[1]
In
this matter the applicant seeks an order against the first respondent
to instate her in her position as the Head of Department
in the
Department of Rural Development and Agriculture, Eastern Cape and to
allow her to perform her duties in that capacity. Applicant
also
seeks a declarator to the effect that a contract exists between her
the first respondent which renders her an employee of
the latter.
[2]
The matter is opposed on behalf of all the respondents and they have
filed their answering
affidavits together with various confirmatory
affidavits which themselves and quite bulky and voluminous.
[3]
In addition to the answering affidavit, the respondents have filed a
“
conditional
counter application”
on
the basis of which they seek to set aside the decision of the first
respondent to appoint the applicant. This means that the
first
respondent is applying to set aside his own decision to appoint the
applicant. It was declared on behalf of the respondents
that their
answering affidavit must stand as the founding affidavit in the
counter application whilst the applicant’s replying
affidavit
stands as the answering affidavit to the counter application.
[4]
The respondents also filed an application to strike out various
annexures and documents
filed by the applicant on the basis that same
are irrelevant.
[5]
At the hearing of the matter having been addressed by Mr Quinn who
together with Mrs
Cossie appeared for the respondents on the question
whether the counter application was before me, Mr Quinn submitted
that the
counter application is not before me, it can only be dealt
with after my consideration and decision on the main application
whose
relief I have already alluded to above. I understand this to
mean that, if I am not inclined to dismiss the main application, then
the counter application will fall for a decision, conversely, if I
dismiss the main application, the counter application will fall
away.
I was rather ambivalent about the suggested approach. Ordinarily,
when a litigant puts up a counter application, she puts
up a defence
to the main application which can only stand if the court first
grants a relief sought in the counter application.
The conditionality
of the counter application in this matter comforted me somewhat since
I understood it to mean that it is application
that will fall for a
decision if the main application fails.
[6]
On the other hand Ms Da Silva, who together with Ms Van Vuuran,
appeared for the applicant
submitted that the counter application and
application to strike out are before me and I must deal with them in
one fell swoop.
I then gave the parties an opportunity to discuss the
issue being of the view that I should not in addition to the
substantive
issues in the matter be saddled with a responsibility to
make a ruling on the matter.
[7]
It became clear that the parties were poles apart and I then ruled
that it would be
prudent for me to deal with the application on the
basis of the notice of motion, and in that regard, the application to
strike
out would have to be dealt with. Since the respondent had
brought the conditional counter application and was not keen to
proceed
with it, I became of the view that, such is a choice that the
respondents made. In any event the counter application is conditional
to the decision in the main application. Thus the matter proceeded to
the exclusion of the conditional counter application.
[8]
In any event the applicant in her Practice Note made it clear that
the matter was
to be argued to finality whilst the respondent did not
file any Practice Note. Nothing turned on the failure of the
respondent
to file Practice Note as the party who is
dominis
litis
complied with the Joint Rules, it would have been offensive to the
very notion of justice to deprive applicant of the hearing as
a
result of the conduct of a wayward respondents. This in my view is
the correct interpretation of our Joint Rules particularly
when they
pertain to prehearing processes and requirements. A party who has
brought a matter to court ought not to be prejudiced
on the basis of
the failure of the party who is merely invited to respond to the
case. Put differently, the applicant’s right
of access to court
ought not to be held at ransom as a result of the respondent’s
refusal to play by the rules.
[9]
On the other hand, case flow management to which rule 15A of our
Joint Rules belongs,
is there for a salutary purpose, one whose
intention is to ensure optimum utilisation of the scarce public
resources, including
judicial resources. Rule 15A allows the Case
Flow Management Judge to see the issues from the angle of both
parties without having
to scroll through the heads of argument. The
requisite details required of the Rule 15A may assist, for instance,
in deciding the
length of time for which the matter must be
allocated. The usefulness of Rule 15A became evident in this matter
when, through the
hearing, it became clear that the matter was not
going to be finalised in one day, and yet it was allocated one day.
Interestingly,
it was the respondent, who without having filed a rule
15A notice, was of the view that the matter would not be heard in one
day,
an eventuality that transpired. The matter ended up being heard
for a period of three staggered days.
The
factual background
[10]
On the 21
st
and 22
nd
of July 2019, the second respondent advertised the position for Head
of Department to be appointed in terms of section 10 of the
Public
service Act, 1994. Applicant was one of the four individuals that
were shortlisted and were in due course invited for an
interview with
the selection panel.
[11]
At the time the applicant applied for the position she was employed
as Deputy Director General
in the National Department of Agriculture
and fisheries, responsible for a directorate known as the Marine
Living Resources and
Fisheries.
[12]
Applicant was also one of the candidates shortlisted for the position
and was thus to be interviewed
in due course. The interviews, at
least in respect of the applicant, took place on the 23
rd
of October 2019.
[13]
On the 21
st
of November 2019, the second respondent in her capacity as the Chair
of the selection Panel that had been appointed presumably
by the
first respondent to facilitate the selection, wrote to the first
respondent advising him of the selection process and its
outcomes. In
that report she took the first respondent from the publication of the
notice of the advertisement in terms of which
potential candidates
were invited to apply for the position. At the end she concluded with
the recommendation of the applicant
as the most suitable candidate
for the position.
[14]
In her report, which is countersigned by one Ms Mbina-Mthembu, a note
was added in manuscript
in terms of which the first respondent was
being invited to note that the applicant had disclosed a misconduct
investigation against
her that is pending. This disclosure must have
taken place at the interview which the applicant attended on the 23
rd
of October 2019. The significance of this disclosure is going to loom
large in due course. The first respondent also signed in
approval of
the recommendation of the panel on the 27
th
of November 2019. On the same day, the first respondent penned a
letter appointing the applicant in the position for which she
had
been interviewed and recommended by the selection panel. The
appointment was for a period of five years subject to the probation
period of one year.
[15]
It is not in dispute that at the time the first respondent was taking
a decision to appoint the
applicant into the position, the applicant
had filed a notice of resignation with her then employer, the
National Department of
Agriculture, Forestry and Fisheries (DAFF).
Thus when the first respondent appointed the applicant, she was
serving notice. DAFF
had also accepted her resignation in writing
without any demure.
[16]
On the 29
th
of the November 2019, true to the invitation extended to her in the
first respondent’s letter of her appointment, the applicant
signed in acceptance of her appointment as Head: Rural Development
and Agrarian Reform within a period of five days contemplated
in her
letter of appointment. The applicant says that her letter of her
appointment was an offer which after her signature brought
into
existence her contract of employment, the respondents are adamantly
of a different view. I shall return to this issue in due
course.
[17]
It appears that there are certain events which had been unfolding at
the applicant’s work
place. On the 19
th
of August 2019, the applicant had been served with disciplinary
charges in a charge sheet that contained seventy five counts of
misconduct. This therefore does mean that at the time the applicant
attended the interview she was aware of the charges against
her.
[18]
It is also evident that on the basis of charges that had been served
to the applicant in August
of 2019, a disciplinary hearing was
convened from the 25
th
until the 29
th
of
November 2019. That disciplinary process was finalised on the 29
th
of November 2019 when the applicant was found guilty of the charges
against her. The applicant expresses this episode as follows
in her
founding affidavit;
“
Between
the dates 25-29 November 2019, DAFF hastily arranged what must have
been a costly sitting of a disciplinary hearing against
me and
despite knowing that I had resigned and them signing off on my
notice”.
[19]
The insignificance of this allegation is as clear to me as its
neutrality on the issues before
me. This is because on the 25
th
of November 2019 when DAFF organised the disciplinary hearing, the
applicant was still an employee of DAFF and thus subject to
its
Disciplinary Code. Similarly, if there was disciplinary proceedings,
there had to be an outcome thereto. How hastily this was
done comes
across to me as an unsubstantiated suspicion of ulterior motives
against DAFF.
[20]
This follows too for the fact that the disciplinary hearing took
place in the absence of the
applicant. The fact of the matter is that
the applicant was dismissed from her employment and the fairness of
that disciplinary
process is not before me. What is related to the
issues before me is the fact of its existence and its import for the
appointment
of the applicant by the first respondent.
[21]
As already stated above applicant’s letter of appointment was
signed by the first respondent
on the 27
th
of November 2019 and applicant signed in acceptance thereof two days
later with the date of assumption of her duties being the
1
st
of January 2020.
[22]
On the 5
th
of December 2020, the first respondent wrote to the applicant in
which he recorded his offer of employment to the applicant and
the
latter’s acceptance of that appointment. In addition, first
respondent notified applicant that he had received information
informally that applicant had been dismissed from her employment by
DAFF on the 29
th
of November 2019. He requested the applicant to submit full details
of the relevant charges and findings and the letter of her
dismissal
before the 9
th
of December 2019.
[23]
The form and character of the letter of the 5
th
of December 2020 from first respondent is investigative. It cannot be
put at any higher level than that. This is because the first
respondent did not come out too clearly to demonstrate what he
intended to do with the details he required from the applicant.
This
is hardly surprising as it is clear that the first respondent was at
this stage only eager to quench his thirst for facts,
in order to
grapple with the import of the implication thereof to his decision to
appoint the applicant.
[24]
On the same day and in answer to a media inquiry, one Mvusiwekhaya
Sicwetsha, first respondent’s
spokesperson, wrote a media
statement in which he confirmed that at the time applicant was
appointed she had not been dismissed
by DAFF and had voluntarily
declared her suspension to the interviewing panel. The statement
concluded by stating that the first
respondent was in communication
with the Minister at DAFF and with the applicant to ascertain the
outcome of the disciplinary process
and in that regard first
respondent was also consulting his legal team. This communication is
significant in relation to the quality
of the disclosure that the
applicant made to the first respondent as an aid to any decision he
needed to make regarding her appointment.
It is significant too for
the version proffered by the first and second respondents in their
papers.
[25]
On the 12
th
of December 2020 the applicant responded to the first respondent’s
letter of the 5
th
of December 2020. In that correspondence applicant described her
disciplinary situation with DAFF. She rounded off her representations
to the first respondent by stating that she was seeking legal advice
in respect of the disciplinary findings made against her at
DAFF.
[26]
On the 18
th
of December 2019, the applicant through her attorneys, Messrs ZUMPT,
sent a letter to the first respondent in which it was suggested
in
part that;
“
We
remind your office further that your decision to appoint Ms Ndudane
was not in contravention of any law and that her subsequent
dismissal
which she is challenging had not occurred when you employed her thus
you are not entitled to revoke or delay her appointment
and if you
did so she would take legal action. Further, we reiterate that even
if it were to be found that her appointment was
irregular, you are
still not entitled to revoke her employment or delay it unless you
have approached a court of law in a process
that would also involve
her filing papers before court.”
[27]
Irrespective of the correctness or otherwise of the legal submission
made in the letter partly
quoted above, its essence was a demand to
the first respondent to allow applicant to commence her duties in
terms of the appointment
letter of the 27
th
of November 2019.
[28]
On the 23
rd
of December 2019, the first respondent wrote
to the applicant and advised her that in the light of her dismissal
from DAFF, the
salary payment system, used by the Public Service in
the country “
blocked”
her appointment, he then
proposed to the applicant that;
“
(a) [
That]
you proceed with the dispute with former employer, the Department of
Agriculture and Fisheries
;
(b) That
your “appointment” to be held in abeyance pending the
reversal of your dismissal- which
requires that you do not report for
duty on 2
January
2020.
(c) That
the undertaking above remain valid for a period of 3 (three) moths
(until 31
st
March 2020).”
[29]
The first respondent rounded off this letter by inviting the
applicant to communicate her acceptance
of the proposal by Tuesday
the 31
st
of December 2019 failing which the first respondent would approach
court to review his own decision to appoint the applicant. He
also
indicated that in either event, that is, whether the applicant
accepts the proposal or the first respondent approaches court
for a
review as demonstrated in the letter, the applicant would not be able
to commence employment on the 2
nd
of January 2020.
[30]
The applicant, through the same attorneys that had written to the
first respondent on the 18
th
of December 2019, responded to the proposal made by the first
respondent. The nature of the content of the applicant’s letter
is a counter proposal to the first respondent. The essence of her
counter proposal was that the she be allowed to commence her
work on
the 2
nd
of January 2020 subject to the irrevocable undertaking that should
she fail in challenging her dismissal by DAFF, the applicant
would
resign.
[31]
It appears that from that point, with the exception of a letter dated
6 January 2020, there was
no further correspondence between the
parties. Thus on the 21
st
of January 2020, the applicant
launched the present proceedings by way of urgency seeking in the
interim that;
“
4.2
respondents
are directed to give effect to the contract concluded between the
applicant and first respondent on the 29
th
of November 2019.
4.3 the
respondents are directed to take all steps necessary to ensure that
the applicant
is loaded onto the PERSAL payment system of the
Department;
4.4 that
the respondents are directed to allow applicant to discharge the
functions
of the HOD of the Department with immediate effect;”
[32]
The applicant also sought a declarator to the effect that there is a
valid and binding contract
between her and the first respondent which
was concluded on 29 November 2019 in consequence of which the
applicant became the Head
of Department of the Department of
Rural Development and Agrarian Reform: Eastern Cape.
[33]
In terms of the notice of motion the applicant sought the audience of
the court on the 11
th
of February 2020 alternatively on
opposed semi-urgent basis on the 25
th
of February 2020.
Both dates had come to pass when I heard the matter for the first
time on the 19
th
of November 2020.
[34]
On the face of staunch opposition from the respondents, the applicant
no longer sought an interim
relief when the matter appeared before
me, she was content with final relief in the form of a declarator and
the ancillary relief
that has a final effect.
[35]
On the 6
th
of November 2020, a few weeks before the hearing of the matter, the
respondent launched an application to strike out various annexures
of
the applicant’s replying affidavit. I deem it prudent to start
with that application before getting into the merits of
the matter.
The
application to strike out
[36]
Singled out for a strike out application are annexures in the
replying affidavit. These are annexures
SNR1, SNR2 and SNR4 to the
applicant’s replying affidavit. I am prepared to readily accept
that the respondents could not
have had an opportunity to deal with
the annexures they seek to strike out in their answering affidavit
because such annexures
only emerged in the replying affidavit.
[37]
It is necessary to describe, with relative particularity, the essence
of the documents sought
to be struck out by the respondents. The
first annexure sought to be struck out is annexureSNR1 which contains
the memorandum penned
by the Director General of the Eastern Cape
Province counter signed by the second respondent and other documents.
Its essence to
these proceedings is the recommendation for the
appointment of the applicant by the first respondent.
[38]
Annexure SNR2 is a score sheets which also served before the first
respondent along with the
recommendations of the selection panel.
Annexure SNR3 is record of proceedings under case number 6189/2019 of
the Western Cape
Division including the record of the applicant’s
disciplinary proceedings that took place from the 25
th
to 29
th
of November 2019. These annexures take the largest volumes of the
record comprising as they do about three bulky volumes.
[39]
The respondents seeks the strike out of these documents on the basis
that same are vexatious
and irrelevant. The basis for this
application, which they out in their heads of argument, is that;
“
3. The
Applicant filed and delivered a Replying affidavit in excess of a
thousand pages.
3.1 It
is trite that all allegations necessary to found a cause of action
must appear in the founding affidavit.
3.2
The Supreme Court of appeal has employed strong language to
deprecate the practice of making lengthy
replying affidavits.”
[40]
Mr Quinn also went on in his heads of argument to state that
applicant is not allowed to supplement
its papers to complete a cause
of action by adducing supporting facts in a replying affidavit or
introduce new matter. He then
argued that all these annexures were
irrelevant to the issues for determination.
[41]
The starting point in the determination of whether an application to
strike out be granted is
the rule governing such applications. Rule
6(15) of the Uniform rules provides as follows;
“
The
Court may on application order to be struck out from any affidavit
any matter which is scandalous, vexatious and irrelevant
with an
appropriate order as to costs, including costs as between attorney
and client. The court shall not grant the application
unless it is
satisfied that the applicant will be prejudiced if the in his case if
the application is not granted.”
[42]
It is thus apparent that a material that is sought to be struck out
in terms of this rule, must
be scandalous, vexatious or irrelevant,
in addition, such material must prejudice the applicant in the
conduct of the case.
[43]
The applicant’s affidavit on its own without annexures
comprises about fifty two pages.
None of its paragraph are sought to
be struck out for one or other or all of the reasons underpinning
such application. It is rather
the annexures to the replying
affidavit that are sought to be struck out.
[44]
I deem it necessary to set out singularly in respect of each
annexures the relevance to which the applicant directs me. In
respect
of annexure SNR1, for instance, the applicant states as follows in
her replying affidavit;
“
16
I
am in possession of the document referred to above because I had
caused a notice in terms of rule 35(12) of the Uniform Rules
of the
court to be served on the Premier. I attach hereto this document as
annexure
SNR1”
This
is the only statement made regarding the annexure in the replying
affidavit. This rather opaque statement in my view adds no
value to
the response that the applicant must supply to the respondents’
answering affidavit. Why was the respondent
made to read this
annexure if it had already been part of the respondents’
supplementary answering affidavit is a question
whose answer is very
difficult to ponder.
[45]
Regarding annexure
SNR2
, the applicant articulated her
position as follows in her replying affidavit;
“
32
I
accept that section 5(7)(a) would have entitled the Premier to apply
to this court to set aside my appointment if there was fraud
in the
manner that I was appointed or in the process itself. It is
demonstrably clear that the panel recommended me for the position
because of my competency only. This is based on the scoring obtained
from Premier including the record of the recommendation. I
attach
hereto this record as annexure SNR2. I humbly request this court to
have regard to the entire content of annexure SNR2 as
specifically
incorporated into this affidavit.”
[46]
As already indicated, annexure
SNR2
contains the scoresheets as well as an elaborate analysis of the
performance of the candidates interviewed by the selection panel,
including the applicant. When consideration is given to fact that the
applicant’s replying affidavit is also an answering
affidavit
to the applicant’s conditional counter application, its
relevance in this matter becomes unquestionably appropriate.
The
conditional counter application is not before me, I thus eschew any
consideration of its merits or lack thereof.
[47]
Concerning annexure
SNR3
of the replying affidavit, applicant
articulated her position as follows regarding its relevance or lack
thereof;
“
74
In
order to place this court in a better position regarding the Rogers’s
judgment and the negative conclusion drawn therein,
I attach a copy
of my intervention application, wherein the founding affidavit deals
with facts which the court did not have when
it made the adverse
comments against me. I annex the intervention application and
founding affidavit hereto as annexures
SNR3,
I
humbly request the court to have regard to the contents of this
intervention application as specifically incorporated into this
affidavit.”
[48]
In the subsequent paragraphs the applicant continues;
“
75
The
intervention application together with a rescission application by
other parties thereto has already been heard (22-26 June
2020) and
judgment is reserved. While I maintain that it is irrelevant and has
no bearing to the present application, I do not
want to leave the
court with impression that I have anything to hide or that I do not
care about my reputation as a civil servant”
76
I
am a proud professional who is recognised as a thought leader in my
field, I have achieved this through hard work and dedication.
For
this reason I take offence in the coordinated unfair manner the
Premier intends to portray me”
[49]
These two paragraphs are not directed at any specific allegation
arising from either the counter
application or the answering
affidavit. It is thus difficult to ascertain what is it that the
first respondent had alleged for
the applicant to respond this way.
It is further not clear how the annexure attached in support of the
allegations made herein
relate to the issues in this matter. There is
not a single paragraph or page referred to in the annexure from which
one may glean
relevance. Perhaps even more startling is that the
applicant herself attest in no unclear terms to the irrelevance of
the annexure.
[50]
The sum total of the conclusion that one can make to the reasons for
SNR3 is that the applicant
attached it to protect her reputation
whilst knowing same to be irrelevant in these proceedings. Whilst
protection of a reputation
is a laudable purpose to which one may be
driven in the face of allegations that seek to impugn it, such,
however ought to be linked
to the issued before a court otherwise
they risk to be struck out for want of relevance. I am thus convinced
that the annexure
SNR3 is of no relevance to the issues in the
matter. Understandably, the applicant attests to this herself.
[51]
Annexure SNR4 is a letter from the Minister of Public Administration
to the applicant’s
Cape Town attorneys, being Messrs Ndumiso
Attorneys. It is a response to a letter received by the writer from
these attorneys.
The applicant deposes as follows regarding this
letter in her replying affidavit;
“
98.5 Subsequent
thereto I instructed my attorneys to write Minister Mchunu regarding
his letter to the Premier, and on paragraph 5 of Minister Mchunu’s
reply he states that he wrote his letter to the Premier
to ensure
that there was compliance in respect of my appointment and that it
was and still is the competence of the Premier to
make a final
decision on my appointment. I attach hereto as
SNR4.”
[52]
Again, if the principle of relevance that in applications as
contemplated in rule 6(15) is to
be given its salutary place,
communication between the first Respondent and the Minister who is
not a party to these proceedings
nor does he hold any impactful
decision on the question whether there is a contract between the
applicant and first respondent
or not, must occupy the lowest
pedestal, if any, in the consideration of relevance. My doubts about
the relevance of annexure SNR4
are further fortified by the fact that
applicant does not refer to any part of the annexure which is of
relevance to her cause
of action or the issues regarding the fate of
her application.
[53]
I am therefore satisfied that annexures SNR1, SNR2
and SNR4 are not relevant at all to the issues before
me. A finding
of irrelevance in respect of material filed by a party does not
complete the requirement for a strike out relief.
I am commanded by
rule 6(15) not to strike out any averments if there is no prejudice
to the applicant for an application to strike
out. The wording of
this rule seems peremptory
[1]
.
[54]
The respondents in their heads of argument have dedicated a small
portion to the application
to strike out and they have cited only one
case in support of the strike out relief
[2]
.
Sadly this case does not deal with the nature of prejudice that
warrant a strike out relief. They have not dealt at all with the
requirement of prejudice which is also a requirement for the
application. It is easier to understand why the application to strike
out arises only after the respondents have exhausted their
opportunity to file their answering affidavit. As I have said, the
annexures which are the target of the application to strike out came
up only in the replying affidavit. In that case it would have
been
well for the respondents to file an affidavit in support of the
application and to establish prejudice which is fundamental
to the
finding of an application to strike out. That they did not means that
it is impossible for me to infer prejudice only in
the submissions
made by the respondents in their heads of argument.
[55]
I remain unpersuaded that respondents and their legal representatives
had to trawl through annexures
whose relevance in the matter is
virtually naught if not worthless, is the kind of prejudice
contemplated in the rule. I was not
directed to any authority that
makes it so, I have also found none.
[56]
The application to strike out must accordingly fail. I am not
persuaded that costs of the application
to strike out must follow the
result. In my view a no costs order is appropriate.
The
merits of the application
[57]
The applicant seeks a declarator that there is a contractual
relationship between her and the
first respondent. She relies for her
contention on the fact that the first respondent signed a letter
offering her employment and
she in turn accepted the offer. Thus, so
the applicant argues, a contract came into existence.
[58]
The applicant contends that the effect of her acceptance of the offer
brought into existence
a contract which is valid. On the other
hand the first respondent bases his decision to refuse applicant
assumption of duty
on the provisions of section 17 of the Public
Service Act, 1994 (“the PSA”) read with Regulation 61 of
the Regulations
promulgated under the PSA. That much is clear from
annexure
M
in the respondents’ answering affidavit where
the first respondent addresses the applicant in part as follows;
“
I
sought legal advice, and I am advised that by reason of the provision
of Section 17 of the Act and Regulation 61, your appointment
is
invalid and falls to be set aside notwithstanding that I am given to
understand that you have initiated proceedings to challenge
your
dismissal.”
[59]
Section 17 of the PSA to which the first respondent relied as the
basis to prevent the applicant
from assuming her duties in terms of
the contract deals with termination of employment in the Public
Service or part of it and
it provides;
“
(1)(a)
Subject to paragraph (b), the power to dismiss an employee shall vest
in the executive authority
and shall be exercised in accordance with
the provisions of the Labour Relations Act.
[60]
Regulation 61 of the Regulations promulgated under the PSA provides
that a former employee
dismissed in terms of section 7(2)(d) of the
Act for misconduct listed therein shall not be reappointed in the
public service for
the applicable period from the date of dismissal
in relation to the kind of misconduct indicated in the regulations.
[61]
The acts of misconduct set out in the table referred to in the
regulation vary and corresponding
each act of misconduct is a period
of prohibition applicable to that misconduct. I do not deem it
necessary to specifically traverse
the specific periods of
prohibition referred to in the regulation, suffice it to mention that
these are regulations on the basis
of which the first respondent
sought to prevent the applicant from assuming her duties in terms of
the contract.
[62]
It is common cause between the parties and is clearly apparent from
the papers that at no stage
was the applicant dismissed by the first
respondent from her position in respect of which the first respondent
appointed her. What
seems to be a bone of contention is whether
having been dismissed by DAFF the applicant qualified for employment
by the first respondent
and whether she had disclosed her suspension
by DAFF. The applicant says she did disclose whilst the respondent
say she did not.
I turn to deal with this aspect in the next segment.
Did
the applicant disclose her suspension by DAFF?
[63]
As already indicated above, the applicant was invited for an
interview before a panel composed
of senior public office bearers in
the Eastern Cape Government. In the interview, the applicant says she
did inform the panel that
she was on suspension and it is matter that
involve disagreements between herself and the Director-General of
DAFF her then immediate
supervisor.
[64]
In reply the respondents have attempted to refute any suggestion that
the applicant disclosed
her disciplinary infractions in her
employment by DAFF. An attempt was made to cause a Mr Van Zydum who
was present in the interviews
and who is employed by the office of
the first respondent responsible for the recruitment of all senior
heads of department.
[65]
Mr Van Zydum states that the interviews were recorded and attaches
transcript of the recordings
of the interview. Relative to the issue
of disclosure or absence thereof what appears from the transcripts is
the following;
“
CHAIRPERSON:
[Inaudible]
disclose…….
Ms
S NDUDANE:
MEC
it is the issue that relates to my current work. There is an issue
that relates to myself and the department and today is the
23
rd
actually October and we are waiting for the Public Service Commission
to release the report into that. It’s a tension, very
serious
tension that is highly political, if I may put it in that manner. It
has been on the public domain so that’s why
I thought it is
important that I can talk to it”
[66]
What is evident here is that the applicant was being given the usual
opportunity to disclose
anything that is necessary for her
prospective employer to know prior to making a decision to appoint
her. It is evident too that
the recording was not very legible. Thus
it is clear on the recording as it appears that it can hardly be said
that the applicant
disclosed anything during her interview.
[67]
However this picture is not standing on its own.
As already indicated above, once the applicant was appointed
by the
first respondent, news of her dismissal by DAFF started circulating
in the media and naturally inquiries were made from
the first
respondent as to whether he had appointed a person who had been
dismissed previously. In a statement issued on behalf
of the first
respondent it was stated by first respondent’s spokesperson as
follows;
“
At
the time when Ms Ndudane was appointed by the Eastern Cape Provincial
Government she was not fired by her former employer and
had not gone
to Disciplinary hea (sic) voluntarily declared the suspension to the
interviewing panel”.
[68]
There is a clear dispute of fact regarding whether the applicant
disclosed the disciplinary action
against her during the interview.
These being motion proceedings and the relief sought being final in
nature such a relief is only
available if the undisputed facts
justified such a relief, however in the event the version of the
respondent is clearly untenable,
I am justified to prefer applicant’s
version and include such a version in the determination of whether I
can grant the final
relief if I am satisfied of the inherent
credibility of her version.
[3]
Probabilities play no role in the inquiry.
[4]
Equally significant is a proposition that I must not shy away from
deciding the matter on the papers merely because to do would
be
difficult, I must adopt a sensible approach
[5]
.
[69]
The version of the first respondent is that the applicant did not
disclose the disciplinary action
against her. For this version, the
first respondent can only rely on the version of the person who was
present in the interviews
since the first respondent was not himself
present. That person upon whose version the first respondent places
reliance is Mr Van
Zydum. Mr Van Zydum, relies in turn, on the
recordings of the interview which
first
are
incoherent and
second
are refuted by various parts of the first respondent’s version.
Chief amongst such parts is the assurance given to the first
respondent in a memorandum sent to him by second respondent in which
one Ms Mbina-Mthembu, the Director General of the Province
who was
present in the interview also invited the first respondent to note
that the
applicant
“declared a misconduct investigation against her that is
pending.
This
dampens any suggestion that the first respondent’s version is
to be accepted and thus diminishes its tenability. The
second is the
statement issued by the first respondent’s spokesperson which
is elaborately quoted above.
[70]
I am thus satisfied with the inherent credibility of the applicant’s
version in relation
to the question of disclosure by the applicant of
the disciplinary actions against her whilst at DAFF. In any
event, the
first respondent accepts that non-disclosure in an
employment setting constitute a misconduct and the employer is
entitled to institute
disciplinary proceedings. This, he has not
opted to do, rather he seems to have instituted a suspension of the
applicant without
pay. This cannot be correct even if the first
respondent is convinced of the applicant’s misconduct.
[71]
The cases cited by the parties are not in all fours with the facts of
this case, they range from
instances where there was an absolute
absence of disclosure
[6]
to
cases of partial disclosure where the relevant facts necessary to be
disclosed were or ought to have been within the purview
of the
employer.
[7]
Then the
respondent referred to
Trollip
v Mlokothi
[8]
,
there,
there was clear evidence of repeated communication between the
employer and employee represented by its executive mayor in
which the
employee was asked to disclose. The candidate was found to have
failed to so disclose on all those occasions, resulting
in the
rescission of the decision to employ the candidate. Here, the dispute
seem to be on whether there was disclosure or not
during the
interviews. There is, as I have said, a dispute of fact in this
regard. On the applicable formula to which reference
has been made, I
have decided the dispute in favour of the applicant. So here the
issue is not whether or not the employee has
a duty to disclose facts
that are material to a decision by a prospective employer whether to
employ her or not. That aspect is
not controversial in our law, an
employee has an absolute duty to disclose such facts as are within
her knowledge which are material
to a prospective employer’s
decision whether to employ her or not.
Is
there an enforceable contract between applicant and first respondent?
[72]
The applicant seeks a declarator that there is an enforceable
contract between her and the respondent.
The latter resists this
contention. In addition to filing an answering affidavit, the
respondents also launched a conditional counter
application seeking
to set aside the applicant’s appointment. That conditional
counter application is not before me, that
much I was told by Mr
Quinn during the hearing.
[73]
The net effect of the conditional counter application must be that I
am not dealing with the
review of the first respondent’s own
decision to employ the applicant. I am rather dealing with the
question whether there
is an employment contract between the
applicant and first respondent and whether same is enforceable.
[74]
It is not in dispute that the first respondent did pen a letter
appointing the applicant as the
Head of the Department for the
Eastern Cape Department of Rural Development and Agrarian Reform. I
accept too that this is a power
that the first respondent exercises
in the further exercise of his executive power in terms of the
Constitution read with the PSA.
[9]
It is also accepted that the applicant did accept her appointment by
the first respondent. What seems to be in dispute is the effect
of
her dismissal by DAFF soon after she accepted her employment with the
first respondent. Put differently, I understand the issue
to be
whether her dismissal by DAFF nullified her appointment by the first
respondent.
[75]
It is also true that the Public Service Regulations suspend the
re-appointment of a former employee
who has been dismissed in the
public service for acts of misconduct listed therein. Included in the
acts of misconduct to which
the Regulations apply is theft and
fraud. The applicant was found guilty of theft and fraud. Taken
to its logical conclusion
then, the contention of the respondents
must be that once the applicant was dismissed, such dismissal
rendered her contract of
employment unenforceable.
[76]
I am not in agreement with this proposition. In my view the first
respondent ought to have approached
court to have the contract set
aside if he was of the view that the applicant was, for some reason,
disqualified from employment
in the public service. He was
entitled to do this even before the applicant initiated the instant
application. In any
event, in such an application, the first
respondent would have to accept, at the very least, the factual
existence of the contract.
[77]
Any attempt by the first respondent to resile from the agreement he
entered into with the applicant
would constitute self-help. Our
constitution has a pertinent aversion to self-help, no doubt for its
inimicality to the rule of
law
[10]
.
None of this though precludes the first respondent from approaching
court to have his own decision to enter into the contract
set side
and even reviewed. To my mind that is the only available mechanism
for the applicant to resile from the agreement.
[78]
The first respondent have made findings by other courts regarding
applicant’s conduct whilst
at DAFF central to their defence. In
my view such findings speak to the propriety or otherwise of the
applicant’s employment
in the public service, an issue not
before me. I am thus persuaded that there is an enforceable contract
between the applicant
and first respondent.
[79]
In the course of preparing this judgment, I did, for the sake of
caution, require the parties
to file further heads of argument and
deal with the relevance of section 16B of the PSA. I was spurred, as
of caution, to that
direction on the basis of the text of the section
itself. This calls for its reproduction here. It provides;
“
16B
DISCIPLINE
(2) Where
an employee may lodged an internal appeal provided for in a
collective agreement
or in an determination in terms of section 3(5),
a sanction referred to in subsection (1) may only be given effect to-
(a) If
an internal appeal is lodged, after the appeal authority has
confirmed the sanction pronounced by
the Chairperson of a
disciplinary hearing or;
(b) if
no internal appeal is lodged, after the expiry of the period within
which the appeal must have been
lodged.”
[80]
The text quoted above means in my view that an employee’s
dismissal in the public service takes effect after the period
allowed
for such an employee to lodge an appeal. This would in my view mean
that the applicant’s dismissal did not take effect
on the 29
th
of November 2019 when she received the letter of dismissal. This is
quite apart from the fact that at the time she received a letter
of
dismissal her resignation had already taken effect.
[81]
Both parties filed elaborate heads of argument for which I am
grateful irrespective of the fact
that the respondent’s heads
of argument went somehow beyond the scope of the directive. Both
parties contended that the applicant’s
dismissal did take
effect on the 29
th
of November 2019. The essence of the directive was for the parties to
ventilate the question whether in the light of the section
16B, the
applicant’s dismissal by DAFF came into effect. On purely
technical basis, it seems to me, if the applicant’s
dismissal
did not and could not have taken effect on the 29
th
of November 2019, then in that instance, it would mean that the
applicant is not hit by the provisions of Regulation 61 of the
PSA
Regulations. This would, of course be the technical
interpretation of the Regulation, a course of action worthy to be
shunned in our constitutional setting.
[82]
I am therefore of the considered view that even if
the applicant’s dismissal came into effect on the
29
th
of November 2019 thus implicating the regulation. The first
respondent, having already entered into a contract with applicant,
is
not entitled to unilaterally undo the consequences of the contract.
[83]
I therefore conclude that there is an enforceable contract between
the applicant and first respondent.
It therefore follows that the
application must succeed. It remains of me to consider the issue of
costs.
COSTS
[84]
The general rule is that costs are in the discretion of the court
which discretion the court
must exercise judicially. It was never
suggested during the hearing that costs ought not to follow result, I
know no reason why
they should not. The first respondent must bear
the costs of the application with the exclusion of the costs of the
application
to strike out. The first respondent ought to have taken
the matter on review or even take disciplinary process against the
applicant.
[85]
The following order shall accordingly issue;
1.
The
application to strike out annexures SNR1, SNR2, SNR3 and SNR4 is
dismissed with no order as to costs.
2.
It
is declared that there is a valid and binding contract between the
applicant and first respondent which was concluded on the
29
th
of November 2019 in terms of which the applicant was appointed to the
position of Head of Department (HOD) of the Department of
Rural and
Agrarian Reform: Eastern Cape.
3.
The
respondents are directed to give effect to the contract concluded
between the applicant and the first respondent on the 29
th
November 2019.
4.
The
first respondent is hereby directed to pay costs of the application
subject to paragraph one of this order such costs to include
the
employment of two counsel.
__________________________
B.
Maswazi
Judge
of the High Court (acting)
For
the applicant Adv
A. Da Silva and L Van Vuuren
Instructed
by
GORDON McCUNE ATTORNEYS
140
Alexander Road
KING
WILLIAMSTOWN
(Ref.
G McCune/ya)
Tel:
043 642 1519
For
Respondent:
Adv
Quinn SC and Cossie
Instructed
by
THE
STATE ATTORNEY
Office
of the Chief State Law Advisor
Office
of the Premier
32
Alexander Road
KING
WILLIAMSTOWN
Heard
on 19/11/2020, 03/02/2021 and 16/02/2021
Supplementary
heads of argument delivered on the 8
th
of May 2021
Delivered
on the 1
st
of June 2021
[1]
Beinash v
Wixley 1997(3) SA 721 SCA at 733B
[2]
Minister of
Environmental Affairs and Tourism v Phambili Fisheries 2003(2) ALL
SA 616 SCA at para 80
[3]
Stellenbosch
Farmers Winery Pty Ltd v Stellenvale Winery Pty Ltd 1957(4)
(C) 235E-G, the exception to this general rule
is found in Plascon
Evans (TVL) Ltd v Van Riebeeck Paints Pty Ltd 1984 (3) 623 AD at
634E-635A
[4]
National
Director of Public Prosecutions v Zuma 2009(2) SA 277 (SCA) para 26
.
[5]
Soffiantini v
Mauld 1954(4) 150 SCA 150E.
[6]
MEC for
Education Gauteng v Mgijima and Others [2011] 3 BLLR 253 (LC)
[7]
Fipaza v Eskom
Holdings Ltd and Others (2010) 31 ILJ 2903 (LC)
[8]
Trollip v
Mlokothi [2017] ZAECPEH 43 (4 September 2017)
[9]
Section 125 of
the Constitution, 1996 and section 12 of the PSA
[10]
MEC Eastern
Cape and Another v Kirland Investments (Pty) Ltd 2014(5) BCLR 547
para 98, see also Chief Lesapo v Northwest Agricultural
Bank and
Another 2001(1) SA 409 CC para 17.