Nomkopo v MEC for Rural Development and Agririan Reform, Eastern Cape and Another (3510/2020) [2021] ZAECMHC 34 (14 October 2021)

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[2021] ZAECMHC 34
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Nomkopo v MEC for Rural Development and Agririan Reform, Eastern Cape and Another (3510/2020) [2021] ZAECMHC 34 (14 October 2021)

IN THE HIGH COURT OF
SOUTH AFRICA
[EASTERN CAPE LOCAL
DIVISION, MTHATHA]
CASE
NO: 3510/2020
In
the matter between:
LUNGISWA
NOMKOPO
Applicant
And
MEC FOR RURAL
DEVELOPMENT AND
AGRIRIAN
REFORM, EASTERN CAPE
1
st
Respondent
HEAD OF THE
DEPARTMENT OF RURAL
DEVELOPMENT AND
AGRARIAN REFORM,
EASTERN
CAPE
2
nd
Respondent
JUDGMENT
NHLANGULELA
DJP
[1]
These are application proceedings in which the applicant seeks a
relief, firstly, reviewing
the respondent’s failure to take a
decision on whether to reverse the applicant’s demotion and
reduction of her salary scale
and to write off the debt arising from
salary overpayments to her to the extent that the failure to take a
decision is inconsistent
with s 9 (1) of the Constitution, 1996 and s
11 (1) of the Public Service Act, 1994. Secondly, the applicant seeks
an order that
if it is found that such omission is unlawful the
respondent be directed to take a decision within a period of thirty
days from the
date of the order. An interlocutory relief that the
delay in launching of these proceedings be condoned is also sought by
the applicant.
[2]
For the purposes of convenience, I quote hereinunder the provisions
of s 9 (1) of the Constitution,
1996. They read as follows:
“
(1)
Everyone is equal before the law and has the right to equal
protection and benefit of the law.
And
s 11 (1) of the Public Service Act, 1994 read as follows:
“
In
making of appointments and the filling of posts in the public service
due regard shall be had to equality and the other democratic
values
and principles enshrined in the Constitution.”
[3]
The background facts of this matter is the following:  Before
1994, todate, the applicant,
an adult female, was employed by the
Department of Rural Development and Agrarian Reform, Transkei (the
respondent).  As an
employee, the applicant is entitled to be
paid a salary in terms of pre-determined salary scales applicable in
the respondents’
department.   She was employed as a
clerk, and earning a salary at level 7.  During 1996 the
Director General in the
Department of Public Service established a
Human Resource Operational Project Team (HROPT) for the purposes of
rationalizing the
public services of the former Transkei, Ciskei and
the Cape Provincial Administration.  Pursuant thereto, on 04
December 1997
Agreement 1/1997 was concluded in the Eastern Cape
Public Service Bargaining Council (the ECPSBC) in terms of which
compensation
and rank promotions were to be awarded to an individual
employee based on auditing by the HROPT.   On 25 March 1998
the
Director General issued a directive setting out certain criteria
for rank / leg promotions.   On 1 July 1999 regulations
issued under the Government Notice No. R679 were promulgated
abrogating the leg / rank promotion dispensation that had applied
before
regulations issued in 1994. The 1999 regulations introduced
changes on the conditions of service of public servants in relation
to
requirements for promotion to a higher rank.   However,
in 2001 these regulations were repealed by new regulations.
Pursuant thereto, in February 2008 a Departmental Task Team (the DTT)
was established to,
inter alia
,
audit files for all staff appointed in the public service prior to
2001, and to recommend fair adjustment of salary scales.
It was
out of the work of the DTT that in 2009 the applicant’s salary
scale was raised from Level 7 (Chief Clerk) to Level 8
(Administrative
Officer).  Many other co-employees of the
applicants benefited out of the findings of the DTT.  However,
in January 2013
the respondent reversed the promotions of the
applicant and many other employees in her situation, contending that
their promotions
were irregular by reason that they were not effected
in accordance with the requirements of the Personal Administration
Standards
(the PAS), which made it a requirement that for appointment
as Administrative Officer an employee must have proof of 4 years
experience
gained after obtaining an appropriate 3 year Bachelor’s
Degree with R V Q 13 or equivalent qualification.  As a result,
the
respondent effected “corrections” in respect of those
employees who allegedly did not make the grade by way of reversing
their
promotions and salary increases.  The applicant happened
to be one of those employees.
[4]
Later on in 2013, forty-two co-workers of the applicant referred an
unfair labour practice
dispute to the General Public Service Sectoral
Bargaining Council under case number GPBC 304/2013 (the matter of
Gotshana & 41 Others v Department of
Rural Development and Agrarian Reform)
.
This matter was later on settled out of court on the basis of an
order that the respondent discontinues the demotions and
puts on hold
the process of recovering of overpaid salaries.  Since the
applicant was not amongst those 42 co-workers, the benefits
of the
settlement order did not accrue to her.   In 2015 another
group of 50 co-employees of the applicant who had not
participated in
the
Gotshana
matter
referred their own unfair labour practice dispute to the Bargaining
Council.  A settlement similar to the one obtained
in the
Gotshana
matter
was granted by the Bargaining Council and applied only to those 50
employees.   That is, the benefits of that settlement
did
not accrue to the applicant as she was not amongst those 50
employees.  Nonetheless, on 26 March 2015 the respondent issued
Circular 1/2015 (annexure “LN 1”) which provides to the effect
that the respondent had embarked on an action which seeks to address
the issues of demotions, lowering of salary scales and recovery of
overpayments affecting all the employees who did not participate
in
the two cases that had been placed before the Bargaining Council. In
that Circular, the undertaking made was that all remaining
grievances
would be settled “internally”. Time lines for the completion of
that process was not stipulated in the Circular.
[5]
When the promise made by the respondent to address her complaint was
not fulfilled, she decided
to refer an unfair labour practice dispute
against the respondent to the CCMA, General Public Service Sectoral
Bargaining Council
and Bargaining Council.  She was not
successful in those endeavours for the reason given by the Bargaining
Council that the
process of arbitration, pursued by the respondent in
terms of Circular 1/2015, would be harmful to the ongoing
investigation into
demotions and lowering of salary scales.  That
outcome caused the applicant to wait until the investigation was
completed and
on the expectation that an appropriate decision would
thereafter follow. With neither the investigation completed nor a
decision
made by the respondent, the applicant resorted to launching
the present proceedings challenging the failure by the respondent to
decide whether to recognize her promotion as the Administrative
Officer and reverse overpayments.
[6]
The respondent placed the jurisdiction of this court in issue,
contending that the Labour
Court, not the High Court, is the correct
forum where the relief sought by the applicant must be addressed.
The applicant took
a different view.  Relying on the case of
Gcaba v Minister of Safety & Security And Others
2010 (a)
SA 238 (CC) at para [75] it was submitted on behalf of the applicant
that this Court does have jurisdiction to adjudicate
the dispute
between the parties because the cause of action is administrative
review of the respondents’ failure to take a decision
in terms of s
6 (2)
(g)
of Promotion Administrative Justice Act 3 of 2000
(PAJA) in breach of its obligation to correct any action or omission
purportedly
made in terms of the Public Service Act, 1994.  In
Gcaba,
the Constitutional Court held at para [75] as follows:
“
Jurisdiction
is determined on the basis of the pleadings; as Langa CJ held in
Chirwa
,
and not the substantive merits of the case. If Mr Gcaba’s case were
heard by the High Court, he would have failed for not being
able to
make out a case for the relief he sought, namely review of an
administrative decision.  In the event of the Court’s
jurisdiction being challenged at the outset (in
limine
),
the applicant’s pleadings are the determining factor.  They
contain legal basis of the claim under which the applicant has
chosen
to invoke the court’s competence.  While the pleadings –
including in motion proceedings, not only the formal terminology
of
the notice of motion, but also the contents of the supporting
affidavits – must be interpreted to establish what the legal basis
of the applicant’s claim is, it is not for the court to say that
the facts asserted by the applicant would also sustain another
claim,
cognizable only in another court.  If however the pleadings,
properly interpreted, establish that the applicant is asserting
a
claim under the LRA, one that is to be determined exclusively by the
Labour Court, the High Court would lack jurisdiction.
An
applicant like Mr Gcaba, who is unable to plead facts that sustain a
cause of administrative action that is cognizable by the
High Court,
should thus approach the Labour Court.”
[7]
It was submitted on behalf of the respondent that in so far as the
applicant seeks a review
of a decision on the ground that the
respondent did correct the promotions of some of the workers (the 92
employees who had approached
the Bargaining Council under the
auspices of the
Labour Relations Act No. 66 of 1995
) the Labour Court
has exclusive jurisdiction to adjudicate the dispute between the
respondent and the remaining employees, including
the applicant.
[8]
It seems to me that in these proceedings the case for the applicant
is not that she seeks
an order that her promotion from the position
of a Clerk to that of an Administrative Officer should be recognised
by the respondent.
On the proven facts, the respondent did
inform the applicant that she was demoted by reason that her
promotion was irregular and
payment of salaries made at a salary
scale for Administrative Officers constituted overpayments that had
to be paid back to the respondent.
She has protested the
decision of the respondent reversing her rank and reducing her salary
scale in the CCMA and Bargaining Council
on the ground that the
respondent committed an unfair labour practice.  Those
proceedings were very clearly a litigation that
warranted a redress
by means of the processes that are established under the
Labour
Relations Act.  It
is common cause that the applicant did
utilize the machinery that is set up in terms of the
Labour Relations
Act;
albeit
without success.  On the contrary, in these
proceedings the applicant asserts that she continued her pursuit for
redress inside
the work place with the result that in the midst of
such ongoing protest the respondent addressed the applicant, together
with her
colleagues in similar situation, by means of a Circular
1/2015 stating that:
“
This
serves to advise all the employees of the department (DRDAR) that a
settlement was reached between the department and a group
of
employees in the HROPT arbitration matter.
The
two parties reached a settlement agreement on the 25
th
of February 2015.  The settlement covers only those employees
who were involved in the arbitration.
The
department embarked on an action of addressing other employees who
are not covered by the arbitration award, but affected by the
same
conditions.  Each case will be treated on an individual basis.
The
department stresses that it sees no reason why the matter cannot be
entirely settled internally.”
[9]
Quite clearly, it cannot be disputed that the respondent undertook to
conduct investigation
and advise the applicant whether her demotion
and recovery of overpayments will be reversed.  It is plain from
the papers filed
of court that the respondent has failed to decide
whether it intends to sustain or reverse the prevailing status
quo
.
Based on this analysis of the events constituting the cause of
action, under
s 6(2)
(g)
of PAJA, the applicant has succeeded
to make out a case that the respondent has breached its statutory
obligations as envisaged in
s 5 (7)
(a)
of the Public Service
Act, which reads:
“
A
functionary shall correct any action or omission purportedly made in
terms of this Act by that functionary, if the action or omission
was
based on an error of fact or law or fraud and it is in the public
interest to correct the action or omission.”
The failure to act
in terms of the Circular is indeed the error that is envisaged in s 5
(7)
(a)
; and it does invoke the administrative review
jurisdiction of this Court in terms of s 6 (2)
(g)
of PAJA,
which reads:
“
6.
Judicial review of administrative action:
(1)
…
(2)
A court or tribunal has the power to
judicially review an administrative action if -
…
(g)
the action concerned consists of a failure to take a decision.
…”
[10]
On the aforegoing, it appears to me that the case pleaded by the
applicant is that the failure by the
respondent to take a decision,
as it is enjoined to do so in terms of s 5 (7) of the Act, infringes
her right to just administrative
action as envisaged in s 33 (1) of
the Constitution that is reviewable by the High Court in terms of s 6
(2)
(g)
of PAJA as it is a “court” as described in s 1
(b)(i)
of the same Act.  In other words, the right that
is asserted by the applicant is not one that can be determined
exclusively by
the Labour Court acting in terms of
s 158
(1)
(h)
of
the
Labour Relations Act 66 of 1995
, which reads:
“
(1)
The Labour Court may – review any decision taken or any act
performed
by the State in its capacity as employer, on such grounds
as are permissible in law.”
[11]
Counsel for the respondent submitted that the impugned conduct of the
respondent, the failure to take
a decision, is not an administrative
action within the meaning of
s 1
of PAJA.  She argued that this
Court should for that reason dismiss the application in the same way
that the court did so in
SAPU and Another v National Commissioner
of the South African Police Service and Another
[2006] 1 BLLR 42
(CC).  It was held in the
SAPU
case that the decision
taken by the Commissioner introducing a new 8 hour shift system in
respect of members of the SAPS engaged in
line activity duties across
the entire country was an internal contractual matter, as opposed to
performance of a public function,
that had no external legal effect.
[12]
Section 1
of PAJA defines administrative action as follows:
“
(i)
‘administrative action’ means any decision taken, or any failure
to take a decision by -
(a)
An organ of State when –
(i)
…
(ii)
exercising a public power or performing a
public function in terms of any legislation; or
(b)
…
which
adversely affects the rights of any person and which has a direct,
external legal effect, …”
[13]
In the context of the objection based on
s 1
of PAJA, the question to
be answered is whether the respondent’s failure to address the
applicant’s demotion, lowering of her
rank and indebtedness flowing
from the process of recovery of salary overpayment is an
administrative action.
[14]
It cannot be disputed that the respondent is an organ of State which
is vested with statutory power under
the Public Service Act, 1994 to
administer its affairs, including the merger of the TBVC with the
broader public service component
under the Republic of South Africa
that was necessitated by the establishment of one democratic South
Africa in 1994.  The challenges
that were produced by the
process of merger warranted adjusting of public service employees’
ranks and salary scale disparities.
The tool that was
used to harmonize the workforce was a Commission of Enquiry whose
findings and recommendations to the Eastern Cape
provincial
government delivered both success and failure resulting in the
continuation of adjustments using a myriad of challenging
administrative methods.  The Circular issued in 2015 is but one
of the indicators that the respondent is still looking for correct
answers to the on-going grievances within the public service.
The cases stated by 94 co-workers of the applicant in the Bargaining
Council were founded on rank promotions and salary grievances as
such, which could very well be catagorized as an internal /
contractual
dispute as between the employer and employee; but for the
reason that the disputes had the origin in the merger processes that
gave
rise to a need for a broad structural adjustment of rank
promotions and / salary adjustments within the department, the
Circular
could cannot be a step taken in isolation from the process
of adjusting the systems of governance of the department as an organ
of
the State.  It is in that light that the failure to take a
decision in terms of the undertaking that was made in 2015 must be
seen.  Such a failure is not in keeping with determining fair
public service as envisaged under the Constitution, hence the
obligations contained in s 5 (7) of the Public Service Act that the
functionary in the respondent’s department “shall” correct
the
failure to take the decision.  If not checked, such a failure
does undermine the service delivery obligation of the department
itself. The respondent should not ignore its statutory obligations.
The imprimatur against the malfunctioning of government
departments
was made in
Khumalo v MEC for Education, KwaZulu Natal
2014
(5) SA 579
(CC) at para [32] as follows:
“
In
this matter, the constitutional and legislative approach must inform
an approach which does not undermine the hard-won protections
afforded to public-sector employees whilst understanding the
uniqueness of the public sector employment. Of significance is the
demand
that decisions are made and executed lawfully, fairly and
expeditiously…”
[15]
In my view, the nature of the function performed by the Commissioner
in the case of
SAPU, supra,
is
different from the public function omitted to be performed by the
respondent’s functionary in the present matter. The recalcitrance
on the part of the respondent is a breach of the administrative power
given to it under s 5 (7) of the Public Service Act.  Therefore,
it is my finding that the respondents’ failure to decide is the
administrative action as described in s 1
(a)(ii)
of PAJA.
[16]
I proceed to deal with the argument advanced on behalf of the
respondent that this application falls
to be dismissed by reason that
the applicant places reliance for judicial review on Circular 1/2015
in 2020 for demotion that took
place in January 2013.  Based on
this, it was contended that the applicant must be non-suited for
having delayed the bringing
of her application as envisaged in s 7
(1)
(b)
of
PAJA, which provides that an applicant for review must approach the
court within 180 days from the date on which she was informed
of the
administrative action, became aware of the action or might reasonably
have been expected to have become aware of the action
and reasons for
such action.  The respondents stated on affidavit, without more,
that “… no decision had to be made by the
respondents regarding
the applicant … save for finalizing the audit which would determine
the position of each employee.”
[17]
As I understood the respondents’ case on the objection based on
delay argument, the implementation
of Circular 1/2015 would require
the profile of applicant to be audited by the HROPT and, further,
validation thereof by the Office
of the Premier (OTP).  It is
those processes that the respondent is obliged in terms of s 5 (7) of
the Public Service Act to
set in motion so that the applicant could
know the fate of her complaint regarding her demotion or lowering of
her rank and salary
level.   Therefore, at issue here is
not the demotion that took place in January 2013, but it is the
decisions of the HROPT
and OTP that are as yet to be made.
Simply put, the applicant has not been informed of those decisions
despite the undertaking
made in terms of Circular 1/2015 that they
would be made in order to resolve the complaint of the applicant.
Consequently,
this application, being taken as a step to compel the
respondent to implement the Circular, cannot be said to be restricted
by the
180 days period that is prescribed in s 7 (1)
(b)
of
PAJA.  The fact that the applicant has not taken an unreasonable
step in seeking redress of breach and that the respondent
has not
placed facts before this court to show existence of prejudice
suffered by it due to the launching of this application on
05 October
2020, the objection based on alleged non-compliance with the
provisions of s 7 (1)
(b)
of PAJA cannot stand.  And the
concerns raised by Nugent JA in
Gqwetha v Transkei Development
Corporation Ltd and Others
2006 (2) SA 603
(SCA) para [22] do not
arise in this case.  I state those concerns herein-below for the
purposes of completeness:
“
[22]
It is important for the efficient functioning of the public bodies (I
include
the first respondent) that a challenge to the validity of
their decisions by proceedings for judicial review should be
initiated
without undue delay.  The rationale for that
longstanding rule – reiterated most recently by Brand JA in
Associated Institutions Pension Fund and
Others v Van Zyl and Others
2005 (2) SA
302
(SCA) at 321 – is twofold:  First, the failure to bring a
review within a reasonable time may cause prejudice to the
respondent.
Secondly, and in my view more importantly, there is
a public interest element in the finality of administrative decisions
and the
exercise of administrative functions.  As pointed out by
Miller JA in
Wolgroceries Afslaers
(Edms) Bpk v Munisipaliteit va Kaapstad
1978
(1) SA 13
(A) at 41-F (my translation):
‘
It
is desirable and important that finality should be arrived at within
a reasonable time in relation to judicial and administrative
decisions or acts.  It can be contrary to the administration of
justice and the public interest to allow such decisions or acts
to be
set aside after an unreasonably long period of time has lapsed -
interest reipublicae ut sit finis
litium…
. Considerations of this kind
undoubtedly constitute part of the underlying reasons for the
existence of this rule.’”
[18]
I am not persuaded that a declaratory relief, in para [2] of the
Notice of Motion, that the respondents’
failure to take a decision,
which is a common cause fact, is necessary in this case.  The
respondents’ failure to take a decision
in this case does not raise
any legal controversy fit for an order of declaration of rights to be
made.  Instead, the substantive
relief sought in paragraphs 1
and 3 of the Notice of Motion is a competent one, lest the court
slides the judicial review jurisprudence
back to the trappings once
countenanced regarding the interphase between PAJA, the Constitution
and common law. That the applicant
cannot premise her administrative
justice claim under both PAJA and the Constitution was settled
finally in the case of
Minister of Health & Another NO v New
Clicks South Africa (Pty) Ltd and Others (treatment Action Campaign
and Another as Amici
Curiae)
2006 (2) SA 311
(CC), where
Chaskalson CJ said the following at 364 – 5:
“
[95]
PAJA is the national legislation that was passed to give effect to
the rights
contained in section 33.  It was clearly intended to
be, and in substance is, a codification of these rights.  It was
required
to cover the field and purports to do so.
[96]
A litigant cannot avoid the provisions of PAJA by going behind it,
and
seeking to rely on section 33 (1) of the Constitution or the
common law. That would defeat the purpose of the Constitution in
requiring
the rights contained in section 33 to be given effect by
means of national legislation.
[97]
Professor Hoexter sums up the relationship between PAJA, the
Constitution
and the common law, as follows:
‘
The
principle of legality clearly provides a much-needed safety net when
the PAJA does not apply. However, the Act cannot simply be
circumvented by resorting directly to the constitutional rights in s
33. This follows logically from the fact that the PAJA gives
effect
to the constitutional rights. (The PAJA itself can of course be
measured against the constitutional rights, but that is not
the same
thing.)  Nor it is possible to sidestep the Act by resorting to
the common law.  This, too, is logical, since
statutes
inevitably displace the common law. The common law may be used to
inform the meaning of the constitutional rights and of
the Act, but
it cannot be regarded as an alternative to the Act.’
I
agree”
[19]
In the same case of
New Clicks,
Ngcobo J (as he was then), in
a concurring judgment, said the following at 444-5:
“
[431]
Now there can be no question that the pharmacies sought judicial
review of the recommendation
of the Pricing Committee and the
Regulations based on that recommendation. For their causes of action,
hey expressly relied upon
the provisions of section 6 of PAJA, They
were right.  In
Bato Star
this
Court held the ‘the cause of action for the judicial review of
administrative action now ordinarily arises from PAJA, not from
the
common law as in the past.’ And it went on to hold that the
authority of PAJA to ground such causes of action rests squarely
on
the Constitution.’
[432]
The rationale for the holding in
Bato
Star
appears from the following
passage:
‘
In
Pharmaceutical Manufacturers Association
of SA and Another: In re Ex parte President of the Republic of South
Africa and Others,
the question of the
relationship between the common-law grounds of review and the
Constitution was considered by this Court.
A unanimous Court
held that under our new constitutional order the control of public
power’s always a constitutional matter.
There are not two
systems of law regulating administrative action – the common law
and the Constitution – but only one system
of law grounded in the
Constitution. The Courts’ power to review administrative action no
longer flows directly from the common
law but from PAJA and the
Constitution itself. The grundnorm of administrative law is now to be
found in the first place not in the
doctrine of ultra vires, nor in
the doctrine of parliamentary sovereignity, nor in the common law
itself, but in the principles of
our Constitution. The common law
informs the provisions of PAJA and the Constitution, and derives its
force from the latter.
The extent to which the common law
remains relevant to administrative review will have to be developed
on a case-by-case basis as
the Courts interpret and apply the
provisions of PAJA and the Constitution.’”
[20]
The applicant has achieved substantial success in this matter.
She is for that reasons entitled
to an appropriate substantive relief
in paragraphs 1 and 3 as well as the costs of the application.
[21]
In the result the following order shall issue:
1.
The failure by the second respondent
to take a decision on whether to reverse the applicant’s demotion
or lowering of her rank and
salary level, and on whether to write off
the debt which was incurred by the applicant as a recovery of a
salary overpayment paid
to the applicant, occasioned in consequence
of the applicant’s aforesaid demotion be and is hereby reviewed and
set aside.
2.
The second respondent be and is
hereby directed to take a decision on whether to reverse the
applicant’s demotion or lowering of
her rank; salary scale, and on
whether to write off the debt which was incurred by the applicant as
a salary overpayment occasioned
in consequent of the aforesaid
demotion or not, within thirty (30) days from the date of this order.
3.
The respondents to pay costs of the
application jointly and severally, the one paying, the other being
absolved from liability.
Z. M. NHLANGULELA
DEPUTY JUDGE
PRESIDENT OF THE HIGH COURT
MTHATHA
Counsel for the
applicant
:
Adv. L. L.
Ngumle
Instructed
by
:           L. Jikela
Att
MTHATHA.
Counsel for the
respondent
:
Adv. T.
Mnqobi
Instructed
by
:           The
Office of the State Attorney
MTHATHA.
Heard on: 23 August
2021
Delivered
on: 14 October 2021