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[2019] ZAGPPHC 217
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Temane v Minister of Defence and Military Veterans and Others (29817/17) [2019] ZAGPPHC 217 (7 June 2019)
IN THE NORTH GAUTENG HIGH
COURT, PRETORIA
[REPUBLIC OF SOUTH AFRICA]
CASE NUMBER:
29817/17
In
the matter between:
SARAHA
MMADITLHARE REAKGADI TEMANE
APPELLANT
AndO
MINISTER
OF DEFENCE AND MILITARY VETREANS FIRST RESPONDENT
THE
CHIEF OF THE SA NATIONAL DEFENCE FORCE SECOND RESPONDENT
SOUTH
AFRICAN MILITARY OMBUD
THIRD RESPONDENT
JUDGMENT
MAVUNDLA
J;
[1] The
applicant approached this court seeking an order in terms of which:
1.1 the
third respondent ' s findings and recommendations as published in
Report Nr 12/
2016 dated 7 June 2016 in so far as it does not correct
the error as per prayer 2.2 below is reviewed and set aside; and
1.2 correcting
the seniority of the applicant to the correct rank of Warrant Officer
Class
1 as per initial grievance lodged;
1.3 staffing
of the applicant in a post of Warrant Officer Class 1;
1.4 allocating
the applicant's number on the SA Army Signal Formation Officer Class
1 Seniority
list, in line with that of applicant's 1996 peers;
1.5 costs
of suit on attorney and client scale;
1.6 Further
and or alternative relief.
Background
and common cause facts:
[2]
The applicant:
2.1 is
employed by the Department of Defence ("DOD) in the rank of
Warrant Officer
Class 2 ("W02"), having joined the DOD in
1999 and is still in active service;
2.2 successfully
completed her functional and promotion training courses with her
intake
referred to as intake as group 1;
2.3 was
erroneously promoted to the rank of Lance Corporal ('I/Cpl")
instead
of Corporal ("Cpl"), which error had monetary and
carrier prejudice for her. All Ranks are coupled to salary scale and
eligibility to attend the next higher level promotional or functional
course. Her peers (group 1) whose careers were not affected
by this
error were promoted in the correct ranks and their career paths were
totally different and also monetarily;
2.4 came
to know that in 2016, the DoD attempted to correct the administration
error
of appointing her in the wrong rank (L/Cpl), but again she was
wrongly placed in group 2 to align her career path, instead of group
3;F
2.5
was
prejudiced by the unjust or erroneous administrative action of the
respondent,
in that whereas some of the people of her rank at intake
were promoted to W02 in 2007 and WOl in 2012, for example WOl Makgale
96203815MC and (SWO) Senior Warrant Officer AMO Sebothoma 96203971,
which clearly demonstrate how far behind she was held back by
the
unjust administrative error or decision of the respondent;
2.6.
was negatively affected or prejudiced monetary wise in that her
salary and seniority resulted
in a difference of R20000. 00 per annum
between the ranks;
2.7 has
been prejudiced in that the unjust and erroneous administrative
decisions
by the respondent deprived her an opportunity to be
nominated and attend future courses in order to progress in ranks;
2.8 has
exhausted all internal remedies in terms of SANDF grievances system
and the
office of the Military Ombud recommended on the correction of
the applicant's prejudice suffered (Report Nr: 12/2016.
[3]
The applicant correctly pointed out that according to
S13
of the
Military Ombud Act 4 of 2012
: "any person aggrieved by a
decision of the Ombud may apply to the High Court for a review
against the decision within 180
days of the decision of the
Ombudsman."
[4]
The applicant contended that the basis of the review application is
premised on the
facts that the source of the findings and
recommendations of the third respondent in report 12/2016 dated 7
June 2016 was incorrect.
The SA Army Signal Formation supplied the
incorrect group of names (group 2) to the third respondent for
correcting the applicant's
career. The first respondent subsequently
followed the findings and recommendations of the third respondent and
this effected unjust
administrative action of the first respondent.
[5]
The applicant contended that this Court has the power to judicially
review an administrative
action if the administrator, in taking the
action, considered irrelevant considerations or disregarded relevant
considerations
were not considered. The relevant considerations nor
regarded in report 12 / 2016 of the third respondent, is the correct
group
(group 1) the applicant's career should have been aligned with,
in order to correct the errors of 1998 (incorrect appointment).
[6] The
applicant further contended that she was prejudiced by the first
respondent's
unreasonable administrative action and thus her
s33
rights were infringed.
[7] She
further contended that DoD has a promotion policy with certain
requirements
that need to be fulfilled with, prior to promoting a
member (para13of the Promotion Policy). Paragraph 13 states that:
"Advancements
to the nearest higher rank shall take place only
when a member is properly qualified for such advancement."
In
casu
the DoD deviated from its own
policy, and in this regard the applicant referred to certain members
who were WO2 without attended
the WO Development Course being staffed
in a WO1 post and others who were WO Development course qualified but
still waiting for
years after successful completion for promotion to
rank WO1 but not being promoted to such latter rank.
[8] The
first and second respondents contended that:
8.1
the applicant does not only seek to review and set aside the
recommendations of the
Military Ombuds
[1]
,
she further seeks an order from this court correcting her seniority
to the rank of WO1 and an order staffing her in the post of
WO1;
8.2
In addition to the said reliefs, she also seeks an order allocating
her number on
the SA Army Signal Formation WO1 seniority list in line
with the so-called Applicant'
s 1996
peers. The respondents contend
that this relief is academic, because the applicant seniority on the
Signal Formation was moved
to seniority number 74 on Seniority List.
The moving to number 74 was made pursuant to the Military Ombud's
recommendations, the
very recommendations that the applicant seeks to
review and set aside.
[9]
The respondents further contend that:
9.1
the applicant has failed to comply with the provisions of PAJA in
particular the provisions
of
section 7(1)
;
2.5
cm; margin-right: 0.04cm; text-indent: -1.3cm; margin-bottom: 0cm; line-height: 150%">
9.2
the applicant has failed to set out the grounds upon which the
decision of the Military
Ombudsman should be reviewed and set aside;
9.3
the applicant failed to comply wit h the prescripts of the provisions
of Rue 53 of
the Uniform Court Rules in so far as the filing of the
record of the decision that is sought to be reviewed and set aside;
9.4
the application is in essence a review of a decision by the SANDF and
or failure to
take a decision in relation to the applicant's
promotion to the post WO1 and in relation to the Applicant's seniorit
y, the application
ought to have been brought within the timeframe
prescribed by PAJA, which applicant failed to do and as such the
application is
legally defective;
9.5
the applicant has failed to establish that the Military Ombud's
decision was incorrect,
but she has provided the court with no basis
for the extraordinary remedy of substitution.
9.6
the conduct of both the Military Ombuds and the SANDF refusing to
correct the rank
of the applicant to the rank of WO1 and to
consequently staff the applicant in the WO1 post falls within the
purview of the general
provisions of paragraph (g) ("doing or
effusing to do any other act or thing of administrative nature,")
is an administrative
decision within the meaning of PAJA, accordingly
the applicant has no election to either rely on PAJA or common law
remedy of mandamus
in the circumstances but enjoined to found her
cause of action on PAJA, which she has failed to;
9.7
In casu,
there
has been an inordinate delay in bring the application, there is no
condonation sought in the founding affidavit, but only
in the
replying affidavit which is impermissible.
[10] The
respondents further contended that:
10.1 the failure
to staff the applicant in a WOl Class and the applicant's incorrect
seniority position
in the W02 seniority list emanated from the
decision by the Respondents to promote the applicant to a Lance
Corporal post as opposed
into a Corporal post. This decision i.e. to
promote and staff the applicant to a Lance Corporal post as opposed
to Corporal post
and or failure by the respondents to promote the
applicant into the correct post was taken as far back as 1996;
10.2 the decision
or failure to take a decision to correct the applicants into the
correct post according
to the applicant had a ripple effect on her
carrier and consequently her ranking in the SANDF.
10.3 the decision to
promote the applicant to a rank of the Lance Corporal was
subsequently corrected and
the applicant was promoted to a rank of
Corporal sometime in 1998.
10.4 The
applicant was dissatisfied at the time and ought to have brought an
application for review
as far back as in 1998.
[11] It is trite
that the applicant must satisfy the court that the impugned decision
was materially
influenced by errors of law or consideration of wrong
facts and must therefore be reviewed and set aside in terms of
S8(1)(C) (II)
of Promotion of Administration Justice Act 3 of 2000
(PAJA);
vide Edcon v Financial
Services Board of Appeal;
[2]
National Tertiary Retirement v
Registrar of Pension Funds
[3]
; Pepcor Retirement Fund v Financial
Board Services Board
[4]
.;
Registrar of Pension Funds v ICS Pension Fund
[5]
.
[12] It is common
cause that:
12.1 on the 7 June 2016
the third respondent made a finding that the error of promoting the
applicant to
Lance Corporal (L/ Cpl) instead of a Cpl adversely
affected her career development and this is apparent in her current
position
on the ASA Army Signal Formation W02's seniority list;
12.2 The third
respondent upheld the applicant's complaint lodged in terms of
section 6(7)
of the
Military Ombud Act No 4 of 2012
;
12.3 The third
respondent recommended to the first respondent in terms of
section
6(7)(b)
of the
Military Ombud Act No 4 of 2012
in line with the
third's finding and conclusion that the applicant be placed at a
reasonable position on the SA Army Signal Formation
W02's Seniority
list, as guidelines consideration should be given to any position
between 75 and 93;
12.4 The
respondents do not dispute that the recommendation of the Ombuds was
premised on incorrect information.
They also do not dispute that,
when the correct ion as recommended by the Ombuds was effected, it
too was incorrectly implemented.
They do not dispute that the
applicant was grossly prejudiced in her career path.
[13] The
respondents rely on technical grounds in seeking that the application
be dismissed, contending
inter alia,
the applicant failed to
bring the review proceedings within 180 days and that she was
unnecessarily dilatory in bringing the application.
In this regard
the applicant submitted that she first had to exhaust intern al
processes and this contributed towards the delay
in bring the
application mush earlier.
[14] In
the matter of
Koyabe v Minister for Home Affairs
2010 (4) SA
327
(CC at page 244E-345A-B Mokgoro J held that: "[44) In a
constitutional democracy like ours, where the substantive enjoyment
of rights has a high premium, it is important that any administrative
remedy be an effective one. As a remedy will be effective
if it is
objectively implemented, taking into account the relevant principles
and values of administrative justice in the Constitution
and our law.
An internal remedy must also be readily available and it must be
possible to pursue without obstruction, whether systemic
or arising
from unwarranted administrative conduct. Factors such as these will
be taken into account when a court determines whether
exceptional
circumstances exist, making it in the interest of justice to
intervene.
[15] Section 172{1)(b)
empowers a court to make any order that is just and equitable. The
power has been
interpreted as 'whether considerations of justice and
equity in a particular case dictate that the order be made in other
words
the order must be fair and just within the context of a
particular dispute; vide Head of Department; Mpumalanga Department of
Education
V Hoerskool Ermelo
2010 (2) SA 415
{CC) paras 96-97 .
[16]
In
casu,
the Ombuds was supplied with
incorrect data, which resulted in him making an incorrect
recommendation, to the prejudice of the applicant.
The implementation
of the Ombuds' recommendation was also flawed, thus causing double
prejudice to the applicant. The envisaged
remedy sought by the
applicant was therefore ineffective, not because of any doing on the
part of the applicant, but that of the
respondents ' functionaries .
In my view, the above situation renders itself to be regarded as
exceptional circumstances thus warranting
this court to decide this
matter on the principles of fairness and equity, in favour of the
applicant, as prayed for. I also bear
in mind the fact that all her
efforts to resolve the matter amicable and through internal process
came to naught, contributed to
the inordinate delay on her part in
bringing this application. For these reasons, this court in the
exercise of its discretion,
finds itself obliged to come to the aid
of the applicant and grant the relief sought.
[17] As a general rule
the costs follow the event. In this particular case, regard being had
to the fact
that the blame for the chagrin of the applicant falls
squarely at the door of the applicant. It would seem to me that there
was
a deliberate intent by one or other administrative functionary to
single out the applicant to do her in. There is no logical
explanation
why out of her intake group, she is the only one who
found herself in this unfortunate position of being "erroneously"
held back. In the circumstances, I am of the view that a punitive
costs order as sought is justified.
[18] In the result, I
am satisfied that the applicant has made a case for the relief sought
and the following
order is therefore made:
1. That
the third respondent's findings and recommendations as published in
Report Nr. 12/ 2016 dated 7 June 2016.in so far as it does not
correct the error as per prayer 2.2 below is reviewed and set aside;
and
2. correcting
the seniority of the applicant to the correct rank of Warrant
Officer
Class 1 as per initial grievance lodged;
3
staffing of the applicant in a post of Warrant Officer Class 1;
4 allocating
the applicant's number on the SA Army Signal Formation Officer
Class
1 Seniority list, in line with that of applicant's 1996 peers;
5 costs
of suit on attorney and client scale.
N.M
MAVUNDLA
JUDGE
OF THE HIGH COURT
DATE
OF JUDGMENT :
07/06/2019
APPLICANT'S
ADV. :
ADV
INSTRUCTED
BY
:
L. KOCK INC
RESPONDENT'S
ADV :
ADV. A GXOGXA
INSTRUCTED
BY
:
STATE
ATIORNEY PRETORIA
[1]
The Military Ombuds recommended that the applicant be placed at a
reasonable position on the SA Amy Signal form at ion WO2' seniority
list and that as a guideline consideration should be given to any
position between 75 and 93.
[2]
2008 (5) SA 511 (SCA).
[3]
2009 (5) SA 366
(SCA) at 375
[4]
2003 (6) SA 38
(SCA) at 58 para [47] etc.
[5]
2010 (4) SA 488
(SCA) at 58.