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[2019] ZAFSHC 218
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Vahed v HOD Free State Department of Health and Another (3895/2018) [2019] ZAFSHC 218 (14 November 2019)
IN THE HIGH COURT
OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number:
3895/2018
In
the matter between:
DR
YAK
VAHED
Applicant
and
HOD: FREE STATE
DEPARTMENT OF HEALTH
1
st
Respondent
MEC: FREE STATE
DEPARTMENT OF HEALTH
2
nd
Respondent
CORAM:
DAFFUE, J
HEARD
ON:
19 SEPTEMBER 2019
JUDGMENT
BY:
DAFFUE,
J
DELIVERED
ON:
14
NOVEMBER 2019
I
INTRODUCTION
[1]
The parties to this application, previously involved in an
employer/employee relationship, are at loggerheads with each other.
Two applications have to be considered, to wit the main application
involving contempt of court proceedings having been initiated
against
the Head of Department (“HOD”) and Member of the
Executive Council
(“MEC”)
of the Department of Health, Free State Province, as well as a
counter-application wherein relief is sought to either rescind or
vary the order of 10 August 2018, the root of the contempt of court
proceedings.
II
THE PARTIES
[2]
Applicant is a medical doctor, formerly employed at the Department of
Health, Free State Province (“the Department”)
in his
capacity as Clinical Manager, Forensic Pathology Services in Welkom
[3]
First respondent is the HOD of the Department in his official
capacity. The current incumbent in this position is Dr David
Matau.
[4]
Second respondent is the MEC of the Department. The current
incumbent in this position is Dr Tsiu.
[5]
Applicant was represented by Adv MC Louw, instructed by Kruger Venter
Attorneys, whilst the respondents were represented by
Adv BS Mene SC,
instructed by the State Attorney.
III
THE RELIEF CLAIMED IN THE MAIN APPLICATION
[6]
On 15 July 2019 applicant obtained urgent relief in terms whereof the
respondents were ordered to comply with an order issued
by Hefer AJ
on 10 August 2018. They also requested that the respondents be
called upon to appear before the court on 22 August
2019 in order to
show cause why it should not be declared that they are in contempt of
the order of 10 August 2018 and shall not
be committed to
incarceration, alternatively that such sanction as the court may deem
fit, be imposed. Costs on an attorney
and client scale are also
sought.
[7]
Mhlambi J
issued an order as requested
[1]
.
IV
THE COUNTER-APPLICATION
[8]
On 13 August 2019 the respondents filed their counter-application and
a notice to oppose the main application, requesting that
the
counter-application be heard simultaneously with the main
application.
[9]
Further relief is applied for,
inter alia
that the order of 10
August 2018 be rescinded, alternatively be varied, that
implementation of the order of 10 August 2018 be stayed
pending finalisation of the rescission and/or variation
application and that applicant be ordered to pay an amount of
R967 471.71,
being the amount paid to him since the order of 10
August 2018.
V
UNDISPUTED EVIDENCE
[10]
The following evidence is not in dispute:
10.1 Applicant, a medical
doctor, was employed as a Clinical Manager: Forensic
Pathological Services by the Department based
in Welkom.
10.2 During July 2017
applicant submitted a temporary incapacity leave form, applying for
temporary incapacity leave. Both
he and his doctor who
completed the forms indicated that applicant was incapable of
performing his duties as a result of ill-health.
It is evident
from the completed temporary incapacity leave form that applicant was
diagnosed with idiopathic Parkinson’s
disease in 2009 and as a
result of his illness he
inter
alia
had problems with forensic dissection, writing and examination of
patients. The disease was indicated as a progressive generative
condition which is incurable
[2]
.
10.3 The Department
referred the application for investigation to the Health Risk Manager
who found that the applicant should be
retired on grounds of
ill-health
[3]
.
10.4 The Department
considered the findings of the Health Risk Manager and decided to
terminate applicant’s services effectively
from 1 July 2018,
whereupon his salary was stopped.
[4]
10.5 Consequently
applicant approached the court on an urgent basis and obtained the
following order by agreement on 10 August 2018:
“
IT
IS ORDERED THAT: (By agreement)
1.
The applicant’s non-compliance with the Uniform Rules of the
above Honourable Court in regard to forms, service, time periods
and
processes is condoned and dispensed of so that this application is
heard as one of urgency.
2.
The applicant’s non-compliance with the provisions of Section
35 of the General Law Amendment Act 62 of 1955 is condoned
and the
time period of seventy-two (72) hours is dispensed with.
3.
Pending the final adjudication of
any appeal
,
referral of a dispute
and
review application to
the relevant forum/s
the Free State Department of Health is
ordered to:
3.1 Immediately
remunerate and restore the applicant’s salary and remuneration
package as per his contract of employment;
3.2 Within 30 (thirty)
days of the date of this order provide the applicant with a
declaration on his current status of employment
including written
reasons for the decision; and
4.
Each party shall pay its own costs.”
[5]
(emphasis added)
10.6 As a result of
the order the Department carried on paying the salary of the
applicant.
10.7 During
November 2018 applicant lodged a dispute for unfair dismissal at the
Bargaining Council
who
dismissed the application due to lack of jurisdiction.
[6]
10.8 Consequently,
the Department stopped paying applicant’s salary whereupon he
approached the court for the relief
eventually obtained on 15 July
2019 referred
to above.
VI
DISPUTED ISSUES
[11]
The following issues are in dispute:
11.1 Whether the
respondents are in contempt of court, and if so, the appropriate
sanction to be imposed.
11.2 Whether respondents
have made out a case for rescission or variation of the order granted
on 10 August 2018.
11.3 Whether the
respondents are entitled to repayment of the amount claimed as
alleged in the counter-application.
11.4 Who is to be
responsible for payment of the costs of the applications?
VII
EVALUTION OF THE EVIDENCE WITH REFERENCE TO THE PARTIES’
SUBMISSIONS AND THE LAW
[12]
When I referred to the relief claimed in the counter-application, I
deliberately did not quote what is sought by the Department
in the
alternative to rescission of the order of 10 August 2018 as I intend
to deal with it at this stage of the judgment.
The Department
wants the order to be varied as follows:
“
3. Pending the
final adjudication of
either the internal appeal
or
review of the decision
of the Respondents to terminate the
employment of the applicant to the Labour Court in terms of
Section
158(1)(h)
of the
Labour Relations Act No. 66 of 1995
as amended
or
the referral of a dispute to the relevant Bargaining
Council, the Department of Health is ordered to immediately
remunerate and
restore the Applicant’s salary and remuneration
package as per his contract of employment.” (emphasis added)
[13]
According to the Department this variation is in line with the
instructions given by the MEC for the settlement of the previous
application. I shall deal with those instructions and matters
relating thereto
infra
.
[14]
In order to refresh the minds of the readers hereof, the relevant
part of paragraph 3 of the order of 10 August 2018 reads
as follows:
“
3. Pending the
final adjudication of
any appeal
, referral of a dispute
and
review
application to the relevant forum/s
the Free State Department of Health is ordered to:………”
(emphasis
added)
[15]
When I received the file for preparation of the opposed motion, I was
immediately struck by the strange wording of paragraph
3 of the
order. I wondered whether the reference to “any appeal”
could and/or should be read to mean any appeal,
even to the
Constitutional Court. When I enquired from Mr Louw during
argument, he submitted that the intention was to include
an appeal to
the Labour Court only. His answer did not make sense in light
of the fact that a decision of the Bargaining
Council is taken by the
dissatisfied party on review to the Labour Court. A further
aspect that concerned me was the use
of the word “and.”
As the order of 10 August 2018 could mean that salary payments had to
be made to applicant
pending adjudication of any appeal, referral of
a dispute and review application to the relevant forums, I confronted
Mr Louw with
this during argument. He tried to explain the
meaning that the parties, according to him, attached to the wording.
I am not persuaded as it is apparent that the order may lead to total
confusion.
[16]
I was held
in
Eke v
Parsons
[7]
pertaining
to a settlement agreement having been made an order of court, that it
should not be objectionable, meaning that its terms
must accord both
with the Constitution and the law. The principle that “a
settlement agreement between litigating parties
can only be made an
order of court if it conforms to the Constitution and the law”
has been confirmed in
Airports
Company SA v Big Five Duty Free (Pty) Ltd
[8]
.
[17]
I accept
that no separate settlement agreement was entered into by the parties
and made an order of court on 10 August 2018.
However, it is
apparent, for the sake of the argument, that the parties agreed on
the terms of the notice of motion which were
then encapsulated in the
order. How is the order to be interpreted? There can be
no dispute about the correct approach.
The following summary in
Endumeni
Municipality
[9]
has been referred to with approval in many judgments:
“
Interpretation
is the process of attributing meaning to the words used in a
document, be it legislation, some other statutory instrument,
or
contract, having regard to the context provided by reading the
particular provision or provisions in the light of the document
as a
whole and the circumstances attendant upon its coming into
existence. Whatever the nature of the document, consideration
must be
given to the language used in the light of the ordinary rules of
grammar and syntax; the context in which the provision
appears; the
apparent purpose to which it is directed; and the material known to
those responsible for its production. Where more
than one meaning is
possible, each possibility must be weighed in the light of all these
factors. The process is objective, not
subjective. A sensible meaning
is to be preferred to one that leads to insensible or unbusinesslike
results or undermines the apparent
purpose of the document.”
[18]
Mr Louw argued that it is clear from the Department’s case in
the counter-application that its officials and office-bearers
merely
tried to escape the consequences of the court order of 10 August
2018. In order to adjudicate the matter,
I intend to deal with the counter-application first.
[19]
The language used in the order, which is that which the applicant
imposed on respondents whereupon the court granted the order,
has
more than one meaning. Therefore issues such as the context in
which the terms were drafted, the apparent purpose to
which these
were directed and the material known to the parties must be
considered. A sensible meaning is to be preferred
to one that
leads to irrational, unreasonable and/or “unbusinesslike”
results.
[20]
The relief sought in applicant’s founding affidavit deposed to
on 2 August 2018 in support of the initial application
is not in line
with the notice of motion. In paragraph 7 of that affidavit
applicant intended to ask that a rule
nisi
be issued in terms
whereof the Department be ordered to continue paying his salary
pending “7.1.3 the final adjudication
of any appeal / dispute
and/or
review application referred to the relevant bargaining
council
and/or
the Labour Court.” (emphasis added) There
can be no doubt that this wording has not find its way to the notice
of motion
and the court order eventually granted.
[21]
I accept
that, generally speaking, however material a mistake, the mistaken
party will not be able to escape from the contract if
his/her mistake
was due to his/her own fault.
[10]
[22]
It is also
not a defence to rely on the lack of authority of the attorney to
enter into an agreement with the opposition.
Cachalia JA dealt
with the issue as follows in
MEC
for Economic Affairs Environment and Tourism vs Kruizenga and
another
[11]
as
follows:
“
The
proper approach is to consider whether the conduct of the party who
is trying to resile from the agreement has led the other
party to
reasonably believe that he was binding himself. Viewed in this
way, it matters not whether the attorney acting for
the principal
exceeds his actual authority, or does so against his client’s
express instructions. The consequence for
the other party, who
is unaware of any limitation of authority, and has no reasonable
basis to question the attorney’s authority,
is the same. That
party is entitled to assume, as the respondents did, that the
attorney who is attending the conference clothed
with an ‘aura
of authority’ has the necessary authority to do what attorney’s
usually do at a rule 37 conference
– they make admissions,
concessions and often agree on compromises and settlements. In the
respondents’ eyes the State
Attorney quite clearly had apparent
authority.”
[23]
The Department’s application for rescission of what is
customary known as a “consent judgment” must also
be
adjudicated based on the principle that if one of the parties was
under a mistaken belief in regard to the terms of the agreement,
that
agreement or
transactio
will remain binding on the parties.
The dissatisfied party cannot justifiably complain that he/she
laboured under an erroneous
belief.
[24]
The authorities quoted by Mr Mene are not all directly in line
and can be properly distinguished. However, that does not mean
that the Department’s counter-application is bound to fail.
I
shall return to some authorities quoted.
[25]
Unlike as
Mr Louw submitted, respondents did not launch the application solely
based on rule 42(1) of the Uniform Rules of Court.
In fact,
they did not mention the rule at all. It would be within the
court’s powers to consider the application in
terms of either
rule 42(1) if that is deemed apposite, or the common law. In
terms of the common law a judgment may
inter
alia
be
rescinded based on justice and fairness.
[12]
[26]
It is
respondents’ version as set out in the affidavit of the MEC
that an internal appeal procedure was to be followed.
This
version is corroborated by the letter annexed as annexure F13 to the
first application.
[13]
Dr Khoali of the Department reiterated that applicant was not to be
allowed into the Welkom mortuary as from 30 July 2018
pending
finalisation of applicant’s appeal by the Legal Team of the
Department. This letter was written and received
before the
application papers in the 1
st
application were prepared.
[14]
In my view this serves as sufficient proof that an internal appeal
was anticipated or foreseen.
[27]
If applicant had in mind an appeal to the Labour Court only, the
notice of motion and the eventual order should have made this
clear.
It is incomprehensible that provision could have been made for both
appeal and review procedure. It must have
been either the one
or the other. If it was anticipated that appeal procedure may
follow after referral of the dispute to
the Bargaining Council, or
after the Labour Court reviewed the matter, I would have expected the
reference to “appeal”
to be more precise instead of
referring to “any appeal”; also in such event “appeal”
would have been inserted
at the end of the sentence and not as the
first step in the process. The placement of the words “any
appeal”
is in line with respondents’ version. I
would also have expected the parties to limit the right of appeal to
a specific
forum and not as open-ended as the words reflect.
[28]
The wide ambit of the order of 10 August 2018 must therefore be
considered. As indicated, according to the ordinary language
of
the order, applicant would be entitled
to
proceed with “any appeal” and this means all appeal
procedures until the Constitutional Court is eventually reached.
Surely, this is “unbusinesslike”, unreasonable to the
extreme and illogical. Such procedure may take years.
In
the meantime the Department must carry on paying for a person who
cannot and does not deliver any services to it. The
question to
be considered is whether the Department could reasonably
be held responsible for the payment of a salary to a person
who has been found to be incapacitated and who on his own initiative
applied for incapacity leave due to his failure to fulfil his
functions.
[29]
I agree
with Mr Mene that the Department has a duty to protect the
fiscus
and act reasonable when realising that there is a possibility of
fruitless and wasteful expenditure in the process as
inter
alia
held by Pakati J in the matter between
LB
Saffy NO & others v The Minister of Public Works &
others.
[15]
[30]
I also
agree with the following
dicta
of the Supreme Court of Appeal in
PM
obo TM and Road Accident Fund
[16]
and I quote “As the full court in this matter held, a court
cannot act as a mere rubber stamp of the parties…
Public
funds are being disbursed and the interests of the community as a
whole demand that more scrutiny be involved in the disbursement
of
such funds.” In my view the parties and the judge who
granted the order of 10 August 2018 should have asked themselves
what
would be the consequences of the order. Did the parties really
agree to any appeal to whichever forum and that applicant
could have
exercised all the options set out? The answer must be a
resounding “No.”
[31]
I am
satisfied that, based on the principles set out in judgments such as
Eke v
Parsons
and
PM
obo TM v Road Accident Fund,
the Department has made out a proper case for rescission of the
orders of 10 August 2018. Not only is there an ambiguity
as indicated which cannot be resolved due to the factual dispute, but
the Department is entitled to rely on rescission in the absence
of a
valid agreement between the parties to support the orders.
Iusta
causa
or lawful ground justifies an order for restitution.
[17]
Therefore, even if the order of 10 August 2018 could be interpreted
to read that the Department bound it to pay applicant his salary
until such time as all and any appeal procedures – even to the
Constitutional Court have been finalised - notwithstanding
his
inability to work, such agreement and consequent consent order would
be unlawful.
[32]
I am accordingly satisfied that the Department has met the criteria
for rescission of the order of 10 August 2018. A
reasonable
explanation has been provided. Furthermore, I am satisfied
about the bona fides of the HOD and the MEC in bringing
the
counter-application and that a
bona fide
defence on the merits
has been raised. The order should be rescinded.
Repayment
of salary
[33]
The last issue to determine in respect of the counter-application is
whether the Department is entitled to successfully claim
back the
amount of R967 471.71 it paid to applicant as salary for the
period since the order of 10 August 2018 until the ruling
of the
Bargaining Council. No provision has been made in the order for
such an eventuality. The applicant did not deliver
any services
to the Department during this period and the principle of “no
work, no pay” may come into play.
Public monies have been
spent which may be regarded as wasteful and fruitless expenses.
However, this amount has been paid
by agreement and in terms of the
order granted on 10 August 2018.
Prima facie
I am of the
view that rescission of that order does not detract from the fact
that the Department, on its own version of the agreement,
agreed to
carry on paying the salary at least until the matter is finalised in
the Bargaining Council. This aspect may be
dealt with in a
different forum and perhaps once action procedure has been
instituted, but I am not prepared to grant relief as
requested
Contempt
of court proceedings
[34]
Even if I mistakenly found that the Department is entitled to
rescission of the court order of 10 August 2018, the question
that
still remains to be answered is whether applicant has made out a case
for contempt of court.
[35]
The
following should be taken into consideration. It is doubtful whether
the applicant has complied with the requirements set out
in
Matjhabeng
Municipality v Eskom
[18]
insofar as the HOD and the MEC in their personal capacities have not
been joined as parties to the proceedings. The court found
in
Matjhabeng
that no
court may make a finding adverse to a person’s interest if
he/she has not been joined as a party in the proceedings.
[19]
[36]
E
ven if applicant acted procedurally correct, I have serious
doubt whether the fourth requirement to establish contempt of court
has been met. In my view reasonable doubt has been established
as to whether the non-compliance was wilful and
mala fide
.
[37]
An applicant who seeks an order for contempt of court must rely on a
court order which is clear and unambiguous in all aspects.
If
the order is ambiguous and there is a difference of opinion as to the
meaning thereof, the party who allegedly did not comply
and raises
ambiguity, should get the benefit of the doubt.
[38]
I explained above that a party is in principle bound by the agreement
entered into by his/her legal representative on his/her
behalf.
It would not be sufficient to state that the legal representative
carried out the instructions incorrectly.
However, when the
wilfulness and
mala fides
of a party is to be considered for
purposes of a finding of contempt of court, I am of the opinion that
such party’s explanation
of a misunderstanding between him/her
and the legal representative becomes relevant. More so, as
in
casu
where the agreement embodied in the court order is ambiguous
and to the disadvantage of the
fiscus
.
[39]
Applicant
has put up different versions as to his health and ability to work.
In the first application he stated that he was still
rendering his
services and the “respondents are still getting their monies
worth.”
[20]
In the
second application he has a totally different version. In paragraph
8.1 of the replying affidavit dated 14 July 2019
[21]
he expressly relies on his serious medical condition and the version
of his expert, Dr Wolpe, that he “was not suitable for
employment.” In applicant’s own words “I suffer
from a serious illness, which is permanent, progressive and
incurable.” In his answering affidavit of 30 August 2019
applicant avers out of the blue, based on a report of Dr Page of
March 2018 that he was “a high-functioning individual.”
He makes this averment in order to hopefully persuade the court
to
believe that no internal appeal process was available, as the MEC
indicated, insofar as he was unfairly dismissed and his employment
not terminated based on ill-health.
[40]
In my view
the two office-bearers, the HOD and the MEC, have put up a proper
defence to the contempt of court application and the
applicant’s
application should be dismissed. The HOD stated in his
affidavit of 12 July 2019 that there was no legal
obligation on the
part of the respondents to keep on paying applicant’s salary
after the Bargaining Council ruling “as
the Applicant was no
longer in the employ of Respondents.”
[22]
Clearly, applicant’s employment was terminated from 1 July 2018
due to ill-health as
inter
alia
set out in the affidavit of the MEC.
[23]
Based on applicant’s admitted illness and permanent incapacity,
the MEC’s explanation
[24]
as to her instructions to the HOD relating to settlement makes sense
and prevents any possibility that a finding of wilfulness
or mala
fides can be made. Surely, it cannot be expected of the
Department to carry on spending vast amounts of money on
an
individual that has been declared unfit to work due to ill-heath and
whose services have been terminated as a result.
Whether or not
there was any unfairness in the process of termination of his
employment is a matter for the Labour Court to adjudicate,
but the
HOD and MEC acted
bona
fide
and reasonable to stop further payments which would be nothing else
but fruitless and wasteful expenditure.
VIII
CONCLUSION
[41]
In conclusion, no case has been made out for the main application to
succeed. Applicant brought the main application
based on an
order which the respondents consented to and not only that, abided to
by making payments as indicated above.
Consequently, I am of
the view that the applicant should not be burdened with a costs order
against him and therefore each party
shall be responsible for their
own costs in respect of the main application.
[42]
Insofar as the counter-application is concerned, I am satisfied that
the order of 10 August 2018 must be rescinded, but that
no further
relief in terms thereof shall be granted. Mr Mene did not
request costs in the event of success in the counter-application.
[43]
The parties did not agree about the wasted costs of the postponement
on 22 August 2019. It is true that the respondents
were called
upon to appear in person on that day to provide reasons why they
should not be convicted of contempt of court and that
they opted to
file a notice of opposition and counter-application a few days before
that date. This caused a postponement
insofar as the applicant
wanted to reply to the main application and file an answering
affidavit pertaining to the counter-application.
The matter was
therefore not ripe for hearing on 22 August 2019. I am
satisfied that in the light of what I have stated herein
in general
terms, no costs order should be made in favour of any of the parties
in respect of such wasted costs.
IX
ORDERS
1. Part B of the notice
of motion in the main application is dismissed.
2. The
counter-application succeeds to the extent that the court order of 10
August 2018 issued under case number 3895/2018 is rescinded.
3. Each party shall be
responsible for the payment of their own costs in respect of both the
main as well as the counter-application,
including the wasted costs
of 22 August 2019.
_______________
J
P DAFFUE, J
On
behalf of Applicant: Adv MC LOUW
Instructed
by: Kruger Venter Inc
BLOEMFONTEIN
On
behalf of Respondents: Adv BS Mene SC
Instructed
by: State Attorney
BLOEMFONTEIN
[1]
Record, pp 75 & 76
[2]
Record pp 87 & 88 para 7 & 8
[3]
Record p 89 para 10
[4]
Record p 89 para 12
[5]
Record pp 22 & 23
[6]
Record p 93 para 25 and annexure “MMT 2” at p 113
[7]
2016 (3) SA 37
(CC) para 26
[8]
2019 (2) BCLR 165
(CC) at para 13
[9]
Natal Joint Municipal and Pension Fund v Endumeni Municipality
2012
(4) SA 593
(SCA) at para 18 and see also Airports Company loc cit at
para 29
[10]
Botha v RAF 2017(2) SA 50 SCA at para 11, quoting from Christie with
approval
[11]
[2010]
4 All SA 23
(SCA) para 20
[12]
De
Wet & others v Western Bank Ltd
1979 (2) SA 1031
(A) at 1039H –
1043A
[13]
Record
of 1
st
application, p 109
[14]
Ibid,
p 111
[15]
Case number 1227/2018 at para 63 (Northern Cape High Court), a
judgment delivered on 30 August 2019 and still unreported
[16]
Case No. (1175/2017)
[2019] ZASCA 97
at para 33
[17]
Kruizenga
loc cit , p 37
[18]
2018(1)
SA 1 (CC)
[19]
Ibid
at para 33
[20]
Para
47 p 19
[21]
Record
p 64
[22]
Ibid
para
15 p 55
[23]
Ibid
paras 6 -14
[24]
Ibid
para 18