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[2019] ZAECBHC 26
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Oliphant v Member of the Executive Council, Department of Health, Eastern Cape Province and Another (702/2016) [2019] ZAECBHC 26 (26 February 2019)
IN THE HIGH COURT
OF SOUTH AFRICA
EASTERN CAPE
LOCAL DIVISION, BHISHO
CASE
NO. 702/2016
Date heard: 31
January 2019
Date
delivered
26/02/2019
In
the matter between:
MANDISA
OLIPHANT
Applicant
and
THE MEMBER OF THE
EXECUTIVE COUNCIL,
DEPARTMENT OF
HEALTH,
EASTERN
CAPE PROVINCE
First
Respondent
THE HEAD OF THE
DEPARTMENT,
DEPARTMENT OF
HEALTH,
EASTERN
CAPE PROVINCE
Second
Respondent
JUDGMENT
LAING
AJ:
[1.]
The applicant has brought an application for an order directing the
first respondent to
take steps to consider the applicant’s
appeal for reinstatement as an employee in the Department of Health
and to advise
the applicant thereof within ten days of the date of
service of the order. This follows the applicant’s having been
deemed
to have been dismissed in terms of sub-section 17(3)(a)(i) of
the Public Service Act, 1994 (‘the PSA’) by reason of
her
having absented herself from duties without permission for a period
exceeding one calendar month.
Factual
background
[2.]
The applicant was employed as the
Chief Executive Officer at Komani Hospital, Queenstown. On
12 July
2011, the Department suspended her, pending the outcome of
investigations into alleged misconduct. Consequently, the applicant
referred a dispute to the relevant bargaining council, which
culminated in an agreement on 1 August 2011 to the effect that,
inter
alia
,
the suspension would be lifted and that the applicant would be placed
at another institution on a temporary basis within 50 kilometres
of
her erstwhile place of employment. The agreement took effect on 11
January 2012.
[3.]
Thereafter, the applicant allegedly made several attempts to meet
with a senior official
to discuss her temporary placement. She
reported for duty at the Labour Relations Office in Bhisho in July
2012 but was instructed
to return home. Further interaction with
officials proved fruitless and it became clear to the applicant that
the Department did
not have a post for her. This resulted in the
applicant’s becoming severely depressed. Acting upon the advice
of her psychologist,
the applicant applied for sick leave and
submitted medical certificates in support thereof.
[4.]
Disciplinary proceedings against the applicant commenced later that
year. The proceedings
became protracted but ultimately resulted in a
finding on 4 December 2013 that the applicant had been absent without
permission
for more than one calendar month and was deemed to be
dismissed. Consequently, the applicant referred the matter to the
bargaining
council. The commissioner ruled on 28 January 2015 that
the council did not have jurisdiction to deal with the matter. By
that
stage, however, the parties had agreed to follow the processes
available in terms of section 17 of the PSA and the applicant would
lodge a dispute with the first respondent.
[5.]
A few months afterwards, the applicant made application to the first
respondent for reinstatement
in terms of sub-section 17(3)(b). The
provisions thereof permit the first respondent to approve the
reinstatement of an employee
deemed to have been dismissed under
sub-section 17(3)(a)(i) where the employee has reported for duty
after the period of absence
which formed the basis for his or her
dismissal and where he or she has showed good cause. In her
application, the applicant explained
the contact and interaction that
she had had with officials in various attempts to give effect to the
agreement that had previously
been reached by the parties for the
applicant to be placed at another institution on a temporary basis.
Furthermore, she described
her depression and how this had resulted
in her absenteeism.
[6.]
The first respondent did not respond to the applicant’s
application. On 15 January
2016, the applicant’s attorneys
wrote to the first respondent, requesting a decision. The first
respondent has yet to make
a decision and this forms the subject of
the present application.
[7.]
The respondents confirm that the applicant was dismissed from the
public service in terms
of sub-section 17(3)(a)(i) of the PSA. They
also allege that the applicant has never reported for duty, which is
a prerequisite
for reinstatement under sub-section 17(3)(b).
Importantly, the respondents allege that the applicant withdrew her
application for
reinstatement and that there is no decision for the
first respondent to make.
[8.]
In an affidavit deposed to on behalf of the respondents, a Mr
Sipumeze Makitshi asserts
that he is a member of an appeals committee
that was appointed by the first respondent to deliberate on
representations made under
sub-section 17(3)(b) and to make
recommendations. He states that he chairs the committee, which had
invited the applicant to explain
certain discrepancies in her
application. Mr Makitshi goes on to say that she accepted the
invitation and attended a meeting of
the committee with her union
representative in the first respondent’s boardroom on 28
October 2015. The meeting was also
attended by a Mr Myeki and a Mr
Mlambo, who are presumably employees of the first respondent,
although this is not apparent from
the papers.
[9.]
At the meeting, the union representative allegedly informed the
committee that the applicant
there and then withdrew her application
because she wished to pursue other options. Mr Makitshi avers that
the committee accepted
her withdrawal. It also advised the applicant
to communicate her withdrawal in writing and pointed out that she was
late in making
representations and would have to seek condonation.
[10.]
The applicant has failed to communicate her withdrawal in writing.
Consequently, argues Mr Makitshi,
there is no need for the first
respondent to deal with the matter further.
[11.]
The applicant emphatically denies that she withdrew her application
for reinstatement. Whereas she
admits to having attended the above
meeting at the request of her union, she avers that the purpose
thereof was never explained
to her. As a result of her confusion, the
applicant requested that the meeting be adjourned so that she could
obtain clarity and
consider her position. Moreover, she refutes that
the minutes of the meeting, attached to Mr Makitshi’s
affidavit, represent
what actually transpired.
[12.]
To the respondents’ allegation that she has never reported for
duty, the applicant points out
that the respondents have always been
aware of her circumstances and had previously requested her to return
home.
Issues
for determination
[13.]
The respondents’ contentions raise the prospect of a dispute of
fact and the attendant need
to consider whether this is a matter
where the court should direct that oral evidence be heard. This would
also determine whether
or not the applicant is entitled to the relief
that she seeks. Accordingly, the issues before the court are the
following: (a.)
did the applicant withdraw her application for
reinstatement; and (b.) if not, then is she entitled to have her
application considered
by the first respondent and to be informed of
the latter’s decision within the stipulated timeframe?
Legal
framework and application of principles
Whether
the applicant withdrew her application for reinstatement
[14.]
In terms of rule 6(5)(g) of the Uniform Rules of Court, the court
may,
inter
alia
,
direct that oral evidence be heard where an application cannot
properly be decided on affidavit. The general principle is that
a
final order will only be granted where the facts stated by the
respondent together with the admitted facts in the applicant’s
affidavit justify such an order. See
Stellenbosch
Farmers’ Winery Ltd v Stellenvale Winery (Pty) Ltd
1957 (4) SA 234
(C), at 235, and the long line of cases that have
followed. Possibly the most quoted case in relation to the above is
Plascon-Evans
Paints v Van Riebeeck Paints
1984 (3) 623, where Van Wyk J’s statement of the general
principle was cited with approval. However, Corbett JA went on to
add
a qualification, at 634I-635C:
…
In
certain instances the denial by respondent of a fact alleged by the
applicant may not be such as to raise a real, genuine or
bona
fide
dispute of fact (see in this regard
Room
Hire Co (Pty) Ltd
v
Jeppe Street Mansions (Pty) Ltd
1949 (3) SA 1155
(T) at 1163-5;
Da
Mata v Otto NO
1972 (3) SA 858
(A) at 882D-H). If in such a case the respondent has
not availed himself of his right to apply for the deponents concerned
to be
called for cross-examination under Rule 6(5)(g) of the Uniform
Rules of Court (cf
Petersen
v Cuthbert & Co Ltd
1945 AD 420
at 428;
Room
Hire
case
supra
at 1164) and the Court is satisfied as to the inherent credibility of
the applicant’s factual averment, it may proceed on
the basis
of the correctness thereof and include this fact among those upon
which it determines whether the applicant is entitled
to the final
relief which he seeks (see eg
Rikhoto
v East Rand Administration Board and Another
1983 (4) SA 278
(W) at 283E-H). Moreover, there may be exceptions to
this general rule, as, for example, where the allegations or denials
of the
respondent are so far-fetched or clearly untenable that the
Court is justified in rejecting them merely on the papers (see the
remarks of Botha AJA in the
Associated
South African Bakeries
case,
supra
at 924A).
[15.]
Counsel for the respondents drew the court’s attention to the
above qualification and also to
the case of
Yarram
Trading CC t/a Tijuana Spur v ABSA Bank Ltd
[2006] JOL 18830
(SCA), where the continued application of
Plascon-Evans
Paints
in relation to the exception to the general principle was affirmed.
Interestingly, in
Yarram
Trading,
the Supreme Court of Appeal relied on Corbett JA’s statement to
invoke the exception, at [30], and to reject the appellant’s
denial of the respondent’s allegations. This was done on the
basis of the correspondence included in the papers.
[16.]
Within the context of the discretion given to a court under rule
6(5)(g), respondents’ counsel
pointed out that it is necessary
to decide whether there is a real dispute of fact. Counsel referred
to
Room
Hire Co. (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd
1949 (3) SA 1155
(T), where Murray AJP held, at 1162, that
[t]he crucial
question is always whether there is a real dispute of fact. That
being so, and the applicant being entitled in the
absence of such
dispute to secure relief by means of affidavit evidence, it does not
appear that a respondent is entitled to defeat
the applicant merely
by bare denials such as he might employ in the pleadings of a trial
action, for the sole purpose of forcing
his opponent in the witness
box to undergo cross-examination. Nor is the respondent’s mere
allegation of the existence of
the dispute of fact conclusive of such
existence.
“
In
every case the Court must examine the alleged dispute of fact and see
whether in truth there is a real issue of fact which cannot
be
satisfactorily determined without the aid of oral evidence; if this
is not done, the lessee, against whom the ejectment is sought,
might
be able to raise fictitious issues of fact and thus delay the hearing
of the matter to the prejudice of the lessor.”
(per
Watermeyer CJ, in
Preston
v Cuthbert & Co Ltd
(
supra
,
at p. 428)).
[17.]
A real dispute of fact that cannot be decided on the papers would, of
course, justify the court’s
exercising its discretion and
directing that oral evidence be heard. However,
Cape
Town City v South African National Roads Agency Ltd
2015 (6) SA 535
(WCC), at 608F, is authority for the proposition that
a denial that is so far-fetched or clearly untenable as to be
rejected on
the papers cannot provide the evidential basis for a
genuine dispute of fact. In other words, there is no real dispute of
fact
where a court is satisfied that the allegation or denial made by
the respondent is unconvincing, implausible or simply indefensible.
A
court in those circumstances would have a basis upon which to refuse
to exercise the discretion afforded under rule 6(5)(g).
[18.]
In the present matter, Mr Makitshi alleges on behalf of the
respondents that the applicant withdrew
her application for
reinstatement during the course of a meeting of the appeals committee
held on 28 October 2015. There are several
difficulties with this
allegation.
[19.]
As a starting point, Mr Makitshi describes himself as the Director:
Human Resources Information Systems.
Ostensibly he represents the
first respondent, who is the executive authority mentioned in
sub-section 17(3)(b) of the PSA. The
applicant’s counsel argued
that there is no confirmatory affidavit from the first respondent in
relation to Mr Makitshi’s
averments, meaning that the latter
constitutes hearsay evidence. There is indeed no confirmatory or
supporting affidavit from the
first respondent. The only apparent
connection between Mr Makitshi and the first respondent, in the
present circumstances, is that
he chaired a so-called appeals
committee that dealt with the applicant’s application for
reinstatement. In general,
however, it is trite to state that
hearsay evidence is inadmissible. See the discussion in Schwikkard PJ
et
al
,
Principles
of Evidence
(Juta, 4
th
edition, 2016), at 287-92.
[20.]
In the same vein, Mr Makitshi alleges in his affidavit that the
applicant’s withdrawal of her
application was communicated to
the committee by her union representative. However, the name of the
representative is not stated
and there are no confirmatory or
supporting affidavits to substantiate the allegation. The probative
value of the allegation is
questionable; there is nothing to indicate
that the allegation must not also be deemed as hearsay.
[21.]
Furthermore, the applicant has taken issue with the appeals committee
itself, saying that there is
no legal basis for the creation thereof.
This court agrees with the applicant. Whereas sub-section 42A(4) of
the PSA permits the
first respondent to delegate powers to the second
respondent and to authorise the second respondent to perform duties
imposed under
the PSA, there is nothing in the PSA itself that allows
the creation of an appeals committee to deliberate on applications
for
reinstatement, such as the one that forms the subject of these
proceedings.
[22.]
The principle of legality underpins South African administrative law.
In
Fedsure
Life Assurance Ltd v Greater Johannesburg Transitional Municipal
Council
[1998] ZACC 17
;
1999 (1) SA 374
(CC), the Constitutional Court held, at para 45, that
‘
the
Legislature and Executive in every sphere are constrained by the
principle that they may exercise no power and perform no function
beyond that conferred upon them by law.’
[23.]
This means that an organ of state, an administrative body, an
official or any other person exercising
or performing a public power
or function may only do so where lawful authority exists. This is a
fundamental principle of administrative
law, described as follows by
Baxter:
[p]ublic
authorities possess only so much power as is lawfully authorized, and
every administrative act must be justified by reference
to some
lawful authority for that act. Moreover, on account of the
institutional nature of law the public authority
itself
exists as an office or body created by law. A valid exercise of
administrative power requires both a
lawful
authorization
for the act concerned and the exercise of that power by the proper or
lawful
authority
.
See
Baxter L,
Administrative
Law
(Juta & Co Ltd, 1984), at 384.
[24.]
The above passage was quoted by Plasket J in the unreported case of
Nelson
Mandela Bay Metropolitan Municipality and Another v MTN Service
Provider and Others
(1661/12) [2014] ZAECPEHC 84 (4 December 2014). The court held, at
[36], that a pre-evaluation committee that was established by
the
municipality for purposes of public procurement had no lawful
existence because no provision had been made therefor in the
applicable legal framework. Accordingly, the committee had no lawful
authority to disqualify bids, which it had purported to do.
[25.]
From the above, it follows that unless the PSA expressly grants
authority for the establishment of
an appeals committee, the
administrative body to which Mr Makitshi refers in his affidavit
cannot exercise or perform the powers
or functions of either the
first or second respondent. Whereas there may indeed be legislation
that permits the respondents to
create a committee to assist with
administrative matters, no such body is envisaged under the PSA.
There is no legal basis for
a so-called appeals committee to
deliberate on an application for reinstatement and to make
recommendations thereon to the respondents.
[26.]
If the applicant did indeed withdraw her application then the
withdrawal was not something that should
have come before the
committee. Quite simply, the committee was not lawfully authorized to
consider any alleged withdrawal or to
treat it as such in reporting
to the first respondent. For the withdrawal to have been effective,
the applicant would have been
required to give notice thereof to the
executive authority who was empowered to make a decision thereon,
i.e. the first respondent,
alternatively the second respondent in the
event that the relevant powers had been delegated to him or her.
[27.]
There is little to demonstrate, on a balance of probabilities, that
the applicant actually withdrew
her application. The evidence used by
Mr Makitshi to support his contentions to that effect consists of a
single item, viz. the
unsigned minutes of the meeting held on 28
October 2015. A copy of the minutes has been attached to the papers.
The applicant has
highlighted the deficiencies of the minutes in her
reply, pointing out that the document does not record that either the
applicant
or her union representative was present and is also
unsigned. Intriguingly, there is no confirmation from the apparent
author of
the minutes, a Ms Hlana, that they are an accurate
reflection of what transpired. There are also no confirmatory or
supporting
affidavits from the remaining participants at the meeting,
Mr Myeki and Mr Mlambo.
[28.]
The applicant has correctly argued, too, that a verbal withdrawal of
her application would not have
sufficed. This seems to have been
recognised by Mr Makitshi, who explains that the committee advised
the applicant to communicate
her withdrawal in writing. He goes on to
state that
[the
committee] also advised the applicant that she was very late to make
representations to the first respondent for her reinstatement
and in
this regard condonation would also have to be brought [sic].
[29.]
Accordingly, it would not be unreasonable to deduce that the
committee required the applicant to confirm
her alleged withdrawal in
writing; alternatively, if she intended to pursue the application for
reinstatement then she would be
required to seek condonation for its
late delivery. Whatever the merits of the committee’s request,
it is clear that the
applicant’s actual position on the matter
was unclear to the committee. At that stage, it could not have been
said with certainty
that the applicant had actually withdrawn her
application.
[30.]
In the circumstances, the allegations made by the respondents to the
effect that the applicant had
withdrawn her application for
reinstatement are unconvincing and implausible. Moreover, in light of
the hearsay contained in Mr
Makitshi’s affidavit and the
apparent unlawfulness of the nature and conduct of the appeals
committee, the allegations are
indefensible.
[31.]
Accordingly, the court is persuaded that the respondents’
allegations can be rejected merely
on the papers. No real dispute
arises. The court is also satisfied with the inherent credibility of
the applicant’s factual
averments to the effect that she never
withdrew her application.
Whether
the applicant is entitled to have her application considered
[32.]
The basis for the applicant’s application can be found in
sub-section 17(3)(b) of the PSA. The
provisions thereof state as
follows:
(b)
If an employee who is deemed to have been so dismissed, reports for
duty at any time after the expiry of the period referred
to in
paragraph (a), the relevant executive authority may, on good cause
shown and notwithstanding anything to the contrary contained
in any
law, approve the reinstatement of that employee in the public service
in his or her former or any other post or position,
and in such a
case the period of his or her absence from official duty shall be
deemed to be absence on vacation leave without
pay or leave on such
other conditions as the said authority may determine.
[33.]
Counsel for the applicant has referred to
National
Union of Metalworkers of SA on behalf of Magadla and AMT Services
(Pty) Ltd
(2003) 24 ILJ 1769 (BCA) as authority for the requirement that an
employer must enquire into the reasons for an employee’s
prolonged and unexplained absence from employment. The same principle
emerges in
Magagula
v Department of Health
[2004] 2 BALR 156 (PHWSBC).
[34.]
Furthermore,
South
African Broadcasting Corporation v Commission for Conciliation,
Mediation and Arbitration and Others
(2001) 22 ILJ 487 (LC) is cited to assert the principle that
statutory employers are entitled to rely on sub-section 17(3)(a)(i)
of the PSA only in exceptional circumstances. The employee must have
well and truly disappeared or is unresponsive to attempts
made to
contact him or her and to allow the employee to show good cause why
he or she should not be dismissed. See, too,
Grootboom
v National Prosecuting Authority and Another
[2013] ZACC 18
(21 October 2013), where the Constitutional Court held
that there must be strict compliance with the requirements of the
statutory
provisions regarding a deemed dismissal.
[35.]
In addition, counsel for the applicant mentioned
Gangaram
v Member of the Executive Council for the Department of Health,
Kwazulu-Natal and Another
[2017] 11 BLLR 1082
(LAC). The facts of the case are similar to those
in the present matter. The appellant had been ill and for a
continuous period
of her absence she completed and submitted sick
leave forms, together with medical certificates. The court held that
in the absence
of any indication that her sick leave was not
approved, the appellant was entitled to accept that her absence was
with the leave
of her employer. Moreover, the respondent’s
officials knew of her condition and her whereabouts and continued to
pay her
salary. The requirements for a deemed dismissal under
sub-section 17(3)(a)(i) had not been met and there was no need for
the appellant
to make application for her reinstatement in terms of
sub-section 17(3)(b).
[36.]
The case law to which counsel for the applicant has drawn the court’s
attention is indicative
of the careful manner in which section 17 of
the PSA must be approached as a whole. A deemed dismissal is a harsh
measure in labour
law and should only be relied upon by an employer
as a final resort. Consequently, it is the view of this court that
any provision
in section 17 that permits an employee an opportunity
to demonstrate why he or she should not be deemed to have been
dismissed
must be interpreted and applied generously.
[37.]
For present purposes, however, the court is not called upon to make a
finding in relation to the applicant’s
application for
reinstatement. There is no need to investigate whether the applicant
has indeed reported for duty and whether good
cause has been shown.
The relief sought by the applicant is merely that her application be
considered by the first respondent and
that she be advised of the
decision in that regard. The court cannot usurp the powers of the
first respondent. Whether the requirements
of sub-section 17(3)(b) of
the PSA have been met is something to be decided by the first
respondent, alternatively the second respondent
in the event that
such powers have been delegated to him or her. If it transpires that
the first or second respondent refuses to
grant the application for
reinstatement then the applicant is at liberty to take such decision
on review to the Labour Court in
terms of sub-section 158 (1) (h) of
the
Labour Relations Act 66 of 1995
. See
PAWUSA
v Department of Education, Free State Province
2008 ILJ 3013 (LC).
[38.]
The text of sub-section 17(3)(b) presupposes that an executive
authority such as the first respondent
must consider representations
or submissions for reinstatement. The applicant’s application
constitutes such representations
or submissions. In accordance with
the court’s earlier discussion of the matter, the court is
satisfied with the inherent
credibility of the applicant’s
factual averments to the effect that she never withdrew her
application. There is no reason
why the provisions of sub-section
17(3)(b) should not be give effect. The applicant is entitled to have
her application considered.
Relief
and order
[39.]
The court is satisfied that: (a.) the applicant did not withdraw her
application for reinstatement;
and (b.) she is entitled to have her
application considered by the first respondent and to be informed of
the latter’s decision
within the stipulated timeframe. In
relation to the timeframe involved, the applicant has stipulated a
period of ten days. Given
the period of the applicant’s
absence, the lengthy history of the dispute, and the realities of
bureaucratic processes, it
would be fair to the first respondent for
the court to grant alternative relief and to direct that the
applicant be informed of
the first respondent’s decision within
30 days of the date of the order.
[40.]
With regard to costs, the applicant has been substantially successful
in her application. There is
no reason why costs should not follow
the result.
[41.]
The following order is made:
(a.)
the
first respondent is directed to take such administrative or other
steps as may be necessary, reasonable or requisite to consider
the
applicant’s application for reinstatement in terms of
sub-section 17(3)(b) of the Public Service Act, 1994 and to advise
the applicant of the decision taken in respect thereof within 30 days
of the date of this order; and
(b.)
the
first respondent is ordered to pay the applicant’s costs.
_________________________
JGA Laing
Acting
Judge of the High Court
Appearances:
For the applicant:
For the respondent: