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[2019] ZAECMHC 1
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Dalasile v South African Social Security Agency and Another (1991/2018) [2019] ZAECMHC 1 (31 January 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION: MTHATHA)
CASE
NO: 1991/2018
In
the matter between:
PATISA
DALASILE
APPLICANT
AND
SOUTH
AFRICAN SOCIAL SECURITY AGENCY
1
ST
RESPONDENT
MINISTER
OF SCOIAL DEVELOPMENT
2
ND
RESPONDENT
JUDGMENT
DAWOOD,
J:
1.
The
Applicant herein sought the following relief:
“
1.
That the Resolution 1 of 2003: Disciplinary Code and Procedures for
the Public Service (the
Resolution) be and is hereby declared
unlawful and of no force and effect in so far as it applies to the
first respondent.
2.
That the disciplinary proceedings instituted by the first respondent
against
the applicant in terms of against the applicant in terms of
Resolution from the 2
nd
of September 2015 until the 22
nd
of June 2016 be and is hereby declared unlawful, null and void and of
no force and effect.
3.
That the dismissal of the applicant from her employment by the first
respondent
be and is hereby declared unlawful and in contravention of
the
South African Social Security Agency Act, 2004
.
4.
That any decision taken by the second respondent in the
implementation of the
resolution be and is hereby reviewed, set aside
and declared unlawful and of no force and effect.
5.
That the applicant be and is hereby reinstated to her position as the
Grant Administrator
with effect from the 31
st
of March
2018 on terms and conditions no less favourable than those which
applied prior to her dismissal.
6.
That the first respondent be and is hereby ordered to pay costs of
this application
on an attorney and client scale.
7.
Granting such further and other relief as to this Honourable Court
seems meet.”
2.
The
Applicant alleged that the disciplinary proceedings were invalid due
to the fact that the first respondent did not follow the
procedure
set out in the South African Social Security Agency Act 9 of 2004
(hereinafter referred to as the “SASSA Act”)
but instead
elected to follow the procedure set out in Regulation 1 of 2003 –
Amendments 10 Resolution 2 of 1999 Disciplinary
Code and Procedures
for the Public Service.
3.
The
Respondents did not pursue the point with regard to jurisdiction and
accordingly it is not necessary to say anything further
on the point
suffice to say that the matter is being approached on the premise
that this court does have jurisdiction.
4.
The
Respondents raised the issue of Non-Joinder of Chairperson of the
Disciplinary Inquiry and non-compliance with Rule 53 since
there was
no request for the production of the record or for the reasons from
the chairperson of the disciplinary tribunal, by
the Applicant.
5.
For
present purposes I accept that it is not the decision per se that is
being challenged but rather the disciplinary code that
was utilised
from the outset from the time of the suspension of the Applicant and
that was followed by the Chairperson during the
course of the
hearing.
6.
The
Applicant is accordingly challenging the procedure not the
substantive findings of fact.
7.
The
Respondents have further confirmed that the procedure followed was
the Regulations.
8.
However
the Chairperson might well have wanted to explain why he followed the
disciplinary code that he did, or to confirm which
code he did in
fact follow in arriving at his decision and effectively it is his
decision and the procedure that he followed that
is being challenged.
9.
The
Applicant accordingly ought to have nonetheless followed the
procedure set out in Rule 53 and also joined the chairperson as
a
party to these proceedings. This point was correctly raised by the
Respondents, and warrants a dismissal of the application for
failure
to comply with the correct procedure as well as a material
non-joinder.
10.
I
shall nonetheless deal with the merits in the event that I am wrong
in that regard.
11.
The
crisp point for determination on the merits is whether or not the
correct disciplinary code was followed:
a)
The
Applicant argued that she was employed directly by SASSA and is not a
public servant.
b)
Her
employment was governed by the SASSA Act.
c)
The
Agency was accordingly obliged to institute proceedings against her
in terms of that Act and not the Regulations.
d)
Section
7 (3) of the SASSA Act provides that
the
Minister must after
consultation with the Chief Executive Officer
determine
a code of conduct
applicable
to
all members of staff of the Agency
and justiciable for purposes of disciplinary proceedings.
e)
According
to the Respondents:
i)
This
code of conduct has to date not been determined or implemented.
ii)
The
First Respondent attempted to implement a code replacing that
embodied in the Resolution.
iii)
The
PSA was dissatisfied with the first respondent’s decision to
implement the new disciplinary code and the matter was taken
for
arbitration.
iv)
The
arbitrator made an award in favour of PSA against the first
respondent on the 26 July 2013 in the following terms:
“
The
collective agreement contained in Resolution 1 of 2003 is still valid
until terminated or amended …”
v)
The
Arbitrator’s award effectively set aside the new envisaged
disciplinary code sought to be implemented by SASSA.
vi)
There
was accordingly no other code validly promulgated or gazetted by
SASSA. The applicable code was the Resolution.
12.
It is
common cause that the Applicant belonged to the PSA Union.
13.
The
Applicant’s letter of appointment indicates that the Public
Services Act is applicable to her employment, annexure “A”
headed conditions and requirements for her appointment inter alia
reads as follows:
“
Your
appointment is
subject
to the provisions of the Public Service Act, 1994
as amended … and any present or further amendments to the
aforesaid Acts, Regulations and instructions.”
14.
It was
furthermore her union that took SASSA to the CCMA and the Arbitration
award was made in its favour to the effect that the
collective
agreement contained in Resolution 1 of 2003 is still valid until
terminated or amended by means of an agreement and
did not allow the
new disciplinary code to take effect.
15.
The
Applicant argued that this collective agreement and the arbitration
award only applied to the transferred employees and not
to employees
like herself who had been directly employed by the agency.
16.
It is
abundantly clear that there was no disciplinary code by the agency as
the PSA had challenged the code that SASSA had unilaterally
implemented and it was set aside in terms of the arbitration award.
17.
Her
terms of employment is indicative of the fact that the Applicant was
an employee of the Public services and bound her to the
terms and
conditions thereof.
18.
SASSA
itself is considered an organ of State and not a private entity in
the true sense if one has regard inter alia to the dicta
in
City
Power (Pty) Ltd v Grinpal Energy Management Services (Pty) Ltd and
Others
[1]
:
“
[22] Recently
in
AllPay 2,
[2]
the South African Social Security Agency (SASSA), an
organ of state established in terms of the
South African Social
Security Agency Act (Agency
Act),
[3]
issued a tender outsourcing its obligations to pay
social grants to millions of qualifying South Africans to Cash
Paymaster, a private
company. The Court held that Cash
Paymaster was also an organ of state for the purposes of the
provision of the outsourced
services. The Court stated:
“
That SASSA is an organ of state is clear.
But, for the purposes of the impugned contract, so too is Cash
Paymaster.
. . .
In AAA
Investments Yacoob J, writing for the majority of this Court, stated:
‘
Our
Constitution ensures . . . that government cannot be released from
its human rights and rule of law obligations simply because
it
employs the strategy of delegating its functions to another entity.
It
does so by a relatively broad definition of an organ of state. . . .
An organ of state is, among other things, an entity
that performs a
public function in terms of national legislation. If [an
entity] performs its functions in terms of national
legislation, and
these functions are public in character, it is subject to the
legality principle and the privacy protection.
In our
constitutional structure, [the entity] does not have to be part of
government or the government itself to be bound by the
Constitution
as a whole.’…
In terms of the agreement between SASSA and Cash
Paymaster the latter administers the payment of social grants on
SASSA’s
behalf. In doing so, Cash Paymaster exercises a
public power and performs a public function in terms the Agency Act,
enacted
to give effect to the right to social security….
SASSA does not, by the conclusion of the contract,
divest itself of its constitutional responsibility and public
accountability
for rendering the public services. It remains
accountable to the people of South Africa for the performance of
those functions
by Cash Paymaster. . . . When Cash Paymaster
concluded the contract for the rendering of public services, it too
became accountable
to the people of South Africa in relation to the
public power it acquired and the public function it performs.
This does
not mean that its entire commercial operation suddenly
becomes open to public scrutiny. But the commercial part
dependent
on, or derived from, the performance of public functions is
subject to public scrutiny, both in its operational and financial
aspects.”
[4]
(Footnotes omitted).
19.
In any
event it would be absurd to suggest that the Applicant should be
governed by a non-existent disciplinary code and that simply
because
there was none she could not be subject to a disciplinary hearing or
dismissed.
20.
There
were in fact measures in place regarding what procedure would be
adopted until the new code was put into place.
21.
This
Regulation would then apply to employees whether employed prior to or
after the Act, that is, whether they were absorbed from
the Public
Sector or employed directly by SASSA, since it is explicitly stated
in her contract of employment that her employment
was made subject to
the provisions of the Public Services Act.
22.
The
Applicant is not challenging her contract of employment or the terms
and conditions thereof.
23.
The
First Respondent had no other code of disciplinary proceedings to
rely upon save the Regulations that it did follow.
24.
The
Applicant has not put up a code of conduct that she says ought to
have been followed, if one existed and was not followed, nor
has she
alleged that the Regulations were not properly followed.
25.
I am
satisfied that the First Respondent followed the proper and only
procedure available to it and that the disciplinary proceedings
were
accordingly valid and binding.
26.
In the
circumstances the Application falls to be dismissed.
27.
This
clearly is a case where the Applicant was advancing her
constitutional rights and should not be impeded in doing so. There
is
no mala fides demonstrated on her part. In the circumstances I am
disposed to making no costs against the Applicant despite
my
dismissing the application.
28.
I
accordingly make the following order:
a)
The
application is dismissed
b)
No
order as to costs
F.
B. A. DAWOOD
JUDGE
OF THE HIGH COURT
Matter
heard on
: 25 OCTOBER 2018
Judgment
delivered on
:
31 JANUARY 2019
Appearances
:
Counsel
for the Applicant
: Mr Maswazi
Attorneys
for the Applicant
: MBANANE & SOKUTU INC.
No. 1 Stanley Nelson
Drive
Mthatha
Ref: Mr Maswazi
Counsel
for the First Respondent : Mr Hobbs
Attorneys
for the Respondent : THE STATE
ATTORNEY
C/O POTELWA & CO
43 WESLEY STR
MTHATHA
Ref: ASP/sp/SASSA
00433
[1]
(CCT133/14) [2015] ZACC 8
[2]
AllPay Consolidated Investment Holdings (Pty) Ltd and Others v
Chief Executive Officer of the South African Social Security Agency
and Others (No 2)
[2014] ZACC 12
;
2014 (4) SA 179
(CC);
2014 (6)
BCLR 641
(CC) (
AllPay 2)
.
[3]
9 of 2004.
[4]
AllPay 2
above n 18 at paras 52-9.