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[2017] ZAGPPHC 310
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Xulu v Minister of Defence and Another (A468/2015) [2017] ZAGPPHC 310 (1 March 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
number: A 468/2015
Date:
1/3/17
Reportable:
No
Of
interest to other Judges: No
In
the matter between:
BONGANI
POSTOLIE
XULU
APPELLANT
AND
MINISTER
OF
DEFENCE FIRST
RESPONDENT
CHIEF
OF THE SOUTH AFRICAN
SECOND RESPONDENT
DEFENCE
FORCE
JUDGMENT
TOLMAY,
J:
INTRODUCTION
[1]
The Appellant appeals against a judgment of this Court in which
Appellant's review application to have a decision by Respondents
not
to extend his fixed term contract was dismissed.
[2]
The Court a
quo
found that the Appellant's application was
based on a review in terms of the Promotion of Administrative Justice
Act 3 of 2000 (PAJA)
and that the conduct of the Respondents does not
constitute an administrative action. Consequently the Court a
quo
found that the conduct of the Respondents is not reviewable under
PAJA and dismissed the application.
[3]
Leave to appeal was granted by the Court a
quo.
At that
hearing it was argued by the Appellant's legal representative that
the Appellant's application was not only based on PAJA,
but also on
the principle of legality and it was conceded that PAJA does not find
application. At the hearing of the
appeal however counsel
for Appellant argued that the concession was incorrectly made
and based his argument on both PAJA
and the principle of legality.
[4]
It needs mentioning that despite opposing the application and
subsequent leave to appeal, the
Respondents did not file heads of argument in the
appeal nor was there any appearance on behalf of the Respondents
at
the hearing of the appeal.
[5]
Save for certain urgent relief which the Appellant initially sought
(and which is no longer relevant) the Appellant seeks an
order that
the non renewal of his fixed term contract entered into during
2006, should be declared unlawful, unconstitutional
and that it must
be set aside and replaced with a decision providing Appellant with a
fixed term contract on the same terms and
conditions as other members
of the South African National Defence Force ("SANDF") with
similar rank as that of the Appellant.
In the alternative the
decision not to renew the last fixed term contract must be set aside
and the matter referred back to the
Respondents
for reconsideration.
FACTUAL
BACKGROUND
[6]
T
he Appellant joined
the SANDF in July 1996. Until his employment was terminated Appellant
was employed in terms of successive fixed
term contracts. Firstly
from 1996 to 1998 when his contract was renewed until 2000. In 2000
Appellant's contract was renewed until
2005. The last fixed term
contract states that it was effective from 29 July 2006 to 31 July
2011. This contract will be referred
to as the
"last fixed
term contract”.
[7]
In terms of the last fixed term contract Appellant was appointed to
the Core Service System ("CSS") and his appointment
was
subject to the SANDF's prescribed conditions of
service as amended from time to time.
Appellant's
appointment was in terms of section 52(1) of the Defence Act of 2002
("the Defence Act").
[8]
On or about 1 December 2010 on receipt of a letter dated 26
November 2009, Appellant was informed that the Department
of Defence
("DOD") intended not to renew his fixed term contract which
was to expire on 30 June 2011. Two offences were
taken into
consideration in deciding not to renew Appellant's fixed term
contract. Appellant was given 10 days to make representations
as to
why the DOD should not terminate his employment contract.
[9]
Appellant submitted written stating his personal circumstances as
part of the reasons why his employment contract was not to
be
terminated. In addition, Appellant also dealt with the two offences
which were taken into consideration when deciding
not to renew
the last fixed term contract.
[10]
The two offences considered respectively date back to 1996/1997
(being an offence in relation to a charge of mutiny)
and 2001 in
relation to section 33(b) of the Military Disciplinary Code ("MDC")
(in relation to a charge of drunkenness).
The mutiny offence was
allegedly committed when Appellant's first fixed term contract
was in place and the offence pertaining
to the alleged drunkenness
during the period of the third fixed term contract. On the
Respondent's version, which was never disputed,
these offences were
not serious.
[11]
The officer commanding, 14 SAI Battalion (where Appellant was
stationed at the time), Lt Col TD Oss, recommended the renewal
of
Appellant's last fixed term contract. Neither Appellant's own company
commander and/or the personnel officer of the unit raised
any
objection to the extension.
[12]
Prior to 17 January 2011 Maj Gen TM Nkabinde (the deponent to the
answering affidavit), Col PCZ Fongoqa (the author
of the
letter dated 26 November 2009, Lt Col MJ Maungwa and Maj
J Joki met, purportedly as a
"contract review board for the
non- renewal of
CSS
contracts: SAIC"
for the infantry
formation. In the minutes of this meeting the aim of the meeting is
described as
"to conduct an Inf Fnn Review Board for members
whose contracts must not be renewed and who have submitted
representations
to their respective
OCs". Appellant's name
appear in paragraph 2 of this minute as a member who made
representations why his fixed term contract
should be renewed.
[13]
A blanket approach was followed and the
"Review Board"
concluded that the members concerned, including Appellant,
"did
not advance sufficient arguments instead (sic) of their socio
economic conditions which they failed to consider when committing
these offences."
As a general statement it is then also
recorded that the SANDF is under no obligation to renew any fixed
term contract when it lapses.
The minute is signed and indicated to
be
"mandatory with effect from 17 January 2011"
by
Maj Joki and Maj Gen Nkabinde.
[14]
On 26 January 2011 authority was issued for the termination of
Appellant's contract with effect from 30 June 2011. Appellant's
last
fixed term contract subsequently was terminated with effect from 30
June 2011.
PROCEDURES
PERTAINING TO TERMINATION
[15]
The Appellant falls under the
Defence Act as
sec 11(a)(ii)
states
that the SANDF consists of the Regular Force, which
inter
alia
includes the members who serve fulltime until the expiry of their
contracted term of service.
[16]
The employment of members of the SANDF is regulated by the provisions
of Chapter 9 of the
Defence Act. Section
59(1)(b) provides for the
termination of a fixed term contract concluded between a member and
the DOD or on the expiration of any
extended period of such contract
and the procedure that should be followed is set out in clause 17 of
the policy. The appointment,
employment and termination of a member's
services are therefore regulated by legislation.
[17]
When Appellant's employment was terminated the DOD had a policy ("the
policy") in place (it is still in place) called
"PROCESS
AND PROCEDURES FOR THE MANAGEMENT OF THE SEPARATION OF
OFFICIALS FROM THE DEPARTMENT OF DEFENCE (DOD)".
The
policy was applicable to the management of Appellant's last fixed
term contract and clause 17 thereof deals with the expiry
or non
renewal of fixed term contracts.
[18]
Clause 17 reads as follows:
"Whenever the
need exists for the non-renewal of a fixed term contract of a member,
the following administrative actions must
be effected (Defence Act,
Section 59(1)(b)) (Reference C):
a.
Members must receive letters to remind them of the expiry of
their fixed term contracts by the last day of the eight-month prior
to the month in which the contract expire;
b.
The Officer Commanding of a member must submit an application
for the non-renewal of the fixed term contract to the respective
Career
Manager;
c.
In the application, the Officer Commanding must substantiate
the reason for the non-renewal of the fixed term contract by
completing
a report iro the events which have led him or her to the
decision to apply for the intended non-renewal of the contract;
d.
Once the Review Board at Service/Division level has made a
preliminary recommendation the Officer Commanding must provide the
member,
in writing, with the specific reasons for the intended
non-renewal of contract, as well as the specific measures under which
the
member's fixed term contract will be terminated. It
must
also be
made clear that such a recommendation is a
preliminary recommendation and that no final
decision has been taken
yet;
e.
The Officer Commanding must then allow the member at
least ten (10) working days, in
terms
of the audi alteram partem
rule, to provide written reasons why his or her fixed term contract
should
not be renewed;
f.
The application for his or her non-renewal of the fixed term
contract, together with the member's representations against the
said
intention, should be forwarded by the particular Unit to CO HRM (D HR
Sep) via the respective Career Manager five (5)
months before
his or her contract expires;
g.
If the Career Manager can add value to the application for the
termination of the fixed term contract, it should include its
recommendation
wrt with the intended non-renewal. The
application must be recommended by the relevant Chief of
Service/Division in person
(at least four months prior to the expiry
of contracts, (See Appendix E);
h.
Upon receipt of the application at the D HR Sep, a submission
must be forwarded to the MOD for final decision. In order to assist
the MOD in making a final decision, all relevant information, as
stated above, must be supported with copies of the
documentation/statements
in the application for the non-renewal of
the fixed term contract (see Appendix F);
i. Once the MOO has
made a decision wrt the non-renewal of the fixed term
contract of the member, D HR Sep must promulgate
the authority on the
TERM/NATIONS program, at least three months prior to the final date
of service;
J. On
receipt of the Administrative Authority (but not a shorter
notice period than one month),
the Officer Commanding
must inform the member, in writing, that his or her
contract will not be renewed. The
final date of service must be
included in the letter and it must be the same date as was approved
on the TERM/NATIONS program".
[19]
The Respondents did not comply with the prescribed procedures
set out in the policy in various respects. No need was
identified for
the non-renewal of Appellant's last fixed term contract as provided
for in the introductory sentence
in clause 17. Appellant did
not receive a reminder of the expiry of his fixed term contract as is
envisaged in clause 17(a). Appellant's
Officer Commanding, Lt Col Oss
did not submit an application for non-renewal as contemplated in
clause 17(b). In fact, Lt Col Oss
recommended the extension of the
last fixed term contract. None of the procedures and requirements as
envisaged in clause 17(c)
to U) has been followed.
[20]
From the aforesaid it is abundantly clear that the Respondents did
not follow their own procedures pertaining to the termination
of the
Appellant's fixed term contract.
THE
APPLICABLE LEGAL PRINCIPLES
[21]
PAJA will only be applicable if the Respondents' decision to renew
the last fixed term contract constitutes an "administrative
action" as defined in section 1 of PAJA. Section 6 allows
for the judicial review of administrative action and in terms
of
sub-section (2) the Court has the power to judicially review an
administrative action if certain requirements are met.
[22]
Our Courts
have defined what would constitute an administrative action.
[1]
Pertaining to
the dismissal of state
employees
the
Constitutional Court concluded that the action of the employer did
not constitute administrative action.
[2]
However one must take
into consideration that the Labour Relations Act (LRA)
does not apply
to members of the SANDF and an argument may be
raised that, as a
result
the situation of members of the SANDF could be distinguished from
those of other state employees.
[3]
Consequently the Appellant is not entitled to the remedies
provided, including sec 186(1)(b) read with sec 191 of LRA, to
claim
that he was unfairly dismissed because his fixed term contract was
not renewed whilst there was a reasonable expectation
that it would
be renewed.
[23]
That the
exercise of a public power in the context of an employment
relationship in the public sector, where the LRA applies, may
still
be administrative action within the context of section 33(1) of the
Constitution (and also PAJA) is illustrated in the matter
of
Ntshangase
v MEC for Finance, KwaZulu Natal and another
where
the decision of a chairperson of a disciplinary hearing was held to
be an administrative action.
[4]
[24]
However in my view it is not necessary for this Court to determine
whether PAJA find application or not. One needs only to
consider the
principles of legality. In this regard the provisions of the
Constitution are of importance, the following should
be considered:
a.
the
Bill of Rights applies to all law and binds all organs of state.
[5]
b.
everyone
has the right to fair labour
practices;
[6]
c.
everyone
has the right to administrative action that is lawful, reasonable and
procedurally fair.
[7]
[25]
In terms of
section 2(g)
of the
Defence Act the
fundamental rights of
its members must be respected. Consequently one should refer back to
the Constitution and specifically the
Bill of Rights.
[26]
When considering the principle of legality the following is of
importance:
a.
The holder of a public power must act in good faith and not
misconstrue his/her powers;
b.
Public power should not be exercised arbitrarily or
irrationally;
c.
The requirement of rationality includes that the public
power must act in a way that is procedurally fair;
d.
There
must be lawfulness in the conduct of the person exercising the public
power, which apart from the substantive requirement,
also
incorporates that there must be
procedural
fairness and that the public power must not act in a biased
manner.
[8]
[27]
The termination of a fixed term contract of employment takes place in
terms of the provisions of the
Defence Act, of course
read with the
provisions of the policy referred to earlier. The statutory provision
however is underlying to the termination. The
policy is ancillary to
the statutory provisions and provides that the decision not to extend
must be exercised in accordance with
the provisions of the policy,
requiring that there must be a need not to extend and that a
specified procedure must be complied
with.
[28]
Appellant's
last fixed term contract was not extended because of the alleged
mutiny and drunkness, respectively happening in 1996/1997
and 2001.
Both these incidents occurred prior to him entering into the last
fixed term contract. The last fixed term contract was
concluded
notwithstanding Appellant's "conviction" on both these
offences. Appellant was also punished for both offences.
These
offences were correctly not considered when the last fixed term
contract was
entered
into and it also should not have been considered in 2011 when his
fixed term contract was not extended. Not only was there
no
rationality in not extending the previous fixed term contract,
considering this, but the Appellant was also punished twice for
the
same offence. It is generally accepted that it is unfair to punish an
employee twice for
the
same offence.
[9]
The Respondents were consequently not
entitled to rely on these two offences when the last
fixed term
contract was considered.
[29]
Over and above the aforesaid the procedure in the policy was simply
ignored by the Respondents and particularly Lt Gen Nkabinde
who
decided not to extend the last fixed term contract.
[30]
Under the circumstances Lt Gen Nkabinde's recommendation and
ultimately Second Respondent's approval thereof does not meet
the
requirements for legality and was unlawful, because it did not comply
with the Respondents' own policy and disregarded Appellant's
rights
in terms of the Bill of Rights and his right to fair Labour Practice.
In the light of the aforesaid the decision not to
renew Appellant's
last fixed term contract should be set aside.
[31]
The Court
has a discretion whether to refer the matter back for
reconsideration. In exceptional circumstances a review Court may
substitute the impugned decision with its own decision
[10]
.
[32]
In the light of the long period of time that lapsed, the fact that
the Respondent did not comply with the
Defence Act and
applicable
policies and the prejudice that the Appellant has suffered I am of
the view that exceptional circumstances exist which
will allow for
this Court to substitute the impugned decision with its own.
[33]
As a result the last fixed term contract should be extended on the
same conditions applying to other members of the SANDF
employed
on fixed term contracts. Due to the fact that the appeal was only
heard after the fixed term contract would have
expired it should be
extended until July 2017, in order to allow for due process to be
followed pertaining to the consideration
of any further contract
between the Appellant and the SANDF.
[34]
The following order is made:
35.1
The appeal is upheld;
35.2
The Respondents decision not to renew the Appellant's fixed
term contract is declared unlawful and is set aside and is replaced
by the following:
"The Appellant's
fixed terms contract is extended from 2011 until 30 July 2017 under
the same conditions applying to other
members of the SANDF employed
on fixed term contracts"
35.3
The Respondents are ordered to pay the costs of the appeal
jointly and severally, the one paying the other to be absolved,
including
the costs for the leave to appeal.
__________________________
R
G TOLMAY
JUDGE
OF THE HIGH COURT
__________________________
T
J RAULINGA
JUDGE
OF THE HIGH COURT
__________________________
N
V KHUMALO
JUDGE
OF THE HIGH COURT
DATE
OF HEARING:
1 FEBRUARY 2017
DATE
OF JUDGMENT:
1 MARCH 2017
ATTORNEY
FOR APPELLANT:
VIRENSINGH AND COMPANY
ADVOCATE
FOR APPELLANT:
G L VAN DER WESTHUIZEN
ATTORNEY
FOR RESPONDENT:
MOKUENA ATTORNEYS
ADVOCATE
FOR RESPONDENT:
NOT REPRESENTED
[1]
President of the Republic of South Africa & Others v South
African Rugby Football Union & Others 2000(1) SA 1 CC par
1434
[2]
Chriwa v Transnet & Others (2009) 29 ILJ 73 (CC); Gcaba v
Minister of Safety and Security
F010)
31 ILJ 296 (CC)
[3]
Section 2(a)
of LRA
[4]
2010 (3) SA 201
(SCA) at par [10] - [12]; In
Dlamini
v Minister of Defence and Others
(7669/2012)
[2012] ZAGPPHC 337 (14 December 2012) and
Snyman
and Others v Minister of Defence and Another
(46670/70/08,
46671/08, 46672/08) [2014] ZAGPPHC 72 (28 February 2014) the Gauteng
North High Court concluded with reference to
the Chirwa and Gcaba
cases
supra,
that
PAJA is not applicable to the dismissal of public service employees.
It was contended by counsel that both cases were decided
wrongly or
are
distinguishable from the matter before the Court. It appears that in
neither case was any consideration given to the fact
that members of
the SANDF have no protection under the LRA.
[5]
Section 8(1) of the Constitution
[6]
Section 23(1) of the Constitution
[7]
Section 33(1) of the Constitution
[8]
Masethla
v President of the Republic of South Africa and
Another
[2007] ZACC 20
;
2008
(1)
SA
566
(CC) par [78];
President
of the Republic of South Africa v South African Rugby Football
Union
supra
at par
148;
Masethla
v President of RSA
supra
at par
81;
Pharmaceutical
Manufacturers Association of South Africa and
another: in
re
ex parte
President
of the Republic of South Africa and another
2000
(2) SA 674 (CC) at par 85;
Albutt
v Centre for the Study of Violence and Reconciliation
2010
(3) SA 293
(CC) at par 49 and 50;
Competition
Commission of S Av Telkom SA Ltd and another
[201OJ
2 All SA 433
(SCA) at par 13.
[9]
Amalgamated
Engineering Union of South Africa and Others v Carlton Papers
of South Africa (Pty) Ltd
(1998)
9 ILJ 588 (IC) at p 596 C - F.
[10]
Johannesburg City Council v Administrator, Transvaal, and Another
1969(2) SA 72 (T) at 75H-77C