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[2016] ZANCHC 15
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Cloete v MEC: Department of Education: NC and Others (CA&R63/15) [2016] ZANCHC 15 (5 February 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape Division, Kimberley)
Reportable:
NO
Circulate
to Judges:
YES
Circulate
to Magistrates:
NO
Circulate
to Regional Magistrates:
NO
Case
No: CA&R 63/15
Heard:
01/02/2016
Delivered: 05/02/2016
In
the matter between:
ALLEN GREGORY
CLOETE
Applicant
v
MEC: DEPARTMENT OF
EDUCATION: NC
Respondent
THE HOD: DEPT OF
EDUCATION: NC
2
nd
Respondent
THE DEPUTY DIRECTOR:
DEPT OF
EDUCATION
3
RD
Respondent
THE DISTRICT
DIRECTOR: DEPT OF
EDUCATION - Z F
MQCAWU DISTRICT:
UPINGTON
4
TH
Respondent
THE DISTRICT
DIRECTOR: DEPT OF
EDUCATION - JOHN
TAOLO GAETSWEWE
DISTRICT: KURUMAN
5
th
Respondent
THE CFO:
DEPARTMENT OF EDUCATION
NORTHERN
CAPE PROVINCE
6
th
Respondent
Coram:
Kgomo JP
et
Pakati J
JUDGMENT
KGOMO
JP
[1]
The applicant, Ms
Davids-Paulse, is in the employ of the Department of Education and
currently based in Upington, Northern Cape.
She was previously
an educator and rose to the position of school principal in Kuruman,
Northern Cape. She now seeks the
following relief:
1.1
That the decision taken
by anyone of the following respondents during March 2012 in terms of
which an amount of R108 432-00
was deducted from her salary be
reviewed and set aside: The MEC of Education; the HOD of
Education, the Deputy Directors
of Education (Upington and Kuruman)
and the CFO of Education (the 1
st
to 6
th
respondents, respectively).
1.2
That a mandamus be
issued ordering he said respondents to refund Ms Davids-Paulse the
stated deducted amount; and
1.3
That the respondents
bear the costs of this application jointly and severally, the one
paying the others to be absolved
protanto
.
[2]
The respondents have
raised two points
in
limine
:
2.1
First, that this Court lacks the required jurisdiction to adjudicate
upon this application as the Labour Court
has been vested, in terms
of
s 157(1)
of the
Labour Relations Act, 66 of 1995
, with exclusive
jurisdiction.
2.2
Secondly, that, in any event, Ms Davids-Paulse has not exhausted all
her internal remedies before approaching
this Court for the mooted
relief and must be non-suited.
THE
JURISDICTION CHALLENGE
[3]
Section 157(1)
and
2
of
the
Labour Relations Act makes
the following stipulation:
“”
[4]
Section 186(1)
and (2)
are pivotal to this enquiry provide:
“”
[5]
In
Makhanya
v University of Zululand
2010 (1) SA 62
(SCA), a matter involving termination of employment of
a professor from the University of Zululand, Nugent JA remarked in
this
terms on the issue of jurisdiction in this context at 69A-G
(paras 16-18):
“
16.
[6]
The question of the
infringement of a contribution right in the matter were are seized
with does not arise, nor was it raised, neither
does the question of
a contractual obligation arise and was also not raised. If
therefore, on the facts of this case, which
I will examine shortly,
it is found that we lack jurisdiction
Makhanya
at p83B-D (para 83):
“”
[7]
Demonstrably, the
applicant and her legal representatives saw the challenges coming and
anticipated them comprehensively in the
following manner in the
Founding Affidavit (paras 52-61):
“”
THE
HISTORICAL BACKGROUND TOT HIS MATTER
[8]
Strictly speaking, more
pertinently anchored on the Makhanya-judgment (above), should we find
that we lack jurisdiction to adjudicate
on this dispute the necessary
or ruling on the second objection taken, viz that the application
serves prematurely before us because
all the internal processes have
not been followed or all the internal remedies have not been
exhausted, would fall away.
This must be so because the
substratum would have fallen away. Put differently, our order
would be lack authority or it would
be a
brutum
fulmen
.
[9]
The applicant claims to
have taken sick leave for the period 25 July 2011 to 26 September
2011 (two months); and thereafter from
27 September 2011 to 31
December 2011, another two months. She was, on this evidence
absence form work, rightly or wrongly,
for an uninterrupted peiod of
four months.
[10]
The applicant states in
her founding affidavit that “
due
to the fact that the abovementioned periods of sick-leave exceeded
the periods of sick-leave which I would have been entitled
to under
normal circumstances, I was expected to apply for temporary
additional sick leave in terms of the Policy and Procedure
on
Incapacity Leave and IC-Health Retirement (hereinafter referred to as
PILIR) and more specifically in terms of clause 7.1.2
of PILIR.”
[11]
The applicant goes on
to state that in Kuruman, where she was a principle of a school, she
was treated by Dr H Scheepers on seven
occasions (with specific dates
supplied) between 01 June 2011 to 09 January 2012. She
maintains that on each consultation
she furnished the PILIR forms to
the doctor to complete “
but
he unfortunately neglected
”
to do so. Appended to the applicant’s papers, marked
“
JAC1
”,
is what she terms “
a
copy of pages 18-30 of the PILIR form which pertains to me and which
was completed by Dr Scheepers.”
[12]
“
JAC1
”
is pro-forma. At p18 thereof is reflected “CONFIDENTIAL”
and “
Part C:
Statement by Attending doctor” and
importantly for present purposes, in bracket: “The employ
is responsible
to obtain this statement form the doctor.”
The form purports to have been complicated and signed by Dr Scheepers
on 18 November 2012. “JAC1” reflects all seven
consultation dates the applicant alluded to, the last being 09
January 2012.
[13]
The application is
aggrieved by the fact that on 12 March 2012, when she was already
stationed in Upington, she “
received
a visit from two officials of the Department, Mr Gordon and Mr Demas,
who requested me, apparently upon instruction of
2
nd
Respondent [the HOD of the Department] to submit the relevant PILIR
forms within 2 (two) working days.”
[14]
On the same date
(12/03/2012) the two emissaries delivered this letter, JAC2, dated 09
March 2012 to the applicant the receipt which
she signed for:
“”
[15]
The applicant says she
queried the two-day deadline and was told and assured by Mr Gordon
that her default to comply with the PILIR
policy and prescripts will
be condoned if cogent reasons are furnished. She has appended
“JAC3” dared 16 March
2012, “JAC4” dated 27
March 2012 and “JAC5” dated 28 March 2012 which purports
to the handwritten letters
and reminders to Dr Scheepers to complete
the PILIR forms and hand them to one Titus and/or John. “JAC6”
purports
to be transmission confirmation of such communication to her
doctor. Applicant maintains that she copied “JAC3”
to “JAC6” to the Departemnt and also communicated
telephonically with certain of its officials. The Departments
disputes this. There is no need to resolve this dispute because
its resolution will not contribute any essence to the outcome
of this
judgment.
[16]
The complainant feels
betrayed that notwithstanding all the assurances given to her and the
representations that she made she was
contacted telephonically by a
Mr Burger of the Department at the end of March 2012” who
informed her that a decision has
been taken to deduct R108 432.00
form her salary in 12 monthly instalments.
In
reaction she wrote to none other the HOD of the Department (2
nd
Respondent) on 02 April 2012 in “JAC7” that (my
translation):
“
LEAVE
WITHOUT SALARY (PAY): MS JAC DAVIDS-PAULSE: 5179--- [last
digits omitted]
(a)
Leave without
pay on my salary has currently been instituted by the Department in
the amount of R108 432.76.
(b)
I hereby request
that the amount be deducted over a period of 12 months, but if
possible over a period of 24 months.
(c)
My current
financial position is such that I cannot afford the envisaged
deduction over a period of 12 months. I am the sole
breadwinner
who has to see to the maintenance of my son and aged parents.”
[17]
Under Part B of a
“Details of Grievance” Form “JAC8” an
applicant is asked: What are you aggrieved
about?”
She states: “Acceptance of PILIR submission, because Dr
completed it.” An applicant
is asked: “What
solution do you propose? She answers: “Install my
salary.” Under her signature
she has supplied only the
year “2012” but omitted the day and month. However,
below the applicant’s signature
is reflected B.I Mathupi’s
signature, his designation is “AD: Labour Relation’
and dated 10 April 2012,
and accordingly after she wrote the letter
to the HOD on 02 April 2012.
[18]
On 21 February 2014
Fletcher’s Attorneys, the applicant’s attorney wrote a
6-page letter the Department largely rehashing
the history of this
matter already covered hereinbefore. However, the following
extracts points to the gravament of applicant’s
case:
18.1
“We are furthermore of the opinion --- page 44)
made from her salary by the Department.”
18.2
“
Section 7(2)(a)
of PAJA however precludes --- p45
referred to your offices for your kind attention??”
[19]
JAC13 is a letter
written by the Director General of the Public Service Commission (the
PSC) dated 29 October 2014 to Fletcher’s
Attorneys warning or
advising them that the applicant had not, amongst other things
exhausted her internal remedies. JAC13
reads in part:
“
According
to the said Notice of Motion --- (copy 53 -54) Pubic Service
Commission and could not be dealt with.”
THE
LEGAL SUBMISSIONS
[20]
Counsel on both sides
have referred us to numerous case in respect of which the question
whether a “salary” is a “benefit’
or not
within the contemplation of
s 186(2)(a)
of the
Labour Relations Act.
No
ne of them referred to
Appollo
Tyres South Africa (Pty) Ltd v Commission for Conciliation,
Medication and Arbitration and Others
[2013]
5 BLLR 434
(LAC) Cagney Musi AJA (JM Hlophe and Patel
JJA concerning), which we brought to their attention. We
afforded them to file
supplementary heads having heard them, which
they did.
[21]
Ms A Stanton, counsel
for the respondents, urged us to follow the not only the Apollo Tyres
decision but
South
African Airways (Pty) Ltd v GJJV
[2014]
8 BLLR (LAC) which followed the Apollo Tyres judgment. Mr AD
Olivier, for the applicant has now shifted ground and
subtracts that,
however that may be, the High Court retains jurisdiction by virtue of
being clothed with concurrent jurisdiction
with the Labour Court and
in addition there is a constitution dimension or element to the
applicant’s matter which right
has been infringed by the
Department.
[22]
In the
Apollo
judgment at paras 25-28 the LAC held:
“”
[23]
At paras 48 – 50
the LAC then decided:
“”
[24]
In
South
African Airways (Pty) Ltd v GJJV
(supra) the LAC, in approving the Apollo decision stated at ---.
[25]
What the decisions in
Apollo Tyres and the SAA v GJJV cases convey to employees who find
themselves in similar circumstances as
the applicant in
casu
is that they would stand on solid ground.
[26]
According to Mr Olivier
the matter does not end there and agitated that we assume
jurisdiction by virtue of the our purported jurisdiction
and/or the
constitutional issue raised. Counsel relies on
Gcaba
v Minister of Safety and Security
2010(1) SA 238 (CC) at pp 248-254.
[27]
------.
[28]
I am, in the
circumstances, satisfied that the application must fail. I
therefore make the following order.
ORDER
The point
in
limine
is upheld on the jurisdictional challenge. The
application is dismissed.
_______________________
F DIALE
KGOMO
JUDGE
PRESIDENT
Northern
Cape Division, Kimberley
I concur
_______________________
B M
PAKATI
JUDGE
High Court of South
Africa
Northern
Cape Division, Kimberley
On behalf of
the Applicants
:
Adv
D.A Olivier
(----------)
On behalf of
the Respondent:
Adv A. Stanton
(------------- )