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[2016] ZAECBHC 2
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Schentke v Member of the Council, Department of Education, Eastern Cape Province and Others (57/2015) [2016] ZAECBHC 2 (19 February 2016)
IN THE HIGH COURTOF
SOUTH AFRICA
EASTERN CAPE LOCAL
DIVISION, BHISHO
Case no. 57/2015
In the matter between:
MAUDIE
JOSEPHINE SCHENTKE
Applicant
and
THE
MEMBER OF THE EXECUTIVE COUNCIL,
DEPARTMENT
OF EDUCATION,
EASTERN
CAPE PROVINCE
First
Respondent
THE
HEAD, DEPARTMENT OF EDUCATION,
EASTERN
CAPE PROVINCE
Second
Respondent
THE
MINISTER OF BASIC EDUCATION
Third
Respondent
THE
DIRECTOR-GENERAL,
DEPARTMENT
OF BASIC EDUCATION
Fourth
Respondent
JUDGMENT
STRETCH J:
[1]
The applicant is a qualified educator.
Prior to the launching of this application, she worked as a grade R
teacher at Strelitzia
Primary School (“the school”) in
Port Elizabeth.
[2]
She was not paid a salary in August and
September 2014.
[3]
Her membership of GEMS (a medical aid
facility) was cancelled with effect 31 May 2014.
[4]
This is an application in terms of the
Promotion of Access to Information Act 2 of 2000 (“PAIA”)
calling upon the respondents
to furnish the applicant with certain
information relevant to her employment and the termination of her
GEMS membership.
[5]
In terms of her notice of motion, she seeks
the following documents:
a.
Those upon which the Eastern Cape
Department of Education (“the Department”) relied for its
decision to repudiate an
employment agreement concluded with her from
1 April 2014 to 31 March 2015;
b.
Those which the Department had forwarded to
GEMS, resulting in the termination of her medical aid benefits;
c.
Those which the Department had relied upon
to justify its authorised representative (Mr Diamond) having sought
to procure her resignation
as a grade R practitioner;
d.
Those which the Department had relied on to
support its contention that the applicant is not an employee of the
school;
e.
Those which the Department had relied on to
support its contention that the employment agreement which the
applicant was relying
on between her and the Department was invalid
or unenforceable.
[6]
It is indeed the Department’s case
that it is not the applicant’s employer. This is its main
ground for opposing
the application. It has also raised two points
in
limine
:
a.
That the applicant has not exhausted her
internal remedies in that she has failed to pay the appeal fee
prescribed at section 75(3)(a)
of PAIA;
b.
That the applicant, having referred her
dismissal dispute with the respondents to the Department’s
bargaining council (the
GPSSBC), ought to have utilised the
procedures of the bargaining council to obtain the information which
she now seeks.
[7]
The applicant avers that she is employed by
the Department in terms of a standard employment contract between her
and the Strelitzia
school governing board (“the SGB”)
which contract was devised by the Department, and in terms of which
the Department
partially contributes towards her income.
[8]
An example of her monthly salary advice
from the Department and her income tax certificate reflect the
following:
a.
She was appointed on a specific date with
the job title of ‘ECD practitioner – public school’
and has a designated
staff number.
b.
Her salary notch is R38 400 per annum,
with a gross monthly income of R3 200, and a net salary of
R3 158.
c.
Part of her salary deductions are for
membership of the GPSSBC.
d.
Her IRP5 particulars reflect a deduction
under PAYE (pay as you earn), for income tax purposes, as well as a
contribution to the
employer’s medical aid (GEMS), and an
unemployment fund (UIF) reference number from the Department, as well
as various other
departmental source codes.
[9]
Ex facie
the
document, an example of one of her renewed employment contracts
reflects the following:
a.
That she, in her capacity as an employee of
the SGB, concluded a contract with the SGB as the employer, and that
the parties to
the contract are the applicant and the SGB.
b.
That the Department financially
supports the SGB to provide grade R classes by subsidising the SGB’s
remuneration of the applicant,
with the provision of what is referred
to as a stipend, which would be reviewed in terms of budgetary
constraints.
[10]
On 30 September 2014 GEMS wrote a letter to
the applicant advising that the applicant’s ‘employment’
with the
Department had been terminated with effect 31 May 2014.
[11]
According to the Department’s legal
representative, the Department had initially paid the stipends which
I have referred to
into school bank accounts to be transferred to the
individual practitioners. However, the money was not always
paid over,
which resulted in the Department registering the payments
on its staff salaries system (PERSAL) to be paid directly to the
practitioners.
An unintended consequence of this step was that
the PERSAL system generated a salary advice and automatically
deducted a
monthly contribution to the GPSSBC.
[12]
As for the applicant’s membership of
GEMS which is recorded and deducted as per her salary advice, it is
the Department’s
contention that the applicant had joined the
scheme of her own accord.
[13]
The purpose of PAIA according to its
preamble is to give effect to an applicant’s constitutional
right of access to any information
held by the State and any
information held by another person which information is required for
the exercise or protection of any
of the applicant’s rights.
[14]
The applicant has stated that the documents
she requires ‘are material and reasonably necessary’ to
enable her to take
advice, consider her position and decide what
steps to take in the form of further representations or possible
legal action. She
avers that the furnishing of the documents
‘may also serve to avoid further legal action.’
[15]
She further states that she and other
affected colleagues ‘have referred disputes to the relevant
Bargaining Council as unfair
dismissals’ and that these
disputes await resolution. ‘In the meantime’ she says,
‘we have sought to invoke
the provisions of the Information Act
(PAIA) to obtain the important documentation allegedly relied
upon by the Department
for its decision to repudiate our employment
agreements and to set same at naught.’
[16]
The applicant referred her dispute to the
GPSSBC for conciliation on 15 October 2014. The relief which
she seeks is retrospective
reinstatement with the Department.
[17]
In her founding papers in the matter before
me deposed to on 23 January 2015, she states the following:
‘
It
will take some time however for this dispute to be resolved and in
the meantime I desperately seek access to all relevant documents
upon
which the Department ostensibly relied in making the decisions it did
in terminating our employment.’
[18]
I do not think that dissatisfaction about
delays in finalisation of matters in other forums is an adequate
ground to approach this
court for this type of relief, unless of
course, all other internal remedies relating to discovery (informal
or otherwise) have
been properly exhausted. Neither does it
seem to me that the GPSSBC has been inordinately dilatory in
addressing these grievances.
In the matter of
C.
Delport and The Department of
Education
(case no. GPBC2394-2014 involving the applicant’s colleague at
the school who had also been subjected to the same
treatment as the
applicant), a ruling was made as far back as 4 March 2015, declaring
that the GPSSBC had jurisdiction to deal
with the dismissal dispute,
and directing the council to set the matter down for arbitration at
its earliest convenience.
[19]
However, that is not the end of the matter.
Section 7 of PAIA reads as follows:
7 Act not applying to
records requested for criminal or civil proceedings after
commencement of proceedings
(1)
This Act does not apply to a record of a
public body or a private body if –
(a)
that record is requested for
the purpose of criminal or civil proceedings;
(b)
so requested after the commencement of such
criminal or civil proceedings, as the case may be; and
(c)
the production of or access to that record
for the purpose referred to in paragraph (a) is provided for in any
other law.
[20]
Section 7 clearly envisages the type of
situation where, for example, a civil or criminal trial is underway
and the parties are
constrained to comply with the rules pertaining
to discovery, requests for further particulars, applications to
compel and the
like. Not only would it be an abuse of the
processes of court, but it would also result in uncertainty and
confusion if parties
were allowed to wander off mid-trial to launch
PAIA applications instead of making use of the statutory and common
law remedies
designed to regulate and expedite trials.
[21]
I do not deem it necessary for purposes of
this application to make a finding as to whether any anticipated
proceedings in the Department’s
bargaining forum may be defined
as civil proceedings. It suffices to say that it is clear from
the applicant’s papers
that on 15 October 2014 she completed a
standard GPSSBC form indicating that she wished to declare a dispute
with the Department
(whose contact person is Mr Diamond) and
confirming that the form had been served on the Department. There
is no evidence
before me to suggest that the proceedings envisaged
have in fact commenced.
[22]
The deponent to the respondents’
affidavit has admitted the fact of the referral, and has made a bald
allegation that proceedings
have commenced in the bargaining council
because of this. It seems to me however, that this statement is
not correct. If
proceedings have indeed commenced in that
forum, it would mean that it is not in dispute that there is an
employer – employee
relationship between the applicant and the
Department, and that the GBSSBC is accordingly vested with
jurisdiction (as happened
in the
Delport
matter).
[23]
The main contention before me (although I
deem it somewhat irrelevant to this PAIA application) is that there
is no employer –
employee relationship between the parties.
[24]
In the light of this, I am of the view that
proceedings before the GPSSBC have not commenced. Even if I am
incorrect in arriving
at this conclusion, I am not persuaded that
proceedings which are not linked to a court (such as this one or the
Labour Court),
and have as their main function the bargaining of
conciliation, can be defined as legal proceedings within the clear
meaning of
the expression.
[25]
As for the issue of the non-payment of an
appeal fee, this point falls to be dismissed as an afterthought
riding on the back of
a red herring. I have little doubt that
had the respondents raised the issue of this negligible fee earlier,
the applicant
would have paid it instead of resorting to
time-consuming and expensive litigation. Instead, and in response to
the applicant’s
notice of internal appeal dated 26 November
2014, the Department penned the following letter on 7 December 2014:
‘
We
acknowledge your correspondence dated 26/11/2014.
Kindly furnish us with
copies of the request for information. We will attend to the
matter as soon as we receive these copies.’
[26]
Notwithstanding her compliance with this
request three days later, the applicant was not favoured with a
similar reaction, which
ultimately resulted in the launching of this
application.
[27]
It is in any event so that in the exercise
of my discretion and by virtue of the provisions of section 82 of
PAIA, I am empowered
to grant any order that is just and equitable in
the circumstances, and I intend doing so.
Order:
1.
The respondents are directed to
furnish the applicant with the following information:
(a)
All information which has any
bearing on the discontinuance of the payment of money and the
allocation of benefits as reflected
in the applicant’s document
headed “Employee income tax certificate information: year of
assessment 2014”.
(b)
All information forwarded by the
Department of Education to the applicant’s medical fund (GEMS)
which has any bearing on the
termination of the applicant’s
medical benefits.
(c)
All
information
which has any bearing on the Department of Education’s
authorised representative (Mr Diamond) seeking to procure
the
applicant’s resignation as a grade R practitioner.
(d)
All information which supports the
Department of Education’s contention that the applicant is an
employee of Strelitzia Primary
School.
(e)
All information on which the
Department of Education relies for its contention that there is no
valid and enforceable employment
agreement between it and the
applicant.
2.
The respondents are directed to
furnish the applicant with the aforesaid information within 20 days
of the date of this order.
3.
The respondents are directed to pay
the applicant’s costs jointly and severally, the one / more
than one paying the other/others
to be absolved.
I.T. STRETCH
JUDGE OF THE HIGH
COURT
19 February 2016
Counsel
for the applicant:
Mr
P.G. Beningfield
Instructed
by
Hutton
& Cook
King
William’s Town
(ref.
MR G.C. WEBB/LC)
Counsel
for the respondents:
Mr
I. Dala
Instructed
by
the
State Attorney
King
William’s Town
(ref.
68/15-P10-MRS YAKO)