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[2016] ZAECBHC 7
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Kalimashe v Head of the Department of Social Development and Special Programmes, Eastern Cape and Another (298/2014) [2016] ZAECBHC 7 (27 September 2016)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE LOCAL
DIVISION, BHISHO)
CASE NO: 298/2014
In
the matter between:
JONGILANGA
CLEMENT KALIMASHE
Applicant
And
HEAD
OF THE DEPARTMENT OF
SOCIAL
DEVELOPMENT & SPECIAL
PROGRAMMES,
EASTERN CAPE
First
Respondent
MEMBER
OF THE EXECUTIVE COUNCIL,
DEPARTMENT
OF SOCIAL DEVELOPMENT
AND
SPECIAL PROGRAMMES, EASTERN CAPE
Second
Respondent
JUDGMENT
MBENENGE J:
[1]
At all times relevant to this application, the applicant was in the
employ of the Department of
Social Development and Social Programmes
in the Eastern Cape Provincial Government (The Department).
[2]
The applicant’s terms and conditions of service were governed
by the Public Service Act
(Proclamation 103 of 1994), the Regulations
made thereunder and Circulars and Policy Documents issued from time
to time
by the relevant functionaries of the Government in
terms of the applicable regulatory framework.
[3]
It is not in dispute that some officials of the Department who had
been placed at Bhisho got to
be deployed in East London and were
transported between Bhisho and East London (and back) on a daily
basis, at the expense of the
Department. It is common cause
that the applicant utilized his private motor vehicle to commute
between his home at Pakamisa,
a Township located in the outskirts of
King Williamstown, and East London for the period spanning 23 August
2004 and 31 March 2006.
[4]
By Memorandum dated February 2012 penned by the Senior Manager: Human
Resource Administration
of the Department approval was sought from
the Head of the Department for payment of,
inter alia
, an
outstanding claim lodged by the applicant on the basis that he had
incurred travelling expenses resulting from his deployment
from
Bhisho to East London. The recommendation received the support
of the top management of the Department, including the
Head of the
Department, but was made subject to the applicant (and of course
other affected officials referred to in the Memorandum)
furnishing
the relevant documents in support of their claims. No
specificity was, however, given at that stage regarding
the nature of
these documents.
[5]
The use of privately owned motor vehicles by officials in the
Department undertaking official
trips is regulated by the Government
Motor Transport Operational Plan (the Transport Policy). In
terms of the Transport Policy
the Head of the Department may
authorise the use of privately owned motor transport on official
duty, where it is cost effective
to do so. The distance
allowance payable is, according to the Transport Policy, as
determined by the National Department
of Transport and approved by
the relevant Treasury components.
[6]
The applicant’s quest to be paid a travelling allowance for the
trips undertaken as aforesaid
yielded naught. The instant
application, which is a sequel to correspondence whereby the
applicant was urged to furnish the
Department with the outstanding
supporting documents to no avail, was launched in May 2014. The
applicant seeks an order
compelling the respondents “
to pay
monies due to [him] in the sum of R89 051.26 for travelling
allowances during the period between 23 August 2004 and
until 31
March 2006
.”
[7]
In his founding affidavit, by which he must stand or fall, the
applicant relies on the Memorandum
(referred to in paragraph [4]
above) which, in so far as relevant hereto, states:
“
In
2004 some officials of the Department were relocate to east London
Back- Office and the Department was proving those officials
with
transport between Bhisho and East London on daily bases. This was
necessitated by the fact that it was employer’s arrangement
for
the officials to work in East London instead Bhisho.
Mr Kalimashe was
utilizing his own vehicle between Pakamisa where he reside and East
London Back –Office whereas other officials
were provided with
transport, and this communication breakdown resulted to the official
being incurring travel expenses amounting
to
R 89,051.26
”.
Sic.
[8]
The applicant does, however, acknowledge, in his application papers,
that it has always been incumbent
on him to submit documents in
support of the claim, but contends that retrieving or tracing these
documents has become an impossible
task, as he can’t find the
documents, due to the passage of time. The applicant does not
dispute that the use of his
private motor vehicle to commute between
Pakamisa and East London did not receive the prior approval of the
Head of the Department.
He contends, however, that he had been
misled into believing that he could use his private motor vehicle
without the Head
of Department’s prior approval.
[9]
No other dispensation is pointed to by the applicant in support of
the application, save the contention
that the use of his private
motor vehicle to commute to East London where he had been deployed
had been agreed to and sanctioned
by the Department, and the
Department had undertaken to pay him for the trips undertaken.
Because the papers are not clear
as to precisely what the
applicant’s cause of action is, during the hearing of the
matter I was advised from the Bar, after
expressing my disquiet
regarding the state of the papers and the manner in which the papers
had been drafted, that the applicant
was in fact seeking to enforce
an agreement previously made to pay him for official trips undertaken
by him using his private motor
vehicle.
[10]
The application is being opposed principally on the ground that the
applicant did not seek and obtain the
approval of the Head of the
Department before his utilisation of his private motor vehicle for
any purpose whatsoever. At
another level, the respondents deny
that the applicant had, in the first place, been deployed from Bhisho
to East London.
Their claim, motivated by relevant
documentation, is that East London was, at the outset, his placement
station. Nothing,
for present purposes, however, hinges on
whether East London was his placement station or his deployment
station. The real
issue is whether, on the applicant’s
own showing, he has, in any event, made out a case for the relief he
is seeking.
[11] It
is trite law that public servants may not contract themselves out of
the provisions of the regulatory
instruments in terms of which they
have been employed. In
University of the Western Cape v MEC
For Health and Social Services
1998(3) SA 124 (CPD) at 134E-F,
Hlophe J (as he then was) said the following concerning the
fulfilment of promises not sanctioned
by statute:
“
In
my view it is in the interests of good administration that a public
body should act fairly and should implement whatever promise
it may
have made so long as the implementation thereof does not interfere
with its statutory duty
. In casu
the first respondent is under a duty in terms of s 11of the Act to
make appointments to the public service. Therefore any promise
or
undertaking which conflicts with its statutory duty to make
appointments cannot be enforced by the courts. The contrary is
clearly untenable. It would lead to an absurd situation whereby
public bodies could simply ignore their statutory duty by making
promises which conflict with them. Surely it would be unfair to
enforce promises which fly in the face of statutory duties.”
[12]
It is also trite law that public 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.
[1]
In other words, a valid exercise of administrative power
requires both a lawful authorization for the act concerned and the
exercise of that power by the proper of lawful authority.
[13]
The applicant has not discharged the onus resting on him to show that
the Transport Policy entitles him being
paid travelling allowances.
The Head of the Department has a discretion to either approve
or not the use of a privately owned
motor vehicles to undertake
official trips at Government expense. That discretion has not
been exercised, and no proceedings
have been launched to compel him
to exercise the discretion. The applicant is in effect seeking
enforcement of a promise
or undertaking which flies in the face of
the Transport Policy. The Department has also not been shown to
have waived the
requirement that the Head of Department must be
approached for his approval before an official uses a privately owned
motor vehicle
for undertaking official trips at the Department’s
expense. Whether or not the applicant was aware of the
requirement
is not relevant to the enquiry.
[14] In
all these circumstances, the application must fail.
[15]
Only the question of costs remains. In my view, there is no
reason why costs should not follow the
result. Even though
initially the documents that the applicant was called upon to furnish
in pursuit of his claim to be paid
a travelling allowance were not
specified, he was informed by letter dated 08 March 2013 that “[
n
]
o
HOD
[
a
]
pproval to use own vehicle or condonement
”
had been sought and obtained. In his response letter penned on
14 March 2014 the applicant merely requested that the
issue relating
to the lack of prior approval of the trip “
be considered
when reviewing this claim
”. Resorting to this
application in pursuit of his quest to be paid the travelling
allowanc
e
was in those circumstances an ill-conceived step.
[16]
Therefore, the application is dismissed with costs.
S M MBENENGE
JUDGE OF THE HIGH
COURT
Counsel
for applicant:
Mr
N Nabela
Instructed
by Mquqo Attorneys
East
London
C/O
Bacela Bukula Attorneys
King
William’s Town
Counsel
for the first respondent:
Mr
O H Crisp
Instructed
by the State Attorney
East
London
C/O
Legal Services
King
William’s Town
Date heard
22 September 2016
Date
Delivered 27 September 2016
[1]
Baxter,
Administrative
Law
,
JUTA (1984) at 384.