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[2016] ZAECMHC 35
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Ketwa v MEC for Health and Others (178/2015) [2016] ZAECMHC 35 (29 August 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION: MTHATHA)
CASE
NO. 178/2015
In
the matter between:
TANDIKHAYA
KETWA
APPLICANT
VS
MEC
FOR HEALTH & 2 OTHERS
RESPONDENTS
JUDGMENT
DAWOOD,
J:
1.
The
Applicant herein sought an order in the following terms:-
“
1.
That
Applicant’s non-compliance with the Uniform Rules of Court as
regards time frames, forms and service be and is hereby
condoned and
that leave be and is hereby granted to the Applicant to bring this
application on the abridged terms;
2.
That
the Respondents’ termination of Applicant from his employment
be declared unlawful and set aside;
3.
That
the Respondent be and are hereby directed to re-instate forthwith the
Applicant to his position as Senior Assistant Director
in the same
terms and conditions as before.
4.
That
the 1
st
Respondent be and is hereby directed to pay the Applicant all his
salary as from June 2013.
5.
That
the Respondent pay costs of this application.
6.
Granting
to the Applicant such further and/or alternative relief as to this
honourable court may deem meet.”
2.
The
Respondent raised the following points
in
limine
:-
a)
That
this court lacked jurisdiction in that:-
i)
This
is an employer and employee relationship;
ii)
That
the Applicant did not rely on a breach of contract; and
iii)
That
accordingly the High Court does not have concurrent jurisdiction with
the Labour Court to adjudicate upon the matter.
b)
That
the Applicant failed to exhaust internal remedies having regard to
the fact that:
i)
His
termination was by operation of law in terms of section 17 (3) (a) of
the Public Services Act of 1994;
ii)
That
section 17 (3) (b) provides an employee who presents himself for
duties after his deemed dismissal an opportunity to report
for work
and to be re-instated on good cause shown;
iii)
That
the Applicant failed to present himself for work and
accordingly failed to comply with section 17 (3) (b); and
iv)
The
court accordingly cannot adjudicate over the matter until the
Applicant’s internal remedies have been exhausted.
3.
That
there was undue delay in light of the fact that the Applicant’s
termination took effect in July 2013 and he only approached
his
attorney in November 2014 and the Respondent sought a dismissal of
the Application on that basis.
4.
The
matter was set down for the determination of the points raised
in
limine
by the Respondent.
5.
I
shall deal with each of the points raised in turn:
A)
Jurisdiction:
i)
The
Applicant has stated, correctly or incorrectly, that his
constitutional rights were infringed and his rights were also
infringed
in terms of PAJA (Promotion of Administrative Justice Act 3
of 2000).
ii)
It
is trite law that this court has concurrent jurisdiction with the
Labour Court where there is a claim for the enforcement of
contractual and constitutional rights of a party
[1]
.
iii)
I
am disposed to accept that there are sufficient averments on the
papers to give this court concurrent jurisdiction with the Labour
Court to adjudicate upon the application although that jurisdictional
facts and basis could have been elucidated in clearer terms,
the
court does not have to consider whether or not the points have merit
or were properly raised in order to determine jurisdiction
but simply
whether it was raised and gave issue that can be adjudicated upon by
this court. The Applicants have done so in this
case. The court does
not need to, when determining the issue of jurisdiction, decide upon
whether or not contractual or constitutional
rights were breached.
iv)
The
Respondent’s first point
in
limine
on lack of jurisdiction is accordingly dismissed.
B)
FAILURE
TO EXHAUST INTERNAL REMEDIES
:
i)
The
Applicant in paragraph 9 of his founding affidavit states that the
letter delivered to his house on 26 June 2013 purportedly
terminated
his employment and refers to annexure TK1 as confirmation of the
same.
ii)
Annexure
TK1 in fact calls upon the Applicant to respond in writing as to why
his absence cannot be taken as unauthorised leave
of absence which
could result in abscondment if he continues with this behaviour and
he is required to submit himself to the sub-district
manager within 5
working days.
iii)
TK1
is not a letter of termination.
iv)
The
Applicant states he received TK1 in July 2013, however he has failed
to state when in July he received this letter and whether
or not he
at that stage:-
a)
responded
in writing thereto; and
b)
submitted
himself to the sub-district manager upon receipt of the letter.
v)
I
do not propose to deal with the merits as to whether or not the
Applicant has established that his services were wrongfully
terminated
or not but clearly this letter is not what it purports to
be, that is, a letter of termination and all the arguments based on
the
contents of this letter by the Applicant’s representative
regarding it not complying with section 17 (1) with regard to the
mandatory period of absence before one is regarded as having
absconded, has to be disregarded in the circumstances.
vi)
It
is evident from the annexures put up by the Applicant that the
Respondent relies on the provisions of section 17 (1) of the Public
Services Act 1994 (hereinafter referred to as the Act) as the basis
for termination, that is, the deemed dismissal of the Applicant
due
to his failure to report to work for a period of 30 days.
vii)
The
Applicant has failed to allege that he reported for duty after his
deemed dismissal and showed good cause for his re-instatement
in his
former position.
viii)
Annexure
TK2 also bears reference to a letter requesting the reversal of
abscondment not re-instatement on good cause.
ix)
The
Applicant persisted in alleging that his termination was wrongful as
is evidenced from paragraph 10 of his founding affidavit.
x)
The
Applicant has alleged that he wrote a letter to the second Respondent
after September 2013 but he fails to annex a copy of the
same neither
has he stated what was contained therein.
xi)
The
Applicant on his own version has failed to comply with section 17 (3)
(b) of the Public Services Act, if he has regard to the
following:-
a)
the
Applicant failed to state that he indeed presented himself for work
after the deemed dismissal;
b)
he
accordingly failed to present reasons to justify a reversal of the
decision to dismiss due to abscondment; and
c)
the
employer accordingly was not given an opportunity to accept or reject
those reasons as constituting or not constituting good
cause.
xii)
The
Applicant has annexed a leave form and a medical certificate as well
as a letter to show that he was present on the 11
th
of July 2013 for working purposes at the clinic,
xiii)
The
leave form is not signed by the employer as having been authorised
and the letter is dated 11 March 2014 pertaining to him being
on duty
on the 11 July 2013 so this letter could not have been presented
prior thereto nor is it alleged that it was presented,
xiv)
The
medical certificate is dated the 17
th
of July 2013 on the day that the Respondent stated that the letter of
termination was given,
xv)
The
Applicant does not state whether the medical certificates was
obtained before or after service of the letter of termination,
xvi)
The
Applicant also fails to state whether or not the medical certificate
was submitted to his supervisor,
xvii)
The
Applicant also does not state that he in fact returned to work on the
20
th
of July 2013,
xviii)
The
Applicant, far more importantly, fails to state that he reported for
work and furnished these explanations to his employer when
he was
informed that his absence was taken as abscondment in term section 17
(1) of the Act and he was accordingly deemed to have
absconded, is
automatically dismissed unless the employer directed otherwise
[2]
even without being notified of the same by his employer,
xix)
The
Applicant was obliged to follow the procedure set out in section 17
(3) by operation of law,
xx)
The
Applicant does not indicate anywhere that he has complied with these
provisions and exhausted the internal remedies prior to
approaching
this court for relief nor has he sought condonation for failure to
exhaust internal remedies,
xxi)
The
point, in my view, that he failed to exhaust internal remedies is
accordingly properly raised, and
xxii)
The
point
in
limine
raised by the Respondent that the Applicant has come to court
prematurely by failing to first exhaust internal remedies available
to him has been properly raised and his failure to exhaust internal
remedies accordingly warrants the dismissal. This point
in
limine
is accordingly upheld.
C)
Undue
delay:
i)
There
is no need to deal with the final point
in
limine
regarding undue delay in light of the finding in respect of the
Applicant’s failure to exhaust internal remedies but I shall
deal with it for the sake of completeness.
a)
The
Applicant has put up some flimsy grounds for his failure to launch
the application within a reasonable period, without any
substantiation of the grounds or confirmation by the union
representative.
b)
The
Applicant in any event has failed to apply for condonation for the
late launching of the Application.
c)
The
Applicant was as per the letters from the Respondent “dismissed”
on 18
th
July 2013.
d)
The
only response to his union representative that is put, is a letter
dated 12
th
September 2013. The next letter that is annexed is one written on the
10
th
November 2014 and a response given on the 18
th
November 2014. The Application was only launched on the 23
rd
of January 2015, two months after the response was given and more
than a year and a half after the termination.
e)
The
period of time from the date of dismissal to date of launching the
application, a period in excess of 18 months, constitutes
an
inordinate delay.
f)
This
period of time is unreasonable and warrants a proper full explanation
and the seeking of condonation for the delay as part
of the
substantive relief sought in the notice of motion which was not done
in this case.
g)
The
Applicant failed to do so.
h)
The
Respondent also insofar as it may be necessary to make a ruling on
this point as well accordingly succeeds on this point
in
limine
regarding inordinate delay in launching the Application.
i)
The
Application is accordingly dismissed on that basis of inordinate
delay as well.
6.
The
Respondent failed on the first point
in
limine
and succeeded in respect of the other two points
in
limine
raised.
7.
I
am in light of that fact that the Applicant was successful on at
least one point disposed to exercising my discretion and ordering
each party to pay they own costs.
8.
I
accordingly make the following order:
i)
The
Application is dismissed;
ii)
Each
party to pay his/its own costs.
____________
DAWOOD J
JUDGE
OF THE HIGH COURT
DATE
HEARD:
28 JULY 2016
JUDGMENT
DELIVERED:
29 AUGUST 2016
FOR THE
PLAINTIFFS:
MR MGXAJI
INSTRUCTED
BY:
MESSRS MGXAJI AND CO
3
GELENCOMBE FLATS
45
LEEDS ROAD
MTHATHA
FOR THE
DEFENDANTS:
MR MTSHABE
INSTRUCTED
BY:
STATE ATTORNEY
BROADCAST
HOUSE
94
SISSION STREET
FORTGALE
MTHATHA
[1]
Makhanya v University of Zululand
2010 (1) SA 62
(SCA) at 71
[2]
Minister
van Onderwys en Kultuur v Louw
[1994] ZASCA 160
;
1995 (4) SA 383
(A) Sindezama Mathew
Mbobo v Minister of Education and others E.C.D case number 396/2000