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[2016] ZAGPPHC 24
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Mdletshe v Minister of Defence and Another (57651/2011) [2016] ZAGPPHC 24 (25 January 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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SAFLII
Policy
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
CASE NO: 57651/2011
DATE: 25 JANUARY 2016
In the matter between:
SIBONGISENI
MDLETSHE
...................................................................................................
Applicant
And
MINISTER OF
DEFENCE
..........................................................................................
First
Respondent
CHIEF OF THE SOUTH AFRICAN
NATIONAL DEFENCE
FORCE
............................................................................
Second
Respondent
JUDGMENT
KGANYAGO. AJ
[1] The applicant has brought an
application seeking an order in the following terms:-
1.1. That the decision of the First
Respondent and/or the Chief of the SANDF (second Respondent) and/or
the Chief of the South African
Infantry Formation, which decision was
taken between 26th November 2009 and February 2011 as reflected in
“Annexure SM8”,
refusing to renew the applicant’s
fixed term contract, is hereby reviewed, set aside and corrected.
1.2.1. That the respondent is ordered
to provide a contract of employment on the same terms and conditions
as other members of the
SANDF who are on medium term contracts.
Alternatively
1.2.1. That the respondent be directed
to reconsider the issue of the continued employment of the applicant
and to provide reasons
to the applicant within fourteen (14) days of
the date of the decision in the event that it remains of the view
that the respondent
should not be employed on a further contract.
1.3. That the respondents are directed
to pay the costs of this application.
[2] The respondents are opposing the
applicant’s application. The applicant was employed in the
South African National Defence
Force (“the SANDF”) with
the rank of rifleman with force number [9…………].
The applicant
was employed on a fixed term contract that was renewed
on several occasions. Applicant’s first contract was for a
period
of two years from 1996 to 1998.This contract was renewed in
1998 until 2000. In 2000 the contract was renewed up until 2005. In
2005, applicant’s contract was extended up until the 28th
February 2011.
[3] On the 1st December 2010, the
applicant was served with a letter dated 26th November 2010, wherein
he was informed that the
department intends not to renew his
employment contract when it expires on the 28th February 2011. The
letter from Col.P C. Z Foncoqa
reads as follows:- “ 1. The
department of Defence intends not to renew your employment contract
when it expires on 28th February
2011. The following offences were
taken into consideration.
a. 3 x sec 14 (a)
b. 1 x sec 36(1)
c. 1 x sec 12(b)
d. 1 x sec 4(b)
2. The department of Defence intends to
terminate your current service contract in terms of the provisions of
the New Service System,
the
Defence Act, No 42 of 2002
and the
General Regulation Chapter 111 and iv expires.
3. NB You are afforded an opportunity
to make presentation within 10 working days of receipt of this letter
as to why you believe
the Department should not terminate your
employment contract.
4. Your co-operation will be highly
appreciated. ”
[4] The applicant submitted his written
presentation within the stipulated time period. His presentation
reads as follows:-
“1. your letter Inf Fmn/c/107/2
dated 26 November 2010 refers:
2. I [9…………]
MC RFN S.M Mdletshe hereby request my contract not to be terminated
due to the following
reasons:-
a. We are 17 at home and I am a
breadwinner for the whole family.
b. The other thing is that currently
the workplace outside requires some skill and I don’t have any
skill that will make me
survive when my contract is terminated.
c. I will struggle to be employed
because of my age.
d. The other thing is that I have
changed my attitude towards SANDF as a whole that can be confirmed
from my current Company Commander
and Batalion Commander.
e. Currently I am one of the positive
soldier around willing to do my duties anytime.
f. I promise I will stay out of trouble
and I will respect my superiors.
g. I am in need of this job that is the
only thing that makes me to survive.
3. Hope my request will be accepted. ”
[5] On the 26th January 2011, the
applicant was served with a written letter notifying him that his
contract that was expiring on
the 28th February 2011 will not be
renewed. Indeed his contract was not renewed when it expired.
[6] The applicant in his founding
affidavit contends that the respondents did not investigate or
conduct an enquiry upon which they
can rely to substantiate that he
was an undesirable element in the SANDF or that he was not amenable
to military discipline. According
to him, from 2008 up until the
termination of his contract in 2011, he has not contravened the
military discipline code at all.
[7] According to the applicant, a
section 14(a) offence refers to being absent without leave, and he
has committed that offence
twice and was punished for that. Section
36(1) offence emanates from his refusal to answer a question relating
to a board of enquiry,
and he was punished for that. Section 12(b)
offence relates to a member leaving his post without just cause, and
he was punished
for that. The applicant contends that his employment
contract was renewed three times after commission of the
abovementioned offences.
[8] With regard to the section 4(b)
offence, according to the applicant the said offence took place in
2004, and the sanction imposed
on him was that of a reprimand.
Despite that conviction in 2004, his contract was again extended in
2005.
[9] On the 28 July 2011, commander DS
Mabasa wrote to the applicant a testimonial letter which reads as
follows;-
“ 1. I, the undersigned hereby
state that I know Mr S.M Mdletshe and he was working under my command
since he joined the Department
of Defence. Mr Mdletshe was a well
trained and disciplined soldier who was a good example to his
collegues.
2. The member was a kind of a soldier
who can be tasked at any time and was willing to be deployed anywhere
and will ensure that
his duties are excuted to a high standard
required in the organization. It was not necessary to supervise the
member, he knew exactly
what was expected from him.
3. This member is definitely not lazy
and is always eager to undertake more and more task. Success of the
organization is of the
core values and nothing holds him back. He was
always eager to support the superiors in whatever capacity was
expected of him,
and more importantly, he can be relied on to make a
success of it.
4. This member never lacks in support,
and he gave his full co-operation without any doubt. He was however
not blind and will share
problem arrears that need to be addressed in
a positive fashion so that the situation can be improved to the
advantage of the organization.
5. His knowledge and skills together
with his maturity enabled him to relate to his seniors with
confidence. He is able to debate
his point of view without being
offensive.
6. His relationship with other members
was of great standard and he was always willing to share ideas with
them. He had that understanding
of how to work with different people
and will always try to socialize with every one around him.
7. I further state that any employer
would be proud of having someone of Mr S.M Mdletshe’s caliber
as part of his/her team.
8. Should you wish to contact me
personally, do not hesitate I will be available at any time at the
above mentioned address and
telephone numbers. ”
[10] The applicant contends that the
respondents have breached their own policy which governs the
termination of fixed term contracts.
According to the applicant, he
had a legitimate expectation that his contract will be renewed when
it expired on the 28th February
2011. The applicant relies on the
principle of legality and not PAJA in challenging the non-renewal of
his contract.
[11] According to the respondents,
SANDF never terminated the applicant’s contract, but that his
employment contract ran out,
and SANDF elected not to renew it and
the reasons for that were given to the applicant. The respondents
contends that the decision
not to renew the applicant’s
contract was not based on arbitrary reasons, and was neither
capricious nor unfair.
[12] Counsel for the respondent in
their heads of argument has stated that although there may be some
merit in the applicant’s
argument that the process of
non¬renewal of his contract was unfair because the SANDF did not
apply its own policy document
that does not mean that his contract
has been terminated. Counsel for the respondents has submitted that
the applicant’s
contract came to its natural expiry date.
[13] It is not in dispute that the
applicant’s fixed term contract was not renewed when it expired
on the 28th February 2011.
The issue which I must decide is whether
the respondents have acted unlawfully or not in not renewing the
applicant’s contract.
If I find that the respondents have acted
unlawfully, I must determine whether the applicant is entitled to the
relief that he
is seeking.
[14] The respondents have policies in
place which regulate the administrative process and which also govern
the termination or non-renewal
of fixed term contracts. Clause 17 of
that policy is termed “ Expiry or non-renewal of fixed term
contracts” and it
reads as follows:
“ 17. 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) (Refence c):
a. Members must receive letters to
remind them of the expiry of their fixed term contracts by the last
day of their eight month
prior to the month in which the contract
expires.
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 in respect of 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 applicant 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 CD HRM (DHR 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
recommendations 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 documentation/statements
in the application for the non-renewal of
the fixed term contract (see Appendix F).
I. Once the MOD has made a decision wrt
the non-renewal of the fixed term contract of the member, DHR Sep
must promulgate the authority
on the TERMINATIONS 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 TERMINATIONS program. ”
[15] The applicant in his founding
affidavit has brought the review application in terms of PAJA. On
receipt of the policies of
SANDF which were filed by the respondents
in terms of Rule 53(1) of the Uniform Rules of Court, the applicant
filed a supplementary
affidavit wherein he also based his review
application on the principle of legality.
[16] The respondents in their answering
affidavit had contended that if the applicant was bringing his
application in terms of PAJA,
he should have done so within 180 days
of the decision complained of, but has failed to do so. The applicant
in his replying affidavit
reiterated what he has already stated in
the founding affidavit by stating that his review application was
also based on the principle
of legality. When the matter was argued,
counsel for the applicant argued that the applicant's review
application is not based
on PAJA but on the principle of legality.
[17] In terms of clause 17(h) of the
respondents policies, the Minister of Defence has a final decision in
relation to non-renewal
of fixed term contracts.
It is now settled law that the decision
the Minister amounts to an executive action. It follows that if it is
an executive action,
it is subject to the less exacting constraints
imposed by the principle of legality. ( See Minister of Defence v
Motau
2014 (5) SA 69
(CC)).
[18] In order to determine whether the
respondents have acted lawfully in not renewing the applicant’s
contract I must first
assess the reasons stated in the letter dated
26/11/10 in paragraph 3 supra, and determine whether there was good
cause to justify
the action taken by the respondent. In Minister of
Defence v Motau, supra the court held
that good cause may be defined as a substantially or legally
sufficient reasons for a choice
made or action taken.
Assessing whether there is sufficient
cause for a decision is a factual determination dependant upon the
particular circumstances
of the case at hand.
[19] An employer may only terminate a
fixed term employment contract of an employee, if he can show good
cause for doing so, or
if the parties have initially agreed
otherwise. If the employer fails to show good cause, such termination
will be regarded as
unlawful, and the employer will be in breach of
contract. The employee will be entitled to the common law remedies
for the breach
of contract.
[20] The applicant is relying on an
alleged legitimate expectation that his contract will be renewed. In
Duncan v Minister of Environmental
Affairs and
Tourism
2010 (6) SA 374
(SCA) at para
15 the court stated the following:
“Reliance on the doctrine of
legitimate expectation for any purpose presupposes that the
expectation qualified as legitimate.
The requirements for the
legitimancy of such an expectation have been formulated thus\
(a) The representation inducing the
expectation must be clear, unambiquos and devoid of any relevant
qualifications.
(b) The expectation must have been
induced by the decision-maker.
(c) The expectation must be reasonable.
(d) The representation must be one
which is competent and lawful for the decision-maker to make”.
[21] The reasonableness of the
expectation operates as a precondition to its legitimacy. The first
question is factual, whether
in all the circumstances, the
expectation sought to be relied on is reasonable. That entails
applying an objective test to the
circumstances from which the
applicant claims the expectation arose. Only if that test is
fulfilled does the further question,
whether in the public law, the
expectation is legitimate.
[22] The grounds upon which the
applicant relies for his alleged reasonable expectation that his
contract will be renewed has been
stated in his founding affidavit as
follows:-
❖ Section 12(b) offence took
place in 1998, and his contract of employment was renewed three times
after the commission of
this offence.
❖ Section 4(b) offence took
place during 2004, and he was reprimanded for that. In 2005, despite
the conviction his contract
was extended.
❖ For section 36(1) offence, he
was convicted of it during 2008 by a military judge and sentenced to
a fine of R1000-00.
❖ For section 14(a) he has been
convicted twice of it and not thrice. According to the applicant
there are hundreds of soldiers
who have worse disciplinary record
relating to section 36 offence and are still retained by SANDF. He
has also mentioned the names
of some of them.
[23] The respondents in their answering
affidavit in justifying their actions conceded that the section 12(b)
offence took place
in 1998, and after that his contract was renewed
three times. However, the respondents submitted that the applicant
during the last term of his contract
committed further offences, which were all taken together in deciding
not to renew his contract.
The applicant denied that in his replying
affidavit.
[24] The respondents also conceded that
the applicant’s contract was previously renewed despite
committing a section 4(b)
offence, but stated that the applicant has
committed further three offences, and that his attitude towards SANDF
did not improve.
[25] The respondents conceded that
regarding the section 36(1) offence, the applicant was fined R
1000-00 by the military judge.
According to the respondents, his
disciplinary record has counted against him when they consider
whether to offer him another medium
term contract or not.
[26] Concerning the section 14(a)
offence, the respondents disputed that the applicant was convicted of
two offences. They attached
a record which reflect more than two
offences which the applicant was convicted of. The applicant in his
replying affidavit denied
that.
[27] Regarding the section 14(a)
offence, according to the respondents’ records, during the last
term of his contract, the
applicant was convicted of two offences, in
2008 and 2009 respectively. Regarding section 36(1) offence, as per
the respondents’
records the applicant was convicted during
2008. All other offences were dated years back and some of them are
more than ten years
old. The last time the applicant was convicted of
an offence was two years prior to the termination of his contract.
[28] Despite the record of the
applicant, commander Mabasa whom the applicant was working under
wrote a very good testimonial letter
for him. According to commander
Mabasa, the applicant was a disciplined soldier, matured and related
well with his seniors. That
is a totally different picture of what
the respondents saw in the applicant. According to the respondents,
the applicant’s
attitude towards the SANDF did not improve. The
fact that for the last two years of his contract, the applicant did
not commit
any offence, explains why commander Mabasa held the
applicant in high esteem. He saw him as a changed person.
[29] The applicant has stated that
there are hundreds of soldiers who are having worse disciplinary
records than him, and has also
mentioned the names of a few. The
respondents did not dispute that. What the respondents did was to
state that there is no obligation
on the SANDF to reveal the extent
of the disciplinary measures of these members. The respondents went
on to state that the first
three names mentioned by the applicant are
permanent members of the SANDF, and to terminate their service is not
an easy matter.
This in my view I find to be an admission on the part
of the respondents that they are inconsistent in applying their
policies
at the workplace.
[30] That admission, I find to be
absurd. Whether permanent or not, they are all members of the SANDF
and are subject to the same
policies and rules. There is no
justification in treating permanent members differently from
non-permanent members when instilling
discipline at the workplace.
[31] The applicant’s contract of
employment was previously extended despite him having previous
convictions. In 2011 some
of his previous convictions were more than
ten years old, and for the last two years prior to the termination of
his contract he
had a clean record.
[32] At the time the applicant’s
contract was still in force, he was disciplined and sanctioned for
his misconduct. However,
the respondents cannot overlook his previous
record when his contract is about to be extended taking into
consideration the types
of offences that he has previously committed.
But for the fact that in past his contract was renewed despite his
previous record,
in my view he would have expected that the
respondents would again condone that.
[33] In the past, the applicant’s
contract of employment was renewed despite his previous convictions.
As at 2011 some of
his previous convictions were more than ten years
old. There are other members of the SANDF with worse disciplinary
records than
the applicant. Under the circumstances of this case, in
my view, the applicant’s expectation that his contract of
employment
will renewed was reasonable and legitimate.
[34] I now turn to the procedure that
was followed in terminating the applicant’s contract. The
procedure of not renewing
a fixed term contract is regulated by
clause 17 of the respondents’ policy document. It is clear that
the said policy was
not followed in terminating the applicant’s
contract. The respondents in their heads of argument have conceded
that they
did not apply their own policy when the applicant’s
contract was not renewed and that the procedure that was followed was
unfair.
[35] Under the circumstances taking
into consideration the facts of the applicant’s case in its
totality, I am of the view
that the respondents have failed to show
good cause why they did not renew the applicant’s contract.
Therefore, the respondents
have acted unlawfully in failing to renew
the applicant’s contract, and their actions stand to be
reviewed and set aside.
[36] On the 28th July 2014, the costs
for contempt of court application were reserved for determination by
the court hearing the
review application. The applicant wants the
respondents to be ordered to pay the costs of the contempt of court
application that
was brought by the applicant as a result of the
respondents having failed to provide them with the policy documents
as per court
orders. The policy document was provided to the
applicant a few days before the hearing of the contempt of court
application. Under
the circumstances, I am satisfied that the
applicant is entitled to the costs of the contempt of court
application.
[37] In the result I make the following
order-
37.1. The decision of the respondents
to refuse to renew the applicant’s fixed term contract in
2010/2011 is hereby declared
unlawful and is set aside as void and of
no force and effect.
37.2. The respondents are directed to
provide the applicant with a fixed term contract of employment on the
same terms and conditions
as other members of the SANDF, who are on
medium term contracts, such contract being deemed to have been
entered into from the
date of the launch of this application being
3rd October 2011.
37.3. The respondents, jointly and
severally are directed to pay the applicant’s costs of the main
action including all costs
previously reserved.
37.4. The respondents are directed to
pay the costs of the contempt of court application and associated
applications including all
reserved costs jointly and severally the
one paying the other to be absolved.
M.F KGANYAGO
ACTING JUDGE OF THE HIGH COURT