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[2016] ZAGPPHC 1128
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Kgwadi v Cwele NO and Another (56481/11) [2016] ZAGPPHC 1128 (10 November 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case
No: 56481/11
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
BANYANA
GLADYS
KGWADI
Applicant
and
HONOURABLE
MINISTER SIYABONGA)
1st Respondent
CWELE
(NO
DEPARTMENT
OF STATE SECURITY
2nd Respondent
JUDGMENT
MNGQIBISA-THUSI,
J:
[1]In
her notice of motion the applicant seeks the following relief:
1.1
that
the applicant's transfer to the South African National Academy of
Intelligence, Mmabatho be approved with retrospective effect
(transfer issue);
1.2
that the second respondent be prevented from making deductions
from the applicant's salary to recover an erroneous deposit made into
her bank account (deduction issue);
1.3
that the applicant's performance assessment be set aside
(performance assessment issue);
1.4
that the respondents pay the costs of this application.
Factual
background
[2]The
applicant is employed as a physical security officer within the Chief
Directorate, Internal Security of the Department of
State Security
Agency ("SASSA"). SASSA was established through the
amalgamation of three departments, the National Intelligence
Agency
("NIA"), the South African Secret Service ("SASA")
and the South African National Academy of Intelligence
("SANAI").
During 2008 the applicant was employed by NIA. Sometime in 2008 SANAI
advertised a position for Security Shift
Leader, Grade 4 level. The
requirements an applicant for the position was expected to have as
per the advertisement was, 'Matric/Grade
12 qualification or
equivalent recognised qualification with suitable experience in the
security environment'.
[3]
The applicant applied for the position and was recommended. The
employer made her an offer of the position, setting out the
terms and
conditions of her employment in the new position which was at a
higher level than the one she occupied and was also supervisory.
The
second paragraph of the letter extending the offer to the new
position, dated 17 July 2008, reads as follows:
"It
is imperative that we ascertain whether you intend to accept this
offer before we conduct other processes on yourself.
These are the
last phases of the recruitment process".
[4]
The applicant duly accepted the offer of employment. However, when it
became apparent that her transfer to SANAI was not eventuating,
the
applicant made enquiries through the SANAI Human Resources Division.
When he could find no joy she approached the Office of
the
Inspector-General.
[5]Although
the approval of the appointment of the applicant to be appointed to
the new position served before the relevant Cabinet
Minister, Mr
Kasrils, at the time he did not make any decision confirming the
applicant's appointment to the position of Shift
Security Leader as
he had certain reservations about the transfer. After Mr Kasrils left
office, the second respondent as the incumbent
Minister did not
approve the applicant's transfer. Furthermore, the then acting
Director -General, Mr Dlomo also did not approve
the applicant's
transfer on the basis that she did not meet the basic requirements
for the position.
The
transfer issue
[6]The
issue to be determined is whether the non-transfer of the applicant
was unlawful and irrational.
[7]
It is the applicant's contention that failure to approve her transfer
to the higher position was an unfair labour practice and
was
administrative action which was unlawful as the respondents have no
basis not to approve her transfer. Further, the applicant
alleges
that the issue of her lack of the required academic qualification was
an after-thought and therefore mala fide. The applicant
further
contends that the requirement that her transfer had to be approved by
the Minister was a new condition, unknown to the
applicant.
Furthermore it is the applicant's contention that the main
requirements for the position applied for was experience
and loyalty.
[8]On
behalf of the respondents it was submitted that the applicant's
transfer was not approved as she lacked the required academic
qualification, namely, matric or grade 12. It was submitted further
that the offer to the applicant was erroneously made as the
Human
Resources Division was under the impression that the applicant had a
senior certificate as she had indicated in her curriculum
vitae. It
is common cause that the applicant does not have a matric
qualification.
[9]
Further it was submitted on behalf of the respondents that in terms
of
section 19
of the
Intelligence Services Act of 2002
read with
regulation 11 of the Intelligence Services Regulations of 2003,
interdepartmental transfers could only take place with
the approval
of either the relevant Minister, the Director-General or the CEO. It
is the respondents' contention that since the
applicant does not meet
the minimum requirements for the position she contests, the acting
Director-General acted lawfully and
rationally in not approving her
transfer.
[10]
The applicant relies on the second respondent's directive, 'Human
resource Directive (HRD.12): Promotions, for her contention
that the
main criteria for promotion was experience and loyalty. I am of the
view that the applicant's reliance on this directive
is misplaced.
Article 5.1.1 of the Directive provides that "All members shall,
subject to the promotion criteria provided
for in this directive and
that have a satisfactory record of conduct, good work ethic, loyalty
and service, be eligible for promotion."
Further article 5.1.4
reads as follows: "Preferential consideration for promotion
shall, in cases of appointment in a vacancy,
be given to members of
the Agency who comply with the job requirements". Nothing in the
reading of articles 5.1.1 and 5.1.4
suggests that 'experience and
loyalty' are the overriding criteria for promotion. For one to be
eligible for promotion one has
to comply with the requirements of the
job and in this case, have matric or a senior certificate.
[11]
I am of the view
that the applicant has not shown cause why an order for her to be
transferred should be granted. It is clear that
the applicant did not
meet the minimum requirements for the position she had applied for in
that she does not have a senior certificate
qualification, a fact
which the applicant does not dispute. In
Pharmaceutical
Manufacturers Association of South Africa and Another: In re Ex parte
President of the Republic of South Africa and
Others
[1]
stated that:
"[86]
The question whether a decision is rationally related to the purpose
for which the power was given calls for an objective
enquiry.
Otherwise a decision that, viewed objectively, is in fact irrational,
might pass muster simply because the person who
took it mistakenly
and in good faith believed it to be rational. Such a conclusion would
place form above substance and undermine
an important constitutional
principle.
[90]
The setting of this standard does not mean that the Courts can or
should substitute their opinions as to what is appropriate
for the
opinions of those in whom the power has been vested. As long as the
purpose sought to be achieved by the exercise of public
power is
within the authority of the functionary, and as long as the
functionary's decision, viewed objectively, is rational, a
Court
cannot interfere with the decision simply because it disagrees with
it or considers that the power was exercised inappropriately.
A
decision that is objectively irrational is likely to be made only
rarely but, if this does occur, a Court has the power to intervene
and set aside the irrational decision."
[12]
I am satisfied that the decision not to transfer the applicant
was rationally taken for the purpose for which it was intended.
Furthermore,
the decision not to transfer her was correctly taken by
the functionary vested with the power to exercise such power.
Deductions
[13]
It is common cause that on February 2009 erroneously deposited
an amount of R71 022.00 into the bank account of the applicant. That
the applicant on discovering the deposit was aware that she was not
entitled to such payment. It appears from the papers before
this
court that on discovering the error, the Division started making
deductions from the applicant's salary in order to recoup
the money
erroneously deposited into the applicant's account. When this was
done the applicant complained in that the deductions
were made
without her consent. On confirmation by its legal department that
they were not entitled in law to make deductions from
the applicant's
salary without her consenting to it, the second respondent ceased
making deductions. An attempt was made to negotiate
the repayment of
the money by requesting the applicant to sign a consent form.
According to the applicant she refused to sign the
consent form
because a different date of the deposit was reflected on the consent
form she was required to sign. The second respondent
has issued
summons to recover the money.
[14]
There is no dispute that the applicant knew that she was not
entitled to the additional funds she found in her account. However,
with this knowledge, she dishonestly dissipated the funds and is
balking at repaying the unjustified payment made to her. I am
puzzled
by the relief the applicant in seeking, particularly as she is aware
that the second respondent is no longer making any
deductions from
her salary. Even if the Department still made deductions, I am of the
view that it cannot be expected of this court
to countenance and
encourage the applicant's dishonest conduct by ordering the
Department to cease making such deductions. Accordingly
I am of the
view that the relief sought in respect of the deductions, ought to be
dismissed.
Setting
aside of the performance assessment
[15]
During the 2010 financial year the second respondent embarked
on a performance assessment of its employees. From the papers filed
of record it would appear that in terms of the process followed, an
employee first does a self assessment and scoring which
will
then be discussed with the immediate supervisor and then referred to
a moderation committee. It would appear that in this
instance the
moderation committee had lowered the scores the applicant had
allocated herself. The applicant did not deal with this
prayer in her
founding affidavit but decided to file a supplementary affidavit. It
is the applicant's contention that her performance
assessment was
unfair. According to the second respondent after the applicant's
performance was moderated and the decision communicated
to her, she
appealed her performance rating but did not pursue the appeal to its
finality as she launched these proceedings.
[16]
Section
7(2) of the Promotion of Administrative Justice Act
[2]
provides that a court cannot entertain a review of an administrative
action unless the applicant has exhausted all available internal
remedies. I am satisfied that the relief sought by the applicant
under this prayer is premature. It is incumbent on the applicant
to
exhaust the internal remedies provided in order to deal with her
assessment complaint before she can come to court on the issue.
I am
therefore of the view that this prayer also ought to be dismissed.
[17]
The only issue remaining for determination is the costs. The
general rule is that a successful litigant is entitled to his or her
costs. There is no reason why the respondents should not be awarded
the costs of this application.
[18]
In the result the following order is made:
'The application is
dismissed with costs.'
MNGQIBISA-THUSI
Judge
of the High Court
Appearances:
For
Applicant:
Adv T Moretlwe
Instructed
by:
Kgokong Nameng Tumagole
For
Respondent: Adv Pio
Instructed
by:
State Attorney
[1]
2000 (2) SA 674 (CC).
[2]
Act 3 of 2000.