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[2015] ZAGPPHC 112
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Mogapi v Minister of Defence and Others (8961/2013) [2015] ZAGPPHC 112 (9 March 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case number:
8961/2013
Date: 9 March 2015
In the matter
between:
ANTHIPUS KAGISO
MOGAPI
.........................................................................................
APPLICANT
And
MINISTER OF
DEFENCE
.................................................................................
FIRST
RESPONDENT
THE CHIEF OF THE
SOUTH AFRICAN DEFENCE
FORCE
..............................................................................................................
SECOND
RESPONDENT
THE CHIEF OF SA
ARMY
..................................................................................
THIRD
DEFENDANT
THE SECRETARY OF
DEFENCE
.................................................................
FOURTH
DEFENDANT
S.W.O.
LEKOKO
....................................................................................................
FIFTH
DEFENDANT
W.02.I.I
VIZINITIN
............................................................................................
SIXTH
RESPONDENT
JUDGMENT
PRETORIUS J.
[1] In this
application the applicant seeks an order that the decision by the
third respondent of 4 June 2012 to terminate the services
of the
applicant as a member of its staff be reviewed and set aside and that
the respondents be ordered to reinstate the applicant
to his position
with the third respondent retrospectively. The court is not requested
to review the decision of the Chief of the
Army not to reinstate the
applicant.
[2] It is common
cause that the applicant, who was a sergeant in the Defence Force,
was absent from work from 2 May 2012 until 18
June 2012 without
permission or consent from his supervisor.
[3] The applicant
was employed as a sergeant and stationed at Air Force Base,
Waterkloof as an apprentice carpenter. There had been
numerous
complaints on 13, 21 and 23 June 2011 that the applicant was absent
without consent.
[4] Ultimately he
appeared in front of a Military Court Judge and was convicted of
being absent from work without permission and
fined an amount of R750
on 6 December 2011. He was absent from work once more on 2 May 2012.
He remained in absence until 18 June
2012.
[5] The provisions
of section 59(3) of the Defence Act, no. 42 of 2002 (“the Act”)
were invoked and the applicant was
administratively discharged from
his duties on 4 June 2014. On 2 November 2012 a Board of Inquiry was
convened in order to investigate
the circumstances of the applicant’s
absence and to decide whether he had supplied good cause for his
absence. The Board
found that the applicant had not submitted a
reasonable explanation for his absence and that he had been absent
for 30 days.
[6] The applicant
had alleged that he was attending a spiritual healer as a result of
problems he had had. He did not attach any
documents to the founding
affidavit from a representative of the church nor from his mother
confirming this version. It was only
in his replying affidavit that
he attached a letter from the traditional healer and an affidavit
from his mother. His mother set
out:
“
During
the month of May 2012 I had a problem with Kagiso being my son. He
indicated he was not feeling well and
that
he is not happy at work
”
(Court’s
emphasis)
[7] According to her
she had phoned Mr Lokoko, on 8 June 2012 to inform him that her son
was not well and that he was at a church
for spiritual healing. Mr
Lekoko visited the church and found that nobody knew the applicant or
knew that he had been there for
more than a month. An affidavit by
the spiritual healer declared that the applicant had been staying at
her place of spiritual
healing from 4 May 2012 until 13 June 2012. It
is trite law that an applicant has to make out its case in the
founding affidavit
and not in the replying affidavit. It is curious
that the applicant’s mother only phoned his division after he
had already
been discharged from the Defence Force. The letter from
the spiritual healer was only faxed after the applicant had been
discharged.
[8] On 7 January
2013 the applicant launched an application that he should be
reinstated to his position as sergeant and that his
salary should be
paid retrospectively. On 26 July 2013 the applicant, assisted by his
attorneys made a written representation to
the third respondent in
terms of
section 59(3)
of the
Defence Act 42 of 2002
, which provides:
“
(
3)
a member of a regular force who absent him or herself from official
duty without permission of his or her Commanding Officer
for a period
of 30 days must be regarded as having being dismissed if he or she is
an officer of another rank, on account of misconduct
with effect from
the day immediately following his or her last day of attendance at
his or her place of duty or last day of his
or her official leave but
the Chief of Defence may on good cause shown, authorise the
reinstatement of such a member on such condition
as he or she may
determine"
[9]
On 25 September 2013 the third respondent responded to the
applicant’s application for reinstatement setting out,
inter
alia
“
2.
In
considering the member’s application for reinstatement into
SANDF, the following were taken into account:
(a) The member
was absent from 2
nd
May 2012 until 18
th
June
2012.
(b)
There
was
no
attempt on the part of the member to comply with SANDF policies and
prescripts regarding his absence from his place of work.
(c) During the
absence of L cpI Mogapi, members of his unit visited the place it was
alleged he was at, however persons at the premises
had not knowledge
of him being there.
(d) On his own
version of events he has admitted that he lied to F SGT Niewenhuis
regarding his reasons for his absence.
(e) The member
was lawfully discharged from the SANDF by operation of law.
3. Based on the
aforementioned this office is of the opinion that good cause was not
shown by the member for his reinstatement into
the SANDF therefore
this application is unsuccessful. ”
[10] On 27 June 2014
the applicant amended his pleadings requesting the current relief of
review of the decision of the second respondent.
The main submission
the applicant tenders is that he was only absent for 29 days as
Saturdays and Sundays should not be included
when calculating the
days he had been absent; and furthermore that the first day of his
absence should be excluded and the last
day included.
[11] On 2 November
2012 a Board of Inquiry was convened in order to investigate the
surrounding circumstances regarding the applicant’s
absence and
found that there was no acceptable explanation for the applicant’s
unauthorised absence. It was recommended that
the administrative
discharge be confirmed. Section 59(3) of the Act provides that a
member must have been absent from official
duty without the consent
or permission of the Commanding Officer for a period of 30 days.
[12] Section 4 of
the Interpretation Act 33 of 1957 provides:
“
Reckoning
of number of days when any particular number of days is prescribed
for doing any act, or for any other purposes, the same
shall be
recant exclusively of the last day, unless the last day happens to
fall on a Sunday or any public holiday, in which case
the time shall
recant exclusively of the first day of exclusively also of every
Sunday or Public holiday”
Nothing is contained
in the provisions of
section 59(3)
of the
Defence Act which
would
suggest that the application of
section 4
would lead to an injustice
justifying a departure from the method prescribed in the
Interpretation Act. This court accepts that
section 4 of the
Interpretation Act applies. The applicant had been absent for 33 days
from 2 May 2012 until 4 June 2012, when
he was discharged.
[13]
Review:
In this case
administrative action was taken on 4 June 2012 when a letter was sent
to the applicant discharging him on account of
misconduct in terms of
section 59(3)
of the
Defence Act. There
was thus nothing to review as
he was discharged after 30 days of absenteeism without permission
from his commanding officer as
provided for in
section 59(3).
It is
clear that neither the third Respondent nor any person under his
command had taken a decision to dismiss the Applicant. The
dismissal
took place by operation of law in terms of
section 59(3)
of the
Defence Act.
>
[14]
In
Minister
van Onderwys en Kultuur en Andere v Louw 1995(4) SA 383 (A)
at
388G-J the court finds:
“
In
casu is die respondent in die afdankingsbrief in kennis gestel dat hy
ontslaan
was.
Dit
was nie die uitvloeisel van 'n diskresionêre besluit nie, maar
slegs 'n mededeling van 'n gevolg wat volgens die appellante
se
beskouing van regsweë ingetree het.
Daardie beskouing
was inderdaad juis. Anders as wat Basson R bevind het, was dit nie in
geskil dat die respondent vir meer as 30
opeenvolgende dae van diens
afwesig was nie, en dat hy nie die nodige toestemming gehad het nie.
”
[15]
The same conclusion was reached in
Mkhwanazi
v Minister of Agriculture and Forestry 1990(4) SA 763 (D and CLD)
at
768 C-G where it was held:
“
The
section in terms of which the respondent acted has already been cited
in full. The South African Public Service Act 111 of 1984
has an
almost identical provision (although cast in slightly different form)
in s 16(5).
As far as I am
aware, neither of these provisions has been the topic of a reported
judgment.
It is significant
that both sections employ the phrase 'absents himself, which clearly
imports an element of volition.
When an employee
has been absent from work for more than a month without leave or
permission the employer is placed in the invidious
position of not
knowing (a) why the employee is absent and (b) how long he will
remain absent.
The section comes
to the employer's rescue by deeming a discharge, so enabling the post
to be filled and the work to continue. ”
This court could
dismiss this application solely on the ground set out in the
abovementioned decisions.
[16] His mother had
phoned a member of the applicant’s unit for the first time on 8
June 2012, according to her. This call
was made 4 days after the
applicant had been discharged by operation of law. She only faxed a
letter from the spiritual healer
on 16 June 2012 - 12 days after the
applicant had been discharged. The court finds that on 4 June 2012
the applicant had already
been absent for a period of 30 days without
good cause.
[17] In this
instance Warrant Officer Vizintin attempted to contact the applicant
to determine the reason for his continuous absence
from work, but
could not do so. Mr Lekoko’s evidence was that he and Warrant
Officer Mampane had gone to the Church and found
that nobody at the
address had ever seen the applicant. The fact that the affidavit from
his mother and the spiritual healer were
only disclosed when the
applicant served the replying affidavit lends much less weight to the
veracity of these statements. The
applicant had failed to make out a
case for reinstatement.
[18] The court finds
that the applicant had failed to demonstrate good cause for his
absenteeism. The decision not to reinstate
the applicant was correct
when all the circumstances are taken into consideration. However, he
was discharged in terms of
section 59(3)
of the
Defence Act on
4 June
2012. There is no decision in this regard to review.
[19] Therefor I make
the following order:
The application
is dismissed with costs.
Judge C Pretorius
Case number:
8961/2013
Application heard
on: 23 February 2015
For the Applicant:
Mr Mkanzi
Instructed by:
MESSRS MKANZI ATTORNEYS
For the Respondent:
Adv D Mtsweni
Instructed by: STATE
ATTORNEY
Date of Judgment: 9
March 2015