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[2015] ZAECBHC 38
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Ngonzo v Member of the Executive Council Department of Education in the Province of the Eastern Cape and Others (606/2014) [2015] ZAECBHC 38 (10 December 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION BHISHO)
CASE
NO: 606/2014
In
the matter between:
MTHUNYWA
LAWRENCE NGONZO
Applicant
and
THE
MEMBER OF THE EXECUTIVE
COUNCIL
DEPARTMENT OF EDUCATION
IN
THE PROVINCE OF THE EASTERN CAPE
First
Respondent
PREMIER
OF THE PROVINCE OF THE
EASTERN
CAPE
Second
Respondent
MR
FUMANI BALOYI
Third
Respondent
MINISTER
OF BASIC EDUCATION
Fourth
Respondent
JUDGMENT
NDZONDO
AJ:
[1]
This is a review application in which the applicant sought an order,
inter alia,
reviewing and setting aside the decision of the
first respondent to institute disciplinary proceedings against him.
Mr Notshe
SC appeared for the applicant whilst Mr Van der Riet
SC appeared for the first and second respondents.
[2]
The applicant is employed by the Department of Education in the
Eastern Cape Province (
the Department
) as the Superintendent
General. It is common cause that he was suspended from duty by
the first respondent on 1 July 2014
and on 20 August 2014 he charged
him with misconduct and appointed the third respondent to conduct a
disciplinary hearing (the
hearing). It is not necessary for
present purposes to set out the particulars of the charges against
the applicant. At
the commencement of the hearing, Mr Notshe
objected to the authority of the first respondent to charge the
applicant with misconduct
and, consequently, the third respondent’s
authority to hold the hearing. The basis of Mr Notshe’s
objection was
that the first respondent was not the applicant’s
employer and submitted that in terms of
section 12(1)(b)
of
the Public Service Act of 1994, (
the Act
) it was the Premier,
the second respondent, who was the applicant’s employer.
[3]
Section 12(1)(a) and (b
) read as follows:
“
Appointment
of heads of department and career incidents:
(1)
Notwithstanding anything to the contrary contained in this
Act, but subject to this section and sections 2 (2B) and 32 (2) (b)
(i),
the appointment and other career incidents of the heads of
department and government component shall be dealt with, in the case
of –
(a)
a head of a national department or national government
component, by the President; and
(b)
a head of the Office of a Premier, provincial department or
provincial government component, by the relevant Premier.
’’
[4]
He also submitted, and the importance of this will emerge later in
this judgment, that if the
first respondent was acting in terms of a
delegated power to charge the applicant with misconduct, he would
abandon the preliminary
point and if not, the hearing could not be
proceeded with. Mr Maimane, the employer’s representative,
asked for an adjournment
so that he could consult with the officials
of
the Department
but before the matter was adjourned, Mr
Notshe asked him to come back with the written delegation, if
available.
[5]
When the proceedings resumed he did not return with it and instead,
he vigorously opposed the
objection on the grounds that, firstly, the
applicant was not employed by the Premier but by the Member of the
Executive Council
for Education and referred the presiding officer to
the contract of employment which, according to him, showed that the
employer
of the applicant was the
Government of the Republic of
South Africa
, represented by Mr Makupula (the present MEC For
Education) in his capacity as executing authority of the Department.
I shall
use the words MEC and first respondent interchangeably
in this judgment.
[6]
However, Mr Notshe drew their attention to the letter appointing the
applicant which reads as
follows:
“
Kindly be
advised that the Premier has approved the appointment of Mr Ngonzo as
the
Head of the Department
of
Education
with effect from the date of his
assumption of duty.”
The letter is addressed
to the MEC and the employment contract is in terms of
section 12
supra.
However, Mr Maimane persisted with his argument
and submitted that the presiding officer should be guided by the
employee’s
contract of employment.
[7]
For the sake of completeness, I must also point that Mr Notshe had
raised the question of mediation
too, as a dispute resolution
mechanism laid down in the service level agreement. I do not
intend to deal with this issue
as I am the view that it is not
relevant for purposes of this judgment. After hearing argument,
the presiding officer dismissed
the point
in limine
and the
matter was then postponed
sine die
so that the applicant could
look at the options available to him and report back in due course.
[8]
A decision was later taken by the applicant that an application for a
review and setting aside
of the first respondent’s decision be
brought before this court and this was communicated to the first and
second respondents
but they decided to proceed with the hearing
and the applicant then launched an application, on a semi-urgent
basis, which consisted
of two parts, namely, Part A in which he
sought
interim
relief, interdicting the first and third
respondents from proceeding with the hearing pending the
determination of the review proceedings
contemplated in Part B, in
which he sought a review and setting aside of the foresaid decision.
[9]
The application was opposed by the first respondent only and he
stated in the answering affidavit
that in his capacity as executing
authority of
the Department
and representing the
Government
of the Republic of South Africa
and as prescribed in terms of
regulation B.2 of part VII of Chapter 1 of the Public Service
Regulations published in Government
Gazette 21951 of 5 January 2001,
he had concluded a contract of employment with the applicant in his
capacity as Head of Department
and accounting officer for the
Department. Furthermore, in his capacity as executing authority
of the Department he had concluded
a senior management performance
agreement with the applicant in his capacity as Head of Department.
[10]
He then went on to refer to the relevant provisions of the SMS
handbook issued in terms of the Act and its
Regulations to justify
the decision that he had taken to bring the applicant before the
disciplinary hearing and consequently,
so he submitted, the applicant
was not entitled to the
interim
and final relief sought by
him. It is common cause that he did not act on a delegated
power for his decision. In fact
he made it clear in paragraph
28 of his affidavit that there was no need for the second respondent
to delegate powers to him to
discipline the applicant because he had
the power to do so.
[11]
Part A was argued before the Honorable Acting Deputy Judge President
D Van Zyl who came to the conclusion
that the first respondent
was not the employer of the applicant in terms of
section 12(1)
and consequently he did not have the power to discipline the
applicant and accordingly granted the
interim
order and the
costs of the application were reserved for determination by the court
hearing the application in Part B.
[12]
However, in the opposing affidavit in the review application (which
was now opposed by both the first and
second respondents), the first
respondent made a
volte-face
and not only admitted that
the power to institute the disciplinary enquiry against the applicant
vested in the Premier in terms
of
section 12
but raised a new
defense to say that his authority to do so was authorized by a
written delegation of power (the written delegation)
issued by the
second respondent and dated 21 June 2014 (“MMU’’)
which reads as follows:
“
CLARIFICATION
OF DELEGATION OF THE POWER TO MANAGE AND DEAL WITH CAREER INCIDENTS
IN TERMS OF SECTION 12 OF THE PUBLIC SERVICE ACT
You will recall
that I delegated the power to manage and deal with career incidents
of Heads of department as part of the framework
of delegations at the
commencement of the term, but the appointment, transfer, amendment of
employment contract, and termination
of employment was not delegated.
Certain elements in
the public service are now questioning whether the power to
discipline and to suspend a Head of department is
included in the
delegation mentioned above.
In order to clarify
this position, I wish to state categorically that it has always been
my intention, and part of the practice,
that the delegation “to
manage and deal with career incidents” of Head of department
includes the power to institute
disciplinary proceedings and to
suspend a head of department pending a disciplinary hearing is
included in the original delegation,
and I hereby confirm such
delegation.
As far as the
undelegated “termination of employment is concerned”, I
wish to state that this refers to the act of giving
effect to a
sanction after the chairperson of a disciplinary hearing
pronounced a sanction of a Head of department found
guilty of
misconduct as envisaged in section 15B(1)of the Public Service Act”
[13]
He also referred to a letter dated 15 December 2014 (“MM4”)
from the second respondent which,
according to him, clarified that
the power to discipline the applicant had been delegated to him,
contents whereof are as follows:
“
ASSIGNMENT
AND DELEGATION, POWERS AND FUCTION
In order to promote
the operational effectiveness and efficiency of Provincial Government
I am assigning and delegating authority,
powers and duties aimed at
empowering the Executive Council and the Members of the Executive
Council to perform their duties effectively.
Section 133 of the
Constitution provides that the members of the Executive Council of a
province are responsible for the function
of the executive assigned
to them by the Premier. Section 238 of the Constitution
provides that an executive organ of state
in any sphere of government
may delegate any power or function that is to be exercised or
performed in terms of legislation to
any other executive organ of
state, provided that the delegation is consistent with the
legislation in terms of which the power
is exercised or the function
is performed.
The authority,
powers and functions contained in the Framework of Assignment and
Delegation are therefore assigned and delegated
to you subjected to
the conditions set out therein. I wish you well with the
performance of your powers and functions.
”
[14]
He changed his standpoint after the judgment of the Honorable Van Zyl
ADJP. In fact Mr Van der Riet
conceded that the failure to rely
on the delegated power was an error due to a
bona fide
misunderstanding based on legal advice. This is not convincing
as I intend to show hereunder.
[15]
First, when the hearing commenced on 29 September 2014, the written
delegation had already been assigned
to the MEC and it boggles one’s
mind as to why Mr Maimane did not rely on it when the point
in
limine
was raised challenging the authority of the first
respondent to institute the disciplinary proceedings against the
applicant. As
stated
supra,
he was also called upon to
produce it after he had sought an adjournment to consult the relevant
officials of the department. He
did not do so, but still
insisted on his earlier argument, namely, that the power to
discipline the applicant vested in the MEC.
He was obviously
wrong in this regard.
[16]
Second, Mr Leukes of the National Department of Education also filed
a supporting affidavit alleging that
the first respondent was
entitled to discipline the applicant. Moreover, the second
respondent, who had purportedly delegated
the power to the first
respondent to do so, did not file any opposing affidavit in the
application for
interim
relief but when opposing the review
application, neither of them ever alluded to the allegation that this
was due to an error or
a misunderstanding.
[17]
Third, in Part 2 of the notice of motion, the first and third
respondents were called upon to dispatch to
the Registrar the record
of the proceedings sought to be set aside, together with such reasons
as they were required by law to
give or make and to notify the
applicant that they had done so. Again one would have expected
them to have furnished the
applicant’s attorneys with the
written delegation and if they had done so, the probabilities are
that the applicant would
have abandoned the review.
[18]
Fourth, if one has regard to ANNEXURE “MM5”, one gets the
impression that some officials in the
public service including the
Heads of Departments had some doubts as to whether the power to
discipline /or suspend a Head of Department
was included in ANNEXURE
“MM4” and the second respondent had to clarify this.
Although he refers to “
certain elements’’
in
the letter, it is not addressed to these “
elements”
but is forwarded specifically to the first respondent and this is
done after the court judgment referred to above. In view
of my
conclusions below, I do not intend to make a finding on whether the
written delegation gave the Heads of Departments such
powers. In
any case this is not an issue that I am called upon to determine in
this matter.
[19]
The unavoidable conclusion is that the first respondent was either
not aware of the existence of the written
delegation at the time of
the disciplinary hearing and also at the time that he had to oppose
the semi-urgent application and felt
constrained to approach the
Premier for clarification on this issue after the aforesaid judgment
hence the turn-around on his part
in the review proceedings, or if he
was aware thereof, he did not know whether or not it gave him the
power to discipline the applicant.
Regrettably, neither of the
respondents has explained why the written delegation was never
furnished to the applicant’s counsel
when he requested it or
why it was not used to oppose the urgent relief.
[20]
I have no doubt that the second respondent could delegate this power
and the question that arises is why
the first respondent did not rely
thereon if he knew about it and rely on a statutory provision both in
the answering affidavit
and heads of argument, which on a proper
reading thereof, did not confer on him the power that he was
convinced that he had. He
purported to exercise an original
power which he did not have and his interpretation of the provisions
of
section 12(1)
was found to be flawed by the court and his
reliance thereon for his decision was consequently misplaced.
His decision was
therefore materially influenced by an error of law
which renders the decision taken reviewable in terms Section 6 of the
Promotion
of the Administrative Justice Act 3 of 2000 the relevant
provisions of which read as follows:
“
Judicial
review of administrative action:
(1)
Any person may institute proceedings in a court or a tribunal for the
judicial review of an administrative
action.
(2)
A court or tribunal has the power to judicially review an
administrative action if-
(d) the action was
materially influenced by an error of law”.
[21]
The second respondent’s affidavit does not take the matter any
further. Although he says in his affidavit
that before the first
respondent decided to institute disciplinary proceedings against the
applicant, he had applied his mind fully
to the matter and had
conveyed to the first respondent that he had approved the institution
of disciplinary proceedings against
him, this does not find support
in the second respondent’s affidavit. If he had applied
his mind to what was taking
place, his failure to file an opposing
affidavit in the semi-urgent application without explanation raises
more questions than
answers.
[22]
I am satisfied that this is a reviewable irregularity and the
applicant has made out a case for the relief
that he seeks in Part 2
of the notice of motion. Mr Notshe had sought a punitive
costs order against the respondents.
I do not think that in all the
circumstances herein that order would be justified.
[23]
In the premises, and for reasons set out above, I make an order in
the following terms:
(a)
The decision of the first respondent to institute disciplinary
proceedings against the applicant is hereby reviewed and set aside.
(b)
The first respondent is ordered to pay the reserved costs of
the applicant’s application for interim relief.
(c)
The first and second respondents are ordered to pay the costs
of this application jointly and severally, the one paying the other
to absolved.
M
G NDZONDO
ACTING
JUDGE OF THE HIGH COURT – BHISHO
For
the Applicant:
Adv S
V Notshe (SC)
Instructed
by:
Dyushu
Majebe Attorneys
Office
Suite 2
4 Kew
Road
VINCENT,EAST
LONDON
(Ref:
Majebe /MAT 062)
For
the Respondents:
Adv J
G Van der Riet (SC)
Maimane
Inc.
C/o
Russell Inc.
10
Rochester Road
VINCENT,
EAST LONDON
(Ref:
Mrs B D Beetge)
Matter
heard on: 08
October 2015
Judgment
Delivered on: 10 December 2015