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[2014] ZAGPPHC 72
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Snyman and Others v Minister of Defence and Another (46670/70/08, 46671/08, 46672/08) [2014] ZAGPPHC 72 (28 February 2014)
IN THE HIGH COURT
OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA
CASE
NO'S: 46670/08 46671/08 46672/08
DATE:
28 FEBRUARY 2014
In the matters
between:
ANTHONY J L
SNYMAN
.................................................................
Applicant-
Case No 46670/08
THEUNIS JACOBUS
VAN NIEKERK
...........................................
Applicant-
Case No 46671/08
PIERRE
RAUTENBACH
.................................................................
Applicant-Case
No 46672/08
And
THE MINISTER OF
DEFENCE
........................................................................
First
Respondent
CHIEF OF THE
NAVY
.....................................................................................
Second
Respondent
JUDGMENT
BAM J
1. The three
applicants, at the relevant time, were employees of the South African
Defence Force "SANDF". More specifically
they were employed
in the South African Navy. This judgment deals with review
applications instituted by the three applicants .
2. The respondents
are cited in their respective capacities as head of the SANDF and
head of the South African Navy.
3. The above
mentioned applications are of a similar nature. Although the
individual personal circumstances of the three applicants
differ, all
three applications are in principle based on the same grounds. The
real issues in dispute are identical. For this reason
I deemed it
expedient to deal with all three applications in one judgment. The
legal representatives, respectively Mr Bouwer for
the applicants, and
Mr Pio for the respondents, were ad idem in that regard.
4. The three
applicants applied for termination of their service in the SANDF in
terms of the Mobility/Exit Mechanism {"MEM").
This
mechanism was established to provide for a member of the SANDF to
apply to the "Approval Authority", (by definition
the first
respondent subject to the recommendation of the Chief of the SANDF)
for a voluntary exit from the SANDF.
5. On behalf of the
applicants it is submitted that the decision to refuse their
applications was procedurally unfair, that it was
taken arbitrarily
and that it was not rationally connected to the information before
the respondents, hence this review application
to set aside the said
decision and to order the "respondent" to approve their
applications for retirement.
6. It was contended
by Mr Bouwer that the applicants' rights in law to lodge this review
application, are based on the following:
(i) Section 23 of
the Constitution (The right to fair labor practices);
(ii) Section 33 of
the Constitution (the right to fair administrative action);
(iii) Promotion of
Administrative Justice Act No 3 of 2000 ("PAJA");
(iv) Common Law
grounds for review; and
(v) The Court's
inherent review jurisdiction.
7. The respondents
opposed the applications and raised a point in limine, contending
that PAJA is not applicable and that the applicants
could therefore
not rely on the provisions of that act. In view of the fact that the
applicants are basing their right to bring
this application also on
several other constitutional grounds, I deem it expedient, at this
point, to say the following:
(i) As far as the
applicants' basis for their applications involves the provisions of
PAJA, the situation in law was specifically
ruled upon by the
Concourt. Any reliance on PAJA in matters like these in hand, was
ruled out in terms of the dictum in Chirwa
v Transnet Ltd and Others
2008(4) SA 367 (CC) paras [142] and [150],
(ii) ln regards to
reviews based on Common Law grounds, it was stated in Pharmaceutical
Manufacturers Association o/S A and Others:
In re Ex parte President
of the Republic of South Africa and Others 2000(2) SA 674 CC, pars
[33] to [44], that the control of public
power by courts through
judicial review is a constitutional matter and is regulated by the
Constitution, the supreme law, which
contains express provisions in
this regard. The common law principles pertaining to reviews have
been subsumed under the Constitution.
8. It follows that
the applicants are in law entitled to base their review applications
solely on the aforesaid provisions of the
Constitution. Sections 23
and 33 of the Constitution, referred to by the applicants,
respectively provide for the right to fair
labour practices and just
administrative action.
9. It is common
cause that since the lodging of this application two of the
applicants, Mr Snyman (applicant - case 46670/08), and
Mr van Niekerk
(applicant- case 46671) have resigned from the Navy. On that point,
regarding the issue of locus standi, the said
two applicants base
their case on the principles of constructive dismissal. They aver
that they were in the circumstances forced
to resign. The respondents
on the other hand contended that the said two applicants voluntarily
resigned.
10. A further point
taken by the respondents is that the applications were not considered
by the first respondent or the Chief of
the SANDF because it did not
come to their attention at all. The decision to refuse the
applications was taken at a lower level
by Rear Admiral PT Duze, at
the Fleet Human Resources Directorate, which apparently fell under
the command of the second respondent.
11. The overriding
purpose of the MEM, which provides for members of the SANDF "to
initiate a voluntary exit from the organization",
is officially
set out and explained by the Department of Defence in a document
dated 11 July 2005, annexed to each application,
and includes the
following:
"12. The intent
with the MEM is to make tangible progress in right sizing the HR
("human recourse) composition of the
SANDF through a process of
realistic succession planning but at the same time, to guard against
an exodus of scarce skills and
specialist knowledge. The process
intends to advise Regular Force members of their future career
prospects as informed by transformation
and restricting imperatives
and as guided by the DOD policy on Rank/Age requirements." and
"13. The
initiative with respect to the application of the MEM measures lies
primarily with the Services and Divisions who
shall conduct realistic
succession planning in collaboration with the Career Managers of the
respective groupings of personnel
at all levels of the organization.
At the same time, members who are not contractually bound by their
service system contracts
in the SANDF and who perceive that they have
reached a plateau in their military careers, may indicate their
interest in the MEM
option to their Career Managers and/or Service or
Division Chiefs."
12. In considering
any application in terms of the MEM the following guidelines were
made obligatory:
"16....
a. Is the functional
group/ mustering affected, constrained by critical shortages?
b. What is the
status of training and education in the functional groups/musterings
concerned and what is the relevant learner throughput?
c. Will such
succession planning ensure the maintenance of operational,
administrative, training, logistical, technical upkeep,
planning and
ceremonial/disciplinary expertise within the particular structure of
the DOD/SANDF?
d. Will such
planning contribute towards the medium to long-term rightsizing of
the SANDF HR composition at the particular rank/age
level?
e. Does the planning
contribute towards demographic equity at all rank levels in the
SANDF?
f. When does the
members' service contract expire and is a subsequent service contract
justified within the context of the preceding
guidelines."
"17. In the
case of officers in the rank groupings Colonel and higher, realistic
succession planning and placements shall include
the recommendation
of the Chief HR Support (DMPU). In the case of the rank groupings
Lieutenant Colonel and below serving at Corporate
Divisions,
supervisors shall apply these guidelines by liaising with Service
Career Managers while at the same time, keeping Chief
HR Support
(DMPU) duly informed".
13. It is clear that
although members of the SANDF are entitled to apply for voluntary
retrenchment, in terms of the provisions
of the MEM, in specific
circumstances, such applications are subject to several conditions
and considerations, alluded to above.
14. The respondent's
argument that the second respondent had no authority to make valid
recommendations to the first respondent
and that the applicants, once
their applications were dismissed by the second respondent, should
have approached the Chief of the
SANDF, is without substance. The
second respondent must have realized that he, nor any deligated
officer under his command, was
authorized to refuse the applications
without referring it to the Chief of the SANDF. From the prescribed
MEM procedure it is clear
that the Chief of the SANDF was the
responsible entity, in the event of the application justifying
approval, to make the required
recommendation to the first
respondent. The flip side of the coin is that in the event of the
Chief of the SANDF not being prepared
to make such a recommendation,
he/she would have been entitled to refuse it. If that would have
happened the applicant's would
probably have instituted review
proceedings against that entity.
15. The applicants
did not direct their respective applications in terms of the
provisions of the MEM to the Chief of the SANDF.
What appears to be
clear, and not disputed, is that the first respondent and the Chief
of the SANDF were not aware of the applications
and did accordingly
not entertain or consider the applications . In view of the clear
prescriptive procedures in terms of the MEM,
in regards to the duties
and obligations of the first respondent and the Chief of the SANDF,
neither can be held vicariously liable
for the conduct of an officer
under the direct command of the second respondent. In my view the
first respondent can therefore
not be presumed to have considered and
refused MEM applications in question.
16. The fact that
the officer who refused the applications allegedly considered the
merits of the applications, and eventually found
it not meritorious,
is irrelevant. His refusal of the applications, without the first
respondent's decision in that regard, is
null and void. He had no
authority in terms of the MEM to refuse the applications. That is
clearly where the matter, in so far
it concerned the SANDF, stopped
and came to a dead end.
17. The question who
should be blamed for the fact that the applications were not
considered, or even forwarded to the Chief of
the SANDF, or even
brought to his attention or that of the first respondent, is, in my
view, totally irrelevant as far as the merits
of the applications are
concerned.
18. The submission
advanced on behalf of the applicants that the second respondent
should be held liable for not having forwarded
the applications to
the Chief of the SANDF seems to be sound. That procedure would have
accorded with the procedure envisaged by
the MEM. There was no
indication in the answering papers that the second respondent, or a
member of his staff, had the authority
to refuse the applications.
The SANDF created the MEM and was therefore obliged to adhere to the
prescribed procedure. That was
not done, to the prejudice of the
applicants.
19. In view of the
fact that the Chief of the SANDF and the first respondent did not
consider or make any decision in regards to
the applications in
question, there is no decision of the first respondent to be
reviewed.
20. The respondents'
contention that the applicants themselves should have "escalated"
the applications to the Chief of
the SANDF for a possible
recommendation, is clearly a matter of the respondents shifting the
blame. The second respondent, in my
view, as alluded to above, was
obliged to refer the applications to the Chief of the SANDF. It
follows that a proper consideration
of the applicants' application by
the correct entities was frustrated by the conduct of the second
respondent's staff member. This
surely affects the costs issue. The
applicants were undoubtly prejudiced by the conduct of the second
respondent staff member.
This, in my opinion even calls for a
punitive costs order.
21. In view of my
finding it will serve no purpose to consider the merits or de-merits
of the applicants' applications in terms
of MEM, or even the grounds
for the refusal of the applications. It will further serve no purpose
to consider the issue why the
first and second applicants resigned
and whether the principle of constructive dismissal applies.
22. I accordingly
make the following order.
Order
1. The three
applications for review in cases numbers 46670/08, 46671/08 and
46672/08 are dismissed.
2. The second
respondent is ordered to refer the applications of the three
applicants in terms of the provisions of MEM to the Chief
of the
SANDF within 10 days from the date of this order.
3. The first
respondent is ordered to issue a directive to the Chief of the SANDF
to consider the mentioned applications of the
three applicants within
20 days of this order and to furnish the applicants with his
decision, and his reasons therefore, within
10 days thereafter.
4. The respondents
are ordered to pay the applicants' costs on an attorney and client
scale.
A J BAM
JUDGE OF THE HIGH
COURT