About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2014
>>
[2014] ZAFSHC 186
|
|
Mphelo v Minister of Defence and Another (4190/2014) [2014] ZAFSHC 186 (16 October 2014)
IN THE HIGH
COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No: 4190/2014
In
the matter between:-
VUYELWA
MPHELO
…..........................................................................................................
Applicant
and
THE
MINISTER OF DEFENCE
…................................................................................
1
st
Respondent
OFFICER
COMMANDING, AIR FORCE BASE,
BLOEMSPRUIT
….........................................................................................................
2
nd
Respondent
JUDGMENT
BY:
TSATSI,
AJ
HEARD
ON:
16
SEPTEMBER 2014
DELIVERED
ON:
16
OCTOBER 2014
INTRODUCTION
[1]
This is an opposed urgent application for an interdict. The applicant
brought this application on an urgent basis in order to
secure a stay
of execution of a sentence imposed on the applicant by the Court of
Military Appeal. The respondents opposed the
application. The matter
was heard on 16 September 2014. I delivered a ruling on that day
dismissing the application with costs.
I was subsequently requested
to provide reasons of my ruling. These are those reasons.
[2]
The applicant sought an order in the following terms:
2.1 Non-compliance
with the Uniform Rules of Court relating to forms, service and time
period are condoned and the matter is heard
as an urgent application.
2.2 Non-compliance
with the provisions of section 35 of the General Law Amendment Act 62
of 1955 as condoned.
2.3 That the
Honourable Court will grant a rule
nisi
which calls upon the
first and/or second respondents to give reasons, if any, on 6
November 2014 at 9H30 why the following orders
will not be granted.
2.4 The first
respondent and or the second respondent is/are ordered and/or
directed to stay the execution of the sentence imposed
on the
applicant, namely of “Dismissal from the South African National
Defence Force” issues by the court of a senior
Military Judge
on 21 February 2014, under case number 37/2014 Bloemfontein, and
upheld by the court of Military Appeals CMA28/2014,
pending
finalisation of this application.
2.5 The order in the
aforementioned paragraph 2.4 serves as an interim interdict with
immediate effect pending finalisation of litigation
to be instituted
by the applicant against the first and/or second respondent.
2.6 The first
respondent to be ordered to pay the costs of this application.
2.7
The second respondent be ordered to pay the costs of this
application, if opposed.
[3]
The applicant intended lodging a review application. The said review
application was not before me.
FACTS
[4]
The applicant was employed as the corporate communications officer,
with the military rank of major, at the Air Force Base Bloemspruit,
in the employ of the first respondent, Bloemfontein
[5]
The applicant was instructed by the then officer Commanding Air Force
Base, Bloemspruit Colonel Opperman, to conduct a board
of enquiry
into certain internal matters. She was appointed as the
president of the board of enquiry. WO1 Martin and
WO2 Louw were
appointed as members.
[6]
On 1 September 2009, both WO1 Martin and WO2 Louw, together with the
applicant travelled to Cape Town to interview witnesses
and obtain
statements from them. They were booked at Sonskyn Guesthouse by
Sergeant U I Johnson, who was responsible for
the administration of
all subsistence and transport allowance and claims at Air Force Base,
Bloemfontein.
[7]
The applicant and her two colleagues were meant to book accommodation
at Sonskyn Guesthouse, from 1 September to 3 September
2009.
Air Force Base, Bloemspruit gave the applicant a cash advance to
enable her to pay for all the necessary expenses.
In addition an
amount of R1 500, 00 was advanced to the applicant as payment of
accommodation at Sonskyn Guesthouse.
[8]
It is common cause that the applicant slept at Sonskyn Guesthouse,
only the first night, which was 1 September 2009.
8.2 The remaining
two days, 2
nd
and 3
rd
September 2009 the
applicant slept at her mother’s house.
[9]
According to the applicant, she gave WO1 Martin an amount of R1 500,
00 in cash in an envelope to pay for her accommodation
in advance.
When the applicant enquired about the receipt from WO1 Martin, he
assured the applicant that everything was in
order.
[10]
On 7 September 2009, the applicant was provided with subsistence and
transport allowance form for signature. The document was
completed by
the subsistence and transport clerk, Sergeant Johnson. The applicant
signed the document as she was satisfied that
the information thereon
was correct.
[11]
On 17 November 2009, Wo1 Martin requested the applicant to complete
another set of forms regarding the trip to Cape Town.
These
documents reflected the period used for accommodation from 1 to 4
September 2009. Sergeant Johnson explained to the
applicant
that the previous document was incorrect and the amount which was
advanced to the applicant to pay for all the expenses
had been
deducted from the applicant’s salary. The applicant
filled in the second set of subsistence and allowance
documents
simply to have the amount deducted from her salary paid back.
The said amount that was deducted from the applicant’s
salary
was paid back after the applicant’s signed the second set of
subsistence and allowance documents.
[12]
On 20 April 2012, Sergeant Mokhele at the Military Police informed
the applicant about a complaint of fraud lodged against
the
applicant. The latter, WO1 Martin and WO2 Louw were charged
with fraud on 29 July 2013. They pleaded not guilty
to the
charges. A preliminary investigation was conducted by LEGSATO
Bloemfontein. LIPCO provided the applicant with
a legal
representative by the name of Mr Botha. After consultation with
the said Mr Botha, the matter was enrolled to be
heard by a court of
a Senior Military Judge in Bloemfontein on 25 November 2013.
[13]
WO1 Martin, WO2 Louw and the applicant were charged with common law
fraud, namely
“
On
or about the 7
th
of September 2009 and at or near Bloemspruit, the said accused
unlawfully and intentionally with the intention to defraud, made
a
misrepresentation to the SANDF that they were entitled to claim for
accommodation at Sonskyn Guesthouse for the period of 1 –
4
September 2009 and through the said misrepresentation moved the SANDF
to pay out this claim while in truth and in fact the said
accused
knew that they were only entitled to claim for one night’s
accommodation namely the 1
st
of September 2009. The total loss to the state was R2 600,
00.”
[14]
In the alternative to the above mentioned charge, the applicant and
two others were charged with contravening section 46 of
the Military
Disciplinary Code “MDC”) named that:
“
On
or about the 7
th
of September 2009 and at or near Bloemspruit the said accused
unlawfully and negligently by act or omission caused actual or
potential
prejudice to good order and militants discipline in that
they were entitled to claim for accommodation at Sonskyn Guesthouse
for
the period of 1 – 4 September 2009 and through the said
misrepresentation moved the SANDF to pay out this claim while in
truth and in fact the said accused knew that they were only entitled
to claim for the night’s accommodation namely the 1
st
September 2009 and thereby the said accused caused actual or
potential prejudice to the SANDF. The total loss to the state
was R2 600, 00.”
[15]
During the military trial, the applicant’s legal representative
advised her not to testify as this would “open
a can of
worms”. The applicant was allegedly advised to close her
case without testifying. On 21 February 2014,
WO1 Martin and
WO2 Louw and the applicant were found guilty of common law fraud and
not guilty of the alternative charge.
The applicant was
dismissed from her position of corporate communications officer with
the military rank of major, at the Air Force
Base Bloemspruit,
Bloemfontein.
[16]
The applicant appealed the guilt finding to the Court of Military
Appeals, and she was represented by Captain Litabe. On 14
August 2014
the finding and sentence of the court of a Senior Military Judge was
upheld. Captain Litabe was allegedly not
present to address the
court of Military Appeals on behalf of the applicant. Captain Litabe
made written submissions on behalf
of the applicant to the Court of
Military Appeals.
ISSUES
[17]
The main issue in this application is to order the stay of execution
of the sentence imposed on the applicant pending the finalisation
of
the application for review of the court of Military Appeals.
SUBMISSIONS
[18]
A submission was made on behalf of the applicant that first
respondent be ordered to stay execution of the sentence, as she
was
ordered to vacate her post on 16 September 2014. If the applicant had
to vacate her post, it was not known when the review
application will
be heard and finalized. The first respondent will not suffer
any prejudice if the applicant was kept on
her post. The
applicant did not have an alternative relief. Counsel for the
applicant argued that the applicant has reasonable
prospect of
success with regard to the review application (
Zulu
v Minister of Defence and Others
(28410/04) (2005) SAGPHC. Counsel for the applicant further
submitted that the applicant did not have adequate legal
representation
at the Military Court. There were no submissions
made on behalf of the applicant at the Court of Military Appeals.
[19]
Counsel for the respondent argued that written submissions were made
on behalf of the applicant to the Court of Military Appeals.
The applicant was convicted of a serious offence of common law
fraud. The applicant was given an advance cash payment of
R1 500, 00 for accommodation. She stayed for one night
only. She did not inform South African National Defence
Force
that she only stayed for one night, and paid only R500, 00. She
should have paid back R1 000, 00 that she was
given.
Failure to pay back the R1 000, 00 and to disclose the true
facts was in itself fraudulent. Counsel for the respondent
referred
the court to invoice number 30, attached to the court papers on page
65. There are discrepancies between the original
invoice and
carbon copy invoice. The original invoice indicated that an amount of
R1 300, 00 was paid for three people. It
has been
indicated in the papers that the R1 300, 00 was for payment of
R400, 00 each for WO1 Martin and WO2 Louw. The
remaining R500,
00 from the R1 300, 00 was for the applicant’s
accommodation. It appeared on the invoice that
check in was on
1/9/2009 and check out was on 4/9/2009. Below the same invoice
an amount of R3 900, 00 was written which
seemed to be for
accommodation for three days. The information on invoice number 30,
was the same as information on the carbon
copy. The only difference
between the two invoices was that at the bottom of the carbon copy
there was additional information which
read as follows: “
Kontant
R1 300, 00 1 nag”.
THE
LAW
[20]
Section 35 of the General Law Amendment Act no 62 of 1955 provides
that:
“
Notwithstanding
anything to the contrary contained in any law, no court shall issue
any
rule nisi
operating as an interim interdict against the Government of the Union
… unless notice of the intention to apply for such
a rule,
accompanied by copies of the petition and of the affidavits which are
intended to be used in support of the application,
was served upon
the Government … at least seventy two hours, or such lesser
period as the court may in all the circumstances
of the case consider
reasonable, before the time mentioned in the notice for the hearing
of the application.”
[21]
It is trite that the requirements of an interim interdict are as
follows:
21.1
The applicant must show a
prima facie
right, an injury actually committed or reasonably apprehended, the
absence of similar protection by any other ordinary remedy and
the
balance of convenience in favour of granting the interim relief
(
Joubert NNO and Others v Maranda
Mining Company (Pty) Ltd and Others
(2010) 2 All SA 67
(GNP) para 26).
[22]
According to Schedule 8 of Labour Relations Act 66 of 1995, (LRA,
the Act)
“
any
person who is determining whether a dismissal for misconduct is
unfair should consider -
(a) whether or not the employee
contravened a rule or standard regulating conduct in, or of relevance
to, the workplace; and (b)
if a rule or standard was
contravened, whether or not-
(i)
the rule was a valid or reasonable rule or
standard;
(ii)
the employee was aware, or could reasonably
be expected to have been aware, of the rule or standard;
(iii)
the rule or standard has been consistently
applied by the employer; and
(iv)
dismissal was an appropriate sanction for
the contravention of the rule or standard.”
[23]
In
Overstrand Municipality v Magerman
NO and Another
(186/2013) (2014) 35
ILJ1366 (LC) the Chief Law Enforcement and Security official was
among other charges, charged with fraud.
In mitigation the
chairperson took into account the following factors:
21.1 A clean
disciplinary record over 17 years;
21.2 The fact that
the employee was appointed as head of legal enforcement in 2009.
21.3 That his
performance was good.
21.4
That the charges were not connected to his duties.
[24]
The court in
Overstrand
(supra)
said the following:
“…
I
fail to understand how the fact that the employee had been appointed
as the head of legal enforcement in 2009 could be a mitigating
factor. If anything, that should have been aggravating.”
“
Given
the seriousness of the misconduct and the position of the employee as
chief of law enforcement, the sanction imposed by the
chairperson was
irrational and unreasonable … The mitigating factors
that he took into account do not remove the operational
need of the
municipality to ensure that senior officials in those positions are
exemplary in their conduct and can be trusted by
the municipality and
the public … If the employee were to remain in the
employ of the municipality, it would be failing
in its duties to its
ratepayers.”
24.1
In
Overstrand
(supra)
case, the court ordered a sanction of summary dismissal of the
employee.
[25]
Theft and fraud have always constituted good grounds for dismissal as
they frequently constituted a fundamental breach of the
employment
contract. The cases have, in the past emphasised, the breach of
the relationship of trust that occurs where an
employee is guilty of
such a misdemeanour (
Toyota SA Motors
(Pty) Ltd v Radebe and Others
(2000) 3 BLLR 243
(LAC). The court held as follows in
Toyota
South Africa
(
supra)
:
“
Although
a long period of service as employee will finally be a mitigating
factor where such an employee is guilty of misconduct,
the point must
be made that there are certain acts of misconduct which are of such a
serious nature that no length of service can
save an employee who is
guilty of them from dismissal. To my mind one such serious act
of misconduct is gross dishonesty.”
[26]
Zondo AJP, as he then was, quoted
Toyota
South Africa
(
supra)
in
De Beers Consolidated Mines (Pty)
Ltd v Commission for Conciliation, Mediation and Arbitration and
Others
(JA68/99) (2000) XALAC 10 (3
March 2000) and said:
“
I
am not saying that there can be no sufficient mitigating factors in
cases of dishonesty, nor am I saying dismissal is always an
appropriate sanction for misconduct involving dishonesty. In my
judgment the moment dishonesty is accepted in a particular
case as
being of such a serious degree as to be described as gross, then
dismissal
inter alia
,
an appropriate and fair sanction.”
26.1
It was stated in
S v Tyers
1997 (1) SACR 261 (NC) at 267 g-h
t
hat a
morally unacceptable motive is aggravating especially where the fraud
and theft is motivated by greed or not explanation at
all (see
Piater
v S
(743 /13)
[2014] ZASCA 134
25
September 2014).
APPLICATION
OF THE LAW
[27]
The applicant failed to comply with the provisions of section 35 of
the General Law Amendment Act in that she brought this
application
less than 72 hours, under the auspices of urgency. The question
arises whether it would be proper to condone
non-compliance. I
am inclined to condone non-compliance as I am of the view that the
respondents will not be greatly prejudiced
by this decision.
[28]
The requirements for the grant of an interim interdict are trite.
The applicant alleged in her founding affidavit that
she has a
prima
facie
right on the probabilities to
succeed in an application for review application to have the finding
and sentence of the Court of
Military Appeal set aside. The
applicant further stated in her founding affidavit that she has a
prima facie
right not to be dismissed pending the finalization of the review
application. The applicant did not establish a
prima
facie
right, which was proof of facts
which established a right in terms of substantive law. In
Setlogelo
v Setlogelo
1914
AD 221
at 227, Innes JA referred to a right which
“
though
prima facie established is open to some doubt”. It was held in
two cases reported that this phrase indicated that the
court must
take into account the allegations made by both the applicant and the
respondent in deciding whether a
prima
facie
right has been established. It is
not sufficient that the applicant has in affidavits, taken alone made
out a prima
facie
case (see
Webster v Mitchell
1948 (1) SA 1186
(W) at 1189;
Ndauti
v Kgami
1948
(3) SA (W) at 35 – 36). The right asserted by the applicant in
this case, is the right to order stay of execution of
the sentence
imposed on her by the employer.
[29]
It is not sufficient for the applicant simply to allege irreparable
harm. The facts that establish an actual or well-grounded
apprehension of irreparable loss if no interdict is granted must be
set out (
Stern & Ruskin NO v Appleson
1951
(3) SA 800
(W) at 813 B). In
casu,
I am of the view that
the applicant did not lay out sufficient facts that form the basis of
her allegation that she will suffer
irreparable harm if the interim
interdict was not granted.
[30]
The applicant for an interim interdict must establish that there was
no other alternative remedy available. The alternative
remedy
available must satisfy the following requirements, be adequate
in the circumstance, be ordinary and reasonable, be
a legal remedy,
grant similar protection (Per Friedman AJP in
Minister
of Law and Order v Committee of the Church Summit
(1994) (3) SA 89
(B) at 99).
[31]
Regarding the balance of convenience the Court had to weigh up the
likely prejudice to the applicant if the interim interdict
was not
granted and later shown to have been wrong against the likely
prejudice to the respondents if the interim interdict was
granted and
the grant of the said interim interdict was shown to have been wrong.
I am not convinced that the balance of convenience
favoured the
applicant. In this regard the applicant blamed her lawyers who
represented her. It seems as if the applicant
did not want to
take any responsibility for any part in the whole process.
First she blamed her colleagues and then her legal
representatives.
In
Mkhize v First National Bank and Another
(1998) 11
BLLR 1141
CLC, the court held that there was a limit to the extent to
which an applicant would blame the negligence of her legal
representatives.
Our courts have also disregarded an excuse
where a blame was cast on a legal representative by an applicant
(
Kurt Fontein v South African Breweries
JR1583/01 and
others.
31.1 The applicant
was legally represented at both the Military Court and Court of
Military Appeal. She cannot be heard to want
to benefit from her
failure to place information before court. Sufficient information
must be placed before court to enable it
to determine the appropriate
sentence. It was not explained to this court what was meant by the
applicant’s lawyer, Mr Botha
when he said that testifying by
the applicant will “open a can of worms’. I would
have expected the applicant
to take this court into her confidence
and clarified this phrase which she failed to do. There was no
submission made that, despite
the applicant’s attempt to
clarify the “opening can of worms” issue with her legal
representative, the latter
insisted that the applicant should not
testify. I am of the view that the applicant knew or was reasonably
expected to know what
“opening can of worms” meant.
[32]
As counsel for the respondent rightly submitted, should the court
order the stay of the execution of sentence and then the
review
application did not succeed, the respondents may not be able to
recover all the monies paid in the form of salaries.
If the
court ordered the stay of execution of the sentence, and the review
application became successful, the applicant will be
able to sue the
respondent for the recovery of all the money due to her. The
applicant will not be prejudiced in the long
term if the stay was not
ordered. The applicant will not suffer irreparable harm if the
relief was not granted as she has
a chance of being reinstated if the
review application was successful.
[32]
Misconduct can take on many forms, but the
legal basis for dismissal is usually the same: The employee violated
the regulations
of her contract in one way or another. In this case
the applicant breached the provisions of Schedule of 8 of the
LRA. These
rules are usually set out in an employee’s contract
or in a policy or a disciplinary code of the company, or are general
practices in the workplace that could justify dismissal. If an
employer has not implemented a disciplinary code, Schedule 8 of the
Code of Good Practice in the
Labour Relations Act (LRA
) will apply,
but it is generally regarded as a guideline only. Gross dishonesty,
for example, fraud is classified as one of the
serious misconducts.
[33]
I am of the view that the prospect of success was slim as the
applicant had been convicted of a serious offence of fraud, which
has
an element of dishonesty and deception. This was further
demonstrated by case law that fraud constituted good grounds
of
dismissal as it was considered a breach of the relationship of trust
that occurred when an employee was guilty of such a misdemeanour.
I
am satisfied that the review application that the applicant intended
lodging in this court satisfies the above requirements.
Therefore the
applicant had an alternative remedy, which was a review of the
decision of the Court of Military Appeal.
[34]
I am mindful of the decision in
Zulu v Minister of Defence and
Others
(
supra)
. Although facts of that case seem
similar to the case in question, there are fundamental differences.
The applicant
in
Zulu
(
supra
) was not charged
and convicted of fraud. Fraud has elements of deception and
dishonesty which has a tendency of irretrievably
breaking the
employment relationship between the employer and the employee down.
(
Edcon v Pillemer NO and Others
(2009) 30 ICJ 2642
(SCA). Due to the personal nature of a contract of employment,
the fact that the relationship between the parties may have
broken
down irretrievably was one of the factors which may be taken into
account when the decision to reinstate or not was made.
In this case
the decision would have been to order the respondents to stay the
execution of the sentence imposed on the applicant.
[35]
There are various authorities by our courts when a senior person in
an employment environment charged with fraud was considered
aggravating. In
casu,
there are aggravating factors. The applicant was a senior
employee in a position of trust. She allegedly committed
fraud
against her employer. The applicant expressed no remorse and
there has been no offer to repay her employer. (
Pienaar
v S
(564/11)
(2012) ZASCA 60.)
It
is my view that the more senior the position, the greater need for
high levels of trust. The applicant as a senior employee,
employed by the respondent owed the respondent a fiduciary duty of
loyalty, trustworthiness and good faith.
[36]
Although I have taken the applicant’s mitigating factors, into
account, including her achievements and awards such mitigating
factors do not remove the obligation to ensure that senior officials
in such positions are exemplary in their conduct and that
they can be
trusted by their employer.
[37]
In light of the preceding I am not convinced that the applicant
satisfied all the requirements of an interim interdict.
The
applicant’s right, whatever it may be, had to be balanced with
the respondents’ right to have the relief sought
granted. In
view of the above I am not inclined to exercise my discretion to
grant an interim interdict for the protection of a
prima
facie
right which I had already
indicated did not exist. I am of the view that the balances of the
requirements for the grant of an interim
interdict are not satisfied.
The applicant failed to make out a case on a balance of probabilities
for the relief sought.
[38]
I accordingly make the following order:
38.1
The application is dismissed with costs.
_________________
E. K. TSATSI,
AJ
On
behalf of the applicant: Adv. J.J. Buys
Instructed
by:
Land
V Attorneys
BLOEMFONTEIN
On
behalf of the respondents: Adv. H. Murray
Instructed
by:
The
State Attorney
BLOEMFONTEIN
A
determination had to be made whether or not the invoices of Sonskyn
Guesthouse as submitted by the applicant constituted fraud.