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[2013] ZAGPPHC 187
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Gangat v Minister of Foreign Affairs of the Republic of South Africa (26396/2005) [2013] ZAGPPHC 187 (24 January 2013)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT. PRETORIA)
CASE
No: 26396/2005
DATE:24/01/2013
In
the matter between:
MOHED
RAFIQ ABDOOLHAQUE GANGAT
…..........................................
PLAINTIFF
AND
MINISTER
OF FOREIGN AFFAIRS OF
THE
REPUBLIC OF SOUTH
AFRICA
...........................................................
DEFENDANT
JUDGMENT
MAVUNDLA
J;
[1]
I find myself obliged to say “Mea culpa! Mea culpa! Mea culpa!”
The defendant’s heads of argument, per order
of 30 January 2012
made by agreement between the parties, were to be filed on or before
13 February 2012. The plaintiff’s
was to file replying heads
within two weeks on or before 27 February 2012. The Court was to make
a determination on the written
argument. The matter was postponed
sine die. The defendant was ordered to pay the plaintiff’s
wasted costs occasioned by
the postponement.
[2]
It needs mention that the 13 February 2012 has come and gone. I
waited in vain, notwithstanding the assurance that the defendant’s
heads would be forthcoming. To date the defendant’s heads of
argument have not been filed.
[3]
The plaintiff’s heads of argument were long filed. I was
requested by the plaintiff’s attorneys to proceed to deliver
the judgment, without the defendant’s heads of argument. In
retrospect, I should have proceeded to prepare the judgment much
earlier, nonetheless, instead of waiting for the misplaced trust of
the undertaking on the part of defendant’s counsel. I
profusely
apologize for the delay occasioned as the result.
[4]
The plaintiff sued the defendant for payment of an amount of R2 638
036. 80 in respect of alleged damages he suffered consequent
to the
defendant’s alleged repudiation of his employment agreement
between the plaintiff and the defendant.
[5]
It is common cause that the plaintiff has since 1986, been employed
first by the defendant’s predecessor, and thereafter,
by the
defendant as a foreign service officer. His appointment was subject
to the provisions of the Public Service Act, 1957. The
plaintiff
received various promotions until reaching the rank of Deputy
Director: Foreign Service (Second Leg) with effect from
1 March 1998,
as advised per letter dated 21 January 1986 of his appointment in the
Department of Foreign Affairs as a Foreign
Affairs Officer.
[6]
It is common cause that the plaintiff was on or about 31 December
2002 appointed as Head of Mission: Palestine for a four year
tour
duty and posted for the duration of his four year tour at Ramallah
where he commenced his duties as Head of Mission: Palestine
in terms
of his appointment.
[7]
It is common cause that on 16 April 2004, only some fifteen months
into his four (4) year tour duty, Dr. Sooklal, the Deputy
Director
General: Asia and Middle East, informed him that a decision had been
made by the Defendant to transfer him to South Africa.
[8]
The plaintiff contended that in terms of service agreement, the
defendant was to give him six months’ notice of any changes
to
his condition of service, which he failed to do. He further contended
that the decision to have him recalled was initiated by
Dr. Sooklal,
who had no competency to make such decision and as such, the
defendant unlawfully repudiated the employment agreement
by recalling
plaintiff to Pretoria.
[9]
The plaintiff’s case is, inter alia, essentially that his
recall was unlawful because:
9.1
Dr. Sooklal did not have any authority to have him recalled to the
Country, and the Minister has failed to take a decision to
have him
recalled, on a balance of probabilities the Minister did not make any
decision but Dr.Sooklal did.
9.2
His performance contract was terminated without the defendant
conciliating the dispute, without following the normal dispute
resolution procedure and without it reviewing the plaintiffs
performance on a quarterly and annual basis as provided for in clause
3 and 4 in Part 2 thereof.
9.3
The decision to have him recalled was an adjustment of the duration
of the four year tour, taken without a valid and fair reason,
was
procedurally unfair and not in good faith because his performance
contract was not taken into account.
[10]
The plaintiff alleged that he was appointed as Head of Mission:
Palestine for a four year tour duty. His foreign remuneration
package
would consist of the following:
10.1
RSA Salary of R18 314. 00 per month payable in USD;
10.2
Child Allowance of R1 305. 00 per month
10.3
Station allowance of USD 42 192 per month;
10.4
Representation Allowance of USD 12 252 per month;
10.5
Special Allowance of USD 4 824 per month;
10.6
Housing and Entertainment Allowance of USD 5000 per month.
[11]
It was further submitted on behalf of the plaintiff that, inter alia,
the defendant had to demonstrate that the transfer of
the plaintiff
from Ramallah was necessary; plaintiff had a proper and fair hearing,
the defendant acted in good faith and rationally,
from the evidence
has failed demonstrate.
[12]
The amount which the plaintiff was claiming is in respect of what he
allegedly would have earned but for the defendant’s
repudiation
of the agreement.
[13]
The plaintiffs case is premised on his own evidence. He did not call
any witness. The defendant’s case is premised on
the evidence
of Dr. Sooklal and Dr. Ayanda Ntsaluba.
[14]
The defendant’s case was, inter alia, that the plaintiff was
not dismissed but recalled to Pretoria and placed on the
Foreign
Affairs Department on the Desk for Middle East, Central /As/a,
1
and that the final decision to recall the plaintiff was taken by the
Minister
2
;
and further that the plaintiff absented himself from work without
permission and was therefore deemed to have been discharged
from
Public Service in terms of s17 (3)(a)(i) of the Public Service Act
103 of 1994.
[15]
In the matter of Masinga v Minister of Justice
3
the Appellate Court held that:
“
There
is authority that in a case of wrongful dismissal the onus is on the
employee to prove the agreement and his subsequent dismissal,
and the
onus thereafter is on the employer to justify it.” The employer
must allege and prove the facts justifying the dismissal.
In casu,
the defendant denied that it dismissed the plaintiff.
[16]
In the matter of Inter Maritime SA v Comanhia Portuguesa De
Transportes EP
4
Friedman AJA dealt with the question of repudiation. The Court held
that in deciding whether there was repudiation, the Court must
look
at the whole of the circumstances of the case.
[17]
The person relying on an implied term bears the onus to prove
“everything that was necessary to raise an implication,
including the fact that there was nothing, whether in the shape of an
express term or in the shape of a term to be inferred from
conduct,
that was inconsistent with the implication relied on...”; vide
Nel v Nelspruit Motors (EDMS.) BPK
5
[18]
Dr. Ntsaluba testified that he was the Director General in the
Department of Foreign Affairs from 1 September 2003 and during
the
period when the plaintiff was appointed and posted to Ramallah as
Head of Mission not as an ambassador, because Palestine was
not
recognised as a separate State. Dr. Ntsaluba also confirmed that on
28 November 2008 he deposed to an affidavit which was handed
in as
exhibit G. Because of certain problems in, and particularly the
dysfunction of the Ramallah Mission, and the recommendations
by Dr.
Sookla, he eventually arranged a meeting with the Minister, then Dr.
Nksosazana Dlamini Zuma, whom he briefed about the
recommendation by
Dr. Sooklal, the Njosi and Mamela reports and the fact that he
endorsed the recommendation to have the plaintiff
recalled. The
Minister accepted his recommendation and made the decision to have
the plaintiff recalled
6
.
He further disputed that the plaintiffs service of employment was
terminated by the defendant. According to him the plaintiff
was
merely recalled to the Head Office in Pretoria and was expected to
continue with his services. All his rights and benefits
preceding his
deployment to Ramallah would have continued. He further gave a lucid
explanation as to why there was an impression
that the decision was
taken by the Director General, because people were not aware that it
was in fact taken by the Minister
7
.
[19]
In the matter of Hlongwa v Minister of Justice, Kwa-Zulu Government
8
the Court found that an employer such as the respondent, therein,
cannot in certain circumstances, be faulted for going ahead with
a
proposed transfer, despite the personal inconvenience, even hardship,
to the employee to be transferred, provided however she
has had the
opportunity to have her say in the matter, so that what she has to
say against the transfer may be fairly taken into
account together
with the pressing needs of the department. Where the changes are
likely to have adverse effect to the employee,
such as the drop of
salary or allowances, then the employee must be consulted.
[20]
It is apposite to remark that I found the plaintiff to be
loquacious, argumentative and not an impressive witness. On the
other
hand I found both Dr. Sooklal and Dr. Ntsaluba to be impressive and
frank witness, whose evidence in my view can be relied
upon, unlike
that of the plaintiff.
[21]
The defendant has a right in terms of the regulations of the Public
Service to recall the plaintiff.
9
In Maqungo v Government of the Republic of Transkei and Others
10
it was held that a person posted as Commissioner of Foreign Affairs,
or ambassador, can be transferred from one locality to another
by his
principal, without being heard, unless he has some interest or
legitimate expectation. “If the official has a family
or
children attending school and the place to which he is being
transferred has no school, it is proper to hear him....”
It
needs to be borne in mind that when the plaintiff was recalled to
Head Office in Pretoria, his estranged wife and children were
not
staying with him in Ramallah but in the Republic of South Africa.
[22]
On the accepted evidence, as testified to by both Dr. Sooklal and Dr.
Ntsaluba the Ramallal Mission was dysfunctional. There
was an
investigation that was set in place, in the form of Ms Njosi and
followed up by Mr. Memela who presented their respective
reports. A
shorter version of the report was presented to the plaintiff.
[23]
In as much as the plaintiff contended that he was not the cause of
any problem that existed in Ramallah Mission, protesting
that the
defendant’s employees stationed at Ramallah undermined his
authority and connived behind his back, in my view, he
indirectly
conceded that the Mission was dysfunctional. The Memela and Njosi
reports did not singularly and squarely put the blame
of the
plaintiff but on all the roll players. In my view, it is irrelevant
who caused the dysfunction of the Mission, but the fact
that the
Mission was dysfunctional.
[24]
I am of the view, that in as much as there was no specific
conciliation, the plaintiff was afforded an opportunity to make
out
his case before the decision to have him recalled was taken. The
plaintiff’s contention that he did not have a fair process
before the adverse decision was taken, does not therefore hold water.
In my view, a Foreign Mission is of importance to the country
for
various reasons. Where the Mission is dysfunctional, dictates of
urgency require, in my view, that a prompt remedial action
ibetaken,
and formalism in the interest of the country must give way. I am
therefore of the view that the defendant was within
his rights to
recall the plaintiff.
[25]
I am further of the view that the plaintiff’s contention that
the decision to have him recalled was instigated and taken
by Dr.
Sooklal, in the light of Dr. Ntsaluba’s evidence that the
decision was taken by Dr. Nlkosazana Zuma, must therefore
be
rejected, as I do.
[26]
In the matter of Singh v McCarthy Retail Ltd t/a Macintosh
Motors
11
it was stated that: “The test, whether the innocent party is
entitled
to
cancel the contract because of the malperformance by the other, in
the absence of a lex commissoria, entails value judgment by
the
Court. It is essentially, a balancing of competing interests—
that of innocent party claiming rescission and that of
the party who
committed the breach. The ultimate criterion must be the one treating
both parties, under the circumstances, fairly,
bearing in mind that
rescission, rather than specific performance or damages, is the more
radical remedy. Is the breach so serious
that it is fair to allow the
innocent party to cancel the contract and undo all its consequences?”
[27]
Where the objective conduct of a party manifestly show an intention
not to proceed with the contract, the other party is entitled
to
conclude that the contract is repudiated by the party so conducting
himself and accept such repudiation and cancel the contract,
and is
not obliged to follow the pre-dismissal procedure
12
.
[28]
According to Dr. Sooklal, the plaintiff was recalled to head offices,
and not dismissed. There is much credence in the defendant’s
contention that the plaintiff stayed away from office and was
therefore deemed to have been dismissed.
13
[29]
It needs mention that once the plaintiff was recalled to Head Office
in Pretoria, he tendered his letter of resignation
14
,
which was not accepted by the defendant, which was later purportedly
withdrawn by his lawyers. In my view, the plaintiff was purely
opportunistic and wanted to make capital gain out of the allowances
paid to him in FOREX while based abroad, not satisfied with
the
salary he was going to receive in the country less the FOREX. His
recall, in my view, did not vitiate the fundamentals of his
employment contract because he was still going to occupy the senior
position he always occupied prior to being posted to Ramallah,
but
merely changed his posting abroad. The contract of employment was not
vitiated by the recall, as such, in my view, the plaintiff
was not
entitled to abscond from his employment, and consequently his claim
must fail.
15
[30]
With regard to costs, it is trite that costs follow the event. Both
parties engaged senior counsel, rightly so, with the defendant
employing also a junior counsel. Regard being had to the amount
claimed, and the fine points of law, I am of the view that the
defendant was entitled to the services of two counsel. Consequently I
hold that the defendant is liable to the defendant’s
taxed and
allowed or agreed upon costs inclusive the costs of senior counsel
and junior counsel.
[31]
In the result, the plaintiff’s claim is dismissed with costs,
inclusive costs of two counsel.
N.M.
MAVUNDLA
JUDGE
OF THE HIGH COURT
DATE
OF JUDGMENT : 24/01/2013
PLAINTIFFS’ATT:
SAVAGE JOOSTE & ADAMS INC
PLAINTIFFS’
S ADV : MR. BODA SC
DEFENDANTS’ATT
: STATE ATTORNEY
DEFENDANTS’
ADV : P. KENNEDY SC with ADV S MAHLAPE
1
Page
50 lines 5-7, p53 lines 10-17.
2
Vide
page 2 lines 23-24, et exhibit G dated 27 August 2007(page 3).
3
[1995] ZASCA 21
;
1995
(3) SA 214
(A) at 221.
4
[1990] ZASCA 112
;
1990
(4) SA 850
AD at 861G-862A..
5
1961
(1) SA 582
(AD) at 584B.
6
Vide
pages 12-14 of the record.
7
Vide
p19 lines 25- p21.
8
1992)
13 IILJ 338 (D).
9
Vide
Department of Roads & Transport, Eatern Cape & Another v
Giyose
[2008] 5 BLLR 4572
(E) page 9 of 13 para [30];.
10
1995
(1) SA 412
(TkAD) at416G-417A.
11
[2000]
4 ALL SA 487
A
[2000] ZASCA 129
; ;
2000 (4) SA 795
(SCA) para 15.
12
Vide
Metalmil (Pty) Ltd vAECI Explosives and Chemicals Ltd
[1994] ZASCA 96
;
1994 (3) SA 673
(AD) at 685A-F
.
13
S17(3)(a)
(i) of the Public Service Act, No 103 of 1994
14
Paginated
page 138 fax dated 10 May 2004 addressed to Deputy Minister Aziz
Pahad.
15
Vide
Swartz & Sons (Pty) Ltd v Wolmaranstad Town Council
1960 (2) SA 1
(T) 4 approved in
Colverwell
and another v Brown
1990 1 SA 7
(A)14A, 24 l-J.