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[2013] ZAGPPHC 97
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Khulong v Minister of Health and Others (59211/2009) [2013] ZAGPPHC 97 (11 April 2013)
NOT
REPORTABLE
IN THE NORTH GAUTENG HIGH COURT,
PRETORIA
[REPUBLIC OF SOUTH AFRICA]
CASE
NUMBER: 59211/2009
DATE:11/04/2013
In the matter between:
GRACE
KHULONG
…..........................................................
APPLICANT
and
MINISTER
OF
HEALTH
.........................................................
FIRST
RESPONDENT
THE
DIRECTOR GENERAL
NATIONAL
DEPARTMENT OF HEALTH
...........................
SECOND
RESPONDENT
EMPLOYMENT
RELATIONS DIRECTOR
..........................
THIRD
RESPONDENT
JUDGMENT
MABENA
AJ:
[1] The Applicant instituted this
application seeking the following prayers:
1.1
That the decision of discharging the Applicant from the Public
Service with effect from 15 September 2010 be set aside;
1.2
Alternatively, that the decision of discharging the Applicant from
the Public Service with effect from 15 September 2010 be
declared
invalid and/ or unlawful;
1.3
That the Applicant be reinstated to her substantive post of Security
Manager at a level of Deputy Director on grade 12 which
she occupied
prior to her being discharged from the Public Service with effect
from 15 September 2010;
1.4
That the reinstatement be ordered with full back pay without any loss
of service history and benefit;
1.5
Cost in the event of opposition.
[2]
This matter has a prolonged history. It initially came before this
court on an urgent basis, then being an application for an
interdict.
My Brother Eberson AJ granted an order ex parte on 23 September 2009.
[3]
This matter was enrolled on the opposed roll on 26 July 2010. My
Brother Rabie J granted an order that the matter be removed
from the
roll and the costs issue reserved.
[4]
On 29 November 2010 this matter came before my Brother Van De Venter
AJ and was postponed sine die and the costs issue reserved.
An order
was also made to the effect that should the matter be re-enrolled, a
new application be launched and be heard simultaneously
with the
application being heard.
[5]
On 24 April 2012, this matter came before my Sister Teffo J whereupon
removed from the unopposed roll with a directive that
it be placed on
an opposed roll.
[6]
On 31 July 2012 the matter came before my Brother Bertelsmann J and
was postponed sine die. The Respondents were ordered to
pay wasted
costs on a scale as between an attorney and client. An order
regarding further filing affidavits was also made.
[7]
On 3 September 2012 the matter came before my Brother Fabricius J and
was postponed sine die and the First and Second Respondent
were
ordered to pay wasted costs of the application on an attorney and
client scale. The Second Respondent was ordered to comply
with
paragraph 3 of the order granted by my Brother Bertelsmann on 31 July
2012, in regard to the filing and delivery of an answering
affidavit
and a condonation application within 10 days from the date of the
order. The Second Respondent was also ordered to file
written heads
of argument dealing with the following:
7.1
The jurisdiction of this Court to hear this matter;
7.2Whether
Applicant was discharged ex lege 30 September 2010; and
7.3
Whether any disciplinary enquiry is pending, and if so, what it’s
status is.
[8]
This matter came before me on 19 November 2012. Many issues were
raised on behalf of the Respondents, inter alia, issues that
included
irregular steps taken by the Applicant. I will however confine
myself to the central issues delineated by the order granted
by my
Brother Fabricius J on 3 September 2012.
[9]
On the question of jurisdiction, persuasive submissions were advanced
on behalf of the parties. The Respondent’s Counsel
referred
this Court to the provisions of Section 169 of the Constitution, Act
108 of 1996, Section 157 of the Labour Relations
Act, Act 68 of 1995
and Section 1 of PAJA respectively, to persuade this Court that
indeed, this Court is not seized with the jurisdiction
to hear this
matter.
[10]
Argument was vigorous on behalf of the Applicant that the provisions
of Section 17 (3) (a) and 17 (5) (a) (i) of the Public
Service Act
103 of 1994 (PSA) entails a deeming provision. If employment
terminates by operation of a deeming provision, this paints
a
different picture altogether. It is common cause and / or no longer
in dispute that the Applicant was discharged from service
in terms of
Section 17 (3) (a) and Section 17 (5) (a) (i) of the Public Service
Act 103 of 1994.
[11]
The reasons stated in the letter of termination dated 30 September
2010 are that:
“
2.
You are in terms of Section 17 (3) (a) and 17 (5) (a) (i) of the
Public Service Act deemed to have been discharged from the Public
Service with effect from the 15 September 2010 on account of
abscondment"
[12]
It was argued on behalf of the Applicant that the discharge from
service is not a consequence of a discretionary decision but
merely a
notification of a result which occurred ex lege. The employer did not
act in any way to end the employment contract. The
PSA deals
primarily with the organisation and administration of the Public
Service and therefore that cannot be classified as labour
legislation. In MEC, Public Works, Northern Province vs. CCMA and
Others
(2003) 10 BLLR 10
27 (LC) the Court held that:
"...if
the deeming provision of the Act applies, there is no dismissal as
contemplated in Section 186 of the LAR. The operation
of the deeming
provision is not dependent on any prior decision by the employer: if
its requirements are met, employment terminates
by operation of law”
The services are therefore terminated ex lege.
[13]
Regard being had to the decision in M G Phenithi v Minister of
Education and Others (CC) Case number 18/05 (the unreported
but
reportable, heard on 8 November 2005 and delivered on 14 December
2005) the Court emphasized that deeming provisions do not
depend upon
any decision and accordingly they do not constitute administrative
action.
[14]
Having had regard to the above submissions, it has become inescapable
to conclude that this Court does have jurisdiction to
hear this
matter.
[15]
By analogy of reason and chronologically, the next issue for
determination to be made is the lawfulness and / or otherwise
of the
discharge of the Applicant from the Public Service with effect from
15 September 2010. I summarize same in the succeeding
paragraphs.
[16]
It is common cause that:
16.1
The Applicant was suspended from Public Service with effect from 2
March 2009.
16.2
That the internal disciplinary hearing was scheduled to 25 September
2009.
16.3
That the Applicant was discharged with effect from 15 September 2010.
16.4That
the internal disciplinary hearing that was scheduled for 25 September
2009 was cancelled.
16.5That
the aforesaid suspension was never lifted.
[17]
I am satisfied that the Applicant did not willingly and intentionally
elect to absent herself from her place of employment.
Therefore the
decision to discharge the Applicant from service under the provisions
of the PSA Act, is invalid and unlawful.
[18]
It was submitted on behalf of the Respondents that it would neither
possible nor in the interest of justice that reinstatement
be ordered
taking into account the inordinate delay in this matter.
This
argument is untenable because the delay in finalising this matter was
occasioned by the Respondents through postponements and
removal of
this matter from the roll as fully alluded to above. I am of the view
that the Applicant has succeeded in making out
a case for the prayers
set out in the Notice of Motion.
[19]
Therefore, I make the following order:
1.
The Applicant’s application is upheld.
2.
That the decision of discharging the Applicant from the Public
Service with effect from 15 September 2010 is set aside.
3.
That the Applicant be reinstated to her post of a security manager at
a level of a Deputy Director on grade 12 with effect from
15
September 2010.
4.
The reinstatement in paragraph 3 above is with full back pay
including history service and benefits.
5.
The Respondents to pay the Applicant’s costs jointly and
severalty, the one paying the other to be absolved.
MH
MABENA
ACTING
JUDGE
NORTH
GAUTENG HIGH COURT PRETORIA