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[2012] ZAGPPHC 337
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Dlamini v Minister of Defence and Others (7669/2012) [2012] ZAGPPHC 337 (14 December 2012)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG, PRETORIA)
Case
No.: 7669/2012
DATE:14/12/2012
In
the matter between:
DEXTRA
DLAMINl
....................................................................................
APPLICANT
and
MINISTER
OF
DEFENCE
........................................................................
FIRST
RESPONDENT
THE
CHIEF OF THE NATIONAL
DEFENCE
FORCE
….............................................................................
SECOND RESPONDENT
THE
CHIEF OF THE SOUTH AFRICAN
ARMY
….....................................................................................................
THIRD
RESPONDENT
GENERAL
OFFICER COMMANING SOUTH
AFRICAN
ARMY SUPPORT
FORMATION
….........................................................................................
FOURTH RESPONDET
JUDGMENT
HIEMSTRA
AJ
[1]
The applicant was a soldier in the South African National Defence
Force (SANDF) with the rank of Private. He had been a member
of the
Regular Force, as defined in s 1 of the Defence Act 42 of 2002 (the
Act), since the integration into the SANDF of members
of former
non-statutory forces.
[2]
On 18 November 2002, the applicant was convicted of theft and
unlawful possession of a firearm and sentenced to imprisonment
for 10
years without the option of a fine. He was then informed by officials
of the SANDF of the termination of his service in
terms of the s 59(1
)(d) of the Act, which provides as follows:
“
(1)
the service of a member of the Regular Force is terminated—
(a)-(c)
(d)
if he is sentenced to a term of imprisonment by a competent civilian
court without the option of a fine or if a sentence involving
discharge or dismissal is imposed upon him or her under the Code;
or...”
[3]
The applicant thereafter successfully appealed against his conviction
and sentence and they were set aside on 28 May 2007.
[4]
The applicant reported for duty on 5 June 2007, but he was told to
write a letter to a certain Colonel Richter requesting his
reinstatement. He promptly did so on the same date. He says that he
had thereafter “followed all the internal processes”
to
secure his reinstatement to no avail. He did not say what these
processes were.
[5]
On 23 April 2009, the General Officer Commanding SA Army Support
Formation, Major-General, R.Z Mandita, informed the applicant
in
writing that his request for re-instatement had been “disapproved
by C Army."
[6]
The applicant did not accept the notification and approached the
Centre for Community Law and Development of the Potchefstroom
Campus
of the North-West
University.
The Centre informed him on 18 May 2009 in writing that they had
addressed a letter to the SANDF and had made numerous
telephone
calls, but were still awaiting a response.
[7]
Ignoring the fact that he had been notified on 23 April 2009 that his
application to be reinstated had not been approved, the
applicant
wrote to the Minister on 9 July 2009 complaining that he had received
no response to this application. He received no
response to this
letter. On or about 25 March 2010, he instructed Mwalimu Nong Labour
Consultants to represent him. Nothing seems
to have been achieved by
this firm of consultants. On 18 January 2011 he wrote to the Public
Protector to assist him. The Public
Protector acknowledged receipt of
his letter and promised to revert. On 22 August 2011 the
above-mentioned labour consultants wrote
to the minister, with a copy
to the Public Protector, demanding the applicant’s
reinstatement. On 20 September 2011 the labour
consultants received
an e-mail from the Public Protector advising them that the matter was
being dealt with under file number 7/2-34022/11
and that the office
was awaiting a response from the respondent. The applicant does not
state whether the respondents had replied
to the Public Protector,
and if so, what the response was.
[8]
On 20 September 2011, the applicant received a letter from the SA
Army, dated 12 August 2011. The purpose of this letter seems
to be to
furnish reasons for the respondents’ refusal to reinstate the
applicant. According to this letter the Career Manager
of the SA Army
Support Formation had investigated the possibility of re-instatement
of the applicant, but had noticed that the
applicant had been absent
without leave for 2 years and 48 days and therefore did not recommend
the applicant’s reinstatement.
[9]
The applicant does not dispute that he had been absent from duty as
alleged and admits that absence without leave is a dismissible
offence. He states, however, that the Army had failed to charge him
in a properly constituted disciplinary process with the offence.
[10]
The applicant now applies in terms of the Promotion of Administrative
Justice Act, 3 of 2000 (PAJA) for the review and setting
aside of the
decision to refuse to re-instate him and for an order reinstating him
on terms and conditions not less favourable
than those that applied
to him on the date of the termination of his service, being 18
November 2002.
[11]
In the alternative, the applicant claims that the failure to
reinstate him constitutes an unfair labour practice as defined
in
Regulation 1 of Chapter XX of the General Relations for the SANDF and
Reserve, published in GN R998 in the Government Gazette
of 20 August
1999.
[12]
The respondents raised certain points in limine. The first is that
the provisions of PAJA do not avail the applicant since
the refusal
to reinstate the applicant does not constitute administrative action.
The respondents in this regard rely on the Constitutional
Court
judgments in Chirwa v Tansnet & Others
[2007] ZACC 23
;
2008 (4) SA 367
(CC) and
Gcaba v Minister of Safety and Security
2010 (1) SA 238
(CC) in which
it was held conclusively that the dismissal of a public service
employee does not constitute the exercise of a “public
power”
or the “performance of a public function” and that it is
therefore not administrative action under PAJA.
In paragraph [64] of
Gcaba the Constitutional Court held that “Generally, employment
and labour relations issues do not amount
to administrative action
within the meaning of PAJA. This is recognised by the Constitution.
Section 23 regulates the employment
relationship between employer and
employee and guarantees the right to fair labour practices. The
ordinary thrust of s 33 is do
deal with the relationship between the
State as bureaucracy and citizens and guarantees the right to lawful,
reasonable and procedurally
fair administrative action. Section 33
does not regulate the relationship between the State as employer and
its workers. When a
grievance is raised by an employee relating to
the conduct of the State as employer and it has few of no direct
implications or
consequences for other citizens, it does not
constitute administrative action.”
[11]
These decisions are conclusive of the applicant’s reliance on
PAJA. The refusal to reinstate the applicant has no implications
or
consequences for other citizens.
[12]
In any event, the applicant did not bring this application within the
180 days specified in s 7 of PAJA. His conviction and
sentence were
set aside on 28 May 2007. Apart from reporting for duty on 5 June
2007 and writing a letter to Colonel Richter on
the same date, he did
nothing for two years. Only in 2009 did he approach the Centre for
Community Law of the North-West University
and a labour consultant.
He claims that he had followed internal procedures, but failed to set
out what procedures he had followed.
According to the deponent to the
respondents’ answering affidavit the available internal
procedures are to approach his Officer
Commanding, then the Chief of
the Army, then the Chief of the SANDF and finally the Minister. Even
on his own averments, the applicant
has followed none of these
processes.
[13]
The applicant’s contention that the refusal to reinstate him
constitutes an unfair labour practice is misplaced. Unfair
labour
practice is defined in Regulation 1, referred to above is defined as:
“
An
unfair act or omission involving discrimination, unfair conduct by
the employer relating to appointment to a post, promotion,
demotion,
training or the provision of benefits, unfair suspension or
disciplinary action short of dismissal and the failure or
refusal to
re-instate or re-employ a former member in terms of an agreement.”
The
conduct complained about does not fall under this definition. In any
event, the regulations provide for procedures to adjudicate
alleged
unfair labour practices by the Military Arbitration Board. The
applicant does not state that he had pursued such procedures,
[14]
The respondents further invoked the
Prescription Act 68 of 1969
. The
applicable prescription period is three years. In terms of
s 12(1)
and (2) of the
Prescription Act, the
period of prescription commences
as soon as the deb is due, or as soon as the creditor becomes aware
of the existence of the debt.
The debt in this case became due on the
date on which the applicant’s conviction and sentence were set
aside. The respondents
did not accept liability and no process was
served on them within the period.
In
result the application is dismissed with costs.
HIEMSTRA
ACTING JUDGE OF THE HIGH COURT
Date
heard: 19 November 2012
Date
of judgment: 12 December 2012
Counsel
for the applicant: Adv Z.P. Makondo
Attorney
for the applicant: Sekati, Monyane & Partners
Counsel
for the respondents: Adv C. Prinsloo
Attorney
for the respondents: The State Attorney