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[2012] ZAFSHC 204
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Mokitlane v Head of the Department of Education, Free State Province and Others (3250/2010) [2012] ZAFSHC 204 (8 November 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No. : 3250/2010
In the matter between:-
M.C. MOKITLANE
........................................................................
Plaintiff
and
THE HEAD OF THE
DEPARTMENT OF
EDUCATION, FREE
STATE PROVINCE
..........................
1
st
Defendant
THE MEC: DEPARTMENT
OF EDUCATION,
FREE STATE PROVINCE
................................................
2
nd
Defendant
THE CEO: PROVINCIAL
TREASURY,
FREE STATE PROVINCE
.................................................
3
rd
Defendant
_____________________________________________________
HEARD ON:
23 OCTOBER 2012
_____________________________________________________
JUDGMENT BY:
KRUGER, J
_____________________________________________________
DELIVERED ON:
8 NOVEMBER 2012
_____________________________________________________
[1] Plaintiff, a public
office bearer as defined in the
Remuneration of Public Office Bearers
Act, 20 of 1998
, claims payment of a once-off gratuity set out in
clause 3.3 of Proclamation 52 published in Government Gazette 31597
dated 12
November 2008.
[2] At the trial no
evidence was led and the parties agreed on facts set out in a Stated
Case according to which the plaintiff served
in the following
capacities for the periods:
“
11.6.1999 to
17.6.1999 - Member of the Free State Provincial Legislature;
18.6.1999 to 29.6.2001 - MEC: Safety &
Security, Free State Province;
30.6.2001 – 6.5.2005 - Member of
the Free State Provincial Legislature: Chief Whip;
7.5.2005 to 15.8.2007 - MEC for
Agriculture, Free State Province;
16.8.2007 – 5.2.2009 - MEC for
Education, Free State Province.”
On 5 February 2009
plaintiff resigned. On 6 May 2009 plaintiff again became a member of
Legislature, now for COPE, getting a new
salary, again a member of
the pension fund. For the above periods plaintiff was a member of the
ANC political party.
[3] According to the
stated case:
“
3.
Plaintiff resigned as MEC of the
Department of Education and as a member of the Legislature, Free
State Province on
5 February 2009
. Plaintiff furthermore
resigned as a member of the ANC.
Plaintiff’s resignation was
accepted by the Premier for the Free State Province.
4.
Subsequent to his resignation,
Plaintiff applied for his pension, which was paid out to him in full
by the Public Office Bearers
Pension Fund.
5.
On
6 May 2009
Plaintiff was
once again sworn in as a member of the Free State Legislature, as a
member of the COPE political party.
As such, Plaintiff has received a
fresh remuneration as from the said date and has once again become a
member of the Political Office
Bearers Pension Fund.
6.
The quantum of Plaintiff’s
prospective claim is to be held over pending adjudication of his
claim on the merits.”
[4] The following
question of law must be decided as formulated in the stated case:
“
7.
QUESTIONS OF LAW:
Plaintiff will request the Court to
adjudicate the following:
7.1 Whether he is entitled to the
gratuity as set out in clause 3.3 of Proclamation 52 published in
Government Gazette 31597 dated
12 November 2008
;
7.2 Plaintiff’s contention is
that he is entitled to such gratuity as pleaded in paragraph 6.4 of
Plaintiff’s Particulars
of Claim.
7.3 Defendant’s contention is
that:
7.3.1 Plaintiff is not entitled to any
gratuity as his term of office did not end as envisaged in clause 3.3
of Proclamation 52,
in that Plaintiff resigned voluntarily;
7.3.2 The proclamation has no
retrospective effect insofar as the once off gratuity is concerned.
The provisions of clause 3.3 do
therefore not apply to any period
preceding the promulgation of the aforementioned proclamation.”
[5] Ms
Norman, for the defendants, contends that plaintiff does not qualify
for the once-off gratuity, because he is still a member
of the
Political Office Bearers Pension Fund and still serves in the
legislature. She says the gratuity is only payable to members
who
retire from the pension fund. However, Ms Norman seems to lose sight
of the fact the paragraph 5 of the stated case, quoted
above, states
that plaintiff has received fresh remuneration from 6 May 2009 and
has once again become a member of the pension
fund. The dates and
wording of the stated case make it clear that there was an
interruption in plaintiff’s membership of
the pension fund.
With reference to
MINISTER OF FINANCE AND ANOTHER v VAN
HEERDEN
[2004] ZACC 3
;
2004 (6) SA 121
(CC)
par [61] Ms
Norman submits that the Political Office Bearers Pension Fund came
into force on 23 September 1998 when it was adopted
by Cabinet on the
same day. The fund took effect retrospectively from 27 April 1994
(
VAN HEERDEN
above
par [9]). The rules of the new pension fund were registered in terms
of section 4(4) of the Pension Funds Act, 24 of 1956
(
VAN
HEERDEN
above par [9]).
[6] Ms Norman submits
that Proclamation 52 was promulgated in order to benefit those
members whose term ended due to effluxion of
time. She bases this
submission on the ordinary grammatical meaning of the words “has
ended” in paragraph 3.3 of Proclamation
52.
[7] In answer to the
defendants’ first special plea, namely that the plaintiff is
not entitled to the once-off gratuity because
he resigned, Mr
Williams makes the following submissions:
“
4.1 Although
Plaintiff is a member of the Political Office Bearers Pension Fund,
and serves in the Legislature, it is incorrect
to argue that he is
still
such a member and
still
serving in such capacity.
4.2 It is clear that Plaintiff
resigned from the Legislature and as a member of the ANC on
5
February 2009
.
4.3 Thereafter, some three months
later, on
6 May 2009
, he was
once again
sworn in as a
member of the Legislature, this time as a member of COPE.
4.4 Of fundamental importance,
however, is that Plaintiff applied for and received his full pension
benefits upon his resignation
on
5 February 2009
.
STATED CASE, PAR. 4
4.5 As such, there was a break in
between his service as a member of the Legislature and member of the
Pension Fund for some three
months. The fact that Plaintiff now
receives a fresh remuneration in terms of his new appointment and is
now once again a member
of the Pension Fund does not disentitle him
to receiving the gratuity.”
[8]
The starting point in statutory interpretation is that words must be
attributed their ordinary, literal, grammatical meaning.
A
court may depart from the ordinary literal meaning of the words only
where not to do so would lead to an absurdity so glaring
that it
could never have been contemplated by the legislature or lead to a
result contrary to the intention of the legislature,
as shown by
context or other considerations -
RANDBURG TOWN COUNCIL
v KERKSAY INVESTMENTS (PTY) LTD
1998 (1) SA 98
(SCA) 107 A –
B.
[9] Mr Williams points
out that the plaintiff’s term of office, either as member of
the Provincial Legislature or MEC could
have ended in one of the
following ways:
(i) Automatically five
years after being elected as MEC (section 108 (1) of the
Constitution, Act 108 of 1996);
(ii) In the event of the
Premier dissolving the provincial legislature before the expiry of
the five year term (section 109 (1)
and (2) of the Constitution, Act
108 of 1996);
If dismissed by the
Premier as MEC before expiry of the five year term (section 132 (2)
of the Constitution, Act 108 of 1996);
death;
resignation.
[10] Mr Williams says
that the gratuity is calculated with reference to every five year
period or pro rata part thereof. Thus paragraph
3.3 also refers to
cases where there was no completion of the full five year period.
There was no intent to discriminate between
office bearers on the
basis of the manner in which their terms of office came to an end.
There is no reason why the President would
have intended to allow the
once-off gratuity to an MEC who is dismissed by a Premier, midstream
through his five year term, but
not allow a similar benefit to an MEC
who resigns because of ill health or personal reasons or other
reasons. Mr Williams says
the purpose of paragraph 3.3 is to provide
a bonus to a certain category of public office bearers and the
plaintiff falls in this
category.
[11] In my view there is
no basis to give the words “has ended” in paragraph 3.3
the restricted meaning Ms Norman contests
for. There is no basis to
depart from the literal meaning of the words (
RANDBURG
-case
at 107 C – D with reference to
R v VENTER
1907 TS
910
at 915). Dismissal by the Premier has not been excluded. Why
should resignation then be excluded? “Has ended” can be
the result of several events and paragraph 3.3 does not restrict
those events. Resignation means “has ended” for purposes
of paragraph 3.3.
[12] The defendants’
argument as to retrospectivity is equally without merit. The
Proclamation applies to all persons whose
term ends after the
Proclamation came into operation. On the face of it, the Proclamation
does not apply to persons whose term
ended before Proclamation 52
came into operation. It is absurd to allege that the period of
entitlement commences on the date the
Proclamation came into being.
Proclamation 52 applies to the plaintiff, because it came into
operation on 12 November 2008 and
plaintiff resigned on 5 February
2009, some three months later. As Mr Williams points out, use of the
words “has served”
and whose term “has ended”
indicates a past tense. If the intention was to award the benefit to
be calculated only
in respect of terms of office served after 12
November 2008, the present tense would have been used, a person who
“serves”
and whose term “comes to an end”.
There is no merit in the second special plea.
[13] The stated case
(paragraph 6) provides that the quantum of plaintiff’s claim be
held over pending adjudication of his
claim on the merits. There is
no reference to costs in the stated case. It follows as a matter of
logic that defendants must pay
plaintiff’s costs.
[14]
ORDER
1. The question in the
stated case is answered as follows:
Plaintiff is entitled to
the gratuity as set out in clause 3.3 of Proclamation 52 published in
Government Gazette 31597 dated 12
November 2008.
Defendants are ordered
to pay plaintiff’s costs to date.
____________
A. KRUGER, J
On
behalf of plaintiff: Adv A Williams
Instructed
by:
Lovius
Block
BLOEMFONTEIN
On
behalf of defendants: Adv T V Norman SC
Instructed
by:
State
Attorney BLOEMFONTEIN
/sp