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[2012] ZAKZDHC 58
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Flack v National Director of Public Prosecutions and Others (15664/2007) [2012] ZAKZDHC 58 (2 October 2012)
IN THE HIGH COURT OF
SOUTH AFRICA, DURBAN
REPUBLIC OF SOUTH AFRICA
Case no.: 15664/2007
In the matter between
KEITH FLACK
..................................................................................................
Plaintiff
and
THE NATIONAL DIRECTOR
OF PROSECUTIONS
...........................
First
Defendant
THE MINISTER OF
FINANCE
.......................................................
Second
Defendant
THE MINISTER JUSTICE &
CONSTITUTIONAL
DEVELOPMENT
................................................................................
Third
Defendant
JUDGMENT
Heard: 22 August 2012
Handed down: 2 October
2012
D. PILLAY J
[1] Keith Flack, the
plaintiff, claims under-payment of remuneration and benefits of R189
635 as damages from the defendants. In
response to an advertisement
in a newspaper for Senior Special Investigator (Forensic Accountant)
he applied for and was appointed
as a forensic accountant in the
Durban office of the Directorate of Special Operations (DSO) or
‘Scorpions’ with effect
from 1 August 2001.
[2] The DSO was
established in terms of s 7 of the National Prosecuting Authority Act
32 of 1998 (the NPA Act). Between 1 August
2001 to 30 April 2002 the
National Director of Public Prosecutions (NDPP), the first defendant,
paid Mr Flack his remuneration
and benefits in terms of s 19C(1) of
the NPA Act. Such remuneration and benefits were determined by the
Minister of Justice and
Constitutional Development (the Minister),
the third Defendant, in consultation with the NDPP and in concurrence
with the Minister
of Finance, the second defendant.
[3] Between 1 May 2002 to
31 May 2006 the NDPP paid Mr Flack’s remuneration and benefits
in terms of the Pubic Service Act,
1994 (the PSA). The plaintiff
alleges that this change from being remunerated in terms of the NPA
Act to the PSA was unlawful;
one or other of the defendants breached
their contractual obligation and statutory duty resulting in his loss
and damages.
[4] In its defence on the
merits, the NDPP pointed out that when the DSO advertised the post of
Senior Special Investigator (Forensic
Accountant) the post of
forensic accountant had not been created. The DSO was a new unit.
However, it needed forensic accountants
urgently. Consequently, the
NDPP resolved to ‘piggy back’ the forensic accountant
position on the special investigators’
post. Special
investigators were appointed in terms of the NPA Act. Hence Mr
Flack’s initial appointment was to the position
of forensic
accountant in terms of the NPA Act.
[5] The defendants
further alleged that during February 2001 the post of forensic
accountant was created. The process began on 28
February 2001 when
the NDPP submitted an internal memorandum to the Minister for the
creation of a forensic accounting unit within
the DSO (exhibit C1-4).
He recommended that posts be created on the following notches:
Senior Forensic
Accountant +- R550 000 (Deputy Director–General)
Forensic Accountant +-
R300 000 (Chief Director)
Assistant Forensic
Accountant +- R150 000 (Assistant Director)
Trainee Forensic
Accountant +- R70 000 (Administrative Officer)
[6] This recommendation
was approved by the Minister on 26 March 2001 subject to a discussion
and agreement with his Director-General.
The Deputy NDPP (Advocate P
Sonn), Chief Director of Finance and Procurement (Mr SZ Nkosi), the
Chief Executive Officer (Miss M
Sparge) and the NDPP (Mr B Ngcuka)
endorsed the recommendation.
[7] About 30 November
2001 Mr Flack applied to the NDPP to be appointed as forensic
accountant which was one of the posts created
in exhibit C1-4. This
post was advertised in the Sunday Times of 18 November 2001 at a
package of R348 987 per annum (SMS package).
Consequently, on 5 March
2002 the NDPP offered Mr Flack the position of forensic accountant at
the DSO. Mr Flack accepted the offer
on 11 April 2002. The defendants
insist that the post was advertised and accepted as a PSA post. As
there was a written offer and
acceptance the defendants denied
breaching unilaterally and unlawfully any contractual or statutory
obligation to Mr Flack.
[8] Mr Flack replicated
that he had no knowledge as to when the posts were created or
authorised. He maintained that his second
appointment was a transfer
to the position of forensic accountant with effect from 1 May 2002.
Furthermore, he denied knowing before
March 2004 that an
investigative member of the DSO was remunerated under the NPA Act and
not under the PSA, and that there was
a material disparity between
the remuneration paid in terms of the NPA Act and the PSA. Despite
admitting the exchange of correspondence
leading to his appointment,
Mr Flack denied that he asked to be appointed in terms of the PSA.
[9] About the end of 2001
or early 2002 Mr Flack notified the NDPP that his total salary
package of R272 744 differed from the package
offered for the same or
substantially the same job which was advertised at the package of
R348 987 – R375 948. The NDPP adjusted
his salary and raised
his level from 12 to 13 in line with the advertised post. He
contended that the NDPP failed to inform him
at the time that the new
level 13 post was under the PSA and not the NPA.
[10] Accordingly, he
alleged that when he accepted his appointment to forensic accountant
on 1 May 2002, he was unaware that his
appointment was under the PSA.
He further contended that the NDPP had a duty in law to remunerate
him in accordance with the package
for investigators at level 13
under the NPA Act. Therefore his appointment under the PSA was
unlawful and invalid.
[11] Most, if not all the
relevant evidence was documented. As the parties agreed that the
documents were what they purported to
be without admitting the truth
of their contents, most of the material facts were common cause.
Facts that were not common cause
are:
(a) the dates when the
posts to which Mr Flack was appointed were created;
(b) whether the post of
forensic accountant was a NPA or PSA post; and
(c) whether Mr Flack was
underpaid for the period 1 May 2002 – 31 May 2006. If he was
underpaid the parties agreed amount
due to him would be the amount
claimed.
[12] The date when the
first post to which Mr Flack applied was established, is not clear.
However, exhibit B10-15 is a memorandum
signed by the Deputy NDPP,
the Executive Manager (Human Resource Manager and Development), the
Executive Manager of Finance and
the Chief Executive Officer of the
NPA recommending Mr Flack’s appointment as forensic accountant,
not special investigator,
at the DSO, Durban.
[13] The date when the
second post of forensic accountant to which Mr Flack was appointed
was established should have been soon
after the recommendation in
exhibit C1-4 was adopted. However, in exhibit I, the memorandum dated
29 September 2005 to the Minister,
the Chief Executive Officer (Miss
MM Sparge) acknowledges queries by the Auditor-General about the:
‘
non-existence
of an approved organogram/establishment of the National Prosecuting
Authority that reflects the current number of
posts’.
To that memorandum was
attached the establishment for the NPA which was approved. Although
the defendants say that the post was
created in February 2001, it was
only properly established in September 2005.
[14] Therefore, Mr
Flack’s second appointment was to a post that was only
established on 29 September 2005. He was appointed
in May 2002 to a
post that had been hastily created but not properly established.
Nothing turns on the date of the establishment
of the DSO posts other
than confirmation that the DSO was newly established and had to
overcome some administrative hurdles.
[15] However, exhibit
C1-4 imparted a sense of incompleteness. For instance, the notches
were estimates. They were also subject
to the Director-General’s
approval. This incompleteness suggested that there had to be further
documentation, a fact corroborated
by the Auditor-General’s
queries. Mr Flack pursued the search for further documentation
through the application to compel
better discovery which yielded
exhibit I handed in during the trial. Exhibit I completes exhibit
C1-4. The Auditor-General’s
queries explain and corroborate the
defence version that there was no other documentation establishing
the DSO before 29 September
2005.
[16]
Notwithstanding the disclosure of exhibit I, Miss Nel persisted that
the recommendation in exhibit C1-4 was for the creation
of posts in
the NPA in terms of the NPA Act to the exclusion of the PSA. Her
reasons for saying so were firstly, that the vacancy
for senior
forensic accountant was advertised as a ‘director level’
post; exhibit C1-4 refers to director posts. As
exhibit C1-4
established posts in the NPA, Mr Flack applied for a director level
post in the NPA. Secondly, the NPA and its Investigating
Directorates
had to be free of political interference. Maintaining the
independence of the NDPP was an imperative compelled by
the
Constitution of the Republic of South Africa, 1996. To affirm this
she provided the court with copies of
The
Khampepe Commission Of Inquiry Report
(Final)
February 2006 and
Glenister v President Of The Republic Of
South Africa And Others
2011 (3) SA 347
(CC).
To
be free of political interference special investigators had to be
employed in terms of the NPA Act. PSA employees could not be
employed
in the NPA without compromising the independence of the NPA because
they fell under the authority and influence of the
executing
authorities referred to in the PSA. Lastly, the legislation did not
permit PSA employees to be appointed to the NPA except
when they were
seconded.
[17] The defendants
insisted that the accounting unit posts in exhibit C1-4 were created
in terms of the PSA. Furthermore, Mr Flack
was not appointed as a
senior special investigator or at director level but as a forensic
accountant. Lastly, his terms and conditions
were prescribed under
the PSA.
[18] When Mr Flack was
appointed in August 2001, the DSO was a new unit within the NPA. It
did not have a forensic accounting unit.
The unit originated in
exhibit C1-4, the internal memorandum. The reference in exhibit C1-4
for the posts of Deputy Director-General,
Chief Director, Assistant
Director and Administrative Officer are references to the equivalent
positions in the PSA. They could
not possibly have been references to
such positions in the NPA Act because no such positions existed.
Furthermore, the notches
reflected alongside each post are payable to
such posts in the PSA. The term ‘directors’ under the NPA
refer to the
upper echelons of the investigating directorates and
include the NDPP, Deputy NDPPs, Investigating Directors and the heads
of Investigating
Directorates. Obvious features distinguishing
directors under the PSA from directors under the NPA are not only the
huge gap in
their pay but also in their duties and levels of
responsibility.
[19] In exhibit I which
established the forensic accounting unit in the DSO the position of
senior special investigator and special
investigator rank six and
seven in the hierarchy of the establishment. Forensic accountants are
even lower at eight. Directors
rank one and two. The reference to
‘director’ in the advertisement for senior forensic
accountant could therefore not
have been for a director post under
the NPA.
[20] Mr Flack is also not
correct when he asserts that he was employed as a senior special
investigator. Notwithstanding the advertisement
and his letter of
appointment, he was appointed as forensic accountant. He attempted to
mislead the court when he testified that
he was transferred to a
level 13 NPA employee at the beginning of 2002. His Persal records
show clearly that he was only elevated
to level 13 with his second
appointment as forensic accountant.
[21] I finding that Mr
Flack was neither a senior special investigator nor at director
level. The only issues remaining are whether
his employment on PSA
terms and conditions was lawful and what his rate of remuneration
should have been.
[22] Ostensibly under the
common law, the offers, counter-offers and acceptance of employment
were properly made. They are recorded
in writing which facilitates my
findings. The changes in Mr Flack’s conditions of service were
therefore not unilateral.
On each occasion, he applied for posts
which were advertised with the conditions of service. Notwithstanding
the ostensible lawfulness
of Mr Flack’s second contract of
employment, the question for determination is whether in law the NPA
Act precluded appointments
in terms of the PSA to preserve the
independence of the NPA.
[23] The NPA is
institutionally independent. Section 179 of the Constitution of the
Republic of South Africa 1996 establishes
‘
a
single national prosecuting authority in the Republic, structured in
terms of an Act of Parliament’.
The structure consists of
the NDPP as the head of the NPA, Directors of Public Prosecutions and
prosecutors.
[24]
Notably, only the NDPP is appointed by the President,
‘
as
head of the national executive’
.
The appointment of forensic accountants, special investigators and
other staff was not prescribed by the Constitution to be part
of the
establishment of the NPA. However, such appointments and all other
matters concerning the NPA had to be determined by national
legislation. This formation set the NPA apart from other organs of
state. Not being a department as defined in the PSA also enhances
its
independences.
[25]
Section 7 of the NPA Act, the legislation contemplated in s 179 of
the Constitution, established the DSO in the office of the
NDPP. It
provided for the NDPP to appoint special investigators to the DSO on
the recommendation of the head of the DSO.
1
The
head of the DSO was the Deputy NDPP assigned by the NDPP.
2
Deputy
NDPP’s were assisted by investigating directors, deputy
directors and prosecutors. In addition, sub-sec 7(4)(a) provided
for
the appointment of special investigators, public service and other
appointments as follows:
‘
(iiA)
in the case of the Directorate of Special Operations, special
investigators;
officers
of any department of state seconded to the service of the
Investigating Directorate in terms of the laws governing the
public
service;
(iv)
persons in the service of any public or other body who are by
arrangement with the body concerned seconded to the service of
the
Investigating Directorate; and
(v)
any other person whose services are obtained by the head of the
Investigating Directorate,
and
the persons referred to in subparagraphs (i) to (v) shall perform
their powers, duties and functions
subject to the control and
direction of the head of the Investigating Directorate concerned
.
(b)
For the purposes of subparagraphs (iv) and (v) of paragraph (a) –
(i)
any person or body requested by the head of an Investigating
Directorate in writing to do so, shall from time to time, after
consultation with the head of an Investigating Directorate, furnish
him or her with a list of the names of persons, in the employ
or
under the control of that person or body, who are fit and available
to assist the head of that Investigating Directorate as
contemplated
in the said subparagraphs (iv) or (v), as the case may be; and
(ii)
such a person or body shall, at the request of, and after
consultation with, the head of the Investigating Directorate
concerned,
designate a person or persons mentioned in the list
concerned so to assist the head of the Investigating Directorate.’
(my underlining)
[26]
Apart from the President appointing the NDPP, the NDPP appointed
everyone else in the DSO. None of the defendants participated
in the
appointments to the DSO. Accountability to and control by the head of
the DSO was critical to preserving the independence
of the DSO.
Everyone appointed to the DSO had to perform their powers, duties and
functions subject to the control and direction
of the head of the
Investigating Directorate.
3
It is
this accountability and control that insulated the DSO from political
interference.
[27]
Whatever Mr Flack’s position in the DSO, he was, like every
other employee in the DSO, subject to the control and direction
of
the head of the DSO. He would have exercised such powers and
performed such duties that the NPA Act ‘or any other law’
4
conferred
upon him. Manifestly, the NPA Act was not the only law regulating
special investigators and other employees in the DSO.
[28] Ms Nel submitted
that the only basis on which persons employed in terms of laws
governing the public service could be employed
in the DSO was by
secondment to the DSO in terms of s 7(4)(a)(iii) and (iv) above of
the NPA Act. Put differently, no one, or no
special investigator
employed in terms of the PSA could be employed in the DSO unless they
were seconded.
[29]
Her interpretation is unduly restrictive. The NPA Act was a new
statute. The investigating directorates and the DSO in particular
were even newer. The DSO had to have sufficient flexibility to
establish itself and to achieve its objective of being ‘the
most efficient and effective’ prosecuting authority.
5
Sub-sections
7(4)(a)(iii) and (iv) merely enabled the secondment of people
employed in other state departments or even the private
sector to the
DSO. It did not preclude the appointment of employees on PSA terms
and conditions. Sub-section 7(4)(a)(v) conferred
a wide power on the
head of the investigating directorate to employ any person. Such
persons might well have been employees in
the public service and
elsewhere who were not seconded. Another consideration was that from
the perspective of the employees seconded,
these provisions ensured
that their security of tenure was not disturbed by the secondment.
6
[30] Sub-section 7(4)(b)
placed the prerogative of employing the most suitable persons in the
hands of the head of the Investigating
Directorate. This signalled
the priority given to the DSO and the authority to seek and employ
the best people. Furthermore, it
asserted the hierarchy of the DSO
over other state departments and any public or other bodies to avoid
or minimise conflicts that
might have arisen if the DSO poached staff
from other entities.
[31] The secondment of
public service employees clearly anticipated that some persons
staffing the DSO would have conditions of
service determined by the
PSA and other laws. Section 19 of the NPA also imports the PSA to
determine the conditions of service
of deputy directors and
prosecutors. Section 37 enables the administrative staff of the
Investigating Directorates to be appointed
under the PSA. In so far
as Mr Flack alleged that he was appointed as a director or at
director level, s 19 would have had his
conditions of service,
excluding his remuneration, determined by the PSA. But Mr Flack was
not appointed as a director or at director
level.
[32] Significantly, s
40(2) empowered the political head, i.e. the Minister in consultation
with the NDPP to make regulations regarding
the DSO to prescribe the
employment, training, promotion, posting, transfer and other
personnel management of special investigators.
Importantly, it
prescribed:
‘
the
numerical establishment of the Directorate of Special Operations, the
conditions of service of the special investigators thereof,
the
salaries, salary scales, wages and allowances of special
investigators and the systems relating to the administration and
determination thereof and the various structures, grades, ranks and
designations in the Directorate of Special Operations;. . .’
7
Nothing in s 40(2)(d)
above precluded PSA conditions being imported into the NPA to
determine the pay of special investigators.
[33]
Regulation 3 published on 2 February 2001
8
expressly
imported the conditions of service of special investigators as
follows:
‘
Subject
to the provisions of Chapter 3A of the Act, all conditions of service
of special investigators are governed and regulated
by the provisions
of the Public Service Act, 1994 (Proclamation 103 of 1994).’
[34] In so far as Mr
Flack asserted that he was a senior special investigator, reg 3
imported the PSA conditions of service to apply
to him. Regulation 3
did not detract from the Minister’s authority to determine the
remuneration and other allowances in
terms of s 19C (1). But Mr Flack
was not appointed as a senior special investigator.
[35] Employment under PSA
terms and conditions did not weaken the independence of the NPA
because when making the regulations that
import the PSA the Minister
had to consult the NDPP. It was not Mr Flack’s case that the
participation of the Minister in
setting the terms and conditions of
special investigators, compromised or diluted the independence of the
DSO and therefore s 40(2)
read with regulation 3 were
unconstitutional. Or that importing the PSA conditions of service
into the NPA Act was for the same
reasons unconstitutional. This puts
to bed Mr Flack’s assertion that the PSA conditions did not
apply to special investigators
and other staff in the NPA.
[36]
Appointing staff on terms and conditions prescribed by the PSA to
departments and entities other than the Department of Public
Service
and Administration is a common and convenient practice. It is
convenient because it simply means extending the well-known
tried and
tested rules for the public service for certainty and clarity. For
example, members of the South African Police Service
(SAPS) appointed
in terms of the PSA are under the command of the SAPS hierarchy and
not the hierarchy of the Department of Public
Service and
Administration.
9
[37] Section 19C (1) of
NPA Act provided that the remuneration, allowances and other service
benefits of special investigators were
determined by the Minister, in
consultation with the NDPP and with the concurrence of the Minister
of Finance. Mr Flack insists
that his remuneration and other benefits
should be determined in terms of s 19C of the NPA Act, not least
because that insulates
the DSO from political interference and
assures its independence, in a way that the PSA does not. This
reasoning is flawed. The
NPA Act allows two political heads to
participate in determining the pay of special investigators. In
contrast, PSA terms and conditions
which are determined through
centralised collective bargaining in the Public Service Co-ordinating
Bargaining Council give political
heads less opportunity to influence
officials through their pay packets. The executing authorities are
usually the director generals.
I do not suggest that the
participation of the two ministers in determining remuneration,
compromises the independence of the NPA;
that is Mr Flack’s
proposition. The fact that the ministers consult the NDPP minimises
the risk of political interference.
[38] Accordingly, I find
that the NPA Act authorised the employment of personnel on PSA terms
and conditions of service. Such employment
did not compromise the
independence of the NPA or the DSO. Furthermore, Mr Flack was not
seconded from a department of state or
any public or other body.
Sub-section 7(4)(a)(v) authorised the head of the DSO to employ Mr
Flack on PSA terms and conditions
of service.
[39] Having established
that the NPA Act permitted employment within the NPA on PSA terms and
conditions, it remains then for the
court to determine whether Mr
Flack knew or ought to have known that he was employed under PSA
terms and conditions. Although Mr
Flack alleges that he was not aware
that his appointment from 1 May 2002 was in terms of the PSA, the
NDPP’s offer of employment
to him states that it was to
‘
a
post of
Forensic
Accountant at the DSO (Scorpions)
in the
National
Prosecuting Authority
with remuneration of
R371
673
SMS
package
per annum
.
Please take note that you will enjoy the same benefits as officials
employed under the
Public
Service Act
and
Public
Service Regulations
.’
[40] The NDPP highlighted
the material portions of its offer as indicated above. This offer
differs significantly from his first
appointment which did not refer
to the PSA and its regulations. As a chartered accountant Mr Flack
could not have been in any doubt
that the benefits following his
appointment from May 2002 was the same as officials employed under
the PSA and its regulations.
Although this letter of appointment
appears to distinguish between his remuneration and benefits, which
might suggest that his
position was akin to deputy directors and
prosecutors in terms of s 19, nothing turns on this distinction
because he was not a
deputy director or prosecutor. Furthermore, s
19C also did not apply to him because he was not a special
investigator. Section
37 of the NPA Act enabled his appointment under
the broad category of administrative staff performing the functions
of a forensic
accountant for the forensic accounting unit created in
terms of exhibits C1-4, established in the DSO and confirmed by
exhibit
I.
[41] Mr Flack asserts
that as he was at level 13 he should have been paid at that level as
a NPA employee, not as a PSA employee.
When the job evaluation was
conducted it confirmed that the nature of his duties was such that he
should have been at level 13
on the NPA scale. Using the salary
scales for chief special investigators and senior special
investigators who were level 13 on
the NPA scales, he calculated his
losses or under payments.
[42] Mr Flack’s
Persal records show that initially when he was appointed on 1 August
2001 his rank was Line Function with
a salary code SUP SR12 on a
notch of R206 700 adjusted to R216 129. On promotion on 1 May 2002
his rank was Management Support
code SR 13 on notch R371 673. On 1
January 2003 his rank changed to Management Support SR 13 on notch
R401 406. He remained on
this salary, rank and code with various
upward adjustments of his package until he was promoted on 1
September 2006 to the rank
of Legal Support salary code SR 13 on
notch R523 012. Thereafter his rank and salary code remained the same
with adjustments to
his notch until he was transferred on 30 June
2009.
[43] According to Mr
Flack’s Persal records he never once held the rank of senior
special investigator or director. Mr Flack
would have been aware of
his salary, rank and code with every pay slip he received.
Furthermore, his application on 30 November
2001 was for the position
of forensic accountant ‘as advertised’. The Sunday Times
advertisement was for posts at a
package of R348 987. Following
representations by the regional head of the DSO, Mr Flack received a
salary offer of R371 673 SMS
package. He accepted his position as a
‘transfer’ to the post of forensic accountant at the DSO,
Durban at the remuneration
offered. Therefore Mr Flack was always
aware of his rank and the full terms and conditions of his
employment.
[44] The nature of Mr
Flack’s duties also did not entitle him to be paid as a senior
special investigator as he claimed. Neither
was he an administrator.
He rendered forensic accounting services. In terms of the job
description of special investigators their
powers enumerated in s
30(2) of the NPA Act are akin to the powers of the police.
Sub-section 30(2) which enumerated the powers
and functions of
special investigators, began as follows:
‘
(2)
A special investigator has the powers as provided for in the Criminal
Procedure Act, 1977 (Act 51 of 1977), which are bestowed
upon a peace
officer or a police official, relating to – ’
[45] At most, forensic
accountants might have been involved in the investigation of offences
but from a purely forensic accounting
angle. Accountants did not have
to search and enter premises, seize and dispose of articles, effect
arrests, serve execution warrants
and attend on the accused in court.
The protocols for the appointment of special investigators were also
prescribed. The NDPP had
to issue an identity document in the
prescribed form to each special investigator to serve as proof of his
or her appointment as
such. Special investigators were also subjected
to security screening in terms of s 19B of the NPA. The NDPP had to
issue a security
clearance certificate to every special investigator.
Special investigators were also subjected to periodic screening. They
had
to take an oath of office before a judge which Mr Flack confirmed
he did not do.
[46] Although Mr Flack
testified in cross-examination that he had to obtain security
clearance he was not subjected to the same
degree of scrutiny as
special investigators. He was not inducted with the same training as
special investigators. In the nature
of his duties he did not carry
the same degree of personal risk as special investigators did. He was
desk bound. His job description
was not investigative in the same way
that special investigators were. Accordingly I am fortified in my
finding that he was not
employed as a senior special investigator and
his duties were not those of a special investigator. However, the
value of his work
as a forensic accountant was important. First
recognition of this came with the job evaluation undertaken in 2006
when he was ranked
level 13 on the NPA scale.
[47] Chapter 1 part 5 of
the regulations to the PSA provide at reg C7 that the absorption of
an incumbent employee into a higher
grade post takes effect on the
first day of the month following the month during which the executing
authority approves that absorption.
In other words the re-grading of
Mr Flack’s position could not be effected retrospectively.
Surprisingly, after denying his
appointment in terms of the PSA, Ms
Nel relied on s 37 of the PSA as the means by which Mr Flack could be
paid more than the scale
he agreed to. Besides there being no legal
mechanisms to back pay him, there is no factual justification to do
so. The job evaluation
was an assessment of the current state of the
DSO. In a new evolving unit, the nature of his duties and his
experience in the job
would also have evolved. Therefore, it did not
necessarily follow that his level 13 on the NPA scale in 2006 would
have been his
level in 2002. However, the most compelling reason for
not paying Mr Flack anything more than what he agreed to emerges from
his
own choice.
[48] Confirmation that Mr
Flack was not entitled to a higher rate of pay emerges from The
Sunday Times advertisement. Above the
position he applied for was
another advertisement for forensic accountants on an SMS package of
R553 626. Besides the substantial
pay differential, the higher
package required the incumbent to supervise other accountants in the
DSO. Ms Nel’s submission
that the two posts were the same was
therefore misleading. Mr Flack occupied the only post for a forensic
accountant in KwaZulu
Natal. He had no one to supervise. He could
have applied for the post carrying the higher package since both
advertisements were
next to each other. But he did not do so. He must
have known his own limitations when he applied for the position with
a lower
package. Mr Flack was therefore not underpaid.
[49] The defendants
raised four special pleas. The first two related to alleged
noncompliance with the statutory requirements of
ss 3, 4 and 5 of
Legal Proceedings Against Certain Organs of State Act 40 of 2002. The
defendants alleged that Mr Flack did not
give six months’
notice before instituting proceedings and they did not consent in
writing to the proceedings being instituted.
The third special plea
was that the claims before 2 January 2005 had prescribed. Mr Flack
issued summons on 21 December 2007. The
fourth special plea was to
the jurisdiction of the High Court. The defendants alleged that
s
157(1)
of the
Labour Relations Act 66 of 1995
conferred exclusive
jurisdiction on the Labour Court in respect of labour disputes.
[50] Following an
application for condonation of non-compliance with Act 40 of 2002 the
parties agreed to take an order withdrawing
the application with no
order as to costs. The defendants abandoned the second point
in
limine
. When the matter was set down for trial the first time and
adjourned
sine die
with costs reserved, the defendants
withdrew their first and fourth special pleas. On that day they also
obtained an order condoning
Mr Flack’s failure to give notice
in terms of the Act 40 of 2002.
[51] The only special
plea remaining was that of prescription. Having found that Mr Flack
was aware of his rank, rates of pay, terms
and conditions of
employment with every advertisement he responded to, and every letter
of appointment and payslip he received,
he cannot reasonably plead
ignorance of these facts. Furthermore, the salary scales of senior
special investigators and chief investigating
officers were published
periodically in the Government Gazette and advertisements for
vacancies. As a forensic accountant Mr Flack
could easily have
ascertained the information he needed to assess whether he was
employed in terms of the NPA Act or the PSA from
the outset. In the
circumstances prescription was well pleaded.
[52] The costs of the
special pleas and interlocutory applications including an application
to discover remain outstanding. Two
factors weigh strongly in my
deliberations. Firstly, much of the information relevant to
determining this dispute on its merits
was in the public domain or
easily available to Mr Flack. Secondly both parties left trial
preparation to the last minute. Furthermore,
when they did conduct
pre-trial conferences they failed to apply themselves properly to
identifying what the issues in dispute
were, what information was
lacking, and how they intended to prosecute the trial. For instance,
in reply to a request for further
particulars from the defendants Mr
Flack’s representatives continued to play coy with the
information at their disposal.
On the side of the defendants, they
failed to search and disclose documents timeously.
[53] Mr Flack cannot
claim costs of the application for condonation from the defendants
merely because the defendants consented
eventually. This was an
indulgence he sought. The defendants obliged. They cannot be saddled
with the costs of his oversight.
[54] The costs of all the
special pleas are inconsequential in the circumstances of this case.
Given the degree of unpreparedness
for trial, each party should pay
its own costs reserved on 24 October 2011.
[55] However, Mr Flack
launched a substantial application to compel discovery the day before
the trial. I adjourned that application
after directing the parties
to exchange whatever documents they had that were relevant to the
trial. In the course of the trial
the defendants produced only one
further document that was relevant namely the establishment of the
DSO exhibit I. Another document
which was relevant namely the Sunday
Times advertisement of 18 November 2001 was sourced by Mr Flack’s
representatives. As
a document generated by the NDPP, the defendants
should have discovered exhibit I. However, exhibit I merely completes
the picture
as far as the establishment of the DSO goes. It does not
assist the plaintiff. The plaintiff prepared a massive volume of
documents
for this trial, much of which was not referred to. The
documents sought in the discovery application were irrelevant to
proving
Mr Flack’s claim. In the circumstances Mr Flack is not
entitled to the costs of the application to compel discovery.
However,
the defendants are also not entitled to those costs as they
should have responded to the rule 35(3) notice sooner to avert the
application to compel. Consequently each party should pay its own
costs of the application to compel discovery.
[56] As for costs of the
trial, all the relevant evidence was documentary. The parties could
have avoided three full trial days
with oral evidence being led of
one witness for each side. They should have agreed on a bundle of
documents and presented a stated
case for the court to determine. The
dispute was located in a bureaucracy. Therefore context in which the
documents emerged could
not be disputed. Furthermore, the parties
agreed that the documents were what they purported to be. Add to that
the Parol evidence
rule, the interpretation of the documents was a
matter for the courts, not witnesses. Inattention to pre-trial
preparation and
underrating its value for efficient dispute
resolution is not only weighing down the court rolls but also
increasing the cost of
litigation unduly. To remedy this, litigants
who burden the court rolls unduly and lawyers who fail to pre-trial
properly should
be denied or mulcted with costs. In this instance
imposing such a punitive order for costs as between party and party
is not appropriate
as both legal representatives are co-responsible
for the unnecessary was of court time. However, their clients are
informed in
this judgment that this case could have been concluded in
a day if the parties had presented a stated case.
[57] The order I grant is
the following:
the claim of the
plaintiff Mr Flack is dismissed with costs;
each party pays its own
costs of the special pleas and interlocutory applications.
___________
D.PILLAY J
Date of Hearing: 21-24 August 2012 and
Date of Judgment: 2 October 2012
Counsel for the Plaintiff: Ms C. Nel
Instructed by: Macgregor Attorneys
114 Bulwer Road
Glenwood
031-2018955 (Hansjee)
Counsel for the Defendant: Mr Nankin
Instructed by: F. Seedat
State Attorney
6
th
Floor, Metropolitan Life
391 Anton Lembede Street
Durban
031-365 2553
1
s
19 A
2
s
7 (3)
3
S
7(4)(a)
4
S
30(a) of NPA Act
5
Preamble
to the NPA Act
6
S
19C
(2):
‘If an officer or employee in the public service is appointed
as a special investigator, the period of his or her service
as
special a investigator shall be calculated as part of and continuous
with his or her employment in the public service, for
purposes of
leave, pension and any other condition of service. The provisions of
any pension law applicable to him or her or,
in the event of his or
her death, to his or her dependents.’ which are not
inconsistent with this section, shall, with
the necessary changes,
continue so to apply. . .’; See also similar provisions in s
17(2) relating to conditions of NDPP
and Deputy NDPP.
7
S
40(2)(d)
8
GNR
108 in GG 22027.
9
See
for example
SAPS v Police and Prisons Civil
Rights Union and Another
(2001) 32 ILJ
1603 (CC)
in which the Constitutional
Court distinguished between policemen employed in terms of the PSA
and those employed under the South
African Police Services Act 68 of
1995.