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[2011] ZANCHC 13
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Premier of the Northern Cape v Selemela (1912/09) [2011] ZANCHC 13 (17 June 2011)
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IN THE HIGH COURT OF
SOUTH AFRICA
[NORTHERN CAPE HIGH
COURT, KIMBERLEY]
CASE NO: 1912/09
In the matter
between:
THE PREMIER OF THE
NORTHERN CAPE
…....................................................
APPELLANT
AND
MOTLALEPULA ELIAS
SELEMELA
…............................................................
RESPONDENT
___________________________________________________________________________
Date of hearing : 23
May 2011
Date of judgment :
17 June 2011
JUDGMENT
TLALETSI J
Introduction
[1]
This
appeal revolves around the question whether,
on
the facts of this case,
the
respondent waived his permanent status as a public servant when he
was appointed Head of a Department (HoD) of Transport, Roads
and
Public Works in the provincial government. The appeal emanates from
the judgment of B M Pakati AJ in this division in an application
brought by the respondent against the appellant. The order issued by
the learned Acting Judge on 13 August 2010 was on the following
terms:
“
1.It
is declared that the applicant’s (Mr Motlalepula Elias
Selemela’s) permanent appointment as the Deputy Director
General in the Northern Cape Provincial Government still subsists,
and survived the termination of the applicant’s five year
term
he served as the Head of the Department of Transport, Roads and
Public works, in the Northern Cape, without any break of service.
2.
It is ordered that the respondent (the Premier) reinstates the
applicant as a Deputy Director General in the Northern Cape
Provincial
Government, with effect from 01 September 2009, with all
benefits attached to the post. Alternatively, to pay applicant his
benefits
as if he had retired at age 65.
3.
That the respondent pays the costs of this application.”
[2]
Aggrieved by the aforesaid order, the appellant applied for leave to
appeal which application was partially successful. The terms
of the
leave granted to the appellant would be discussed in due the course.
Factual
Background
[3]
For a proper understanding of the
issues a brief factual background is necessary. These facts are
extrapolated from the affidavits
and other documents filed as part of
the record and are mainly common cause or not in dispute. The
principles enunciated in
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
1
will be observed to the extent
that the allegations made in the affidavits are disputed.
[4]
The respondent was employed by
the Northern Cape Provincial Government on 01 February 1996 in the
position of Director: Human Resources
Management in the Premier’s
Office
2
.
On 01 April 1997 the respondent was promoted to the position of
Deputy Director-General Corporate Services in the same office.
[5]
During April 2004 the political
head of the province changed and Ms Elizabeth Dipuo Peters (“Ms
Peters”) took over as
the Premier of the Province. She
commenced a process of deployment and transfer of various senior
managers from their posts in
the various departments. The process
resulted in the HoD of the Department of Transport, Roads and Public
Works(“DTRPW”)
being removed and was to be placed in a
department that was still to be established. The respondent was
consequently moved to the
DTRPW. His position in the Premier’s
office was occupied by the HoD of the Department of Education, one Mr
Moraladi.
[6]
For the
purposes of this appeal it is necessary to set out in detail the
process that was followed in the appointment of the respondent
as HoD
for the DTRPW. This information is based on the respondent’s
averments in his affidavits as well as the annexures
thereto. I may
mention in passing at this stage that this information has not been
contradicted by the appellant who adopted the
view,
inter alia
,
that it is irrelevant.
[7]
The
respondent’s position as the Deputy Director General (“DDG”)
in the office of the appellant was a permanent
one. When Ms Peters
offered him the position of HoD, he indicated to her that he was
willing to accept the offer on condition that
his deployment as HoD
be construed as a secondment and that upon termination of the
contractual period as HoD he would revert to
his permanent position
as the DDG in the office of the respondent or in any of the
departments within the Northern Cape Provincial
administration.
According to the respondent, Ms Peters accepted his counter-offer and
undertook to “
deploy”
him to a position of HoD on
that condition.
[8]
On 6 May
2004 Ms Peters in her capacity as the executing authority wrote a
letter to the respondent stating that:
“
Dear
Mr Selemela,
Secondment
as HEAD of DEPARTMENT: Transport, Roads and Public Works
I,
Elizabeth Dipuo Peters, Premier of the Northern Cape Provincial
Government, in terms of the powers vested in me by the Public
Service
Act 1994 (as amended) hereby second you as Head of the Northern Cape
Transport, Roads and Public Works Department with
immediate effect
for an initial period of six months.
This
secondment vests in you all such powers and obligations as are
incidental to the office of the Head of Department Transport,
Roads
and Public Works including those conferred or imposed by the PFMA and
the Public service Act and such other legislation,
policy or
collective agreements as may be applicable to the said office.
Your
current remuneration package and employment benefits remain
unchanged.
I
take this opportunity to wish you every success.
Yours
faithfully,
_________
E D PETERS:
PREMIER”
The
letter was copied to Mr F A Wyngaardt who was at the time the Member
of the Executive Council (“MEC”) responsible
for the
DTPRW. According to the respondent his secondment was made in terms
of his agreement with Ms Peters and the period of six
months had as
its purpose for him to familiarize himself with the
“
environment
at the department and to determine whether I would have a [good]
working relationship with the then MEC, Mr Fred Wyngaardt”.
[9]
The
respondent averred further that prior to the expiry of the six month
period he was again approached by Ms Peters who suggested
that the
initial period of six months be extended by way of a five year fixed
term contract. The respondent mentioned that he agreed
to the
proposal on condition that the contract should reflect that he
remained a permanent employee, albeit employed as DDG.
[10]
On 31
August 2004 the respondent concluded a written Memorandum of
Agreement of employment with Ms Peters as the executing authority
in
terms whereof the respondent was appointed HoD. The Preamble to the
said Memorandum of Agreement read:
“
WHEREAS
the Executing Authority wishes to deploy and transfer the Appointee
to perform the functions as Head of the Department of
Transport,
Roads and Public Works;
AND
WHEREAS the Appointee had been and is still appointed on a permanent
basis into the Public Service and is willing and able to
perform the
duties of Head of Department;
AND
WHEREAS the parties are desirous to formalize the matters agreed to
between them;
NOW
THEREFORE the Parties agree as follows:
APPOINTMENT
The
Executing Authority hereby appoints the Appointee, who agrees and
accepts appointment as Head of Department in terms of section
12 of
the Public Services Act, 1994 (hereinafter referred to as the Act)
for a period of five (5) years commencing on the 1
st
day
of September 2004 and terminating on the 31 day of August 2009.”
[11] The Memorandum
of Agreement further contained the following provisions on variation
and waiver thereof:
6.5 “VARIATION
6.5.1 The agreement
constitutes the whole of the agreement between the parties to this
agreement relating to the subject matter
of this agreement, and save
as otherwise provided, no amendment, alteration, addition or
variation of any right, term or condition
of this agreement will be
of any force or effect unless reduced to writing and signed by the
parties to this agreement.
6.5.2 The parties agree that
there are no other conditions, warranties or representations, whether
oral or written and whether expressed
or implied or otherwise, save
those contained in this agreement, the Act, the Regulations and other
relevant legislation (e.g Government
Pension Fund Law).
6.6
WAIVER
No
waiver of any of the terms and conditions of this agreement will be
binding for any purpose unless expressed in writing and signed
by the
party giving the same, and any such waiver will be effective only in
the specific instance and for the purpose given. No
failure or delay
on the part of either party in exercising any right, power or
privilege precludes any other or further exercise
thereof or the
exercise of any other right, power or privilege.”
[12]
The term of office of Ms Peters
as Premier of the province came to an end during April 2009.
3
Mrs Hazel Jenkins who is the
deponent to the answering affidavit succeeded Ms Peters as the
Premier of the province.
[13]
The respondent’s term as
HoD expired on 31 August 2009 as stipulated in the Memorandum of
Agreement he concluded with Ms Peters.
On 23 September 2009 the
respondent wrote a letter to the appellant in which he confirmed that
his employment contract as HoD expired
on 31 August 2009 and that his
status as Deputy Director-General in the administration was,
among others,
still
outstanding and requested a meeting with her as a matter of urgency.
The letter was served on the
administrative secretary in the office of the appellant who
acknowledged receipt by signing a copy
thereof.
[14]
It is common cause that neither
the appellant nor any other officer in the employ of the provincial
administration responded to
the respondent’s letter. On 6
October 2009 the respondent’s attorneys wrote a letter to the
appellant marked
“
urgent”
and was transmitted per telefax.
In the aforesaid letter the respondent,
inter
alia
, requested the
appellant to confirm his position as a public servant in writing
within three days of receipt of the letter failing
which he would
approach the High Court for urgent relief. Being placed on terms as
aforesaid did not solicit any response from
the appellant’s
office.
[15]
On 13
October 2009, the respondent’s attorneys wrote a second letter
to the appellant which was also marked “urgent”
and
transmitted per telefax. In this letter the attorneys referred to
their previous correspondence and pointed out, among others,
that
they had not received a response. They further requested the
respondent’s salary advice of the salary he was due to
receive
on 15 October 2009. The purpose of the request was intended to enable
the respondent to establish whether or not he was
not being paid
money in
lieu
of his accumulated leave and other benefits as
part of a termination arrangement. The letter indicated further that
the respondent
regarded himself as a permanent employee of the state
and that he would not accept any termination of employment payments
other
than his salary for that month into his bank account. The
attorneys requested the salary advice to be forwarded to them before
the end of business on the same day, being 13 October 2009. The
appellant’s office responded to this letter by only sending
a
salary advice to the respondent’s attorney’s office
without commenting on substantive issues raised in the letter.
It was
this stance adopted by the appellant on the substantive issues, which
necessitated the institution of the proceedings under
consideration.
[16]
As a matter of fact the first
time that the appellant reacted to the respondent’s claims was
through an answering affidavit
deposed to by Premier Jenkins in
opposition to the respondent’s application. In the affidavit
she confirmed that she only
occupied the position of Premier from
April 2009 and that at all times material to the application she was
not attached to that
office. She however mentioned that she had all
the records containing the relevant facts dealt with by her in her
affidavit,
at her
disposal.
[17]
The appellant’s
defence to the respondent’s claim is that the appointment of
HoD’s is regulated by section 12
of the Public Service Act
Proclamation
4
which states,
inter
alia
, that a person
appointed to the post of HoD shall be for a fixed term not exceeding
five years. In terms of Chapter 4 of the Public
Service Regulations
5
the Minister of Public Service
and Administration may include any or all of the determinations,
directives and guideline provisions
to Senior Management Services
(“SMS”) in the Handbook for “SMSes”. The
appellant contended also that employees
who occupy the position of
HoD,
like the respondent,
have most of their career
incidents set out in the SMS Handbook and that in terms of para 6.2
of Chapter 8 of the SMS Handbook a
serving employee who is appointed
to the post of HoD will automatically lose his/her status as a
permanent employee.
[18] The appellant
contended that, in line with the principle of election, the
respondent waived his right of being a permanent
employee when he
elected to accept the appointment as HoD. The appellant contended
further that clause 6.5 of the Memorandum of
Agreement, quoted above,
confirmed unequivocally that it constitutes the whole agreement
between the parties and that no amendment,
alteration, addition or
variation of any right, term or condition of the said agreement would
be of any force or effect unless
reduced to writing and signed by the
parties to the agreement. The argument goes on to state that the
respondent, by providing
the “
background circumstances”
relating to his discussions and negotiations with Ms Peters, is
seeking to contradict, alter, add or vary a written document with
hearsay evidence without the supporting affidavit by Ms Peters. In
her affidavit the appellant further contended that the background
facts provided by the respondent are irrelevant and should be struck
from the record.
[19]
For
completeness I need to mention that the appellant also raised two
other contentions in her answering affidavit. The first was
that on a
proper interpretation of the dispute between the parties it was
arguable that the respondent should have approached the
Labour Court
and not the High Court. This point was, however, not persisted in
during argument both in the Court below and in this
Court. I need not
say more about it. The second issue raised as a point
in limine
was that of non-joinder. In short the argument was that the
respondent ought to have joined Mr Moraladi in these proceedings as
he had an interest in the matter because he had been appointed to the
position of DDG in the appellant’s office which is
the position
that the respondent occupied before his appointment as the HoD. As I
will indicate below this point was in my view
correctly dismissed by
the Court
a quo
.
Findings of the
Court a quo
[20]
The
Court below after considering authorities on the interpretation of
contracts and the relevant statutory provisions made the
following
remarks and findings in its judgment:
20.1 The terms of
the operative part of the Memorandum of Agreement are clear and
unambiguous as to what the parties agreed upon.
However, the preamble
serves the purpose of confirming that the respondent had been in
permanent employment.
20.2 In terms of the
Public Service Act, s16(1)(a) the respondent was entitled to remain
in the Public Service until he reached
the age of 65 years.
20.3 The memorandum
does not stipulate that the respondent consciously waived his right
to permanency in the Public Service; nor
does it state that the
respondent was aware or was made aware of clause 6.2 in Chapter 8 of
the SMS Handbook and that he made a
deliberate choice that he will
exit the Public Service when his five years service as HoD expires.
20.4 The provisions
of clause 6.2 of Chapter 8 of the Handbook are subordinate to the
statutory enactment of the Public Service
Act and to the extent of
its inconsistency it is null and void. Alternatively, the court felt
bound to read clause 6.2
pro non scripto
.
20.5 Clause 6.2 of
Chapter 8 of the Handbook is very drastic and takes away permanent
employees’ job security and adversely
affects their long term
pension benefits, particularly those who are appointed HoDs long
before their retirement is due. That not
every conceivable detail can
be incorporated in a contract but if clause 6.2 is invoked by an
Executive Authority like a Premier
or the President it needs to be
incorporated in the agreement.
20.6 There was no
upward mobility for the respondent in his re-deployment as his
movement was horizontal. It would make no sense
that the respondent
would have contracted himself from a permanent position of strength
into a precarious temporary position if
he did not legitimately
expect to be retained in the Public Service until retirement or until
he opted to leave when it suited
him.
20.7 That in light
of the decision reached by the court it is unnecessary to deal with
the issue of non-rectification raised during
argument on behalf of
the appellant. Nor was there a need to strike out certain statements
in the founding affidavit on the basis,
postulated by the appellant,
that the respondent introduced extrinsic evidence relating to the
surrounding circumstances leading
to the written agreement. In the
court
a quo
’s view the said evidence merely supplied
vital background information.
20.8 The fact that
the position of DDG in the office of the appellant has an incumbent
or that other vacancies at that level may
all have been filled does
not constitute a bar to the respondent being awarded the substantial
relief sought.
[21]
The
court
a quo
then made the order quoted at para [1] of this
judgment. As pointed out above the appellant was aggrieved by the
judgment of the
court
a quo
and applied for leave to appeal.
In granting leave to appeal to this Court, the court
a quo
held:
“
6.
The memorandum does not stipulate that the [respondent] consciously
waived his right to permanency in the Public Service. Nor
does it
state that the [respondent] was aware or was made aware of clause 6.2
in Chapter 8 of the SMS Handbook and that he made
a deliberate choice
that he will exit the Public Service when his five years as HoD
expires.
7. On this narrow
issue only I will grant leave to the full bench of this division as
this issue is very important and that certainty
in the Public Service
must be established”.
The appeal.
[22]
On behalf of the appellant a
Notice of Appeal was served and filed on 17 December 2010. The Notice
lists seven grounds upon which
the appellant is appealing against the
judgment and order of the court below
6
.
In view of the limited ground on which leave was granted I am of the
view that it is appropriate that the grounds of appeal in
the notice
be reflected in
toto
.
They are:
“
1.
The Court a quo misdirected itself by not finding that upon
termination of the agreed contractual period the applicant will not
revert to the position of Deputy Director General.
2.
The Court a quo misdirected itself by not finding that upon
termination of the said period the applicant’s employment will
automatically terminate.
3.
The Court a quo misdirected itself by declaring that the applicant is
still permanently appointed as Deputy Director General
in the
Northern Cape Provincial Government.
4.
The Court a quo erred in finding that the applicant’s
appointment as Deputy Director General (permanent appointment) has
survived the termination of the applicant’s five (5) year term
as head of the Department of Transport Roads and Public Works.
5.
The Court a quo misdirected itself by ordering the respondent to
re-instate the applicant as Deputy Director General in the Northern
Cape Provincial Government with effect from 1 September 2009.
6. The Court a quo misdirected
itself by finding that the parties have agreed that after termination
of the applicant’s appointment
as HOD he will continue to
maintain his prior status as a public servant.
7.
The Court a quo erred in it’s ruling of law in relation to
paragraph 6.2, chapter 8 of the SMS Handbook on the ground that
the
Honourable Court misdirected itself by not finding that Section 41(3)
of the Act expressly empowers the Minister to issue directives
on the
same basis as it authorises regulations and that these directives
remain binding until being nullified by a Court.”
It is worth
mentioning that all the grounds of appeal referred to above were part
of the sixteen grounds of appeal that the appellant
placed before the
court
a quo
in the application for leave to appeal.
It was within the
powers of the court
a
quo
to
grant leave as it deemed necessary on limited grounds.
7
[23]
There is
no doubt in my mind that these grounds go beyond the parameters that
the court below had granted leave to the appellant
to this Court. It
was open to the appellant to have approached the Supreme Court of
Appeal for leave to broaden the grounds if
dissatisfied with the
order of the court
a quo.
That has not happened.
[24]
Ms
Nkosi-Thomas SC who appeared on behalf of the appellant before us
submitted that whilst accepting that the appellant is indeed
limited
to the ground(s) on which leave to appeal was granted, the rest of
the grounds contained in the Notice of Appeal are ancillary
to the
ground on which leave to appeal was granted and as such the appellant
is entitled to rely on these grounds. She relied on
the
Harlech-Jones
Treasure Architects CC
case where the following was said at para
[61](6):
“
...In
short, where leave to appeal is granted on specified grounds, it
means no more and no less than that those are the only grounds
that
can be invoked on appeal
(including,
however, in terms of what has been said above, all aspects that are
ancillary thereto)
,
but that no other grounds may be raised; leave to appeal on any
further grounds must be taken to have been impliedly
refused.”
(Emphasis
added)
What
the learned Judge referred to by ancillary aspects were the aspects
that had a bearing on the validity of a number of factual
findings
made by the Court of first instance.
8
What the appellant is seeking to
do
in casu
,
is to broaden the grounds of appeal which do not deal with ancillary
aspects.
[25]
The appointment of
HoDs is regulated by the Public Service Act, 1994. Section 3B was
inserted in the Public Service Act by Act 5
of 1999.
The
section was later deleted by Act 3 of 2007. At the time of the
respondent’s appointment as HoD sec 3B was still applicable.
It
provided that:
“
3B
Handling of appointment and other career incidents of heads of
department
(1)
Notwithstanding anything to the contrary contained in this Act, the
appointment and other career incidents of the heads of department
shall be dealt with by, in the case of
(a)...
(b)
a head of a provincial administration, department or office, the
relevant Premier.
(2) Any person appointed as
head of department may before or at the expiry of his or her term of
office, or extended term of office,
be deployed with his or her
consent by the relevant executing authority referred to in paragraph
(a) or (b) of subsection (1) in
the case of-
(a)...
(b)
a head of provincial administration, department or office, to perform
functions in a similar or any other capacity in the administration,
department or office of the relevant province in a post or against a
post of equal, higher or lower grading or additional to the
establishment, as the executing authority deems fit.
(3)...
(a)...
(b)...
(4)
The executing authority referred to in paragraph (a) or (b) of
subsection (1) may delegate or assign any power or duty to appoint
the head referred to in that paragraph, as well as any power or duty
regarding the other career incidents of that head, in the
case of
(a)...
(b)...”
[26]
Section 12 of the
Public Service Act has been subjected to various amendments since the
advent of democracy. Its current wording
is different from what it
was at the time of the respondent’s appointment as HoD. Section
12 at the time read:
9
“
12
Appointment of heads of department
(1) Any person who immediately
prior to the commencement of the Public Service Laws Amendment Act,
1997-
(a) was appointed in the
office of head of department or to any post mentioned in the second
column of Schedule 2 or 3, or was promoted
or transferred to that
office or post; or [para. (a) substituted by s.5 (a) of Act 86 of
1998].
(b) was promoted or
transferred from the office of head of department referred to in
paragraph (a) to another office or head of
department, shall occupy,
subject to the provisions of chapter V and any collective agreement
contemplated in
section 18
(b) of the
Public Service Laws Amendment
Act, 1998
-
(i) in the case of a person
referred to in paragraph (a)-
(aa) that office for a period
of five years as from the date of his or her appointment, promotion
or transfer, or the shorter period
approved by the relevant executing
authority, and if the term of office was extended at the expiry
thereof, for the extended period
approved by that executing
authority;
(bb) that post for a period of
five years as from the date of commencement of the
Public Service
Laws Amendment Act, 1997
; [Para. (i) substituted by
s.5
(c) of Act 86
of 1998.]
(ii) in the case of a person
referred to in paragraph (b), the latter office for the remainder of
the term of office which applies
to him or her in terms of paragraph
(i) in respect of the former office, and if the term of office was
extended at the expiry thereof,
for the extended period approved by
the relevant executing authority.
[Sub-s. (1) amended by s.5 (b)
of Act 86 of 1998.]
(2) As from the date of
commencement of Public Service Laws Amendment Act, 1997-
(a) a person shall be
appointed in the office of head of department in the prescribed
manner, on the prescribed conditions and in
terms of the prescribed
contract between the relevant executing authority and such a person
for a period of five years from the
date of his or her appointment,
or such shorter period as that executing authority may approve;
(b) the term of office as head
of department of such a person may be extended at the expiry thereof
in accordance with the terms
and conditions of the contract or a
further contract, as the case may be, concluded between that
executing authority and such a
person for a period or successive
periods of not less than twelve months and not more than five years,
as that executing authority
may approve;
(c) the terms of office as
head of department of any person referred to in subsection (10, or
any extended term thereof, may be
extended at the expiry of the term
of office or extended term, as the case may be, in the prescribed
manner for a period of not
less than twelve months and not more than
five years, as the relevant executing authority may approve, provided
the said person
concludes the prescribed contract with that executing
authority, whereupon any further extension of his or her term of
office shall,
subject to the provisions of paragraph (b), take place
in accordance with the terms and conditions of that contract or a
further
contract, as the case may be.
(3) Notwithstanding the
provisions of subsection (10), any person referred to in that
subsection may at any time after the commencement
of the
Public
Service Laws Amendment Act, 1997
, conclude a contract contemplated in
subsection
(2) with the relevant
executing authority.
”
10
[27]
Also relevant to the appointment
of HoDs is the SMS Handbook
11
referred to above,
issued
in terms of
regulation 1D
of Chapter 4 of the Public Service
Regulations (PSR) under the Public Service Act. The second edition of
the SMS Handbook incorporates
all the determinations, directives and
guidelines issued by the Minister for the Public Service and
Administration to the SMS as
at 01 December 2003. The SMS Handbook
cautions in clause 2 of Chapter 1 that:
“
Legal
Mandate
2.1
This Handbook is issued in terms of regulation 1 D of chapter 4 of
the PSR.
2.2
This Handbook must always be read in conjunction with the Act, the
PSR, relevant collective agreements and circulars.
2.3
Readers should take cognisance of the fact that different chapters of
the Handbook consist of both compulsory and advisory elements.”
[28]
In this
Court counsel for the appellant based her argument on waiver. She
submitted that there existed two rights or options for
the
respondent, the first being in terms of sec.16 of the Public Service
Act that stipulates that a person who was in the position
of the
respondent as DDG had the right to retire from the public service
when he attains the age of sixty five years: henceforth
referred to
as the
right to permanency
. The second right is the one
provided in sec. 12(2)(a) of the Public Service Act that provides
that a person appointed to the post
of HoD in terms of sec. 9 of the
Public Service Act shall serve for a period not exceeding five years:
the latter scenario constitute
the right to fixed term employment.
The respondent, so goes the argument, was faced with two inconsistent
rights from which he
had to make an election when he concluded the
Memorandum of Agreement with Ms Peters, and that he made an election
to be appointed
on a fixed term contract thereby waving his right to
permanency.
[29]
My
understanding of sec 12 in its previous and current wording is that a
person who is appointed HoD is to serve in that position
for a fixed
period not exceeding five years. The relevant executing authority may
approve a lesser period than the permissible
maximum. Furthermore,
the relevant executing authority may at the expiry of the term of
office of an HoD extend it for a further
term which should also not
exceed five years. This means that an HoD may be appointed for a
contractual period of ten years consisting
of the initial fixed term
of five years and a further extended fixed term of five years.
However, appointment to the position of
HoD should not be for an
indefinite tenure.
[30]
What section 12 does
not say, is that an HoD who has been appointed for a fixed term
contract ceases to be a permanent public servant
if he or she was one
before being appointed HoD. The contention,
therefore,
that the respondent lost or waived his rights to permanency when he
accepted appointment as HoD is not supported by sec
12 of the Public
Service Act, whether in its original or amended form.
[31]
The respondent’s pleaded
case is that he agreed with Ms Peters that he should not lose his
permanent status as a public servant
when seconded or appointed to
the position of HoD. Ms Peters was the executing authority at the
time and had the authority to appoint
and deal with issues incidental
to the appointment of HoDs. According to the respondent he made a
counter-offer to Ms Peters to
retain his permanency and such
counter-offer was accepted.
[32]
It follows therefore that the
respondent was apprehensive that it may later be construed that he
lost his permanent status and contracted
against such potential loss.
It is not clear though from the papers that clause 6.2 of Chapter 8
of the SMS Handbook was ever discussed
by the respondent and Ms
Peters. The papers are silent on the issue. There is also no
reference to this clause in the Memorandum
of Agreement. The court
a
quo
was accordingly
correct in finding that the Memorandum of Agreement does not
stipulate that the respondent consciously waived his
right to
permanency in the Public Service. Furthermore, the court
a
quo
was correct in
finding that the Memorandum of Agreement does not state that the
respondent was made aware of Clause 6.2 of Chapter
8 of the SMS
Handbook. There is also nowhere in the Memorandum of Agreement where
it is stated or contemplated that the respondent
would cease to be a
civil servant when his fixed term as HoD comes to an end
12
.
There is no ambiguity about the operative terms of the Memorandum of
Agreement.
13
Its purpose was to regulate the
respondent’s terms and conditions of his appointment as HoD as
required by sec.12 as it then
read when he was appointed. The current
version does not detract from the same conclusion.
[33]
It was
open to the appellant to controvert the respondent’s version
concerning what transpired between him and Ms Peters
with credible
evidence to the contrary. It would reasonably be expected that for a
person in the position of the appellant if there
was nothing in the
records at her disposal to assist in establishing the true facts, to
call on Ms Peters to comment under oath
on the respondent’s
allegations. As Ms Peters is a Cabinet Minister it should not have
proven difficult to gain access to
her to shed some light on this
matter in the interests of good public administration and
co-operative governance. This Court, perhaps
the court below as well,
remain in the dark as to why Ms Peters’ version of the events
that led to the appointment of the
respondent as HoD was not made
available. It does not help the appellant to contend that the
respondent is the one who should have
sought support from Ms Peters
for this averment. The respondent’s explanation relating to
what he discussed and agreed upon
with Ms Peters is not hearsay. He
is a party and participated directly in the discussions.
[34]
The
respondent’s averments of what he agreed upon with Ms Peters is
also supported by the probabilities. In the first place
the letter
dated 6 May 2004 from the Office of the Premier to the respondent
states that “
Secondment as Head of Department: Transport,
Roads and Public Works”
as its heading. Secondly, the first
paragraph of the letter states that the respondent is seconded “
with
immediate effect for an initial
period of six
months.”
Thirdly, the procedure followed by Ms Peters to
appoint the respondent was not in accordance with the usual process
of advertising,
short listing and interviewing of candidates as
prescribed in the SMS Handbook. The process followed is as described
by the respondent
that it was a matter of discussions. Fourthly, it
would not make sense to state in the preamble to the Memorandum of
Agreement
that the respondent “
had been and is still
appointed on a permanent basis into the Public Service and is still
willing and able to perform the duties
of Head of Department”
if it was of no consequence. The wording thereof as well as the
fact that it is not a standard clause in the employment contract
of
HoDs leads one to the only reasonable conclusion under the
circumstances namely that there was some discussion about the
respondent’s
permanency in the public service. The contention
therefore that the respondent elected to waive his right to be a
permanent employee
is in my view without merit.
[35]
In light
of my conclusion on the aspect of waiver, as well as the limited
ground on which leave to appeal was granted, it is not
permissible to
traverse the other findings made by the court below. Suffice it to
state that this appeal is being decided on the
facts and
circumstances unique to this case. The validity of Clause 6.2 of
Chapter 8 of the SMS Handbook is not an issue to be
decided in this
appeal. One should however note that the same document (the SMS
Handbook) contains in different chapters thereof
a contrast of both
compulsory and advisory elements.
[36]
I wish
to state
obiter
, as opposed to
ratio decidendi
, that
the court
a quo’s
observation that clause 6.2 of Chapter
8 of the SMS Handbook is very drastic and takes away permanent
employees’ job security
and adversely affect their long term
benefits, particularly of those who are appointed HoDs long before
their retirement age is
due, has merit. I would add that the clause
is also arbitrary. It boggles the mind, that for example, a 32 year
old employee who
is in the permanent establishment of Government and
who is appointed HoD for one or two years could find himself/herself
unemployed
at the end of that short period on the basis of this
clause. This is even more obnoxious if the provisions thereof are not
incorporated
in an HoD Memorandum of Agreement. More particularly, in
this matter Mr Selemela was born on 22 November 1947 and is due to
retire
next year when he turns 65 years.
[37]
In
conclusion therefore there is no need to interfere with the judgment
or order of the court below. The appeal accordingly falls
to be
dismissed and there is no reason why costs should not follow the
result.
[38]
In the
result I make the following Order:
“
The
appeal is dismissed with costs.”
__________________
L P Tlaletsi J
I agree
__________________
F Diale Kgomo JP
I agree
_________________
J Henriques AJ
Appearances:
On
behalf of the Appellant : Adv L Nkosi-Thomas SC
Adv
Khokho
Instructed
by : The State Attorney, Kimberley
On
behalf of the Respondent : Adv Moss Mphaga
Adv
A M Petho
Instructed by : Du
Toit Attorneys, Kimberley
This submission is in
my view not in accordance with the respondent’s pleaded case. I
may state that in so far as para 18
of the judgment as well as para 6
of the judgment on the application for leave to appeal may be
interpreted to suggest that the
respondent was not aware of clause
6.2 of chapter 8 the SMS handbook, that would not be the correct
position. The respondents’
case made out in the founding
affidavit is that he agreed with Ms Peters that should he be seconded
to the position of HoD he should
not be made to lose his permanent
status as a public servant. Ms Peters who was the executing authority
accepted and agreed to
the respondent’s counter offer. It
therefore means that on the respondent’s version he was aware
that he could waive
his permanent status if he accepted the offer of
the position of the HoD and for him not to waive his status agreed
with the competent
executing authority for the waiver not to apply.
[28] The attitude
adopted by the appellant towards the averments made by the respondent
is that what the respondent mentioned which
is not contained in the
written memorandum of agreement is not only hearsay but irrelevant
and must be struck out. The court a
quo has already dismissed the
application to strike out on the basis that the information is
relevant.
[29] Be that as it may,
the respondent’s averments though not controverted is plausible
for the reasons that follows. The
letter dated 6 May 2004 from the
Office of the Premier refers to “Secondment” of the
respondent as HoD Transport, Roads
and Public Works. Secondly, the
procedure followed in the respondent’s appointment as HoD did
not follow the selection process,
the normal procedure of
advertising, short listing and interviewing of candidates as
prescribed in the SMS Handbook. Thirdly, the
reference to the
respondent’s permanent status in the preamble to the memorandum
of agreement is unusual and its conclusion
differs from the court.
Generally, a party who
has been granted leave on la particular ground to approach a full
bench of the High Court does not have the
liberty to ignore the order
granting leave and present the appeal on other grounds. He or she may
do so only with the leave of
the Supreme Court of Appeal. This means
therefore that if the appellant was aggrieved by the order of the
court below granting
her leave to appeal, the course that should have
been followed was to petition the President of the Supreme Court of
Appeal for
leave to appeal on grounds different or in addition to
those granted by the court below. The legal position was aptly put by
Kroon
J in the Harlech-Jones Treasure Architects CC v University of
Fort Hare
14
as follows:
“
In
our judgment, it is clear that the power of the Supreme court of
Appeal, when hearing an appeal, to permit argument on grounds
of
appeal, on which leave to appeal was refused, is derived, not from
the fact that it is the forum hearing the appeal, but from
the fact
that it is the forum that, in terms of the Act, is empowered to
adjudicate upon a petition for leave to appeal refused
by the Court
of a Provincial or Local Division. A Full Court of a Provincial
Division is not so empowered and the fact that it
is the forum
hearing the appeal does not give it the power to entertain grounds of
appeal in respect of which leave to appeal was
refused.”
____________________
TLALETSI JA
I agree.
_____________________
ZONDO JP
I agree
______________________
SANGWENI AJA
1
1984(3)
S A 623(A) at 634E-635C.
2
The
Premier of the province was at the time Mr Emsley Manne Dipico.
3
Ms
Peters was appointed and is still the Minister of the National
Department of Energy.
4
103
of 1994
5
GNR.1
of 5 January 2001, Public Service Regulations, (Government Gazette
No. 21951).
6
Rule
49(3) of the Uniform Rules provides that the notice of appeal shall
state whether the whole or part only of the judgment
or order is
appealed against and if only part of such judgment or order is
appealed against it shall state which part and shall
further specify
the finding of fact and/or ruling of law appealed against and the
grounds upon which the appeal is founded.
7
Sec
20(5) (a) of the Supreme Court Act 59 of 1959 provides that : “
Any
leave required in terms of subsection (4) for an appeal against a
judgment or order of a court given on appeal to it, may
be granted
subject to such conditions as the court concerned or the appellate
division, according to whether leave is granted
by that court or the
appellate division, may determine, and such conditions may included
a condition that the applicant shall
pay the costs of the appeal”
.
See also:
Ngqumba en ‘n Ander v Staatspresident en Andere;
Damons NO en Andere v Staatspresident en Andere; Jooste v
Staatspresident
en Andere
1988 (4) SA 224
(A) at 246G-247B;
S
v Safatsa and Others
1988(1) SA 868 (A) at 877 A-G,
Douglas v
Douglas
[1996]2 B ALL SA 1(A) at 8i
;” Harlech-Jones
Treasure Architects CC v University of Fort Hare
2002(5) SA 32
(E) at 50-52.
8
Supra
at para [60]
9
s.12
amended by s. 5 of Act 86 of 1998, by s.32 (1) of Act 38 of 1994 and
by s.2 of Act 13 of 1996 and substituted by s.9 of Act
47 of 1997
and by s.9 of 1997.
10
The
current sec. 12 of the Public Service Act relied upon by the
appellant reads:
“
Notwithstanding
anything to the contrary contained in this Act, but subject to this
section and sections 2 (2B) and 32 (2) (b)
(i), the appointment and
other career incidents of the heads of department and government
component shall be dealt with, in the
case of-
(a) a head of a
national department or national government component, by the
President; and
(b) a head of the
Office of a Premier, provincial department or provincial government
component, by the relevant Premier.
(2) (a) A person shall be appointed to the post of
head of department in terms of section 9 for such term, not
exceeding five
years, as the relevant executive authority may
approve.
(b) The head of department shall conclude the
prescribed contract within the prescribed period.
(c) The relevant
executive authority may at the expiry of the term of office of a
head of department or at the expiry of an extended
term of office
extend the term for a period of not more than five years at a time.”
11
The
first edition of the Handbook coincided with the establishment of
the SMS on 1 January 2001.
12
The
appellant bears the onus to prove on a balance of probabilities that
the respondent had indeed abandoned his rights with full
knowledge
of it or that he gave up his right for good. See: Moyce v Estate
Taylor
1948 (3) S A 822(A)
; Feinstein v Niggli
1981 (2) S A 684
(A);
ABSA Bank Ltd v The Master NNO [1998]3 ALL S A 198(N):
1998 (4) S A
15(N)
at 25I-27A.
13
Joubert
JA in Coopers & Lybrand v Bryant
1995 (3) S A 761
(A) at
767E-768E held:
“
According to the 'golden
rule' of interpretation the language in the document is to be given
its grammatical and ordinary meaning,
unless this would result in
some absurdity, or some repugnancy or inconsistency with the rest of
the instrument.
Principal
Immigration Officer v Hawabu and Another
1936
AD 26
at
31,
Scottish Union
& National Insurance Co Ltd v
F
Native
Recruiting Corporation Ltd
1934
AD 458
{dictum at 465-6 appl} at 465-6,
Kalil
v Standard Bank of South Africa Ltd
1967
(4) SA 550
(A)
at
556D...
The
mode of construction should never be to interpret the particular
word or phrase in isolation (
in
vacuo
) by itself.
See
Swart en 'n
Ander v Cape Fabrix (Pty) Ltd
1979
(1) SA 195 (A)...
The correct approach to the application of the 'golden
rule' of interpretation after having ascertained the literal meaning
of
the word or phrase in question is, broadly speaking, to have
regard:
(1) to the context in which the word
or phrase is used with its interrelation to the contract as a whole,
including
the nature and purpose of the contract, as stated by
Rumpff CJ
supra
;
(2)
to the background circumstances which explain the genesis and
purpose of the contract, ie to matters probably
present to the minds
of the parties when they contracted.
Delmas
Milling Co Ltd v Du Plessis
1955
(3) SA 447
(A)
at
454G-H;
Van
Rensburg en Andere v Taute en Andere
1975
(1) SA 279 (A)
at
305C-E;
Swart's
case
supra
C
at 200E-201A
& 202C; Shoprite Checkers Ltd v Blue Route Property Managers
(Pty) Ltd and Others
1994
(2) SA 172
(C) at 180I-J;
(3)
to apply extrinsic evidence regarding the surrounding circumstances
when the language of the document is
on the face of
D
it ambiguous,
by considering previous negotiations and correspondence between the
parties, subsequent conduct of the parties showing
the sense in
which they acted on the document, save direct evidence of their own
intentions. Delmas Milling case at 455A-C, Van
Rensburg’s case
at 303 A-C, Swart’s case at 201B, Total South Africa (Pty) Ltd
v Bekker NO
[1991] ZASCA 183
;
1992 (1) SA 617
(A) at 624G, Pritchard Properties (Pty)
Ltd v Koulis
1986 (2) SA 1
(A) at 10C-D.”
14
8
Supra at para: [56]