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[2011] ZAECBHC 2
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Mtuzula v Superintendent- General for Health, Eastern Cape Province and Another (550/10) [2011] ZAECBHC 2 (14 March 2011)
IN THE EASTERN CAPE HIGH COURT,
BHISHO
CASE NO: 550/10
In the matter between:
MALIBONGWE
MTUZULA
Applicant
and
THE
SUPERINTENDENT - GENERAL FOR HEALTH,
EASTERN
CAPE PROVINCE
1
st
Respondent
THE
MEMBER OF THE EXECUTIVE COUNCIL FOR HEALTH,
EASTERN
CAPE PROVINCE
2
nd
Respondent
JUDGMENT
Y EBRAHIM J:
[1]
During
June 2006 the Department of Health, Eastern Cape Province (‘the
Department’), placed an advertisement in the
Sunday Times
newspaper inviting applications for the ‘
3
year contract post
’
of Chief
Director: Infrastructure Development at its head office, Bhisho. In
response to this advertisement the applicant submitted
an application
on a prescribed form.
[2]
The
applicant, who was short listed with another applicant, was
interviewed by a panel constituted by the Department and emerged
as
the successful candidate. The Director General of the Department
conveyed this to the applicant in a letter dated 20 December
2006, which referred to ‘
APPOINTMENT
IN POST OF CHIEF DIRECTOR : INFRASTRUCTURE DEVELOPMENT IN HEAD OFFICE
(3 YEAR CONTRACT POST)
’
and
informed him,
inter alia
,
that ‘
this
offer is subject to you assuming duties on 01 January 2007
’
.
Attached to the letter was a document bearing the heading ‘DEPARTMENT
OF HEALTH FIXED EMPLOYMENT CONTRACT AGREEMENT’
that set out the
terms and duration of the applicant’s employment and which he
was required to sign and submit within fourteen
days of assuming
duty.
[3]
On
2 January 2007 the applicant commenced employment and signed an
employment contract which Mr L M Boya, the Head of Department,
in
turn signed on 15 January 2007. The applicant has annexed the
contract to his founding affidavit and it records that his
employment
with the Department was for a period of five years from 1 January
2007 to 31 December 2011. The respondents dispute
that this is the
contract that was forwarded to the applicant for signature. I shall
discuss this more fully later.
[4]
It
appears that the applicant’s relationship with the Department
proceeded without incident until he received a letter dated
26 April
2010 from Dr R M Wagner, the Department’s Acting
Executive Manager HR and Corporate Service. In the
letter Dr Wagner
notified the applicant that he had reason to believe the applicant
had committed serious misconduct and intended
suspending or
transferring him until an investigation into his alleged misconduct
or disciplinary proceedings, if instituted, was
finalised. Details of
the misconduct were given in the letter and the applicant was
informed that if he wished to object to his
proposed suspension or
transfer he had to submit written representations by not later than
09h00 on 29 April 2010.
[5]
The
applicant’s attorneys, in a letter dated 28 April 2010 which
was delivered on 29 April 2010 at 09h00, replied that
the
applicant denied the allegations of misconduct and would urgently
seek appropriate relief from the Court should the Department
proceed
with the suspension or transfer.
[6]
On
the same day, 29 April 2010, the first respondent wrote to the
applicant to notify him,
inter alia
,
that he was being suspended, on full pay, with immediate effect for
alleged serious misconduct. Further, the applicant had to
vacate the
premises as his presence might jeopardise an investigation and was to
hand over certain items that were the property
of the Department.
[7]
There
were no further developments until 1 September 2010 when the
applicant was served with a letter dated 10 August 2010
addressed to him by the first respondent, which read as follows:
‘
RE:
TERMINATION OF YOUR EMPLOYMENT
1.
It has come to my attention that your employment with the Department
in fact terminated, through effluxion
of time, on or about 31
December 2009. This on account of the fact that you were appointed in
terms of a three year contract to
the post of Chief Director,
Infrastructure Development with effect from 1 January 2007.
2.
It appears that as a result of an error you were retained on the
Department’s PERSAL system and
continued to render services to
the Department, notwithstanding that your services had in fact
terminated.
3.
In the premises you are hereby notified that, with immediate effect,
payment of your salary will be stopped
on persal [
sic
] and
your services will be taken as having terminated on 31 December 2009.
4.
You are invited to make written representations to my office by no
later than five (5) days from the
date of receipt hereof, as to why
the Department should not proceed as stated in paragraph 3 above.
Yours
faithfully
Dr
S M Pillay
Superintendent
- General
Date:
10/08/2010
’
[8]
The
applicant’s attorneys responded by furnishing a copy of the
applicant’s ‘
fixed employment
contract
’
and stated that ‘
it
is clearly evident that our client was employed for a period of five
(5) years
.’ Moreover, ‘
that
the premise upon which the decision to terminate his employment was
taken, is incorrect and accordingly our client demands
your
retraction of this termination failing which legal action will be
instituted against you
.’
[9]
This
was followed by further correspondence between the parties without
the dispute being resolved. As a result, on 25 October
2010 the
applicant instituted this application, on an urgent basis, for an
order setting aside the termination of his contract
of employment and
to prevent the respondents from stopping payment of his salary.
[10]
The
first and second respondents opposed the application and raised two
points
in limine
in their answering affidavit. In view of the conclusion I have
reached in regard to the merits I do not deem it necessary to deal
with these.
[11]
The
respondents dispute the applicant’s claim that he was employed
on a fixed term contract for the duration of five years.
In
substantiation of their claim that the applicant was employed for a
period of three years the respondents assert the following:
the post
the applicant applied for was advertised as one for a fixed term of
three years and not five years; during
the applicant’s
interview by the Department’s panel it had been raised
specifically that the appointment would be for
a fixed period of
three years; the letter informing the applicant of his appointment to
the post of Chief Director: Infrastructure
Development in the
Department’s head office stipulated it was a ‘
3 YEAR
CONTRACT POST
’
; the contract
attached to the letter of appointment addressed to the applicant
specified he was being employed for three years
(a copy thereof is
annexed to the respondents’ answering affidavit); attached to
the report sent to the Member of the Executive
Council for Health,
Eastern Cape Province (‘MEC for Health’) recommending the
applicant’s appointment was the
newspaper advertisement
inviting applications for a three year post.
[12]
The
respondents admit that the contract signed by the applicant and
Mr Boya reflected that applicant’s period of employment
was five years. Mr Boya could not explain how this error occurred but
assumed that the contract was handed to him for signature
without the
report to the MEC and the letter of appointment and that he signed it
on the assumption that it was correct. However,
the true
intention of the parties was that the applicant was to be employed
for a period of three years and due to a patent error
common to both
parties the period was reflected as five years. In view of this, the
respondents assert that they are entitled to
rectification of the
contract to reflect the correct period of three years.
[13]
The
issues addressed by the respondent have not been dealt with by the
applicant in his founding and replying affidavits. He has
not
disputed that the post he applied for was the one described in the
advertisement. In reply to the respondents’ assertion
that it
was specifically raised during the interview that it was a three year
contract post the applicant stated he had no recollection
of this.
Then, in reply to the respondents’ averments concerning the
letter of appointment and the accompanying contract
drawn up by Mr
Masoka, the Department’s Human Resources Manager, the applicant
said he had ‘
no
interest in the unsigned letter of appointment …… or
the unsigned draft contract
’
.
The applicant has not denied receiving this contract but contented
himself with the explanation that ‘
[t]he
fact that such a document has not been signed by myself clearly
suggests that I never received same
.’
The applicant has also not explained why the signed contract reflects
his period of employment as five years instead of
three years if he
applied for the post that was advertised as a three year post.
Moreover, except for insisting that the
only binding document
between him and the Department was the contract annexed to his
founding affidavit, the applicant has not
contradicted the assertions
of the respondents that the signed contract did not reflect the true
intention of the parties regarding
the duration of the applicant’s
employment.
[14]
Mr
Zilwa’s submissions, on behalf of the applicant, were directed
primarily at the fact that the document annexed to the applicant’s
founding affidavit was the only signed contract and reflected the
applicant’s period of employment as five years, terminating
on
31 December 2011. Whereas the respondents averred that the five
year period was an error and that Mr Boya had not intended
signing
such a contract, Mr Boya never stated that he thought the period
reflected therein was three years and had not noticed
it was five
years, when he signed. Mr Boya contended that he could only assume
that the contract was handed to him for signature
without the
relevant accompanying documentation. Mr Zilwa submitted that in
the absence of a substantive application, rectification
of the
contract could not be considered. The written contract stood
unrectified and the integration rule (which forms part of the
parol
evidence rule) prevented the respondents from altering, by the
production of extrinsic evidence, the recorded terms of an
integrated
contract in order to rely on the contract as altered.
[1]
The
respondents had now abandoned the application for rectification and
consequently the only contract the Court could take cognisance
of was
the one annexed to the applicant’s founding affidavit.
[15]
Mr
Euijen, who appeared for the respondents, confirmed the respondents
were not proceeding with an application to rectify the contract.
Notwithstanding this, the respondents were persisting with
rectification as a defence. He submitted that if a contract was
reduced to writing but did not correctly set forth the actual
agreement between the parties, it could be corrected
[2]
as the
underlying agreement was the contract and the written record merely
evidence of its outward and visible sign.
[3]
Formal
rectification of the contract need not be sought
[4]
and it was
sufficient to raise this as a defence to a claim by the other party
seeking to enforce the contract which the document
appears to
evidence.
[5]
Mr Euijen
disputed the relevance of the parol evidence rule as it only applied
where a party had pleaded an inconsistent alternative
agreement
without relying on rectification. This was not the case here. In any
event, in
Johnston
v Leal
,
which did not deal with rectification, the Court had permitted
extrinsic evidence ‘
to
fill in the blanks
’
in a written
document.
[16]
The
version of the respondents, unlike that of the applicant, is not
inherently improbable and is accepted. The applicant has not
clarified how it came about that the parties agreed to a period of
five years when the advertisement specified a period of three
years
and this had been reiterated when the applicant was interviewed by
the panel. The version of the respondents, on the other
hand,
establishes that there was an earlier agreement, arrived at
antecedently by the parties,
[6]
that the
period of the applicant’s employment was three years. Their
version confirms that it was the intention of the
parties to enter
into a contract of employment for not longer than three years and
that the signed contract did not correctly record
their actual
agreement. I accept that due to a
bona
fide
common error the period of employment was incorrectly reflected in
the contract as five years and not three. I am satisfied furthermore
that the defence of rectification renders the right which the
applicant seeks to enforce open to dispute. Accordingly, the defence
pleaded by the respondents in their answering affidavit is well
founded and must be upheld.
[17]
The
applicant has failed to establish that he is entitled to the relief
prayed for
[7]
and in the
circumstances the application falls to be dismissed.
[18]
In
regard to costs, it is trite that in the absence of cogent reasons
not to order otherwise, costs should follow the result. I
can find no
reason to depart from this and consequently award costs in favour of
the respondents.
[19]
In
the result, the following order shall issue:
(a)
The
applicant’s application is dismissed; and
(b)
The
applicant is ordered to pay the costs of the application.
Y EBRAHIM
JUDGE OF THE HIGH COURT
8 March 2011
Heard
on:
11/09/10
Judgment
delivered on:
03/14/11
Counsel
for the Applicant:
P
H S Zilwa
Attorneys
for the Applicant:
Hutton
& Cook
KING
WILLIAM’S TOWN
Counsel
for the Respondents:
T
M G Euijen
Attorneys
for the Respondents:
Wesley
Pretorius & Associates
EAST
LONDON
MTUZULA
v S-G for HEALTH, EC and MEC.CVJ
[1]
Johnston
v Leal
1980 (3) SA 927
(A) at 943B
[2]
Leyland
(SA) (Pty) Ltd v Rex Evans Motors (Pty) Ltd
1980 (4) SA 271
(W) at 273B-C
[3]
Spiller
and Others v Lawrence
1976 (1) SA 307
(N) at 310A-B
[4]
Strydom
v Coach Motors (Edms) Bpk
1975 (4) SA 838
(T) at 841E-H
[5]
Standard
Bank of SA Ltd v Cohen (2)
1993 (3) SA 854
(SECLD)
[6]
Benjamin
v Gurewitz
1973 (1) SA 418
(AD) at 425H to 426A
[7]
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
1984 (3) SA 620
at 634E-F