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[2011] ZAECBHC 7
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Mtuzula v Superintendent- General for Health, Eastern Cape Province and Another (550/10) [2011] ZAECBHC 7 (8 August 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 – LEAVE TO APPEAL
Y
EBRAHIM J:
The
applicant seeks leave to appeal against the whole of the judgment
and order of this Court, delivered on 14 March 2011, dismissing
with
costs the application (‘the application’) launched by
the applicant on 22 September 2010. An application for
condonation
for the late lodgement of the application for leave to appeal has
also been lodged.
The
respondent did not oppose the application for condonation but only
the application for leave to appeal and the late noting
of the
application for leave to appeal was accordingly condoned.
The
applicant seeks leave to appeal on two grounds. The first is that
the Court erred in finding that the defence of rectification
had
been properly raised by the respondents in their answering papers.
Mr
Zilwa’s submissions, on behalf of the applicant, were
essentially similar to those advanced at the hearing of the
application.
He contended there were only two references to
rectification in the respondents’ answering affidavit. The
respondents had
also asserted in their answering affidavit that a
counter application would be brought for rectification but the
application
was not proceeded with and withdrawn. In the absence of
the counter application having been brought and granted, so Mr Zilwa
contended, the respondents were not entitled to rely on
rectification as a defence.
Mr
Rorke SC, who appeared for the respondents, submitted there was no
merit in the argument that the withdrawal of the application
for
rectification meant the defence of rectification had not been
properly pleaded. The affidavits filed by the respondents contained
numerous and detailed references to rectification, which had been
specifically pleaded as a defence and the withdrawal of the
application for rectification took the matter no further. All this
evidence had been correctly summarised by the Court in its
judgment
and there was no reasonable prospect that another Court may come to
a different conclusion than that of this Court.
I do
not find any substance in the arguments advanced by Mr Zilwa. The
contention by Mr Rorke that the defence of rectification
was
adequately pleaded by the respondents is well founded. Mr
Zilwa’s contention that there are only two references
to
rectification in the answering affidavit is not substantiated by a
proper reading of the respondents’ papers. There
are numerous
references and the respondents have throughout asserted that the
period of the contract of employment was three
and not five years.
Moreover, the abandonment of the application for rectification does
not preclude the respondents from raising
rectification as a
defence. The Supreme Court of Appeal (‘SCA’), as Mr
Rorke has submitted, dealt with this issue
in the case of
Gralio
(Pty) (Ltd) v D E Claassen (Pty) (Ltd)
.
1
On the basis of what the SCA said in
Gralio
it is clear that
the respondents in the instant matter have properly pleaded the
defence of rectification. There is, therefore,
no reasonable
prospect that another Court may reach a different conclusion.
The
second ground is that the Court erred in not finding that the period
of five years, which the contract signed by the parties
reflects,
was neither a
bona fide
error nor a common error between the
parties.
The
gist of Mr Zilwa’s argument was that it was common cause that
the parties had entered into a contract of employment
for five years
and it was not open to the respondents, on the facts and
probabilities, to refute that it had given the applicant
a written
contract for this period five years which he had accepted. The
applicant’s claim that he never received the three
year
contract, that the respondents aver they sent, was on the
probabilities true. If he received this contract there was no
explanation why it had not been signed by anyone. Mr Boya, who
signed the contract on behalf of the respondents, did not deny
that
the period reflected in the contract was five years and he signed
well knowing it was for this period. There was no error
on the part
of the applicant regarding the period of the contract and thus no
error common to the parties.
Mr
Rorke’s submissions, to the contrary, were that there was a
dispute of fact regarding the period of the contract and
that on
application of the test enunciated in
Plascon Evans
2
the respondents’ version had to be accepted. There was
consequently no basis upon which another Court may come to the
conclusion that the period of the contract was three years. A
further submission by Mr Rorke was that it was not a requirement
of
rectification that the error had to be common to both parties. It
was sufficient that there was an intentional act on the
part of one
party which induced the error.
3
In the instant matter, on the applicant’s own version, he
received a contract that reflected his period of employment as
five
years, which was clearly incorrect, but still signed the contract.
This was an error caused by an intentional act of the
applicant.
I am
in agreement with Mr Rorke. This issue was fully dealt with in the
judgment and I do not deem any further comment necessary
save to say
that the applicant has failed to present any facts to substantiate
that the respondents agreed to the period of the
contract being five
years instead of three years as stipulated in the advertisement for
the post, and reiterated at his interview,
and confirmed once more
in the letter of appointment. The applicant’s lack of candour
on this issue in his founding affidavit
indicates he well knew that
the period of his contract of employment was three years and not
five years. But, as the proverbial
saying goes, he was not going to
look a gift horse in the mouth when Mr Boya signed the contract
that incorrectly reflected
his appointment was for a period of five
years. In regard to this ground, too, there is no reasonable
prospect that another Court
may reach a different conclusion.
Mr
Rorke submitted that a third basis upon which there was no prospect
that another Court might come to a different conclusion
was that the
applicant had sought a final interdict in respect of which the
requisites were: (i) a clear right on the part of
the applicant,
(ii) an injury actually committed or reasonably apprehended, and
(iii) the absence of any other satisfactory remedy.
4
The applicant, however, had not made out a case for the grant
thereof. First, since the question of the term of the contract
had,
in accordance with the test enunciated in
Plascon Evans
,
to be determined in favour of the respondents’ version that it
was a three year contract, the applicant had failed to
establish
that he had a clear right to a contract for five years. Second, in
the absence of a clear right there could not be
an injury actually
committed or reasonably apprehended in the form of non payment
of a salary for a further two years. Third,
there were other
satisfactory remedies available to the applicant such as an award
for damages
5
or appropriate relief under the Labour Relations Act.
6
In
response to Mr Rorke’s submissions, Mr Zilwa contended that no
dispute of fact existed regarding the term of the contract
being
five years. The harm the applicant was suffering was that the
Department of Health had stopped payment of his salary. And,
a claim
for damages was not a satisfactory remedy as the applicant was
suffering harm now and the promise of obtaining relief,
most likely
a few years later, was cold comfort to him. The Labour Relations Act
was inappropriate as the applicant was not alleging
an unfair labour
practice but seeking enforcement of a contract. The applicant, Mr
Zilwa contended, had met the requirements
for a final interdict.
The
arguments advanced by Mr Zilwa are not convincing. It should be
apparent from what I have stated previously, and as correctly
submitted by Mr Rorke, there is a dispute of fact regarding the
period of the contract and the respondents’ version must
prevail. The applicant has not established a clear right to a
contract for five years nether an entitlement to a salary for a
further two years and the non payment of a salary does not mean
he is suffering harm. Even if he could possibly establish
that he
still had a right to be paid a salary, which I have found is not the
case, a claim for damages would be a satisfactory
remedy.
In
the circumstances, I am not persuaded there is a reasonable
possibility that another Court would reach a different conclusion
to
that reached by this Court. It follows that the application for
leave to appeal must fail.
It is
trite that costs should follow the result in the absence of cogent
reasons to order otherwise. Such reasons have not been
advanced and
the respondents are entitled to an order for costs in their favour.
In
the result, the following order shall issue:
The applicant’s application for leave to appeal is dismissed
with costs.
_________________________
Y EBRAHIM
JUDGE OF THE HIGH COURT 8 AUGUST 2011
Delivered on: 8 August 2011
Counsel
for the applicant: P H S Zilwa
Attorneys
for the applicant: Hutton & Cook
KING WILLIAM’S TOWN
Counsel
for the respondent: S Rorke SC
Attorneys for the respondent: Wesley Pretorius & Associates
EAST LONDON
MTUZULA v SG for HEALTH, EC
and MEC.LAPJ
1
1980
(1) SA 816
(AD) at 824B-C: ‘…… a defendant who
raises the defence that the contract sued upon does not correctly
reflect
the common intention of the parties, need not even claim
formal rectification of the contract; it is sufficient if he pleads
the facts necessary to entitle him to rectification and asks the
Court to adjudicate upon the basis of the written contract relied
upon by the plaintiff as it stands to be corrected. (See,
per
Steyn J in
Volkskas
Bpk v Geyser
1960 (4) SA 412
(T) at
419.);
Standard Bank of SA Ltd v Cohen
(2)
1993 (3) SA 854
(SECLD) at 862C
2
Plascon Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
(A) at 634E G
3
See
Amler’s Precedents of Pleadings
(7
th
Ed) p 337 at (d)(ii) and the cases cited there
4
Van
Loggerenberg & Farlam,
Erasmus Superior
Court Practice
, pp E8 6C to E8 6D
5
UDC
Bank Ltd v Seacat Leasing and Finance Co (Pty) Ltd and Another
1979 (4) SA 682
(T) at 695D to 696C
6
Act
No. 66 of 1995