About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2010
>>
[2010] ZAFSHC 56
|
|
Noe and Others v Premier of the Free State Provincial Division and Others (3607/09) [2010] ZAFSHC 56 (4 June 2010)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No.: 3607/09
In
the matter between:
NOE E.P.
1
st
Applicant
BASSON M.R.
2
nd
Applicant
KHOMO M.N.
3
rd
Applicant
SEDIO C.G.
4
th
Applicant
MOHAPI N.S.
5
th
Applicant
and
DEPARTMENT OF
PREMIER FREE STATE
1
st
Respondent
PROVINCIAL DIVISION
THE PREMIER, FREE
STATE,
2
nd
Respondent
PROVINCIAL DIVISION
THE DIRECTOR
GENERAL IN THE OFFICE
3
rd
Respondent
OF THE PREMIER
THE MANAGER
ORGANISATIONAL
4
th
Respondent
DEVELOPMENT
_____________________________________________________
JUDGEMENT:
J.P. DAFFUE, AJ
HEARD ON:
27 MAY 2010
_____________________________________________________
DELIVERED ON:
4 JUNE 2010
_____________________________________________________
INTRODUCTION
[1] Applicants
seek an order in terms whereof the decision of first and/or second
respondents as contained in a letter of 17 June
2009 in terms of
which applicants’ contracts of employment were allegedly
retrospectively terminated be declared unlawful.
Further relief is
also claimed, the effect being that applicants should be allowed to
resume their respective duties with full
pay from the date of
termination of their contracts of employment to date of resumption of
their duties.
[2] The
application is opposed by respondents who filed a counter
application. Respondents seek a declaratory order to the effect
that
the decision of the erstwhile Premier of the Free State Province (Me
Marshoff) to appoint the applicants in permanent posts
in the Public
Service, was in conflict with the provisions of the Public Service
Act, 1994 (PSA) and/or the Public Service Regulations
of 2001and
therefore a nullity and of no force or effect. This application is
opposed by the applicants.
[3] Applicants
are represented by their attorney, Mr. Khang, who also argued the
matter on their behalf. Respondents are represented
by the State
Attorney. Mr. Tip SC assisted by Mr. Malema argued respondents’
case.
FACTUAL
BACKGROUND
[4] The
material facts that led to the present litigation are largely common
cause. All five applicants entered into fixed term
contracts with
the Government of the Free State Province represented by Me Marshoff.
Although the date of commencement differed,
all five contracts
stipulated that the contracts would terminate “on the
termination of the term of office of Premier F.B.
Marshoff as Premier
of the Free State Provincial Government or 30 June 2009, whichever
period is the shortest”. The terms
and conditions of all five
contracts were the same, except for the commencement dates and
duration thereof.
[5] The
contracts of second, third, fourth and fifth applicants referred to
appointments in terms of section 12A of the PSA, while
the contract
of first applicant appears to be an appointment as member of the SMS
in terms of section 9 of the PSA. The employment
contracts provided
that the employees were to serve the employer in the office of the
Premier at such place as may from time to
time be directed by the
employer or any other officer duly authorised thereto and the
employee might be required to perform other
duties or to work at
other places that might reasonably be required by the employer.
[6] None
of the applicants were appointed in terms of the selection procedures
applicable to Public Service employees. In particular,
the posts in
which they were appointed, were never advertised and consequently no
applications were received from a pool of candidates.
No selection
process and/or short listing and/or interviews by an interviewing and
selection panel took place.
[7] On
22 November 2006 first applicant was transferred to another post,
that of Deputy Manager: Community Liaison Services, which
transfer he
accepted on 24 April 2007.
[8] Since
December 2008 a process was undertaken in terms whereof applicants
were relocated and permanently absorbed in the organisational
structure and staff establishment of the Free State Provincial
Government. Me Marshoff finally approved the relocation and
permanent
absorption of applicants. It appears as if this process
was finalised in respect of first, third, fourth and fifth applicants
on 15 December 2008 and in respect of second applicant, Me Basson, on
20 April 2009. The fourth respondent set the wheels in motion
for
the aforesaid approval by Me Marshoff, but senior officers, such as
third respondent, approved the relocation and permanent
absorption
process as well.
[9] During
the process described in the previous paragraph, none of the
applicants were subjected to a selection process and the
posts in
which they were appointed, were not advertised. Applicants allege in
their application papers that first applicant was
permanently
appointed on 1 February 2009, while the second to fourth applicants
became permanently appointed on 26 April 2009 and
fifth applicant on
3 April 2009. However, in the heads of argument of their attorney
and during his oral argument he submitted
that the permanent
appointments were subject to a suspensive condition and that they
became permanently employed effectively from
6 May 2009 only, the day
Me Marshoff left her office as Premier of the Free State Province.
[10] Four
letters were placed before the court as proof of the so-called
permanent absorption of the applicants with exclusion of
Me Basson,
the second applicant. These letters, dated 28 January 2009, were
signed by Me Marshoff. It appears from the contents
thereof that the
applicants were permanently absorbed in the Public Service,
“effective from the 1
st
day of the month following the end of your current employment
contract or in accordance with clause 1.1 of the said contract”.
A similar letter in respect of Me Basson was not attached to the
papers and neither of the legal representatives of the parties
could
provide me with a copy thereof. I accept that she received a similar
letter although dated either 20 April 2009 or thereafter
based on the
facts set out above.
[11] The
applicants continued to work with the knowledge of the new Premier of
the Free State Province, Mr. E.S. Magashule (the
Premier) and all
other senior staff from 6 May 2009 and onwards. However, on 20 May
2009 the Premier issued letters to the applicants
requesting
submissions from them as to why he should not reverse the decision of
Me Marshoff to appoint them permanently. Notwithstanding
written
submissions by the applicants dated 25 May 2009, the Premier issued
letters to them dated 17 June 2009 alleging that the
decision of Me
Marshoff to appoint them, was null and void and of no legal
consequence and therefore he reversed that decision.
Until then the
applicants still carried out their functions as employees and also
received their salaries for May 2009.
[12] On
7 July 2009 Mr. Khang wrote a letter on behalf of the applicants to
the Premier in which he requested copies of certain
documentation and
reasons for the reversal of his clients’ appointments. This
letter was replied to on 30 July 2009 only
and after the present
application had been instituted. The reasons for the Premier’s
decision were recorded as follows in
his letter:
“2.1 The
Public Service Act, 1994 read with Chapter 1, part VII of the Public
Service Regulations prescribes peremptory processes
for appointment,
which include advertisement and selection processes.
2.2 The
peremptory appointment processes were not followed when your clients
were allegedly appointed.
2.3 Section
12A of the Public Service Act is not applicable.
2.4 The
absorption into posts were therefore null and void and without any
legal effect.”
Simultaneously
the Premier wrote a letter to the Minister of Public Service and
Administration advising him in accordance with
section 5(7) of the
PSA of the corrective action taken.
POINTS
IN
LIMINE
[13] Two
points
in
limine
were taken on behalf of the applicants.
13.1 The
first point
in
limine
taken on behalf of the applicants was in relation to the lack of
authority of Amelia Swanepoel to depose to an affidavit on behalf
of
the respondents. She is the Director responsible for legal services
in the Department of the Premier.
This
point was abandoned by Mr. Khang during his oral argument and wisely
so. Letters of authority have been filed as part of
the respondents’
replying affidavit to the counter application. More importantly,
this point is without any substance based
on legal grounds. The
deponent, Swanepoel, was called upon by the State Attorney, acting
for the respondents, to place evidence
before the court. Authority
has to be challenged on the level of whether the attorney in fact
held empowerment. Rule 7(1) must
be complied with by a party seeking
to dispute the authority of an attorney to act on behalf of a party.
See
UNLAWFUL
OCCUPIERS, SCHOOL SITE v CITY OF JOHANNESBURG
2005 (4) SA 199
(SCA) at paragraphs [14] – [16] and
ANC
UMVOTI COUNCIL v UMVOTI MUNICIPALITY
2010 (3) SA 31
(KZP) at paragraphs [26] – [29], p. 42 and 43.
13.2 A
further point
in
limine
was raised, i.e. the misjoinder of Me Marshoff as a party to the
counter application. In fact, it cannot be misjoinder, but
non-joinder.
Although Mr. Khang intimated that he was tempted to
abandon this point as well, he presented argument to me and I shall
briefly
deal herewith.
Me
Marshoff does not have a direct and substantial interest in the
outcome of this application, including the counter application.
No
order issued by this court can profoundly and substantially affect
her interests. As advanced by Mr. Tip, the question for
me to
consider is essentially one of statutory interpretation and the fact
that Me Marshoff is not before the court as a party,
will not in the
slightest degree affect the carrying out of the court’s order
and there is no prospect of any prejudicial
consequence for her.
See
GORDON
v DEPARTMENT OF HEALTH, KWAZULU-NATAL
[2008] ZASCA 99
;
2008 (6) SA 522
(SCA) paragraphs [9] – [11], p. 529 –
530.
The
second point
in
limine
is therefore dismissed.
APPLICABLE
LEGISLATION
[14] Section
197 of the Constitution of the Republic of South Africa, 108 of 1996,
reads as follows:
“
(1)
Within public administration there is a public service for the
Republic, which must function, and be structured, in terms of
national legislation, and which must loyally execute the lawful
policies of the government of the day.
(2)
The terms and conditions of employment in the public service must be
regulated by national legislation. Employees are entitled
to a fair
pension as regulated by national legislation.
(3)
No employee of the public service may be favoured or prejudiced only
because that person supports a particular political party
or cause.
(4)
Provincial governments are responsible for the recruitment,
appointment, promotion, transfer and dismissal of members of the
public service in their administrations within a framework of uniform
norms and standards applying to the public service.
”
[15] “Employee”
is defined in section 1 of the
PSA
as
“a
person contemplated in section 8,
but
excludes a person appointed in terms of section 12A
.”
(emphasis
added)
[16] Section 9 of the PSA
reads as follows:
“
Appointments
in public service
An
executive authority may appoint any person in his or her department
in accordance with this Act and in such manner and on such
conditions
as may be prescribed.”
[17] Section 11 of the
PSA reads as follows:
“
Appointments
and filling of posts
In the making of appointments and the
filling of posts in the public service due regard shall be had to
equality and the other
democratic values and principles enshrined in
the Constitution.
In the making of any appointment in
terms of section 9 of the public service –
all persons
who applied and qualify
for the appointment concerned
shall
be considered
;
and
the evaluation of persons shall be
based on training, skills, competence, knowledge and the need to
redress, in accordance with
the Employment Equity Act, 1998 (Act 55
of 1998), the imbalances of the past to achieve a public service
broadly representative
of the South African people, including
representation according to race, gender and disability.”
(emphasis added)
It is
noted at this stage that Mr. Khang referred me in his oral argument
to section 11(3) of the PSA. However, section 11(3)
was deleted by
section 16(b) of Act 30 of 2007. I was also requested not to
consider sections of the PSA in isolation, but the
Act as a whole.
[18] Section 12A reads as
follows:
“
Appointment
of persons on grounds of policy considerations
Subject to this
section, such executive authorities as the Cabinet may determine
may
appoint one or more persons
under a contract, whether in a full-time or part-time capacity –
to advise the executive authority on
the exercise or performance of the executive authority’s
powers and duties;
to advise the executive authority on
the development of policy that will promote the relevant
department’s objectives;
or
to perform such other tasks as may
be appropriate in respect of the exercise or performance of the
executive authority’s
powers and duties.
The maximum number of persons that
may be appointed by an executive authority under this section and
the upper limits of the remuneration
and other conditions of service
of such persons shall be determined by the Cabinet in the national
sphere of government.
The special contract contemplated in
subsection (1) shall include any term and condition agreed upon
between the relevant executive
authority and the person concerned,
including –
the contractual
period,
which
period shall not exceed the term of office of the executive
authority
;
the particular duties for which the
person concerned is appointed; and
the remuneration and other
conditions of service of the person concerned.”
(emphasis added)
[19] Section 14 of the
PSA deals with the transfer within the Public Service and the
relevant part thereof is quoted:
“(1) Subject
to the provisions of this Act,
every
employee may
,
when the public interest so requires, be transferred from the post or
position occupied by him or her to any other post or position.....”
(emphasis
added)
[20] Insofar
as Mr. Khang referred me to section 5(5)(a) of the PSA to bolster his
argument that a deviation of the provisions of
the Act and the
regulations can be allowed in certain circumstances, it must be
pointed out that that section was deleted by section
7(c) of Act 30
of 2007 and is accordingly not applicable to the dispute
in
casu
.
[21] Section 5(7) of the
PSA which came into operation on 1 April 2008 is the section relied
upon by the Premier for the reversal
of the decisions by Me Marshoff.
This subsection reads as follows:
“(7) (a) A
functionary shall correct any action or omission purportedly made in
terms of this Act by that functionary, if
the action or omission was
based on an error of fact or law or fraud and it is in the public
interest to correct the action or
omission.
(b)
The
relevant executive authority shall in the prescribed manner keep
record of and report to the Minister any correction by a functionary
of a department within the portfolio of that executive authority.”
A “functionary”
is defined in section 1 of the PSA as
“any
person upon whom a power is conferred or a duty is imposed by this
Act”.
[22] The
Public Service Regulations of 2001
(the Regulations) must also be considered. It is apparent that Me
Marshoff believed that part III.B2 of the Regulations authorised
her
to approve the proposals made for the permanent appointment of
applicants as Public Service employees. When part III is considered,
both with reference to the heading thereof and the contents, there
can be no doubt that it deals with strategic planning pertaining
to
inter
alia
the determination of an organisational structure, defining of posts,
grading of proposed new jobs according to the job evaluation
system
and engaging human resource planning with a view to meeting the
resulting human resource needs. Paragraph F of part III
reads as
follows:
“
F Creation
and filling of posts
Before
creating a post for any newly defined job, or filling any vacancy, an
executing authority shall –
(a) confirm that she or he requires
the post to meet the department’s objectives;
(b) in the case of a newly defined
job, evaluate the job in terms of the job evaluation system;
(c) in the case of a vacant post on
grade 9 or higher, evaluate the job unless the specific job has been
evaluated previously;
and
(d) ensure that sufficient budgeted
funds, including funds for the remaining period of the medium-term
expenditure framework, are
available for filling the post.”
Part III.B2 relied upon
by Me Marshoff, reads as follows:
“Subject
to regulation B.2A, an executing authority shall, based on the
strategic plan of the department –
(a) determine, after consultation
with the Minister, the department’s organisational structure in
terms of its core and support
functions;
(b) define the posts necessary to
perform the relevant functions while remaining within the current
budget and medium-term expenditure
framework of the department, and
the posts so defined shall constitute the department’s approved
establishment;
(c) grade proposed new jobs according
to the job evaluation system referred to in Part IV; and
(d) engage in human resource planning
in accordance with regulation III D with a view to meeting the
resulting human resource needs.”
Nowhere in this
Regulation is an executive authority authorised to approve the
permanent appointment of persons on the staff establishment.
[23] The
respondents rely on part VII of Chapter 1 of the Regulations which
deals with the procedures for appointment, promotion
and termination
of service. Regulation VII
.A
sets out general principles which include the need to ensure
employment equity and the use of affirmative action. Regulation
VII.B contains several general conditions. Regulation VII.C1A
addresses the recruitment process and deals with the timeframes
for
the filling of funded posts and in particular makes it clear that
such posts must be advertised. Regulation VII.C2 deals in
detail
with the process of advertising and stipulates that the advertisement
of a vacant post must reach the entire pool of potential
candidates.
Regulation VII.D sets out the manner in which the selection of an
appointee is to be made and details the composition
of the selection
committee and relevant criteria are enumerated which the selection
committee must consider.
MR.
KHANG’S
SUBMISSIONS
ON BEHALF OF APPLICANTS
[24] Although
it was conceded by Mr. Khang that none of the posts, to which
applicants were allegedly transferred, were advertised
and also that
no selection processes were followed prior to the filling of these
posts by applican
ts,
he invited me to study the PSA as a whole and cautioned me not to
read and adjudicate sections thereof in isolation.
[25] Mr.
Khang submitted that insofar as first applicant’s employment
contract refers to section 9 of the PSA and not section
12A as in the
other instances, I should distinguish between him and the other
applicants. This is said notwithstanding the fact
that all five
applicants were initially
ad
idem
that their employment contracts were materially the same.
[26] Mr.
Khang submitted that Me Marshoff was fully within her rights to
deviate from the provisions of the Act and the Regulations
in order
to appoint applicants permanently as she did. He relied on section
5(5)(a) of the PSA for authority in this regard and
when invited to
provide me with case law in support of his argument, he could not do
so. As indicated above, section 5(5)(a) was
deleted by section 7(c)
of Act 30 of 2007.
[
27] Mr.
Khang submitted that the matter should be approached on the basis of
the common law and contacts of employment entered into
in terms of
the common law. The case law to which he referred me also deal with
employment contacts between individual employers
and employees in
which cases no statutory requirements as in the case of Public
Service appointees applied. He consequently submitted
that valid and
forceable employment contracts were entered into which became
operative the day after Me Marshoff left the office,
i.e. 6 May 2009.
[28] He
also relied on the Appeal Court judgement of
WILKEN
v KOHLER
1913 AD 135
for his submission that performances under a contract
which is purported to be void for non-compliance with formalities,
cannot
be set aside or reversed.
[2
9] According
to Mr. Khang, applicants performed their services as employees for
the remainder of May 2009 as well as for June 2009
until they
received the letters of 17 June 2009 and due to the silence and
inaction of the employer and the Premier in particular,
this led to a
reasonable inference and belief that the applicants’
submissions were accepted and they performed from their
side in terms
of their employment contracts.
[30] Mr.
Khang submitted that a proper case has been made out that the Premier
waived his right to reverse or cancel the contracts,
alternatively he
should be estopped from doing so. The case law relied upon by Mr.
Khang deal with waiver and estoppel in general.
[31] Finally,
Mr. Khang submitted that a party wishing to cancel or rescind a
contract, must do so within a reasonable time failing
which the other
party may fairly infer that the power or right of cancellation or
rescission has been waived. According to him
the Premier failed to
act timeously and consequently he could not have reversed the
decision of Me Marshoff on 17 June 2009 as
he did.
MR. TIP’S
SUBMISSIONS ON BEHALF OF RESPONDENTS
[
32] According
to him the key question
in
casu
involves an issue of legality in the context of the Public Service,
namely whether it was lawful for Me Marshoff to have appointed
the
applicants to permanent posts without having followed the prescribed
procedures. He submitted that the Premier was within
his rights to
reverse the appointments which had been made unlawfully.
[33] He
differentiated between section 12A appointments and appointments in
terms of section 9 of the PSA. According to him the
conclusion of a
section 12A contract is done on an entirely different basis. This
section is exceptional in its nature and unlike
a permanent
appointment, is directly coupled with the political term of a
particular executive authority. The number of persons
that may be
appointed on this basis is defined by Cabinet at National level.
[34] He
submitted that the reference to section 9 of the PSA in the
employment contract of first applicant is plainly an error as
it
should read section 12A. He interpreted section 14 of the PSA to be
concerned with the transfer of employees who already occupy
posts or
positions on the permanent establishment of the Public Service and
consequently the section is not applicable to section
12A appointees
who are not defined as employees. Mr. Tip submitted that Me Marshoff
failed to appreciate that section 8 of the
PSA as well as the
definition of “employee” was changed by the PSA Amendment
Act, 30 of 2007, which came into operation
on 1 April 2008.
Consequently he submitted that the effect of the changes is
unambiguous and one of the consequences thereof is
that persons under
section 12A contracts could no longer be dealt with in terms of
section 14(1).
[35] He
concluded his main argument in submitting that the appointments by Me
Marshoff amounted to a nullity and was at no time
valid or of force
and effect. For this submission he relied on the judgments in
UNIVERSITY
OF THE WESTERN CAPE & OTHERS v MEMBER OF EXECUTIVE COMMITTEE FOR
HEALTH & SOCIAL SERVICES & OTHERS
(1998) 19 ILJ 1083 (C) and
KHANYILE
v MINISTER OF EDUCATION AND CULTURE, KWAZULU-NATAL AND ANOTHER
[2004] 4 ALL SA 442
(N).
[36] Mr.
Tip submitted that applicants cannot rely on waiver or the doctrine
of
doctrine
of estoppel and for these submissions he relied on
KHANYILE
loc cit,
EA
STERN
METROPOLITAN SUBSTRUCTURE v PETER KLEIN INVESTMENTS (PTY) LTD
2001 (4) SA 661
(W) at 682 (E) and
EASTERN
CAPE PROVINCIAL GOVERNMENT AND OTHERS v CONTRACTPROPS 25 (PTY) LTD
2001 (4) SA 142
(SCA) at par. [11]. Based on his reasoning, the
principle of legality will be undermined by giving public authorities
powers which
they do not in law possess.
[37] In
addition to his main argument, Mr. Tip submitted that posts can be
filled only if they are vacant and funded. In this regard
he placed
reliance on par. 14 of Resolution 1 of 2007 which was adopted in the
PSCBC on 5 July 2007. It has been shown that at
least in respect of
the posts of second and third applicants these posts were not funded
at all whilst in the case of the first
applicant his post was funded
only up to a level 11 appointment whereas he was appointed at level
13. Consequently he submitted
that the appointments of these
applicants in the relevant posts were irregular and of no force or
effect.
[38] He
contended that the decision of Me Marshoff to appoint applicants were
based on an error of fact or law and it was submitted
on behalf of
respondents that it could have been reversed and/or corrected if it
was in the public interest to do so which was
the case indeed. For
this proposition he relied on section 5(7) of the PSA.
[39] He
not only submitted that the application should be dismissed with
costs, but that it is both desirable and appropriate for
a
declaratory order to be made in terms of the counter application.
[40] He
also emphasised that there can be no unlawful repudiation of a
contract as alleged on behalf of applicants if the contract
itself is
irregular and null and void. The Premier did not repudiate any
contracts, but reversed the decision of Me Marshoff as
he was
entitled and obliged to do.
[41] Mr.
Tip was requested to address me on the provisions contained in clause
1.2 of the Ministerial Handbook, an extract of which
is attached to
the applicants’ papers. He contended that Me Marshoff was
entitled to headhunt applicants for the purpose
of entering into
fixed term contracts with them, otherwise they could be appointed as
full time public servants on condition that
all applicable
regulations were followed. Me Marshoff elected to arrange for the
appointment of applicants in respect of fixed
term contracts and
consequently the second option was not available to her at a later
stage. Even so, there should have been compliance
with the strict
regulations if they were to be appointed as full time public
servants. I instructed the respondents’ counsel
to provide me
in corporation with applicants’ attorney with a full copy of
the relevant handbook and I thank them for their
assistance in this
regard.
AN
EVALUATION OF THE ARGUMENTS ON BEHALF OF THE PARTIES
[42] Mr.
Khang’s reliance on section 5(5)(a) and 11(3) of the PSA is
without foundation and I have already indicated
supra
that these subsections were repealed prior to the action taken by Me
Marshoff
in
casu
.
[43] As
invited by Mr. Khang, the PSA as a whole is considered by me and not
only particular sections thereof. It must also be
pointed out that
the definition of “employee” prior to the amendment
thereof through the
Public Service Amendment Act, 30 of 2007
, read as
follows:
“
Employee
means a person contemplated in
section 8(1)(c)
”
and
in turn
section 8(1)(c)
previously provided that
“The
public service shall consist of persons who –
......
(c)
(i) hold posts
on the fixed establishment other than posts referred to in paragraph
(a);
(ii) are
employed temporarily or under a special contract in a department,
whether in a full time or part time capacity, additional
to the fixed
establishment or in vacant posts on the fixed establishment.”
Section
8
was entirely substituted through the 2007 Amendment Act.
[44] The
legislature clearly had in mind to distinguish between the
appointment of persons on grounds of policy considerations which
may
be seen as political appointments, provided for in section 12A of the
PSA and other Public Service appointments. Unlike in
the event of
section 12A appointments, the latter appointments must comply with
the provisions of section 197 of the Constitution,
together with
section 11 of the PSA and the Regulations. The advertising of a
particular post in the Public Service is a necessary
requirement
before an appointment can be made and the Regulations are clear. The
purpose is to reach the entire pool of potential
candidates for the
particular post and especially persons that were historically
disadvantaged in order to comply with affirmative
action and the
Employment Equity Act, 55 of 1998
. Unlike persons that might be
appointed in terms of
section 12A
of the PSA, no employee of the
Public Service may be favoured or prejudiced only because he/she
supports a particular political
party or cause. See section 197(3)
of the Constitution.
[45] Insofar
as Mr. Khang relied on the provisions of paragraph 1.2 of the
Ministerial Handbook and the options available to an
executive
authority, the Ministerial Handbook should be properly considered:
45.1 The
handbook was approved by Cabinet on 5 February 2003 and thus prior to
the important 2007 amendments of the PSA relating
to
inter
alia
the definition of “employee”, the substitution of section
8 and the changes to section 5.
45.2 It
is apparent from the preface thereof that it is a guideline
inter
alia
with regard to administrative and support services. It is neither
legislation, nor subordinate legislation and consequently it
remains
merely what it is, i.e. a handbook containing guidelines. In the
event of any uncertainty or conflict, the provisions
of the PSA and
its Regulations must be adhered to.
[46] I
do not agree with Mr. Khang’s viewpoint that the matter
in
casu
should be adjudicated on the basis of a normal common law employment
contract. Strict statutory provisions must be complied with
in the
appointment of Public Service employees. Where a public official has
performed an act which is
ultra
vires
or invalid according to a statutory provision, the
ultra
vires
principle should apply and the contract should be null and void and
of no force and effect.
[47] I
am in respectful agreement with the judgment of Hlophe J (as he then
was) in
UNIVERSITY
OF THE WESTERN CAPE & OTHERS
loc cit to the effect that non-compliance with the provisions of the
PSA and the Public Service Staff Code (which applied then)
is fatal
and it is not possible for employees and officers to contract out of
them. (The Staff Code was replaced by the 1999 Public
Service
Regulations, which were later substituted by the present
Regulations.) As also found by Hlophe J, no one could have a
legitimate expectation to do something contrary to the law or to
prevent a functionary from discharging his/her statutory duty.
The
requirement that the prescripts of the PSA be strictly complied with
was directly dealt with in
KHANYILE
where it was found that non-compliance with the PSA and its
Regulations relating to a purported appointment of a person, rendered
such appointment of no force and effect. The following dictum by
Levinsohn J in this regard is with respect fully supported
“Having
purported to appoint him as such the relevant authorities were
obliged to follow the procedures set forth in the law.
To do
otherwise would result in a most chaotic and inequitable dispensation
in the Public Service.”
See
KHANYILE
loc cit p. 449, par. g.
[48] The
full bench of the Cape Provincial Division dealt with a not too
dissimilar factual matrix in
MGOQI
v CITY OF CAPE TOWN AND ANOTHER; CITY OF CAPE TOWN v MGOQI AND
ANOTHER
2006 (4) SA 355
(CPD). In that matter the Mayor of the City of Cape
Town exceeded her authority in purporting to amend the terms of her
delegated
power and thereupon extended the employment contract of the
city manager. The full bench found that this decision was fatally
flawed and hence unlawful and invalid. (at p. 389H)
[49] Mr.
Khang’s reliance on either waiver or the doctrine of estoppel
is without substance. If I were to allow either of
his submissions,
I would give validity to an act which is statutorily invalid. As
Marais JA found in
EASTERN
CAPE PROVINCIAL GOVERNMENT AND OTHERS v CONTRACTPROPS 25 (PTY) LTD
loc cit at par. [11] on p. 148F:
“
It
is settled law that a state of affairs prohibited by law in the
public interest cannot be perpetuated by reliance upon the doctrine
of estoppel.”
In
my view the same principle should apply pertaining to waiver.
[50] Notwithstanding
Mr. Khang’s invitation, I do not deem it apposite to
distinguish between first applicant on the one hand
and the other
applicants on the other. If the terms and conditions of the five
employment contracts are considered, they are substantially
the same.
First applicant mentioned in his own words in par. 6.2 of the
founding affidavit the following:
“The
terms and conditions of all the aforementioned contracts were the
same, except for the commencement dates and durations.”
The
reference to section 9 in the case of first applicant’s
contract must be regarded as a mistake as it should have been
section
12A as in the other contracts. In the light of the strict provisions
contained in the Regulations pertaining to appointment
there can be
little doubt that persons to be appointed on the permanent staff
establishment of the Public Service need to be subjected
to certain
procedures and
inter
alia
strict selection processes.
[51] Me
Marshoff’s purported permanent appointment of applicants in
terms of section 14(1) of the PSA was unauthorised and
she not only
exceeded her powers, but acted contrary to the strict provisions of
the PSA and the Regulations. It must also be
pointed out that the
reference to section 14(1) is incorrect as this section deals with
transfers of employees and not their appointment.
Part III.B.2 of
the Regulations relied upon by Me Marshoff for approval of the
appointments of applicants on the permanent staff
establishment deal
with strategic planning, as set out above, and did not give any
authority to her to appoint the applicants permanently
and/or to
transfer them in terms of section 14 without complying with the
procedures set out in Part VII of the Regulations.
[52] Insofar
as Mr. Khang placed reliance on the fact that there was a past
practice in terms whereof previous Premiers of the Free
State
absorbed fixed term contract employees in the permanent staff
establishment and transferred them, I must mention that no
concrete
evidence was placed on record in this regard. In any event, if this
was allowed in the past, it cannot be countenanced
now, taking into
consideration the amendments to the PSA in accordance with the 2007
Amendment Act, which became effective on 1
April 2008.
[53] Mr.
Khang requested leave to hand in an unreported judgment by Farber AJ
when he addressed me in reply. He
assured
me that the case was on all fours with the case
in
casu
.
This submission is incorrect. It was found by the Labour Court that
the applicant was not appointed for any of the purposes
referred to
in section 12A. It was also found that the applicant was not
appointed to serve the then MEC. The court proceeded
as follows:
“
Additionally, the agreement
lacks the qualities of a ‘special contract’, as
contemplated in Section 12A(1), as read
with Section 12A(3). Thus,
its term was fixed for a period of five years and was not limited to
the term of office of the then
M.E.C. He may have held office for a
lesser or even a longer period.”
I therefore find that
the
THABANE
-judgment
by Farber AJ is inapplicable for purposes of adjudication of this
application.
[54] Section 5(7) of the
PSA states that a functionary shall correct any action of omission
purportedly made in terms of this Act
by
that functionary
if the action or omission was based on an error of fact or law or
fraud and it is in the public interest to correct the action
or
omission. “Functionary” is defined in section 1 of the
PSA to mean “any person upon whom a power is conferred
or a
duty is imposed by this Act”. At the first glance it might be
argued that the only person that may correct an action
or omission is
the very functionary who was responsible for the action or omission.
In my view, such an approach would be over
technical.
[55] “Functionary”
is also defined as an official and an “official” is
defined as “a person holding
public office or having public
duties”. See
South
African Concise Dictionary
,
p. 466 and p. 806. I am of the view that the legislature also
intended to include a functionary who replaced the functionary
whose
action or omission was based on an error of fact, or law or fraud.
Therefore the Premier who replaced Me Marshoff was entitled
and
obliged to take corrective measures, which he did. Not all actions
or omissions can be set aside as a proper safeguard was
built in by
the legislature, i.e. the corrective measures must be in the public
interest.
[56] The golden rule of
statutory construction is to ascertain the intention of the
legislature by taking the language used and
where the words are clear
and unambiguous, to place upon them their grammatical construction
and to give them their ordinary effect.
However, due regard must be
given to the context in which the words are used, the apparent
purpose of the provision in which they
are found and of course to
their setting in and the object of the statute as a whole. See
ABP
4x4 MOTOR DEALERS (PTY) LTD v IGI INSURANCE CO LTD
1999 (3) SA 924
(SCA
)
at par. [29], p. 937. The ordinary meaning should therefore in
principle be adopted, unless the context shows or furnishes very
strong grounds for a different reading of the intention of the
legislature, such as that giving the section its ordinary meaning
would lead to the interpretation of the section in question being
unreasonable, inconsistent or unjust, or the result being absurd
or
the section being unconstitutional or contrary to the spirit, purport
and objects of the Bill of Rights. See J.R. De Ville,
Constitutional
and Statutory Interpretation
,
2000 Edition, p. 95 and
NGCOBO
AND OTHERS v SALIMBA CC; NGCOBO v VAN RENSBURG
1999 (2) SA 1057
(SCA)
.
[57] In my view it would
be unreasonable and absurd to argue that a substituting functionary
may not correct action which was based
on an error of fact or law or
fraud by his or her predecessor. See also section 5(8) of the PSA
which became law on 1 April 2008
as well. In terms hereof the Public
Service Commission is duty bound to investigate compliance with the
PSA and may issue directions
in this regard. It is a further
indication of the purpose of the legislature to sufficiently provide
for corrective measures in
promulgating the 2007 Amendment Act.
[58] Insofar as
applicants belatedly attempted to rely on the doctrine of legitimate
expectation, this aspect was not seriously
argued by Mr. Khang, but
nevertheless, there can be no doubt that the law does not protect any
expectations, but only those which
are legitimate. The applicants
could not harbour any legitimate expectation that their employer and
the Premier in particular
would condone their purported but illegal
appointments on the permanent staff establishment of the Free State
Province. See
supra
and
SOUTH
AFRICAN VETERINARY COUNCIL AND ANOTHER v SZYMANSKI
2003 (4) SA 42
(SCA) at paragraph [19].
CONCLUSION
[59] For the reasons set
out
supra
there is no merit in the applicants’ application and the
application should be dismissed with costs. Strictly speaking,
it
may be argued that it is unnecessary to grant the relief claimed in
the counter application. However, the granting of such
relief may
prevent any uncertainty and there is no reason in principle why the
respondents should not be granted such relief in
view of my findings
therein. Mr. Tip asked for the costs to include the costs of two
counsel, not only in the heads of argument,
but also in his oral
address to the court. Mr. Khang did not address me on this issue at
all. The matter is important to both
parties and it involves the
consideration and interpretation of several sections of the PSA and
in particular section 5(7) thereof
which is a new section and in
respect whereof no case law, either reported or unreported, could be
found by counsel for the parties
or myself. Consequently, the
respondents are entitled to the costs of two counsels.
ORDER
[60] Accordingly, the
following order will issue:
Applicants’
application is dismissed with costs.
In respect of the
counter application:
It is declared that the
decision of Me Marshoff, the erstwhile Premier of the Free State
Province purporting to appoint the
applicants to permanent posts in
the Public Service, pursuant to a process of relocation and
absorption was in conflict with
the provisions of the Public
Service Act, 1994 and/or the Public Service Regulations, 2001.
It is declared that the
said decision of the erstwhile Premier is a nullity and of no force
and effect.
The applicants are
ordered to pay the costs of the counter application, jointly and
severally, the one to pay the others to
be absolved.
3. The costs of the
respondents pertaining to the main and counter application shall
include the costs of two counsel.
______________
J.P. DAFFUE, AJ
On behalf of the
applicants: Adv. M. Khang
Instructed by:
Mphafi Khang Inc.
BLOEMFONTEIN
On behalf of the
respondents: Adv. K.S. Tip SC
With him:
Adv. C. Malema
Instructed by:
State Attorney
BLOEMFONTEIN
/sp