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[2009] ZAGPPHC 5
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Mahango v Member of the Executive Council Department of Roads and Transport Limpopo Province and Another (41054/2007) [2009] ZAGPPHC 5 (13 March 2009)
IN
THE HIGH COURT OF SOUTH AFRICA
/ES
(
NORTH GAUTENG HIGH COURT, PRETORIA
)
CASE
NO: 41054/2007
DATE:
13/3/2009
NOT
REPORTABLE
IN
THE MATTER BETWEEN
DR
DIPHOKO E MAHANGO APPLICANT
AND
THE MEMBER OF THE
EXECUTIVE COUNCIL,
DEPARTMENT OF ROADS AND
TRANSPORT
LIMPOPO
PROVINCE 1
ST
RESPONDENT
MAPHIRI H LESLEY
HEAD
OF THE SALARY SECTION 2
ND
RESPONDENT
JUDGMENT
PRINSLOO,
J
[1] In this opposed application which came before me, Mr Moshoana
appeared for the applicant and Mr Tokota SC, assisted
by
Ms Snyman, appeared for the respondents.
Introduction and background
[2] The applicant is employed by the Limpopo Provincial Government as
the General Manager Corporate Services, Department of Roads
and
Transport, Limpopo province.
[3] There is a dispute between the parties as to whether the
applicant, as the holder of this post, should be paid at Salary
Level 15
or at Salary Level 14. The applicant contends for
the former (a higher salary) and the respondents for the latter.
[4] In June 2005 the Limpopo Government's Job Evaluation Committee
assessed the post of the applicant and made a recommendation
that the
applicant's post be kept at a Level 14.
[5] The applicant was not happy with this recommendation and
persuaded the then member of the Executive Council for the Department
of Roads and Transport ("the then MEC") to increase the
salary level to Level 15. This happened in December 2005.
With
effect from January 2006, the applicant was paid his salary on the
higher level. The salary amounted to some R647 000,00
per
annum.
[6] It appears that the secretary of the Central Job Evaluation
Committee carried on with the original evaluation process and,
in
June 2006, sought the approval of the Director General to have the
original recommendations implemented. Those recommendations,
as
I have pointed out, reflect that the applicant's post as General
Manager: Corporate Services was evaluated and recommended
to be at a
Level 14.
[7] The applicant was informed, in writing, that the upgrading of
December 2005 to a Level 15 was irregular and had to be
rectified. He was invited to make representations as to why this
should not happen, but, through his attorneys, declined the
invitation.
[8] With effect from July 2007, the applicant was again paid at
Salary Level 14.
[9] This development prompted the applicant to approach this court
for the following relief:
"Reviewing and setting aside the decision by the first
respondent to reduce the salary level of the applicant from Salary
Level 15 to Salary Level 14."
This is the application that came before me. The first respondent is
the present MEC for the Department of Roads and Transport
of the
Limpopo province and the second respondent is the head of the salary
section.
Brief remarks about some of the submissions made by the respective
parties
[10] In a very short founding affidavit, the applicant states that in
January 2006 his salary level was "adjusted to a salary
level
equivalent to the position of post level 15 but the rank of the
applicant was left at post level 14". He
alleges that the
whole process was done by the Work Study Group and finally approved
by the then MEC.
[11] It appears that the applicant relies heavily on the point of
833,26 which was awarded to him by the Work Study Committee.
[12] From the annexures attached to the founding affidavit, it seems
that a very short memorandum (and recommendation) was addressed
to
the then MEC in November 2005 by the "acting SM: WSD and JE".
The recommendation to the then MEC was that an approval
be granted
"that the grading of a position of General Manager: HRM be that
of Level 15 as dictated by the score as generated
by the equate
system".
[13] Pursuant to this recommendation the then MEC wrote a letter to
the Director General of the 0ffice of the Premier on 24 November
2005. The main thrust of this letter, if I understand it
correctly, was that the points allocated to the applicant in terms
of
the "equate system", namely 833,26, militated in favour of
"placing the grading of the post to Level 15"
as opposed to
Level 14. The then MEC then asks the Director General to apply
his mind to the matter and to afford same his
earliest attention.
[14] It appears that the then MEC did not wait for any response from
the Director General because days later, on 5 December
2005, he
upgraded the post to Level 15.
[15] What I find significant, for reasons which will appear later, is
the following submission made by the applicant in his founding
affidavit:
"The applicant is not aware of any disciplinary hearing which
might have caused his salary to be lowered, nor any pending
disciplinary hearing."
[16] What I also find significant, for reasons which will appear
later, is the applicant's description, in his founding affidavit,
of
his terms of employment. He states the following:
"1. The applicant's rank will remain the same.
2. The contract of employment will not be for a fixed term.
3.
The terms and conditions of the contract will be in terms of
the Public Service Act, read with the Collective Agreements of the
Public Service Sectoral Bargaining Council (GPSSBC)
.
4. The applicant will be responsible for the Corporate Services
Division which include, Human Resource Development, Human Resource
Management, Labour Unit, Legal Services, Workstudy and Job
Evaluation.
5. The applicant will receive a salary of R647 727,00 per annum
as at January 2006,
subject to increases as determined by the
relevant authority or collective agreements endorsed at the GPSSBC
."
(Emphasis added.)
[17] The applicant then alleges that the respondents, in collusion
with one another, and "without the required legal authority"
lowered the salary of the applicant as described. He alleges
that the lowering of the salary was "unlawful having regard
to
the terms and conditions of the Contract of Employment".
[18] In a comprehensive opposing affidavit, the Head of the
Department: in the 0ffice of the Member of the Executive Council
responsible
for Roads and Transport made submissions which places the
dispute in a different perspective.
[19] She states that the applicant's post is a post with a Level 14
grading which level is an indication of the occupant's seniority
and
salary scale.
[20] She states that during the process of improving service
delivery, several posts within the Department, including that of the
applicant, were evaluated. Job evaluations are executed by an
independent committee, namely the Central Job Evaluation Committee
which assesses all the relevant applicable aspects of the post in
accordance with the uniform system utilised throughout the public
service, namely the "equate system". She talks about the
score which is allocated to individual aspects of the post
but states
that the Evaluation Committee will then have regard to the total
score, the grade generated by the equate system, and
the existing
structure of the department, and based on the aforementioned, make a
recommendation of the grade for the specific
post. This is what led
to the Job Evaluation Committee assessing the applicant's post at
Level 14. This happened in June
2005.
[21] This official states that the Job Evaluation Committee did not
only have regard to the scores and "mean" of the
applicable
post, but also had regard to the structure of the department in
making the recommendations. At the time of the
recommendation,
the structure of the department only allowed for one post at Level
15. This was the post of the Head of Department.
In a replying
affidavit, this allegation is disputed by the applicant.
[22] According to the deponent of the respondent's opposing
affidavit, the process leading to the then MEC upgrading the salary
level to 15, was irregular. She details the reasons for making this
allegation: it was done contrary to the approval of the Director
General and the recommendation of the Job Evaluation Committee.
She states that the procedure, for a staff member unsatisfied with
the outcome of the evaluation, is stipulated in the guide on
job
evaluation as issued by the Department of Public Service and
Administration ("DPSA") and she attaches a copy to the
opposing affidavit. According to this procedure, the then MEC should
have referred the matter back to the job evaluation unit
and, if he
decided not to accept their final recommendations, he should have
informed the panel of the decision and provided the
panel with
reasons for deviating from their recommendations. This was not done.
There was also a standing order that appointments of Senior General
Managers (such as the applicant) should be submitted to the
Executive
Council ("EXCO") for concurrence before formalisation in
the departments. This was also not done. The then
MEC also acted
contrary to the EXCO decision that the MEC's should inform the
Premier, prior to the appointment of senior managers.
This was also
not done.
[23] The deponent then states that a letter was written to the
applicant on 15 January 2007 indicating that the upgrading
of
the post was done irregularly and alleging that the applicant had
presented misleading information to the MEC. The applicant's
attorneys denied that the upgrading of the applicant's post was
irregular or that the applicant had misled the department.
A further letter was directed to the applicant on 30 April 2007
wherein he was afforded the opportunity to make representations
and
provide reasons why the irregularity should not be reversed and
demanded a refund of the monies paid to the applicant.
The applicant's attorneys replied to this letter in the following
terms:
"1. We refer to your letter dated 30
th
April
addressed to our client regarding allegations of undue enrichment and
unlawful upgrading and/or promotion.
2. Save to state that any unlawful and illegal tempering (
sic
)
with our client's salary will be met with an interdict, our client
will not dignify any of your wild and unfounded allegations
and will
await the legal process before court to unfold.
3. With regard to all other shenanigans including your so-called
secondment and its so-called extension at another institution,
in
this case a public company which our client's rights are fully
reserved at this stage."
[24] The executive authority of the Department of Roads and Transport
then wrote another letter to the applicant on 4 July
2007
reminding him that he failed to make representations on the issue,
pointing out that the department views this case in a serious
light
and that input from the applicant would have been useful in the
circumstances and recording that the salary would be adjusted
downwards from July 2007.
[25] In his replying affidavit, the applicant states that the
upgrading was done in terms of the Public Service Regulations. He
relies on clause C(4) of the regulations, which he interprets as
meaning that the then MEC acted properly in upgrading the salary
level. Counsel for the respondents, on the other hand, quote
chapter C, or extracts thereof, in their heads of argument and
argue strongly that the then MEC failed to comply with all the
requirements prescribed in that chapter before authorising the
upgrade. No case is made out by the applicant to the effect
that the requirements of the regulations were met.
[26] In his replying affidavit, the applicant admits that the Job
Evaluation Committee, on 25 June 2005, recommended that
his post
be kept at Level 14.
Does this court have jurisdiction to entertain this application
?
[27] Counsel for the respondents argued that this dispute falls
inside the ambit of the exclusive jurisdiction of the Labour Court
and that this court does not have concurrent jurisdiction to
entertain the application.
[28] This argument was not raised in the opposing affidavit of the
respondents, but counsel for the respondents, correctly in my
view,
submitted that they were entitled to argue this legal point provided
it arises from the facts even though the point had not
been
pertinently raised in the papers. They invited my attention to the
well-known case of
Swissborough Diamond Mines (Pty) Ltd v
Government of the RSA
1999 2 SA 279
(T) at 324H I where the
following is stated:
"In
Heckroodt NO v Gamiet
1959 4 SA 244
(T) at 246A C
and
Van Rensburg v Van Rensburg en Andere
1963 1 SA 505
(A) at
509E 510B, it was held that a party in motion proceedings may
advance legal argument in support of the relief or defence
claimed by
it even where such arguments are not specifically mentioned in the
papers, provided they arise from the facts alleged.
As was held in
Cabinet for the Territory of
South West Africa v Chikane
and Another
1989 1 SA 349
(A) at 360G, the principle is clear but
its application is not without difficulty."
I was also referred to the case of
Logbro Properties CC v
Bedderson NO
2003 2 SA 460
(SCA) at 471E F.
[29] Counsel for the applicant offered some resistance to these
submissions, but I ruled that I would entertain the
jurisdiction argument. The issue of whether or not the High Court
has concurrent jurisdiction, in certain instances, with the Labour
Court, is a contentious one and cannot be ignored. There is
authority for the proposition that a Court may raise the jurisdiction
aspect
mero motu
, if necessary. See for example
Runeli v
Minister of Home Affairs & 0thers
2000 2 SA 314
(TkHC) at
317A E.
[30] The main thrust of the argument advanced by the respondents'
counsel, if I understood it correctly, was that the upgrading
of the
post of the applicant amounted to a "promotion" in the true
sense of the word and the corresponding downgrading
of the salary
level amounted to a "demotion".
[31] Consequently, so the argument goes, these developments fall
inside the ambit of "an unfair labour practice"
as
defined in section 186(2) of the Labour Relations Act, Act 66 of
1995.
It is convenient to quote the wording of section 186(2):
"Unfair labour practice means any unfair act or omission that
arises between an employer and an employee involving-
(a) unfair conduct by the employer
relating to the promotion,
demotion
, probation (excluding disputes about dismissals or a
reason relating to probation) or training of an employee
or
relating to the provision of benefits to an employee
;
(b) the unfair suspension of an employee or any other unfair
disciplinary action short of dismissal in respect of an employee;
(c) a failure or refusal by an employee to reinstate or re-employ a
former employee in terms of any agreement; and
(d) an occupational detriment, other than dismissal, in contravention
of the Protected Disclosures Act, 2000 …"
(Emphasis added.)
[32] In support of the argument that, what happened here, amounted to
a "promotion" and a subsequent "demotion",
I was
referred to what was said in a judgment by this court, through
PONNAN, J, as he then was, in
National Commissioner of the
South African Police Service v SA Police Union and 0thers
(2004) 25 ILJ 203 (T) at 210F 211C, paragraph [20] of the
judgment:
"Expatiating on his submission, Mr Luderitz argued that chapter
V of the regulations related neither to appointments nor promotions.
Accordingly, so the submission went, 'the achievement of a
representative service' as also the guiding principles such as
'employment
equity', 'fairness' and 'affirmative action' find no
application in the filling of a higher graded post. I cannot
agree.
The retention, with increased benefits, of an incumbent on a
newly upgraded post, has as its consequence the same substantive
outcome as a promotion. I find support for my view in
National
Commissioner of the SA Police Service v Potterill NO and 0thers
(2003) 24 ILJ 1984 (LC) at paragraph [18], where FREUND AJ held:
'In my view, regulation 24 requires one to draw a distinction between
a decision to regrade a post and a decision to allow the
incumbent
employee in the regraded post to continue to occupy that post. Where
the incumbent employee is permitted to continue
to occupy the
regraded post and is afforded the appropriate higher salary, the
employee is, in my view, "promoted".
In my view such
a situations falls within the first meaning given for the word
"promote" in the
Concise 0xford Dictionary
9
th
ed, namely: "Advance or raise (a person) to a higher office,
rank, etc".'"
[33] Counsel for the applicant argued that the upgrading of the
salary level, as illustrated, did not amount to a promotion (with
a
subsequent "demotion" ) so that the applicant was not the
victim of an unfair labour practice. No specific authority
was
advanced for this argument.
[34] In my view, the events leading to the upgrading of the post, and
the subsequent downgrading thereof, fall inside the ambit
of an
"unfair labour practice" as defined.
Even if this was not a "promotion" or "demotion"
on any interpretation, the events still, in my opinion, "relate
to the provision of benefits to an employee" as included by the
definition prescribed in section 186(2)(a) of the Labour Relations
Act ("the LRA").
[35] Section 191 of the LRA provides a detailed procedure which can
be adopted to settle disputes about unfair dismissals and unfair
labour practices. The aggrieved employee can, for example, refer the
matter to a bargaining council or to the Commission for Conciliation,
Mediation and Arbitration. There is also provision for arbitration,
or ultimate referral to the Labour Court.
None of these options was adopted by the applicant. I pointed
out,
supra
, that he was invited to make representations, but
declined to do so.
[36] Section 157 of the LRA, and, particularly, subsections (1) and
(2), read as follows:
"(1) Subject to the Constitution and section 173, and except
where this Act provides otherwise, the Labour Court has exclusive
jurisdiction in respect of all matters that elsewhere in terms of
this Act or in terms of any other law are to be determined by
the
Labour Court.
(2) The Labour Court has concurrent jurisdiction with the High Court
in respect of any alleged or threatened violation of any fundamental
right entrenched in chapter 2 of the Constitution of the Republic of
South Africa, 1996, and arising from –
(a) employment and from labour relations;
(b) any dispute over the constitutionality of any executive or
administrative act or conduct …; and
(c) the application of any law for the administration of which the
Minister is responsible."
[37] Section 173 of the LRA deals with the jurisdiction of the Labour
Appeal Court, and does not apply for present purposes.
[38] The applicant does not rely on any "alleged or threatened
violation of any fundamental right entrenched in chapter 2
of the
Constitution" as provided for in section 157(2),
supra
.
[39] Counsel for the applicant, if I understood him correctly, argued
that the applicant relies on a breach of his employment contract,
as
also expressly alleged in paragraphs 5, 6 and 7 of the founding
affidavit, portions of which I have quoted.
[40] As I indicated, the applicant, in his founding affidavit, seems
to acknowledge that a "disciplinary hearing, in the department,
may have led to his salary being lowered". He also points out,
as quoted, that the terms of the employment contract, on which
he
relies, make this contract subject to the terms and conditions of the
Public Service Act, read with the collective agreements
of the Public
Service Sectoral Bargaining Council ("GPSSBC"). Reference
to a bargaining council forms part of the machinery,
as mentioned, of
the dispute resolution mechanisms provided for by the LRA.
[41] Not surprisingly, counsel for the respondents relied heavily on
the recent constitutional court judgment in
Chirwa v Transnet Ltd
and 0thers
[2007] ZACC 23
;
2008 4 SA 367
(CC).
It is a very lengthy and complicated judgment, but, for present
purposes, it can be stated that the applicant in that case, a
public
sector employee, approached the High Court for the review and setting
aside of the third respondent's decision to dismiss
her from her job,
and for reinstatement. She alleged that the decision had violated
her right to just administrative action as
defined in section 1 of
the Promotion of Administrative Justice Act 3 of 2000 ("PAJA").
She contended that she had two
causes of action available to her,
namely one under the LRA and one flowing from the provisions of the
Constitution, read with
PAJA, and that the High Court therefore had
concurrent jurisdiction with the Labour Court in respect of her
claim.
It was held that since the LRA and associated legislation had
created a specialised framework for the resolution of labour
disputes,
it was primarily through the mechanisms established by the
LRA that an employee had to pursue his or her claims – at
380D E.
It was held, even against the background of the provisions of
section 157(2) of the LRA,
supra
, the applicant's claim that
she was not fairly dismissed raised a dispute envisaged by section
191 of the LRA, which provided a
procedure for its resolution by,
inter alia
, the Labour Court. The High Court accordingly had
no concurrent jurisdiction – at 387I 388B.
[42] In
Chirwa
, the Constitutional Court also held that even
if the applicant, or a similarly situated employee, sought to
challenge the dismissal
by relying on a constitutional issue other
than one implemented through PAJA (as has been done here by relying
on section 195 of
the Constitution), for example discrimination, it
was necessary that all remedies under the LRA are exhausted before
raising such
an issue in a different forum. This is required so that
the LRA and its structures, which were crafted to provide a
comprehensive
framework for labour dispute resolution, are not
undermined – at 389D E.
0f course, in the present instance, no constitutional issue was
raised, as I pointed out.
I am also of the view that the fact that the instant applicant does
not seek relief flowing from an unfair dismissal, should not
lead to
a different interpretation of the principles laid down in
Chirwa
.
[43] As I have pointed out, the present applicant relies on a breach
of his contract of employment. In
Chirwa
the following is
said at 415E G:
"The conduct of Transnet in terminating the employment contract
does not in my view constitute administration. It is more
concerned
with labour and employment relations. The mere fact that Transnet is
an organ of state which exercises its public power
does not transform
its conduct in terminating the applicant's employment contract into
administrative action. Section 33 is not
concerned with every act of
administration performed by an organ of state. It follows therefore
that the conduct of Transnet did
not constitute administrative action
under section 33."
It follows, in my view, that the same approach has to be adopted
where employment terms have been altered or adjusted upwards or
downwards, as would apply in cases involving termination of an
employment contract.
I add, that in the present case the applicant did not, in his
founding or replying papers, even rely on the provisions of PAJA.
When I invited Mr Moshoana to explain this apparent
lacuna
in the papers, he pointed out that whilst he did not draft the
papers, reliance on PAJA and, more particularly, the issue of
"illegality"
should be read into the applicant's papers.
I have difficulty in accepting these submissions. In any
event, this topic
may be academical, given the finding of the
Constitutional Court that reliance on the breach of a contract of
employment does not
amount to administrative action as intended under
section 33 of the Constitution, and PAJA.
[44] Under all these circumstances, I have come to the conclusion
that the dispute between the parties is a labour dispute as intended
by the provisions of the LRA. This much is also evident from
submissions made by both parties in their papers. The applicant
has
opted not to exhaust his remedies provided for in terms of the LRA.
No constitutional issue is relied upon which may bring
the matter
inside the ambit of section 157(2) of the LRA. The conduct of the
respondents in adjusting, and re adjusting the
salary level,
does not amount to administrative action as intended by PAJA. In
line with the principles laid down in
Chirwa
, as I understand
them, the High Court does not have concurrent jurisdiction to
entertain this application. The dispute resorts
under the exclusive
jurisdiction of the Labour Court.
[45] For these reasons, the application falls to be dismissed. It is
unnecessary, and inappropriate, to consider the merits of
the
application.
The order
[46] I make the following order:
1. The application is dismissed.
2. The applicant is ordered to pay the respondents' costs, including
the costs flowing from the employment of two counsel.
W
R C PRINSLOO
JUDGE
OF THE HIGH COURT
41054-2007
HEARD ON: 17 FEBRUARY 2009
FOR THE APPLICANT: G N MOSHOANA
INSTRUCTED BY: MOHLABA & MOSHOANA INC
FOR THE RESPONDENTS: B R TOKOTA SC AND F M M SNYMAN
INSTRUCTED BY: THE STATE ATTORNEY