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[2009] ZAGPPHC 43
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Croukamp v Minister of Defence and Others (57536/2007) [2009] ZAGPPHC 43 (28 April 2009)
DELIVERED: 28 APRIL 2009
NOT REPORTABLE
IN THE HIGH COURT OF
SOUTH AFRICA
(TRANSVAAL
PROVINCIAL DIVISION)
CASE NO: 57536/2007
IN
THE MATTER BETWEEN:
BELINDA
CROUKAMP APPLICANT
AND
THE
MINISTER OF DEFENCE FIRST RESPONDENT
THE
SECRETARY FOR DEFENCE SECOND RESPONDENT
THE
CHIEF OF THE SOUTH
AFRICAN
NATIONAL DEFENCE
FORCE THIRD
RESPONDENT
COLONEL
M NDLOVU
(in
his capacity as Acting
Officer,
Commanding 1
Military
Hospital)
FOURTH
RESPONDENT
JUDGMENT
SERITI,
J
I
INTRODUCTION
[1] This matter came
to Court by way of motion. In the notice of motion, the Applicant is
praying for an order in the following
terms:
“
1. The first,
second, third and fourth respondents are called upon to put forward
reasons why the purported decision by the fourth
respondent, on or
about 21 December 2006, in terms whereof the applicants services in
the Department of Defence was terminated
on account of misconduct
(administrative dismissal) should not be reviewed and/or corrected
and/or set aside.
Alternative to
prayer 1
2. That the first,
second, third and fourth respondents are called upon to put forward
reasons why the first respondent’s
purported decision on or
about 29 September 2006 in terms whereof the applicant’s
applications for “Mobility Exit Mechanism
(MEM) was not
approved should not be reviewed and/or corrected and/or set aside.”
[II]
BACKGROUND
FACTS
In the founding
affidavit, which was apparently attested to on 11 December 2007 the
applicant states that she is currently employed
at Unitas Hospital,
Centurion. She joined the South African National Defence Force
(SANDF) on 1 January 1991 as a candidate officer
and she progressed
in the ranks and she held the rank of captain in 1998. She received,
inter
alia
,
her nursing training and qualified as a nurse whilst in the employ,
of the South African National Defence Force. She performed
her
duties, from January 1995 at 1 Military Hospital, Thaba Tshwane,
initially as a junior registered nurse and in the year 2006
she held
a position of Head of the Department Infections Control at 1 Military
Hospital, Thaba Tshwane.
[3] The SANDF
introduced to its members a procedure called Mobility Exit Mechanism
(“MEM”) in terms whereof members
are afforded an
opportunity to exit and/or retire from the service prior to the usual
retirement age of 65 years. In terms of
the MEM members, who meet
certain criteria, could retire prior to their attaining 65 years and
receive certain benefits therein
mentioned.
[4] On or about 22
February 2006 the Applicant applied for early retirement in terms of
the MEM mentioned above. The date of termination
of services was
mentioned as 31 December 2006. The application was recommended on
the same date by Chief Professional Nurse and
approved by Brigadier
General Dabula.
On 12 June 2006 she
received a letter from Surgeon General’s office, in which
letter her MEM application was recommended.
The exit date was
mentioned as 31 December 2006.
Applicant alleges
that the letter was framed as an offer which she accepted on or about
16 June 2006.
[5] Applicant
further alleges that as a result of the fact that her application was
recommended by all her superiors she applied,
in accordance with
relevant regulations, for three months MEM leave, which was to
commence on 1 October 2006 with final exit date
of 31 December 2006.
The application for 3 months paid leave was approved by the General
Officer Commanding 1 Military Hospital
Brigadier General Dabula on 31
August 2006.
[6] In a letter
dated 11 September 2006 signed by Brigadier General Dabula together
with two other senior officers indicated that
there are no
prosecutions, investigation pending nor proceeding against the
Applicant, and that it is recommended that the final
date of her
service be 31 December 2006.
In the light of the
fact that her application for 3 months paid leave was approved she
started looking for alternative employer.
She received an offer for
employment from Netcare Limited to be appointed at Unitas Hospital.
She accepted the offer and she
resumed her duties at her new employer
on 1 October 2006.
[7] On several
occasions, she went to the previous employer to enquire about her MEM
application and she was assured that it is
only a matter of time
before she receives the necessary Ministerial approval.
[8] On or about 12
September 2006 certain sensitive information relating to the premises
of the SANDF was leaked to the media and
SANDF suspected that same
was leaked to the media by the Applicant.
A Board of Inquiry
was established with the purpose of establishing who is responsible
for the said leakage, so that disciplinary
steps could be taken
against such a person. The Board of Inquiry commenced carrying out
its functions on 19 September 2006 and
completed its work on or about
26 October 2006. At the time that the Board of Inquiry completed its
functions, Applicant was already
employed by Netcare Ltd.
[9] Shortly before
the establishment of the Board of Inquiry, the Applicant’s MEM
application was put on hold pending the
finalisation of the enquiry
or any legal action that might follow thereafter.
[10] On Friday 29
September 2006, prior to her starting work at her new employer, she
went to 1 Military Hospital to make final
arrangements for her to go
on leave and she was informed, according to her that her MEM
application has been withdrawn, although
the Respondents allege that
she was informed that the said application was put on hold. Despite
the fact that her MEM application
was put on hold or withdrawn, she
started working for her new employer on 1 October 2006.
[11] Captain Hobyana
of the Legal Department, in a letter dated 2 November 2006 addressed
to Brigadier General Dabula, after commenting
on the report or
proceedings of the Board of Inquiry, states,
inter
alia
:
“
In
conclusion, the only way is to charge and prosecute culprits and in
this case in issue, captain Croucamp must be charged for
contravening
the provisions of
section 104(7)
of the
Defence Act 42 of 2002
.”
[12] She applied for
unpaid leave and same was rejected and she was told to report for
duty at SANDF on 20 November 2006. She could
not comply with the
said request as she was already employed by Netcare Limited and
again, on 1 December 2006 she was informed
to report on duty and she
failed to do so.
III
FINDINGS
[13] As from 1
October 2006 the Applicant started working at Unitas Hospital. She
was informed to report on duty at SANDF on 20
November 2006 and she
failed to do so. Again on 1 December 2006 she was informed to report
on duty and again she failed to do
so.
Section 59(3)
of the
Defence Act
supra
reads
as follows:
“
a member of
the Regular Force who absents himself or herself from official duty
without the permission of his or her commanding
officer for a period
exceeding 30 days must be regarded as having been dismissed if he or
she is an officer or discharged if he
or she is of another rank, on
account of misconduct with effect from the day immediately following
his or her last day of attendance
at his or her place of duty or the
last day of his or her official leave …”
Section 52(5)(a)
of
the Act reads as follows:
“
A member of
the Regulator Force must place the whole of his or her time at the
disposal of the State, and may not perform remunerated
work or engage
himself or herself to perform work outside his or her employment
unless prior authority has been obtained from the
Secretary for
Defence.
[14] The Applicant
was requested, at least on two occasions to report for duty and she
failed to do so. She was absent from duty
without permission for a
period exceeding 30 days. She was told to report for duty on 20
November 2006 and she failed to do so.
On 21 December 2006 she was
advised that her services in the Department of Defence has been
terminated in accordance with
section 59(3)
mentioned above.
[15]The termination
of the services of the Applicant came about as a result of the
operation of law and not as a result of any administrative
action –
See
Minister
van Onderwys en Kultuur en Andere v Louw
1995 (4) Sa 3883
(A) at 388G-I. In this case, the court was dealing
with almost an identical provision. See also
Phenithi
v Minister of Education and Others
2008 (1) SA 420
(SCA) at p424G-425I (Paragraphs 9 and 10.)
[16] The Applicant’s
counsel submitted that
section 59(3)
should be read in conjunction
with
section 103
of the
Defence Act. Section
103 provides that a
Board of Inquiry must be convened if a member of the Defence Force is
absent from work for more than 30 days,
in order to enquire into such
absence.
There is no merit
in the said submission.
Section 59(3)
does not have to be read in
conjunction with
section 103.
Besides that in this case, it is
common cause that the Applicant was absent from work as she was
working for Netcare Ltd, in contravention
of
section 52(5)(a)
of the
Defence Act. There
is no suggestion that she obtained authority of
the secretary for Defence.
[17] The decision to
put on hold (according to the Respondents) or to withdraw her MEM
application (according to the Applicant)
after the article which
appeared in the newspaper and the Respondents suspected that the
Applicant might have leaked said information
to the media.
[18] The Respondent,
in my view, were entitled to put on hold, the MEM application of the
Applicant pending the finalisation of
the enquiry into the leakage of
information to the media. In fact, as stated earlier, the Legal
Division of the Respondent was of the view that disciplinary
steps should be taken against the Applicant.
[19] No disciplinary
steps were taken against the Applicant, probably because she had
already left the services of the SANDF and
she was working for
Netcare (Pty) Ltd. My view is that the Applicant has failed to make
out a case for any of the prayers contained
in the notice of motion.
[20] The Court
therefore makes the following order:
20.1 The
Application is dismissed.
20.2 The Applicant
is to pay the costs of the Respondents on a party and party scale,
which costs will include costs consequent
upon the employment of two
counsel.
_______________________
W L SERITI
JUDGE OF THE HIGH
COURT
HEARD
ON: 15 April 2009-04-17
APPLICANT’S
COUNSEL: J P VAN DEN BERG
INSTRUCTED
BY: GRIESEL & BREYTENBACH ATTORNEYS
RESPONDENTS
COUNSEL: BR TOKOTA SC AND ZZ MATEBESE
INSTRUCTED
BY: THE STATE ATTORNEY, PRETORIA