Rantso v MEC, Department of Health (5209/06) [2008] ZAFSHC 28 (15 May 2008)

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[2008] ZAFSHC 28
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Rantso v MEC, Department of Health (5209/06) [2008] ZAFSHC 28 (15 May 2008)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Case No. : 5209/06
In
the matter between:
MPHETHENG
LUCAS RANTSO
Applicant
and
MEC
DEPARTMENT OF HEALTH
Respondent
JUDGMENT:
CILLIé,
J
DELIVERED ON:
15 MAY 2008
_____________________________________________________
[1] This matter was
referred for the hearing of oral evidence in terms of Rule of Court
6(5)(g) on the single issue whether the applicant
was informed on the
25 February 2005 by his superior, Mr. Mdluli that his study leave had
not been approved. It is common cause
that the applicant was absent
from work thereafter whilst in fact the study leave had not been
approved. The applicant alleged in
his affidavit that he was under
the
bona
fide
impression that his application for study leave would be approved.
The whole background of the dispute is fully set out in my judgment
dated 29 November 2007. It is unnecessary to repeat it now and
should be read with this judgment.
[2] The application is
solely based on a alleged failure by the respondent to properly take
into account when she considered the applicant’s
possible
re-instatement in terms of section 17(5)(b) of the Public Service
Act, No. 103 of 1994, the fact that the applicant was
under the said
bona
fide
impression. The section permits “on good cause shown” the
re-instatement of an employee like the applicant who is deemed to
have been discharged. When referring the matter for the hearing of
oral evidence I had in mind that the
bona
fide
misunderstanding under which the applicant allegedly laboured might
just constitute the required good cause. As there was a dispute
on
the papers whether the applicant in fact could have had this
impression it necessitated the hearing of oral evidence on this
aspect.
[3] The
applicant testified that he handed his application for study leave
(page 19) to Mdluli aforesaid the morning of the 25 February
2005.
Mdluli allegedly told him that he was busy at that moment with other
matters but that he would attend to the applicant’s
application for
study leave later. As Mdluli did not get back to him he accepted
that everything was in order and accordingly departed
on the leave
applied for.
[4] Mr. Gabriel Mdluli in
his evidence gave a completely different version of the events. He
said that when the application was handed
to him he told the
applicant that as the application lacks the required supporting
documents he could not recommend the application.
The applicant,
according to Mdluli, responded to the effect that he had already paid
the fees for the course he intends to follow.
According to Mdluli he
phoned his superior, one Me Morigihlane who referred him to Me. Nzana
whom she instructed to deal with the
matter. He left the application
in the office of the district manager to attend to it. Mdluli
further explained the procedure applicable
to study leave.
Application must be made six months in advance and it is then
considered by the Skills Development Department in
Bloemfontein.
Arrangements must also be made for a replacement. Mdluli further
explained that the applicant’s previous study
leave in
January/February 2005 was also disapproved. As the applicant is a
steward an appointment was made with his labour union
to discuss the
applicant’s absence from work without approved leave. Due to the
union representatives’ falling ill the discussion
had not
materialised yet at the time when the applicant applied for the
presently relevant study leave.
[5] Me. Morigihlane is
the district manager of the Department of Health for the district of
Lejwelepoetshwa. She confirmed that it
is her signature disapproving
the applicant’s application for study leave as it appears on page
19. This she did after Mdluli
phoned her and reported the events to
her. She is adamant that the application was turned down on that
very same day. She confirmed
that study leave should be applied for
well in advance.
[6] Me. Mzanza also
testified but her evidence deals with the earlier study leave of the
applicant and it does not really give any
light on the application
for study leave presently relevant.
[7] I approach this
matter on the basis that the applicant bears the onus to convince me
that he has shown good cause for his reinstatement
and that the
respondent’s refusal to do so is capricious and without proper
consideration of the relevant circumstances. I came
to the
conclusion that the applicant failed to do so. Mdluli impressed me
as a witness and I have no hesitation in accepting his
evidence above
that of the applicant. Mr. Phalatsi on behalf of the applicant
argued that Mdluli’s evidence does not prove that
the applicant
knew that his application was refused. He submits that it was not
Mdluli who had to decide on it and that it is common
cause that Me.
Morigihlane never informed the applicant of its final refusal. This
may be so but Mdluli’s informing of the applicant
that his
application cannot be recommended because it was incomplete should
have alerted the applicant that its refusal was inevitable.
I cannot
escape the conclusion that the applicant despite this decided to
absent himself from his work in any event. His failure
to ascertain
afterwards whether it had just by change been approved is evident of
a lack of
bona
fides
.
He did not enquire because he knew very well that he would be
informed that his absence from duty was without approved study leave.
The evidence of Me. Morigihlane that the applicant union’s
involvement in the previous study leave dispute leaves little doubt
that the applicant being a shop steward could not have been under the
impression that all was kosher with his study leave.
[8] On
behalf of the respondent a copy of the respondent’s policy
applicable to special leave was made available to the court.
Section
8.1 thereof provides as follows:
“
Except in exceptional circumstances
the employee may not stay away from her/his place of duty unless an
application for leave of absence
has been lodged in writing and the
head of the department has informed her/him that the application has
been approved.”
The applicant an
employee of 20 years plus standing can hardly be believed not to have
been aware of this condition in his terms
of employment.
[9] The respondent turned
the applicant’s re-instatement down on the basis that applicant
failed to show good cause for his re-instatement.
I cannot fault
that. The only good cause on which the applicant relied in his
application was his alleged
bona
fide
believe that his application for study leave had been approved. This
he failed to prove.
[10] In the result the
application is dismissed with costs.
____________
C.B. CILLIé, J
On
behalf of the applicant: Mr. N. W. Phalatsi
Instructed
by:
N
W Phalatsi & Partners
BLOEMFONTEIN
On
behalf of the respondent: Mr. S. E. Motloung
Instructed
by:
State
Attorney
BLOEMFONTEIN
/em