Rantso v MEC, Department of Health (5209/06) [2007] ZAFSHC 138 (29 November 2007)

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[2007] ZAFSHC 138
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Rantso v MEC, Department of Health (5209/06) [2007] ZAFSHC 138 (29 November 2007)

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
HEARD ON:
22
NOVEMBER 2007
DELIVERED ON:
29 NOVEMBER 2007
_____________________________________________________
[1] Does the High Court
have jurisdiction to decide on a refusal to reinstate an employee as
envisaged in section 17(5)(b) of the
Public Service Act No. 103 of
1994? Mr. Motloung for the respondent (employer) says that the
Labour Court has exclusive jurisdiction
to hear such matters. Mr.
Phalatsi for the applicant (employee) submits that this court at
least have concurrent jurisdiction.
[2] The background
against which this has to be decided is the following (I mention only
those events that is relevant to the question
to be decided). The
employee was employed by the employer in excess of 20 years. On
occasions in the past he successfully applied
for study leave. On 25
February 2005 he completed the required application form for study
leave for the period 28 February 2005
to 18 April 2005. When he
returned to work on 19 April 2005 he found his office locked. On
enquiry he learned that he was discharged
from employment for being
absent from work in excess of one month without leave. It is common
cause that it turned out that his
application had been refused. The
reason for such refusal is irrelevant at this stage. There is a
dispute whether the employee
was timeously informed of the refusal.
I will deal later herein with the effect there-of. The employee says
that on the strength
of a practice in the past he accepted that his
application for study leave would be successful. A deponent on
behalf of the employer
says that he personally informed the employee
on the very same day when the application was made (25 February 2005)
that the application
was refused (see paragraph 9 of the opposing
affidavit, on page 40 of the papers). The employee denies this in
his replying affidavit
and states that only after his return he
learned of its refusal (see paragraph 8.2.3 of the founding
affidavit, on page 10 of the
papers and paragraph 6 of the replying
affidavit on page 72 of the papers). The employee says that he was
lured into believing that
his application would be approved on the
strength of the procedure that had been followed on previous
occasions.
[3] Section 17(5)(a)(1)
and section 17(5)(b) of the Public Services Act No. 103 of 1994 reads
as follows:
“
(5)(a)(i) An
officer, other than a member of the services or an educator or a
member of the Agency or the Service, who absents himself
or herself
from his or her official duties without permission of his or her head
of department, office or institution for a period
exceeding one
calendar month, shall be deemed to have been discharged from the
public service on account of misconduct with effect
from the date
immediately succeeding his or her last day of attendance at his or
her place of duty.”
“
5(b) If
an officer who is deemed to have been so discharged, reports for duty
at any time after the expiry of the period referred
to in paragraph
(a), the relevant executing authority may, on good cause shown and
notwithstanding anything to the contrary containing
in any law,
approve the reinstatement of that officer in the public service in
his or her former or any other post or position ,
and in such a case
the period of his or her absence from official duty shall be deemed
to be absence on vacation leave without pay
or leave on such other
conditions as the said authority may determine.”
[4] The employee
proceeded to submit his complaint to the Public Health and Welfare
Sectorial Bargaining Council (PHWSBC). Relying
on what I shall call
the Louw line of decisions (see infra) the Commissioner held that the
PHWSBC does not have jurisdiction to entertain
the matter. This
resulted in the present application. The relief the applicant
initially sought from this court is simple: An
order reinstating the
applicant to his employment. When the matter was heard on the 1
st
March 2007 it became clear that the employer was never requested to
exercise his power in terms of section 17(5)(b) quoted above.
The
employee was granted a postponement in order to do so.
[5] The employee’s
request to the employer to exercise his discretion in terms of
section 17(5)(b) was sent to the employer on the
9
th
of March 2007. No response from the employer was forthcoming. In a
letter dated 6 June 2007 the employer was requested to react
thereto.
In a letter dated 19 June 2007 (sent to the employee under cover of
a letter dated the 12
th
of July 2007) the employer conveyed that he decided “to confirm
your discharge”. I accept that this is to be understood as that
the employer decided not to reinstate the employee. The employee
requested reasons for the decision. This was returned in the
following
terms: “He failed to show any good cause as to why his
discharge should be reconsidered”.
[6] The employee
thereupon amended his notice of motion now requiring an order that
the employer’s decision not to reinstate be
set aside.
[7] Since
MINISTER
VAN ONDERWYS EN KULTUUR v LOUW
[1994] ZASCA 160
;
1995 (4) SA 383
it is settled law that absence from work in excess of
the stated period brings the deeming provision in operation; the
termination
of employment follows by operation of law and no
dismissal as contemplated in the relevant labour legislation
occurred. As no decision
was taken to dismiss it excludes any
reviewability in a court of law. It is unnecessary to burden this
judgment with a reference
to all the reported judgments to that
effect. The latest thereof is
PHENITHI
v MINISTER OF EDUCATION & OTHERS
2006
(2) BLLR 821
S.C.A. and
HEAD
OF DEPARTMENT OF EDUCATION v SADTU AND SITHOLE
,
case number JA68/05 of the Labour Appeal Court dated 27/9/07.
[8] The difference in
effect between section 17(5)(a)(1) and section 17(5)(b) must be
appreciated. Section 17(5)(a)(1) takes effect
without any decision
by the employer. Section 17(5)(b) on the other hand requires the
employer to decide on reinstatement. A refusal
to reinstate
therefore is a decision by the employer reviewable by a court of law.
That was confirmed by Mpati DP in
PHENITHI
supra
at page 831 e. Revelas J’s judgment in
PUBLIC
SERVANTS ASSOCIATION OF SA & ANOTHER v PREMIER GAUTENG &
OTHERS
1999 ILJ 2106 LC was to the same effect.
[9] The question however
is reviewable by which court? Revelas J in the matter referred to
supra
leaves little doubt that the procedure provided for by the Labour
Relations Act would be permissible. She said the following:
“
[30] The respondents do have a
power in terms of s 17(5)(b) of the Public Service Act, in terms
whereof they can consider a possible
reinstatement of the second
applicant. She has not pursued this route and therefore her
application is premature. It is not the
case of the second applicant
that the respondents are amiss with regard to their obligations.
[31] I have raised with the parties
the question of conciliation and arbitration of this dispute. In my
view, it is still open to
the second applicant to attempt to pursue
her rights in terms of s 17(5)(b) of the proclamation. If she is
unsuccessful, she may
refer the dispute about her dismissal to have
the matter conciliated and arbitrated by the CCMA. Of course she
would have to be
granted condonation by the CCMA first.”
She did not however said
whether the High Court would have concurrent jurisdiction. Mpati DP
in
PHENITHI
v MINISTER OF EDUCTION & OTHERS
supra
on page 831 paragraph 27 however said the following:
“
[27] As
a last port of call Mr Khang contended that the provisions of section
14(1)(a) oust the jurisdiction of the High Court. He
based his
submission on the arbitrator’s finding that the Council had no
jurisdiction in the matter since the section was pre-emptory.
This
contention has no substance. If, as was held in Louw’s case the
educator concerned were to allege that he/she had the necessary
consent to be absent from work and that allegation is disputed, the
factual dispute is justiciable by a court of law. Similarly,
if the
employer was to be requested to “direct otherwise” (in terms of
the section) and refuses to do so, his/her decision (to
refuse) is
reviewable. The same would apply in the case of a refusal to
reinstate under section 14(2).”
(The reference to
section 14(2) is to other but similar legislation.)
[10] The employee’s
complaint is in essence that the employer in refusing to reinstate
acted capriciously and even maliciously.
The reasons belatedly
furnished by the employer he says is indicative of a failure by the
employer to apply his mind to what section
17(5)(b) requires him to
do. This in essence is an allegation that his constitutional right
to fair labour practices has been violated.
Section 185
of the
Labour Relations Act of 1995
gives every employee the right not to be
subjected to unfair labour practices.
Section 186(2)(c)
defines a
failure or refusal by an employer to reinstate or re-employ a former
employee brought about by any unfair act or omission
as an unfair
labour practice.
[11] In
TRANSNET
LTD & OTHERS v CHIRWA
2007
(2) SA 198
SCA, Mthiyane JA quoted with approval what was said in
MBAYEKA
AND ANOTHER v MEC FOR WELFARE EASTERN CAPE
2001 (4) BCLR 374
Tk in the following terms:
“
The labour court will never enjoy
exclusive constitutional jurisdiction even in matters where the cause
of action is confined to an
alleged violation of the right to fair
labour practices simply because that is a constitutional right in
terms of
section 23
of the Constitution.”
[12] On the strength of
this I came to the conclusion that this court do have jurisdiction to
hear this matter. That conclusion I
reached despite the temptation
to succumb to the warning that “the ordinary courts should be
careful in employment related matters
not to usurp the labour court’s
remedial powers and there skills and expertise”. See Cameron JA in
BOXER
SUPERSTORE MTHATHA AND ANOTHER v MBENYA
2007 (5) SA 450
(SCA) on 454 G. Clearly this is a matter that could
more efficiently be dealt with by the Labour Court. That however is
not the
test to be applied in jurisdictional questions like this.
[13] As indicated
supra
there is a factual dispute whether the employee was informed on the
25
th
of February 2005 that his application was refused. As I see the
matter a finding on that dispute might have an important if not
decisive impact on the outcome of this application. Mr. Phalatsi on
behalf of the employee invited me to decide in his client’s
favour
on the papers as it is. I find that impossible. This factual
dispute cannot be resolved without a referral for the hearing
of oral
evidence.
[14] This matter is
therefore referred for the hearing of oral evidence in terms of Rule
of Courts 6(5)(g). The parties will be allowed
to lead the oral
evidence of the deponents in the application. If any party wishes to
present the evidence of any witness who is
not a deponent notice of
that is to be given to the other party and the court supported by an
affidavit of that witness, at least
15 days before the hearing of
oral evidence. The costs thus far will be costs in the application.
____________
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