Rantho v Premier Free State Province and Others (476/2004) [2004] ZAFSHC 16; 2005 (5) SA 29 (O); (2005) 26 ILJ 2336 (O) (18 March 2004)

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[2004] ZAFSHC 16
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Rantho v Premier Free State Province and Others (476/2004) [2004] ZAFSHC 16; 2005 (5) SA 29 (O); (2005) 26 ILJ 2336 (O) (18 March 2004)

IN THE HIGH
COURT OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Case
No.: 476/2004
In the
matter between:
ANDREW
MODISAOTSILE RANTHO
Applicant
and
THE
PREMIER FREE STATE PROVINCE
First Respondent
THE
MEC FOR TOURISM ENVIRONMENTAL
Second Respondent
AND
ECONOMIC AFFAIRS, FREE STATE
PROVINCE
THE
HOD: THE DEPARTMENT OF TOURISM
Third Respondent
ENVIRONMENTAL
AND ECONOMIC AFFAIRS,
FREE
STATE PROVINCE
_____________________________________________________________________
CORAM:
VAN
DER MERWE, J
_____________________________________________________________________
HEARD
ON:
26 FEBRUARY 2004
_____________________________________________________________________
DELIVERED
ON:
18 MARCH 2004
_____________________________________________________________________
[1] The applicant in this matter was employed in the
Free State Provincial Department of Tourism, Environmental and
Economic Affairs
(“the department”). First respondent is the
Premier of the Free State Province. Second respondent is the member
of the Free
State Executive Council responsible for the department
(“the MEC”). Third Respondent is the head of the department
(“the HOD”).
[2] The date of appointment of applicant does not appear
from the papers. However, it is common cause that since at least
February
2003, applicant was employed in the department in what is
described as a senior management position, to wit Chief Director:
Corporate
Services. During the beginning of November 2003 the
applicant was informed that he would be charged at a disciplinary
hearing for
allegedly committing certain acts of misconduct.
Briefly, the essential elements of these charges are the following:
Firstly, that
applicant advertised two posts in the department when
only one vacancy existed and that he unlawfully appointed a person
where no
vacancy existed. Secondly, he was charged with deliberate
insubordination consisting of incurring of expenses for the
department
in the amount of R88 223,08 in breach of a notice of the
HOD to the effect that no person is allowed to incur expenses on
behalf
of the department without the approval of the HOD. These
expenses related to purchasing of cellphones, a video and radio
advertisement
and a launch held under the auspices of the department.
A further charge related to the placing of an advertisement in two
newspapers
inviting tenders for the procurement of computer equipment
and software in contravention of the relevant tender and procurement
procedures.
It is alleged that the HOD had the advertisement
withdrawn when it was brought to his attention, but that resulted in
fruitless and
wasted expenditure in the amount of R10 568,48.
Applicant was also charged with unlawfully recommending the upgrading
of posts of
certain officials in the department and by so doing
imposing a financial burden of R190 650,25 for the financial year
onto the department.
It is alleged that these constituted promotions
in contravention of the Public Service Act, 1994. A further charge
was one of gross
disrespect and gross insubordination based on a
letter by applicant to the HOD, the content and tone of which were
allegedly intemperate
and disrespectful.
[3] On 12 November 2003 a disciplinary hearing in
respect of the aforesaid charges took place. This hearing took place
in terms of
the Disciplinary Code and Procedures for Members of the
Senior Management Service (“the disciplinary code”), a copy of
which
was attached to the papers in this application. There is no
dispute as to the applicability of the disciplinary code. This
hearing
took place in the absence of the applicant despite the fact
that notice thereof was received by the applicant. The hearing took
place before an independent chairperson appointed by the HOD in terms
of the disciplinary code. After hearing evidence, the applicant
was
found guilty on 17 November 2003 on all the charges against him. The
hearing was then postponed until 19 November 2003 in order
to provide
the applicant with an opportunity to present evidence and argument in
mitigation. Despite notification thereof, the applicant
failed to
appear at the continued hearing. He was thereafter dismissed with
immediate effect on 19 November 2003.
[4] The applicant refused to accept his aforesaid
dismissal. The reasons for this attitude included averments to the
effect that
the alleged actions of misconduct of which he was found
guilty, were actions executed under the direct instructions,
authorisation
and/or approval of the MEC.
[5] As a result, the HOD brought an urgent application
on 20 November 2003 in this Court under Case No. 3982/2003 for orders
that
applicant be prohibited from entering the premises on which the
offices of the department are situated as well as that applicant
be
ordered to hand over the property of the department in his
possession. This application was opposed by the applicant. The MEC
filed a separate application essentially for leave to intervene in
Case No. 3982/2003 and thereafter to obtain an order that the
application of the HOD be dismissed with costs. This application was
set down for hearing on 22 January 2004, being also the extended
return date of the rule
nisi
issued in Case No. 3982/2003 on 20 November 2003. In the meantime
the attorneys for the HOD intimated that on that date, the HOD
will
move for the discharge of the rule
nisi
and that he tenders to pay the costs of the respondent in the
application, that is the present applicant.
[6] On 22 January 2004 the parties met at Court. All
except first respondent were represented by their attorneys of
record. First
respondent was represented by Mr Venter from her
office. With the blessing of first respondent but not of the HOD, a
written agreement
was entered into between the applicant and the MEC
in terms of which it was agreed to reinstate the applicant with full
benefits
as Director: Corporate Services of the department with
retrospective effect from 19 November 2003. The agreement of 22
January 2004
also contained the following:
“
This agreement will be
submitted by the parties hereto to the PSCBC for confirmation.”
It is common cause between the parties that the
reference to PSCBC should be understood as reference to the General
Public Service
Sectorial Bargaining Council (“the bargaining
council”). The bargaining council is a bargaining council for the
relevant sector
of the public service designated in terms of
section
37
of the
Labour Relations Act, No.66 of 1995
. Apparently in order
to comply with this last mentioned provision of the written
agreement, the proceedings were postponed until
29 January 2004. On
23 January 2004 the following was agreed upon in an addendum to the
agreement of 22 January 2004:
“
The
parties hereto agree to waive all rights and obligations concerning
time limits for declaration, conciliation and arbitration
of the
dispute.”
[7] At a meeting of the bargaining council held on 28
January 2004 chaired by Mr J.B. Mthembu and attended by the State
Attorney on
behalf of the MEC as well as applicant and his attorney,
the aforesaid settlement agreement was recorded and confirmed. On 29
January
2004 the rule
nisi
in Case No. 3982/2003 was accordingly discharged and the HOD ordered
to pay the costs of applicant. On the same date the MEC’s
application for intervention was withdrawn.
[8] On his return to office, the applicant found that
the attitude of the HOD was that the applicant “remains dismissed
from the
public service” as was stated by the HOD in a circular to
all staff members dated 6 February 2004. The circular also contained
the following:
“
3. You are instructed to
ignore and not implement any instruction from AM Rantho, as his
presence is illegal in the department.
4. Failure to comply with 3
above, will result in misconduct proceedings against staff that
follow any instructions from persons not
employed by the department.”
A letter to the same effect was addressed to the
attorneys of applicant on the same date.
[9] As a result the applicant issued the present
application on an urgent basis on 11 February 2004, to be heard on 13
February 2004.
In the notice of motion a rule
nisi
was sought calling upon respondents to show cause why the following
order should not be made final:
“
3.1 Respondents be
interdicted from interfering with applicant’s right of access to
his office situate in the Department of Tourism,
Environmental &
Economic Affairs, 34 Markgraaff Street, BLOEMFONTEIN;
3.2 Respondents are restrained
from interfering in any manner whatsoever with applicant’s right to
perform his duties as employee
of the said department;
3.3 Respondents are ordered to
pay applicant his full remuneration and/or salary for December 2003
and January 2004, immediately and
to ensure that all future salary
payments are effected on due date;
3.4 Respondents be ordered to
pay the costs of this application.”
[10] On 13 February 2004 the matter was postponed in
order to provide the HOD the opportunity to oppose the application.
It was ordered
that paragraphs 3.1 and 3.2 of the notice of motion
set out above serve as interim interdict with immediate effect. On
12 February
2004 the MEC filed a notice to abide the decision of the
Court in respect of paragraphs 3.1 to 3.3 of the notice of motion.
When
the matter was argued on 26 February 2004, counsel appeared on
behalf of first respondent and informed me that first respondent
also abides the decision of the Court and that the reason therefore
is that first respondent is uncertain as to the correct legal
position. Although the MEC gave notice to abide, as aforesaid,
affidavits by and on behalf of the MEC were filed in response to
certain allegations contained in the answering affidavit of the HOD.
Counsel acting for applicant and the HOD are agreed that these
affidavits be regarded as forming part of the papers in the
application. Counsel for the applicant and the HOD are also agreed
that
the application must decided on the basis that a final order in
terms of paragraphs 3.1 to 3.4 of the notion of motion is sought.
On
behalf of the HOD it was conceded that the matter was one of
sufficient urgency to warrant departure from the normal Rules of
Court.
[11] The crux of the case for the applicant is that the
applicant is entitled to final orders in terms of paragraphs 3.1 to
3.4 of
the notice of motion as applicant was reinstated as set out
above. The material contentions on behalf of the HOD are that the
matter
falls within the exclusive jurisdiction of the Labour Court,
but that, in any event, applicant was not validly reinstated. It is
not disputed on behalf of the HOD that in the event of a finding that
applicant had been validly reinstated, applicant would be entitled
to
the orders sought. It is convenient in this matter to firstly
address the issue of reinstatement.
[12] It is appropriate at this time to refer to certain
provisions of the Public Service Act, 1994, as amended. In terms of
the definitions
contained in section 1 thereof, the MEC is the
executing authority in relation to the department. Section 3(5) of
the Public Service
Act provides as follows:
“
Subject
to the provisions of this Act, an executing authority shall have
those powers and duties –
(a) regarding the internal
organisation of the office or department concerned, including the
organisational structure and the transfer
of functions within that
office or department;
(b) regarding
the post establishment of that office or department, including the
creation, grading and abolition of posts and the
provision for the
employment of persons additional to the fixed establishment where the
class of work is of a temporary nature;
(c) regarding
the recruitment, appointment, performance, management, promotion,
transfer, discharge and other career incidents of
officers and
employees of that office or department, including any other matter
which relates to such officers and employees in their
individual
capacities,
which
are entrusted to the executing authority by or under
this Act, and such powers and
duties shall be exercised or performed by the executing authority in
accordance with the provisions
of this Act.”
In terms of section 9 the appointment of any person or
the promotion or transfer of any officer or employee in the employ of
the
department shall be made by the relevant executing authority or
by an officer(s) to whom the executing authority has delegated
his/her
power of appointment, promotion or transfer. In terms of
section 16 certain categories of officers can retire with the
approval
of the relevant executing authority. In terms of section
7(3)(b) a head of department is responsible for the efficient
management
and administration of his/her department, including the
effective utilisation and training of staff, the maintenance of
discipline,
the promotion of sound labour relations and the proper
use and care of State property and he/she shall perform the functions
that
may be prescribed.
Sections 17(1)(a) and (b) of the Public Service Act
provide as follows:
“
(1)(a) Subject to the
provisions of paragraph (b), the power to discharge an officer or
employee shall vest in the relevant executing
authority, who may
delegate that power to an officer, and the said power shall be
exercised with due observance of the applicable
provisions of the
Labour Relations Act, 1995 (Act No. 66 of 1995).
(b) Notwithstanding paragraph
(a), the power to discharge an officer, excluding a head of
department, in terms of subsection (2)(e),
shall be vested in the
head of department.”
Section 17(2)(e) refers to dismissal on account of
misconduct. In terms of the provisions of the Public Service
Amendment Act, No.13
of 1996, any person who is an employee as
defined in the Public Service Act, is deemed to be an officer as
defined in the Act and
the provisions of the Public Service Act apply
for all purposes to such person as if he/she is an officer as so
defined.
[13] It is contended on behalf of the HOD that a dispute
arose about an unfair dismissal of applicant within the meaning of
sections 186(1)
and
188
of the
Labour Relations Act and
that the
dispute had to be dealt with in terms of
section 191
of the
Labour
Relations Act. I
agree with these submissions. The contract of
employment of applicant was terminated by his employer in terms of
section 186(1)(a).
At least a substantial portion of the reasons of
the applicant for disputing his dismissal was that the reason for his
dismissal
was not a fair reason relating to applicant’s conduct
within the meaning of section 188(1)(a) of the Act. In terms of the
disciplinary
code the applicant had no right of appeal, his dismissal
could not simply be ignored, therefore the dispute could only be
dealt with
in terms of
section 191
of the
Labour Relations Act.
[14
] It is common cause that the bargaining council had
jurisdiction in terms of
section 191(1)(a)(i)
and that the dispute
about the fairness of the dismissal of the applicant was referred to
the bargaining council. In terms of
section 191(4)
the bargaining
council was obliged to attempt to resolve the dispute through
conciliation. It cannot be doubted that however subject
to what is
dealt with below, the intention and effect of what happened on 28
January 2004 as set out above, was a resolution of the
dispute in
question through conciliation under the auspices of the bargaining
council that resulted in reinstatement of the applicant.
[15] The main argument on behalf of the HOD, as I
understand it, is not that the MEC was precluded from participating
in settlement
of the dispute in question through conciliation, but
that the HOD was a necessary party to any agreement reached through
conciliation
of the dispute, in the sense that such agreement could
not be validly concluded without the consent of the HOD. Recognising
the
absence of any express statutory provision in this regard, this
argument is based on the proposition that such consent was implicit
in the power of dismissal in respect of misconduct in terms of
sections 17(1)(b) of the Public Service Act as, so the argument went,
this power to dismiss would otherwise effectively be negated. Such
implication must, of course, be a necessary one. See in this
regard
TAJ PROPERTIES (PTY) LTD v BOBAT
1952 (1) SA 723
(N) at 729E-H
;
THE
FIRS INVESTMENTS (PTY) LTD v JOHANNESBURG CITY COUNCIL
1967 (3) SA 549
(W) at 557
.
[16] I am unable to agree with this argument. The
applicant was a member of the public service for the Republic of
South Africa created
in terms of section 197(1) of the Constitution
of the Republic of South Africa, No. 108 of 1996. As such the
employer of the applicant
was the State. See in this regard for
instance
JELE v PREMIER OF THE PROVINCE OF
KWAZULU- NATAL AND OTHERS
[2003] 7
BLLR 73
(LC)
as well as
section 1(1)(a)
of
the
Public Service Amendment Act, No. 13 of 1996
. The State as
employer in respect of the department naturally has to act through
the representation of some official or functionary.
The power to
dismiss that the HOD relies upon, therefore really is authority to
represent the State in dismissing an employee from
the department by
reason of misconduct.
In casu
,
this authority was actually exercised by the chairperson of the
disciplinary committee, to which this authority to act as
representative
of the HOD was delegated in terms of the disciplinary
code.
[17] The dispute in question was a dispute between the
State as employer and the applicant. Reinstatement was but one of
an infinite
variety of possible ways of settling this dispute. What
the argument on behalf of the HOD actually boils down to, is that the
HOD
must be
a
representative, but not necessarily the only representative of the
State as employer during proceedings for determination of such
dispute arising from the dismissal of an employee in the department.
As is the case with any representative of the State as employer,
both
the MEC and the HOD are duty bound to act in the best interests of
the State. The matter can therefore not be decided upon
the basis
that the MEC will undermine the interests of the State or of the HOD;
it must be accepted that they will work together
with a common
objective.
[18] On this basis there is no compelling reason or
logic why the State as employer in the department must necessarily be
represented
by the HOD during subsequent settlement through
conciliation of a dispute arising from dismissal of an employee on
account of misconduct.
It can certainly not be said that effect
cannot be given to the Public Service Act unless the provision sought
to be implied is
read into the statute. On the contrary, the implied
provision would lead to the peculiar result that the State is
represented by
both the MEC and the HOD, even though the HOD is in
the final instance directly accountable to the MEC. (See
PREMIER,
WESTERN CAPE v PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA
[1999] ZACC 2
;
1999 (3) SA 657
(CC) at 663H)
. Another
factor militating against the implication of the provision relied
upon by the HOD is the vagueness thereof. Does for instance,
the
obligation that the HOD must be a representative relate to settlement
through conciliation only or also at arbitration following
failure to
resolve the dispute through conciliation?
[19] It was further submitted on behalf of the HOD that
in any event, even if the dispute was validly resolved through
conciliation,
being a settlement agreement, it has no effect before
the settlement agreement is made an award. In this regard reliance
was placed
on the provisions of
section 142A
of the
Labour Relations
Act. This
argument is without merit. A settlement agreement in
terms of
section 142A(2)
is a written agreement in settlement of a
dispute that a party has the right to refer to arbitration or to the
Labour Court. In
terms of
section 191(5)
of the
Labour Relations
Act, the
right to arbitration of the dispute by the bargaining
council only arises if after conciliation the dispute remains
unresolved.
As stated above, in this case the dispute was resolved.
[20] Counsel for the HOD conceded that in the event of
findings in accordance with the above, the argument that the matter
falls within
the exclusive jurisdiction of the Labour Court, must
fail. In my judgment this concession was correctly made. In terms
of
section 157(1)
of the
Labour Relations Act, the
jurisdiction of
this Court is ousted only in respect of all matters that in terms of
the
Labour Relations Act or
in terms of any other law are to be
determined by the Labour Court. (See also
FEDLIFE
ASSURANCE LTD v WOLFAARDT
2002 (1) SA
49
(SCA)
at
60-61 par
[25 – 27]
and
FREDERICKS
AND OTHERS v MEC FOR EDUCATION AND TRAINING, EASTERN CAPE, AND OTHERS
[2001] ZACC 6
;
2002 (2) SA 693
(CC) at 712 – 713 par [38 – 40]
).
The dispute in this application was never about the fairness of the
dismissal of applicant. That dispute was resolved through
conciliation on 28 January 2004, before the application was launched.
The essential issues in this case were whether the HOD was
a
necessary party to the actual resolution of the dispute and whether
the settlement agreement was capable of enforcement in the
absence of
it being made an award. In my view, neither of these are matters to
be determined by the Labour Court in terms of the
Labour Relations
Act or
any other law. Nor, assuming that
section 158(1)(h)
of the
Labour Relations Act deals
with jurisdiction of the Labour Court as
opposed to powers available when it has jurisdiction in terms of
section 157
, does the judgment in this case entail a review of any
decision taken or any act performed by the State in its capacity as
employer
on such grounds as are permissible in law.
[21] It appears from the papers and the aforegoing, that
at the heart of this matter lies a serious disagreement between the
MEC and
the HOD. There are also strong indications that this
disagreement is not limited to this matter but is born from a lack of
mutual
trust and good faith between the MEC and the HOD. This is
contrary to the letter and spirit of the Constitution, see for
instance
section 41(1)(h) thereof and cannot go unmentioned. Had it
not been for the detrimental effect that delay of the matter may have
on the applicant, I would have seriously considered acting in terms
of section 41(4) of the Constitution.
[22] For these reasons, in my judgment, the application
must succeed with costs, including the costs reserved on 13 February
2004.
[23] I accordingly grant orders in terms of paragraphs
3.1, 3.2, 3.3 and 3.4 of the notice of motion.
__________________________
C.H.G.
VAN DER MERWE, J
On behalf of Applicant:
Adv.
A. Williams
istructed
by
Schoeman, Maree Inc.
On behalf of First Respondent:
Adv.
P.U. Fischer
instructed
by
State Attorney
On behalf of Second Respondent:
No
appearance
On behalf of Third Respondent:
Adv.
P. Zietsman
instructed
by
Israel Sackstein, Matsepe Inc.
/scd