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2024
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[2024] ZAFSHC 199
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Mbuyisa v Head of Department: Free State Department of Social Development and Others (3243/2024) [2024] ZAFSHC 199 (25 June 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
Case
No. 3243/2024
In
the matter between:
MAKGOTSO
ELIZABETH MBUYISA
APPLICANT
And
HEAD
OF DEPARTMENT: FREE STATE
FIRST
RESPONDENT
DEPARTMENT
OF SOCIAL DEVELOPMENT
TUMELO
JACOB PHALO
SECOND
RESPONDENT
(In
his personal capacity)
THE
PREMIER OF THE FREE
THIRD
RESPONDENT
STATE
PROVINCE
MEMBER
OF THE EXECUTIVE COUNCIL
FOURTH
RESPONDENT
DIRECTOR
GENERAL: FREE STATE
FIFTH
RESPONDENT
PROVINCIAL
GOVERNMENT
CORAM
:
MAJOSI, AJ
HEARD
ON:
21 JUNE 2024
DELIVERED
ON
:
25 JUNE 2024
JUDGMENT
[1]
The applicant, approached the court on an urgent basis seeking an
order in the following terms.
“
1.
That the Applicant’s non-compliance with the rules of court
regarding form, service and time-periods
in respect of the
application of this nature as provided in terms of Rule 6 be
condoned, and that that the application be heard
as an urgent review
application in terms of Rule 6(12) and that the matter be heard by a
single judge;
2.
That it be directed that the time period that has lapsed since the
service of this application
on the respondents is deemed reasonable,
and constitutes sufficient time for service, as contemplated in
section 35 of the General
Laws Amendment Act 62 of 1995
3.
That the decision taken by the First Respondent on 30 May 2024 to
impose a precautionary
suspension against the Applicant, be reviewed
and set aside
4.
That it be declared that the First Respondent lacked the authority to
suspend the Applicant
5.
That it be declared that the precautionary suspension of 30
th
May 2024 by the First Respondent of the Applicant is unlawful,
unconstitutional, and of no force and effect:
5.1
That it be declared that the first respondent abused his power as the
Head of Department: Free State
Department of Social Development, by
imposing a precautionary suspension on 30
th
May 2024
against the Applicant;
6.
That the Second Respondent (“Adv TJ Phahlo”) be ordered
to pay the costs of this
application in his personal capacity on an
attorney and client scale, such costs to include the costs of two
counsel;
7.
In the event of (any) of the other Respondents oppose this
application, that they be ordered
to pay the costs of the application
jointly and severally with the Second Respondent on an attorney and
client scale, such costs
to include the costs of two counsel;
8.
Further and/or alternative relief.
9.
Alternatively, to the above, and in the event that this Honourable
Court is not inclined to grant
the aforementioned orders:
9.1
That the interim application is dealt with as one of urgency;
9.2
the First Respondent’s precautionary suspension contained in
the letter dated 30
th
May 2024 imposed against the
Applicant, is suspended pending the final determination of the review
application, including the final
determination of any subsequent
appeals;
9.3
the First Respondent is interdicted and restrained from implementing
and or effecting the precautionary
suspension decision dated 30
th
May 2024 against the applicant in any manner whatsoever;
9.4
the Applicant shall remain in the post of Chief Director: Social
Welfare Services, Free State Department
of Social Development;
9.5 The
Second Respondent (“Adv TJ Phahlo”) is ordered to pay the
costs of this application in his personal
capacity on an attorney and
client scale, such costs to include the costs of two counsel;
9.6
In the event of (any) of the other Respondents oppose this
application, that they be ordered to pay
the costs of the application
jointly and severally with the Second Respondent (‘Adv TJ
Phahlo”) on an attorney and
client scale, such costs to include
the costs of two counsel;
10.
Alternatively, to paragraphs 9.5 – 9.6 above, that the costs of
this application be reserved for
adjudication in the review
application referred to in paragraph 9.2 above;
11.
that the order in paragraphs 9.2 -9.4 above shall serve as an interim
interdict with immediate effect
pending the finalization of the
review application referred to in paragraph 9.2 above;
12.
Further, and alternative relief.”
[2]
The application is opposed by the first and second respondents. They
pleaded specifically that
the matter is not urgent and ought to be
dismissed. Furthermore, that this court does not have the requisite
jurisdiction to hear
the application and that if the court is so
inclined, the applicant failed to satisfy the requirements for
interim relief sought.
These assertions were detailed in the
answering affidavit.
[3]
The applicant did not file a replying affidavit and reserved their
rights therein pending the
hearing of the application and in so
doing, left the allegations in the answering affidavit unchallenged.
In light of this, the
urgent review application was abandoned in
favour of the alternative relief sought as delineated prayer 9 of the
amended notice
of motion.
[4]
I was concerned about the urgency of the application and jurisdiction
being raised and I requested
parties to address me on these points
before I could adjudicate the merits as the applicants indicated that
they are proceeding
with the alternative of interim relief pending
the final determination of a review application.
[5]
A brief background to the facts are: On 13 May 2024, the first
respondent, who is also cited in
his personal capacity as the second
respondent herein, forwarded a letter to the applicant requesting
representations for an instruction
she gave to the Office of the
State Attorney to withdraw a pending court application to review and
set aside the irregular appointment
of another official, Chief
Director: Community and Partnership Development without internal
legal advice from the Department’s
Legal Services.
[6]
On 20 May 2024, the applicant’s written response lamented the
request for reasons for her
decision as he had no authority to do so
as she was executing her duties in as the then acting head of
department and blatantly
refused to provide him with a response. This
was despite her returning to her substantive position as a Chief
Director in the department
at the time of this request.
[7]
In the absence of the applicant’s response, the first
respondent caused a letter of precautionary
suspension with full
benefits to be sent to the applicant on 30 May 2024 pending an
investigation as she refused to account or
provide an explanation. On
31 May 2024, the applicant’s attorney sent a letter to the
first respondent demanding that the
decision to place her on
precautionary suspension be rescinded by 4 June 2024, failing which,
the High Court would be approached
to obtain the necessary relief.
[8]
The first respondent acknowledged her letter on 3 June 2024 wherein
it was also indicated that
the matter is being referred to legal
services for further handling and she was provided with a contact
details of the responsible
advocate in that regard. The said advocate
was contacted by her attorney on 4
June 2024 but no formal
engagement took place and as she was informed that the first
respondent was yet to be provided with comprehensive
legal advice.
[9]
She accepted the explanation given as she was aware that departments
in government are overstretched
until 11 June 2024 when she gave her
attorney instructions to launch the urgent application and this was
served and filed after
her consideration on 14 June 2024.
[10]
Counsel for the parties provided me with their heads of argument in
court which most peculiarly, already
dealt with the issue of
jurisdiction of this court and I allowed them to hand up relevant
case law to that effect. I deem it unnecessary
to include all the
cases I was referred to. I am satisfied that this court does have the
necessary jurisdiction to adjudicate the
alternative urgent interim
relief sought, which is now being pursued by the applicant. This
finding will also determine how this
court exercises its discretion
where costs are concerned.
[11]
Rule 6(
12) of the Uniform Rules of Court provides as follows:
(a)
In
urgent applications the court or a judge may dispense with the forms
and service provided for in these rules and may dispose
of such
matter at such time and place and in such manner and in accordance
with such procedure (which shall as far as practicable
be in terms of
these rules) as it deems fit.
(b)
In
every affidavit filed in support of any application under
paragraph
(a)
of this subrule, the applicant must
set forth explicitly the circumstances which is averred render the
matter urgent and the
reasons why the applicant claims that applicant
could not be afforded substantial redress at a hearing in due course.
[12]
In East Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite
(Pty) Ltd and Others the following was stated at
paragraphs 6 –
7:
“
[6]
The import thereof is that the procedure set out in rule 6(12) is not
there for taking. An applicant has to set forth explicitly
the
circumstances which he avers render the matter urgent. More
importantly, the Applicant must state the reasons why he claims
that
he cannot be afforded substantial redress at a hearing in due course.
The question of whether a matter is sufficiently urgent
to be
enrolled and heard as an urgent application is underpinned by the
issue of absence of substantial redress in an application
in due
course. The rules allow the court to come to the assistance of a
litigant because if the latter were to wait for the normal
course
laid down by the rules it will not obtain substantial redress.
[7]
It is important to note that the rules require absence of
substantial redress. This is not equivalent
to the
irreparable harm that is required before the granting of an interim
relief. It is something less. He may still obtain redress
in an
application in due course but it may not be substantial. Whether an
applicant will not be able obtain substantial redress
in an
application in due course will be determined by the facts of each
case. An applicant must make out his cases in that regard.”
[13]
Counsel for the applicant argued that the first respondent
egregiously abused his power by suspending her
without the authority
to do so and that his conduct subverted the rule of law and required
the court to intervene and put an end
to it. Furthermore, that should
interim relief be sought in the ordinary course, the applicant would
already be subjected to the
disciplinary process and punitive
processes contemplated in the unlawful suspension letter
[1]
and will not be afforded substantial redress in due course.
[15]
It was lastly argued that due to her high-ranking position as Chief
Director of three directorates, she provides
strategic leadership for
programs critical to the Department of Social Development and any
acting appointment in her stead will
be adrift in the sea of
litigation involving the department in the provision of social
welfare services
[2]
and
therefore, the matter must be considered on an urgent basis as she
also was not afforded
audi
alteram partem
.
[3]
[16]
Transversely thereto, counsel for the Respondent argued that the
truncated timelines limited their ability
to adequately present their
case and that applicant’s case is predicated on hearsay and is
not supported by confirmatory
affidavits from the third, fourth and
fifth respondents. The senior legal advisor in the office of the
Premier whom the applicant
alleges confirmed that the instruction to
withdraw legal proceedings without her input amounts to hearsay in
the absence of a confirmatory
affidavit in that regard. It was also
asserted that the applicant failed to disclose in her papers that she
had an interest in
the matter being set aside by the state attorney
hence she gave an instruction of that nature due to her own lack of
qualifications.
It was thus likely, should she remain in office, that
she would likely manufacture further evidence.
[17]
Furthermore, it was contended that the precautionary suspension is in
line with paragraph 8.8 of the Directive
on Discipline Management in
the Public Service as issued by the Minister for Public Service and
Administration which came into
operation on 1 April 2024 which gives
all heads of departments the necessary authority to effect
precautionary suspensions and
is not punitive and does not require
her response
[4]
and her reliance
on the principle of legality as grounds for urgency is ill fated as
she has no prospects of success on the merits.
[5]
[18]
It must be noted before this hearing commenced, I made the parties
aware that no replying affidavit had been
filed in response to the
answering affidavit. This is over and above the answering affidavit
being filed a day later than the truncated
timelines and an amended
notice of motion being filed by the applicant on the very date she
received a notice to oppose. The applicant
nevertheless indicated
that they will be proceeding with the urgent application pertaining
to interim interdict and reserved their
rights therein and did not
request an extension to file same.
[19]
Hearsay evidence may be allowed in urgent applications with
limitation. The case of the applicant is premised
in the subject
matter of her suspension which she alleges amounts to the abuse of
power by the first respondent as she had been
assured by the legal
department in the form of Mrs. Naidoo, that their input (as legal
advisors) and legal advice was not required
for an instruction to the
state attorney. The absence of such a confirmatory affidavit leaves
much to be desired as it may well
speak to her prospects of success
in the interim relief sought which is not the subject matter of this
court’s adjudication
but certainly a fact that may be
considered by this court
in lieu
of urgency.
[20]
It is also evident from the answering affidavit that the
precautionary suspension cannot be regard a punitive
in nature and
that the investigation as per the relatively short time frames
indicated in the Minister’s directive may or
may not lead to
her being suspended in ordinary terms as a decision pertaining her
actual employment has not yet been made. In
my view, this alone
negates urgency.
[21]
In Luna Meubel Vervaardigers (Edms) Bpk v Makin (t/a Makin’s
Furniture Manufacturers)
1977 (4) SA 135
(W) it was stated that:
“
Practitioners
should carefully analyse the facts of each case to determine, for the
purposes of setting the case down for hearing,
whether a greater or
lesser degree of relaxation of the Rules and of the ordinary practice
of the Court is required. The degree
of relaxation should not be
greater than the exigency of the case demands. It must be
commensurate therewith. Mere lip service
to the requirements of Rule
6 (12) (b) will not do and an applicant must make out a case in the
founding affidavit to justify the
particular extent of the departure
from the norm, which is involved in the time and day for which the
matter be set down.”
[22]
I am not persuaded that the application is so urgent that it I ought
take it on the roll. It will be struck
off the roll for lack of
urgency due to the applicant’s failure to comply with Rule
6(12) (b) of the Uniform Rules of court.
In light of this finding, I
exercise my discretion and order that each party pay their own costs.
[23]
Accordingly, the following order is made:
1.
The application is struck off the roll.
2.
Each party to pay their own costs.
MAJOSI
O R, AJ
APPEARANCES:
On
behalf of the Applicant
Adv.
M.J Merabe
With
Adv.
K. Nhlapo - Merabe
Instructed
by:
Salakuva
Attorneys
BLOEMFONTEIN
On
behalf of the First & Second Respondent
Adv.
L.R Bomela
Instructed
by:
State
Attorney
BLOEMFONTEIN
[1]
Applicant’s
heads of Argument paragraph 65 – 69.
[2]
Founding
affidavit paragraphs 231.
[3]
Founding
affidavit 17.2.
[4]
Respondent’s
heads of argument, paragraphs 28 – 30.
[5]
Respondent’s
Answering Affidavit, paragraphs 29 – 30.