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2024
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[2024] ZAMPMBHC 69
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Mokoena v MEC for Education, Mpumalanga and Others (A26/2023) [2024] ZAMPMBHC 69 (17 September 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA DIVISION,
MBOMBELA
CASE NO: A26/2023
(1)
REPORTABLE: No
(2)
OF INTEREST TO OTHER JUDGES: Yes
(3)
REVISED: YES
DATE 17/09/2024
SIGNATURE
In the matter between:
BERTHA
ELSIE MOKOENA
APPELLANT
and
MEC
FOR EDUCATION, MPUMALANGA
FIRST RESPONDENT
RR
MASHEGO
SECOND RESPONDENT
J.
MOKOENA
THIRD RESPONDENT
This judgment was
handed down electronically by circulation to the parties and/or
parties’ representatives by email. The date
and time for
hand-down is deemed to be 17 September 2024 at 10:00.
JUDGMENT
Ryneveldt AJ
Introduction
[1]
This case was brought before this Court, with the main intent to
appeal the whole judgment and
order handed down by the Court
a quo
per Magistrate Theron at the Mhala Civil Regional Magistrate Court
under case number 26/2017(B). The Appellant’s case against
the
three Respondents was dismissed in its entirety on the ground that
the Appellant failed to prove her case on a balance of probabilities.
[2]
It is the Appellant’s case before this Court, that the Court
a
quo
failed to appropriately appraise relevant facts and legal
principles. Consequently, it arrived at a wrong decision by finding
that
the Appellant did not prove her case under the
actio
iniuriarm
and the
actio legis aquiliae
causes of action.
Brief Factual Matrix
[3]
It is common cause that when the matter served before the Court a
quo
, the Appellant was employed as a teacher by the Department
of Education in Mpumalanga (“the Department”). The case
relates to the events that led to her dismissal and subsequent
general and special damages that she suffered as a result.
[4]
However, the Department realized its oversight concerning the
Appellant’s dismissal, retracted
the unfair dismissal, and
reinstated the Appellant in September 2015. For the Appellant, the
damages suffered were irreversible.
Thus, the Appellant instituted
civil proceedings against all three Respondents for a total sum of
R315 161.67 jointly and
severally.
[5]
At the time of the unfair dismissal, the Appellant was a Grade 8 and
9 Economic and Management
Science teacher at Mathipe High School, a
teaching position she held since February 2008.
[6]
It was common cause among the parties that from time to time the
Department would compile an excess
list. This is a list where access
educators are placed in terms of a collective agreement 2/2003 and a
provincial collective agreement
1/2014.
[7]
On 06 February 2014, the Appellant’s name was placed on an
excess list. She objected to
the placement of her name. On 04 March
2014, a new access list was compiled. Accordingly, the Appellant was
advised to report for
duty at Moduping Combined School from 01
January 2015.
[8]
Throughout the process initiated by the Appellant to resolve her
being placed on the excess list,
she communicated her view in various
letters in which she made her dissatisfaction known. She did not
report for duty at Moduping
Combined School in January 2015. With
time the Appellant was once again requested to report for duty on or
before 29 July 2015
at Moduping Combined School.
[9]
On 27 July 2015, the Appellant was discharged from duty. However, on
18 August 2015, the letter
of discharge was withdrawn following which
she was reinstated as an educator. As a consequence of the aforesaid,
she did not receive
her August 2015 salary. The department only paid
her salary in September 2015.
[10]
The Department conceded during the proceedings before the Court a
quo
that when compiling the educators excess list, the wrong procedural
processes were followed. The Appellant decided not to pursue
a labour
law unfair dismissal remedy against the Department but instead
initiated a delictual remedy against it and the other Second
and
Third Respondents based on the
animus iniuriandi
and
actio
legis aquiliae.
[11]
The Appellant contended that the Second Respondent (“Mashego”),
a principal at Moduping Combined
School, knew about the incorrect
excess list. Despite this, he continued to compile a report
indicating that she did not report
for duty at Moduping Combined
School. The Appellant alleged that the Third Respondent (“Mokoena”)
was instrumental
in placing her name on the excess list in her
absence in a meeting held on 06 February 2014.
Magistrate Court
Findings
[12]
After weighing the relevant facts and applicable legal principles,
the Court a
quo
concluded that an employer’s statutory
responsibility and obligations to make sure that its employee(s) are
not dismissed
unfairly cannot give rise to a delictual claim. For the
Court a
quo
, no wrongfulness could be attributed to an
employer who dismisses its employee unfairly because the remedy
available for an aggrieved
employee against the employer is set out
exclusively in the
Labour Relations Act 66 of 1995
, as amended (“the
LRA”).
[13]
Thus, for all intents and purposes, the alleged wrongful act of the
Department by unfairly dismissing the
Appellant and the resultant
failure to pay her August 2015 salary timeously could not be regarded
as a wrongful act in delict according
to the Court a
quo
.
Furthermore, the Court a
quo
said, the Appellant was the
creator of her own misfortune in that she could not hold the
Respondents especially Mokoena liable
in delict.
[14]
The Court a
quo
found that insofar as the manner in which the
excess list was compiled, the rights of the Appellant were not
infringed. As such,
it could not be a wrongful act giving rise to a
delictual claim. The Court a
quo
concluded that there was no
justification to find that all three Respondents caused her injury
under the
animus iniuriandi.
Issues
on Appeal
[15]
Whether the Magistrate wrongly appraised herself on the relevance of
the LRA in that the issues placed before
the Court a
quo
did
not involve and/or relate to any labour issues as encapsulated in the
LRA. Accordingly, it should not have had any bearing
on the outcome
of the matter.
[16]
Whether the Appellant established, on a balance of probabilities, her
delictual claim based on the
actio iniuriarum
and the
actio
legis aquiliae
The Law
Actio legis
acquiliae
[17]
The Constitutional Court in
Country
Cloud
Trading
v MEC, Department of Infrastructure Development
,
[1]
gives
a summary of the approach our law takes to a wrongfulness inquiry in
that “the [harm-causing] conduct and goes to whether
the policy
and legal convictions of the community, constitutionally understood,
regard it as acceptable. It is based on the duty
not to cause harm –
indeed to respect rights – and questions the reasonableness of
imposing liability.” See also
Loureiro
and Others v Imvula Quality Protection (Pty) Ltd
.
[2]
[18]
When a Court is faced with the criterion of wrongfulness in delict,
culpability for an act committed by one
party that causes injury to
another party is inadequate to establish delictual liability.
Prejudice must be created in an improper
manner, which is legally
repugnant or unjustified. If there is no wrongdoing, a party may not
be held accountable
[3]
.
[19]
The Constitutional Court in
Steenkamp
NO v Provincial Tender Board, Eastern Cape
[4]
stated
that wrongfulness is an objective inquiry, in that “…
the enquiry into wrongfulness, is an after the fact, objective
assessment of whether the conduct which may not be
prima
facie
wrongful should be regarded as attracting legal sanction. In
Knop
v Johannesburg City Council
the test for wrongfulness was said to involve objective
reasonableness and whether the
boni
mores
required that ‘the conduct be regarded as wrongful. …The
ultimate question is whether
on
a conspectus of all the relevant facts and considerations, public
policy and public interest favour holding the conduct unlawful
and
susceptible to a remedy in damages.”
[20]
In
Telematrix
(Pty) Ltd v Advertising Standards Authority SA
,
[5]
the Supreme Court of Appeal stated that:
“…
in
order to be liable for the loss of someone else, the act or omission
of the defendant must have been wrongful and negligent and
have
caused the loss. But the fact that an act is negligent does not make
it wrongful although foreseeability of damage may be
a factor in
establishing whether or not a particular act was wrongful.”
[21]
In
H
v Fetal Assessment Centre
,
[6]
the Constitutional Court clearly stated that although all elements of
delict it is for the Courts to look at the reasonableness
to impose
liability:
“
In
addition to the general normative framework of constitutional values
and fundamental rights, our law has developed an explicitly
normative
approach to determining the wrongfulness element in our law of
delict. It allows courts to question the reasonableness
of imposing
liability, even on an assumption that all the other elements of
delictual liability – harm, causative negligence
and damages –
have been met, on grounds rooted in the Constitution, policy and
legal convictions of the community...”
Actio Iniuriarum
[22]
It goes without saying that the common law’s
actio
iniuriarum
upholds the notion of
dignitas
,
which safeguards both privacy and dignity
[7]
.
[23]
Section
10 of the Constitution encapsulated the imperativeness of human
dignity, and
in
Dawood
and Another v Minister of Home Affairs and Others
,
[8]
the
Constitutional Court made it clear “that dignity is not only
a
value
fundamental
to our Constitution, it is a justiciable and enforceable
right
that
must be respected and protected. In many cases, however, where the
value of human dignity is offended, the primary constitutional
breach
occasioned may be of a more specific right such as the right to
bodily integrity, the right to equality or the right not
to be
subjected to slavery, servitude or forced labour.”
[24]
To take it further the Supreme Court of Appeal in
Le
Roux and Others v Dey
[9]
made it clear that the term “dignity” covers several
concepts and one of these concepts is a Plaintiff’s self-worth.
With this said the Court held that self-worth is the
“
inborn
right to the tranquil enjoyment of one’s peace of mind; and the
valued and serene condition in one’s social or
individual life
which is violated when one is subjected to offensive and degrading
treatment, or exposed to ill-will, ridicule,
disesteem or contempt.”
[25]
In
Minister
for Justice and Constitutional Development v Tshishonga
,
[10]
the Labour Appeal Court stated that when the Labour Court is
presented with a non-patrimonial loss claim, the
actio
iniuriarum
can be used to establish a reasonable and equitable compensation, if
the circumstantial facts so permit [emphasis placed on circumstantial
facts].
[26]
The legal scholars
Neethling,
Potgieter and Visser
[11]
expounded that a party is entitled to claim damages for
iniuria
in
the form of defamation for the infringement of his/her good name,
reputation and status if the so-called injury was intentional.
[27]
In the context of the
actio
iniuriarum
under
which the present claim falls, the Appellate Division in
Delange
v Costa
[12]
said:
“
In
determining whether or not the act complained of is wrongful the
Court applies the criterion of reasonableness – the ‘algemene
redelikheidsmaatstaf’. . . This is an objective test. It
requires the conduct complained of to be tested against the
prevailing
norms of society (ie the current values and thinking of
the community) in order to determine whether such conduct can be
classified
as wrongful.”
Application of the Law
Labour Relations
Act 66 of 1995
, applicability
[28]
As stated
supra
,
the law is unambiguous that the remedy opted for by a party should be
clearly delineated. The Appellant’s case as presented
in her
particulars of claim makes out her causes of action based on the
actio legis aquiliae
and
actio iniuriarum
respectfully, and thus the onus rested on the
Appellant to prove her case on a balance of probabilities for both of
these causes
of action.
[29] A
crucial point of departure for this appeal is to look at the Court a
quo
’s frame of reference in so far it relates to the
Appellant’s causes of action and how it differs and or relates
to
the unfair dismissal remedy encapsulated in the LRA, if any.
[30]
Joubert in LAWSA
[13]
crystallizes the following in so far it relates to available
statutory remedies and their interpretation: “If the statute
prescribes a special remedy for the enforcement of the duty, it is
likely that the civil remedy was not contemplated, but this
does not
necessarily exclude a civil remedy.”
[31]
As aforementioned, the legislators did not intend the LRA unfair
dismissal remedy to eliminate a party’s
civil remedies under
the law. As such, the Court a
quo
’s
view that “an employer’s statutory duty not to unfairly
dismiss an employee is not wrongful in a
delictual
sense,” should not be narrowly interpreted, in essence, it
calls for a wider interpretation, and to give full meaning to
a
broader connotation is the fact that the Court a
quo
analysed the trial evidence as
presented in light of the
actio legis
aquiliae
and
actio
iniuriarum
legal requirements, as is
evident in the Court a
quo
’s
findings.
[32]
The Gauteng Local Division in
Chowan
v Associated Motor Holdings (Pty) Ltd and Others
(
Chowan
)
[14]
amplifies that, “if only the Labour Court could deal with
disputes arising out of all employment relations, remedies would
be
wiped out because the Labour Court (being a creature of statute with
only selected remedies and powers) does not have the power
to deal
with the common law or other statutory remedies.”
[33]
The Court in
Chowan
goes on to state that a Labour Court with
specified LRA remedies does not necessarily mean that other remedies
cannot be adjudicated
in other Courts.
[34]
The Court a
quo
aptly adjudicated the matter based on the
evidence presented during the trial and its reference to the LRA
should be interpreted
as an indication that it understood that the
Appellant’s causes of action stemmed from a labour dispute and
thus had their
own merits in delict. If not, it could have rejected
the Appellant’s claim outright or overemphasized the
jurisdictional
quandary. It is notable that it did not do this.
Furthermore, it should be noted that the issue of jurisdiction was
previously
addressed hence it did not feature prominently before the
Court a
quo
during the trial.
Balance of
probabilities
[35]
The Constitutional Court reaffirmed an appeal Court stance in
Makate
v Vodacom (Pty) Ltd
[15]
in that “appeal courts in our law are reluctant to interfere
with factual findings made by trial courts, more particularly
if the
factual findings depended upon the credibility of the witnesses who
testified at the trial. In
Bitcon
,
Wessels CJ said:
‘
The
trial judge is not concerned with what is or is not probable when
dealing with abstract businessmen or normal men, but is concerned
with what is probable and what is not probable as regards the
particular individuals situated in the particular circumstances in
which they were’.”
[36]
The Court in
The
National Employers’ General Insurance v Jagers
[16]
emphasized
the importance of credibility and probabilities in determining the
value of the evidence presented in a civil trial,
accordingly, it
stated that:
“
The
estimate of the credibility of a witness will therefore be
inextricably bound up with
a
consideration
of the probabilities of the case and, if the balance of probabilities
favours the Plaintiff, then the Court will accept
his version as
being probably true.”
[37]
Examination of the trial record submitted in this appeal shows that
the evidence against Mashego and Mokoena
does not support the
Appellant’s case. Rather, it appears that the Appellant is
attempting to establish a case against all
three of the Respondents
by using the unfair dismissal (common cause facts, which were
admitted and resolved timeously) as a launching
pad to express her
long-simmering resentment toward her perceived working conditions.
[38]
Thus, it comes across as though the Appellant’s unfair
dismissal provided an avenue for her long-simmering
dissatisfaction
to be released. It does not necessarily mean that once an expert
confirms that an event could be directly related
to the incident in
question, the Court must solely place reliance on the expert opinions
to the exclusion of the body of the other
evidence presented during
trial. The significance that expert witnesses play in helping the
court reach a just and equitable decision
has been made clear by the
courts on several occasions. The Supreme Court of Appeal in
NSS
obo AS v MEC for Health, Eastern Cape Province
[17]
reiterated that “even if experts agree on a matter within their
joint expertise, that is merely part of the total body of
evidence.”
[39]
Based on the expert evidence of the Appellant, her mental health can
be attributed to incidents related to
her workplace. However, Dr van
Zyl gave evidence that other factors should also be taken into
consideration with the Clinical history
namely, family history,
sexual history, psychological history, and habits.
[40]
When reviewing evidence, the Court is required to consider all of the
evidence from a holistic perspective
and, as a result, must undertake
an impartial objective investigation into wrongfulness. As stated
above in the Constitutional
Court decision of
Steenkamp NO v
Provincial Tender Board Eastern Cape
, all relevant facts and
circumstances must be considered when the court holds a party
accountable, but only if public policy and
public interest require
it.
[41] It
is clear from the evidence presented that the Appellant could not
have suffered such severe hardship and
harm because of the wrongful
dismissal in that we are talking about a one-month salary payment
that was paid one month late. On
the realisation that the dismissal
was erroneous and that it should not have happened in the first
place, the Department detected
and corrected its oversight without
any delay.
[42]
How this one incident on which the Appellant builds her case baffles
the mind, and it is not as if it happened
before to the Appellant, or
that the Appellant had to endure lengthy periods of endless
litigation to make her plight known and
get the desired outcome of
being reinstated with compensation.
[43]
Taking public policy and public interest into account, the
Appellant’s case cannot be supported in
finding the unlawful
dismissal to be wrongful in a delictual sense, because doing so would
expose public institutions to unnecessary
litigation for
bona fide
mistakes that may creep in from time to time, especially when it is
picked up and corrected timeously by a public institution when
pointed out by the offended party.
[44]
Mashego had a duty and responsibility to disclose where the Appellant
reported for duty and holding him directly
liable cannot be justified
and violates public policy, which requires public authorities to
intimate the facts as they are.
[45]
This Court concurs with the Court a quo’s credibility
assessment of the evidence presented in respect
of Mokoena. “It
is equally true that findings of credibility cannot be judged in
isolation but require to be considered in
the light of proven facts
and the probabilities of the matter under consideration.”
[18]
The Supreme Court of Appeal in
City
of Cape Town v Mtyido
[19]
reiterated that an appeal court will not generally interfere with a
trial court’s credibility findings unless the findings
are
wrong.
[46]
The Supreme Court of Appeal in
Bee
v Road Accident Fund
[20]
stated that one of the principles that need to be observed by an
appeal Court, is that the trial Court’s factual findings
are
presumed to be correct in the absence of clear demonstrable errors. A
holistic approach of the evidence presented demonstrates
that the
actions of the Respondents to directly or indirectly place the
Appellant on the excess list, which led to her unfair dismissal
cannot be seen as being wrongful for the reasons already canvassed.
Order
I
n
the result, I propose the following order:
The
judgment and order of the Court a quo is set aside and substituted
for the following:
“
The
claim is dismissed with costs, including those of Counsel.”
D L-J RYNEVELDT
ACTING JUDGE OF THE HIGH
COURT OF SOUTH AFRICA
MPUMALANGA DIVISION,
MBOMBELA
I agree
B A MASHILE
JUDGE OF THE HIGH COURT
OF SOUTH AFRICA
MPUMALANGA DIVISION,
MBOMBELA
APPEARANCES
Counsel for the
Appellant:
Adv VE Kruger
Instructed by:
Scheepers Attorneys
Counsel for the
Respondent:
Adv Z Gumede
Instructed by:
State Attorney
Date of Judgment:
17 September 2024
[1]
Country
Cloud Trading CC v MEC, Department of Infrastructure Development,
Gauteng
[2014] ZACC 28
;
2015 (1) SA 1
(CC) para 21.
[2]
Loureiro
and Others v Imvula Quality Protection (Pty) Ltd
[2014]
ZACC 4
;
2014
(3) SA 394
(CC) para 53.
[3]
Neethling et al
Law
of Delict
5 ed at 31
.
[4]
Steenkamp
NO v Provincial Tender Board Eastern Cape
[2006] ZACC 16
;
2007 (3) SA 121
(CC) para 41 and 42.
[5]
Telematrix
(Pty) Ltd v Advertising Standards Authority
SA
[2006] 1 All SA 6
(SCA);
2006 (1) SA 461
(SCA) para 12.
[6]
H v
Fetal Assessment Centre
[2014]
ZACC 34
;
2015 (2) SA 193
(CC) para 51 and 67.
[7]
NM
and Others v Smith and Others
[2007] ZACC 6;2007 (5) SA 250 (CC) para 48.
[8]
Dawood
and Another v Minister of Home Affairs and Others
;
Shalabi
and Another v Minister of Home Affairs and Others; Thomas and
Another v Minister of Home Affairs and Others
[2000] ZACC 8
;
2000 (3) SA 936
(CC);
2000 (8) BCLR 837
(CC) at paragraph 35.
[9]
Le
Roux and Others v Dey
2010 (3) All SA 497
(SCA) para 20.
[10]
Minister
for Justice and Constitutional Development v Tshishonga
[2009] 9 BLLR 862
(LAC)
;
(2009)
30 ILJ 1799 (LAC).
[11]
Neethling
et al
Law
of Delict
5 ed at 331.
[12]
Delange
v Costa
1989
(2) SA 857
(A) at 862E-F.
[13]
Joubert
LAWSA
(2
nd
ed) Vol 8
Part 1
para 74.
[14]
Chowan
v Associated Motor Holdings (Pty) Ltd and Others
2018 (2) All SA 720
(GJ)
;
2018
(4) SA 145
(GJ) para 53.
[15]
Makate
v Vodacom (Pty) Ltd
[2016]
ZACC 13
; 2016(4) SA 121 (CC) para 37.
[16]
The
National Employers’ General Insurance v Jagers
1984 (4) SA 437
(E) at 440F.
[17]
NSS
obo AS v MEC for Health, Eastern Cape Province
[2023] ZASCA 41
;
2023 (6) SA 408
(SCA) para 25.
[18]
Santam
Bpk v Biddulph
[2004]
ZASCA 11
;
(2004) 2 All SA 23
(SCA) para 5.
[19]
City
of Cape Town v Mtyido
[2023]
ZASCA 163
para 23.
[20]
Bee
v Road Accident Fund
[2018]
ZASCA 52
;
2018 (4) SA 366
(SCA) para 46.