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[2003] ZALAC 2
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Maada v Member of the Executive Council of the Northern Province for Finance and Expenditure and Another (JA34/01) [2003] ZALAC 2; (2003) 24 ILJ 937 (LAC); [2003] 5 BLLR 422 (LAC) (19 March 2003)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA
HELD
IN JOHANNESBURG
Case
no: JA 34/01
In the
matter between:
MBEREGENI
JOSEPH MAADA APPELLANT
and
MEMBER
OF THE EXECUTIVE
COUNCIL
OF THE NORTHERN
PROVINCE
FOR FINANCE
AND
EXPENDITURE FIRST RESPONDENT
PROVINCIAL
SERVICE COMMISSION SECOND RESPONDENT
________________________________________________________________
JUDGEMENT
________________________________________________________________
ZONDO
JP
Introduction
[1] This
is an appeal from a judgement of the Labour Court in which it
dismissed with costs an application that had been brought by
the
present appellant against the respondents for an order the effect of
which would have been to set aside his dismissal by the
first
respondent. The Court a quo granted leave to appeal.
The
facts
[2] The
facts in this matter are largely common cause. In August 1996 the
appellant was employed by the Venda Government as a clerk.
By 1994,
when that Government ceased to exist, he had risen to the position of
Deputy Director-General in the Department of Public
Works. Upon the
re-incorporation of the Venda homeland into South Africa, the
appellant became Deputy Director-General in the Department
of Finance
and Expenditure: Northern Province. He held that position until the
end of August 1997 when his services were terminated
in the
circumstances described below.
[3] On
22 May 1996 the Department of Public Service and Administration
issued a circular known as circular 10/12/26. The subject of
the
circular was a special initiative by the Government to reduce the
number of public servants. The heading of the circular was:
â
Application of the special initiative whereby serving officials are
afforded the option to request that their services be terminated
on a
voluntary basis.â
[4] Clause
2 of the circular was to the effect that, in order to give effect to
the Governmentâs objective of rationalising the
public service, an
agreement had been reached between the government and employee
organisations admitted to the Chamber of the Public
Service
Bargaining Council at central level which made provision for the
âright-sizingâ
of the public service and the implementation of a voluntary severance
package. It was stated that the purpose of the circular was
primarily
to convey to departments or administrations information pertaining to
the implementation of the severance package.
[5] Clause
4 provided that on the recommendation of the Public Service
Commission in terms of sec 3(2)(a)(i) and 42 of the Public
Service
Act, 1994, it had been decided that with effect from 1 May 1996
âserving
officials be afforded the option to request that their services be
terminated on a voluntary basis and that a special severance
package
be
paid to those officials whose applications are approved.â
Clause
8 of the circular stated that,
â(i)n
view of the aims of the voluntary severance package, departments /
administrations are also requested to put a hold on all
employer-initiated retrenchments which would require the application
of sec 17(2)(b) or (c) of the Public Service Act, 1994.â
[6] Sec
17(2)(b) and (c) of the Public Service Act, 1994 read thus:.
âEvery
officer, other than a member of the services or an educator or a
member of the Agency or the Service, may be discharged from
the
public service-
------------------------
owing
to the abolition of his or her post or any reduction in or
reorganisation or re-adjustment of departments or offices;
if,
for reasons other than his or her own unfitness or incapacity, his
or her discharge will promote efficiency or economy in the
department or office in which he or she is employed, or will
otherwise be in the interest of the public service;â
Clause
8 further stated that the freeze on such employer - initiated
retrenchments took effect on the date of the circular and would
remain in place until further notice. It stated that these measures
had been recommended by the Public Service Commission in terms
of sec
3(2)(a)(i) and 42 of the Public Service Act, 1994 and would be
incorporated in the Public Service Staff Code. Clause 10(c)
of the
circular was to the effect that personnel who were interested in
applying for the severance package should be assisted by
the
departments and administrations with the calculation of the benefits
and privileges that they would be accorded if their requests
were
approved. The last sentence of clause 12 was to the effect that the
departments/administrations could not be held responsible
for any
miscalculations which occurred.
[7] Various
annexures were attached to the circular. Annexure
âAâ
contained â
measures
governing voluntary termination of serviceâ
.
Clause 2 (8) of annexure
âAâ
required requests to be made in writing on the pro - forma given in
annexure A1. Clause 2(9) provided that candidates who identified
themselves for the voluntary termination of service under this
special initiative should not be re-appointed in the Public Service
in terms of the Public Service Act, 1994 and that they
ârelinquish
any claims to benefits payable under any other provision of the
Public Service Act, 1994, Public Service Regulations,
Service Staff
Code, or, any other act, regulations or prescripts.â
[8] Clause
2(10)(a) of annexure
âAâ
provided
that individual requests in terms of that provision had to be
approved by the executing authority or his/her delegate, and,
that,
for the purpose of the initiative,
âthe
Public Service Commission has delegated its powers to recommend the
discharge of officials who have applied for voluntary termination
of
service up to and including the level of Deputy-Director-General, to
heads of department at national level.....â
Clause 4(c)(viii) of annexure
âAâ
provided that the notice period to be given in respect of the
discharge of employees was to be the period of remuneration (e.g a
weekâs notice if the employee was paid weekly and a monthâs
notice if the employee was paid monthly). It was also provided
therein
that instead of keeping a person in service for the full
period of notice, his or her services could be terminated with his or
her
consent at the beginning of, or, during, the notice period. It
provided further that in such an event a further package which
covered
the unexpired period of notice up to the date of discharge
could be calculated additional to the normal package and be paid in
the
form of a once - off and all-inclusive amount to compensate for
various benefits therein set out including pensionable salary and
pro-rata service bonus. Annexure C to the circular provided, among
other things, that severance pay would be equal to one weekâs
remuneration for each completed year of continuous service within the
Public Service. It also invited anyone interested to know more
about
the package including the specific amount he would receive to contact
his/her personnel office immediately.
[9] Some
time during 1996 the appellant became aware of the circular. In July
1997 he asked for a quotation of the severance package
that he would
receive if he requested to be discharged on a voluntary basis in
terms of the circular and if the request was approved.
He was
informed that he would receive a severance package totalling R1 353
567,86. On the 20
th
June 1997 the appellant signed a request addressed to the
Director-General that he be discharged from the public service in
terms
of the provisions of the circular. The body of the request
reads thus:
â
REQUEST
TO BE ALLOWED TO BE DISCHARGED VOLUNTARILY FROM THE PUBLIC SERVICE IN
TERMS OF THE PROVISIONS OF ANNEXURE A OF THE DEPARTMENT
OF PUBLIC
SERVICE AND ADMINISTRATION CIRCULAR 10/12/26 DATED 22 MAY 1996.
I,
MAADA MBEREGENI JOSEPH............. Deputy-Director-General Persal
No/Pay No 80054480 do hereby request to be allowed to be discharged
from the Public Service in terms of the provisions of Annexure A of
the Department of Public Service and Administration circular
10/12/26
dated 22 May 1996.
I
hereby declare that this request is made voluntarily and that I am
familiar with the conditions and severance benefits as set out
in the
relevant Annexure.â
[10] On
the 19
th
August 1997 Mr Badenhorst, who was a Deputy Director-General in, and,
Head of, the Department of Finance and Expenditure of the Northern
Province, wrote a letter to the appellant advising him that the
quotation of severance package that he had been provided with was
incorrect. He wrote that the quotation was based on the appellantâs
full pensionable service since he joined the public service
on the
3
rd
August 1976 whereas it should have been based on the appellantâs
pensionable service from 1 March 1992. This related to the fact
that, although the appellant had joined the public service in 1976,
he had been paid a package in 1992 covering the period 1976 to
February 1992 when the Venda Pension Fund was liquidated. The
suggestion was that in calculating the severance package that the
appellant
would be entitled to, the period from 1976 to February 1992
had to be disregarded and only the period from the 1
st
March 1992 and thereafter had to be taken into account. A quotation
dated the 19
th
August 1997 was attached to the letter and was said to be the correct
one. That quotation reflected that the appellant would be entitled
to
a severance package totalling of R483 223,04.
[11] The
appellant says he was shocked and upset at the second quotation. On
25 August he addressed a letter to Mr Badenhorst in which
he
purported to withdraw his request to be discharged. The body of the
letter read thus:-
â
Voluntary
termination of service on the basis of severance package: self your
s4/6/2 dated 19
th
August 1997 refers.
When
I applied for severance package I based my application on the
quotation dated 08 July 1997 and not on the quotation of 19
th
August 1997
.
My
quotation was based on the circular minute 1/3/25 dated 2 May 1997
issued by the Department of Public Service and Administration
whereby my services on the voluntary package is (sic) supposed to be
taken into account from the date of my appointment which
is
August 1976 and not March 1992.
On
the basis of paragraphs 1 and 2 above I therefore withdraw my
application until such time I will benefit and be treated in terms
of circular minute 1/3/25 dated 02 May 1997 from the Department of
Public Service and Administrationâ.
[12] Circular
1/3/25 of 2 May 1997 was attached as annexure
âDâ
to the answering affidavit. It was from the Director-General of the
Department of Public Service and Administration. It read thus:-
â
TO
HEADS OF ALL DEPARTMENTS/PROVINCIAL ADMINISTRATION/OFFICES OF
PROVINCIAL SERVICE COMMISSIONS
APPLICATION
OF THE SPECIAL INITIATIVE WHEREBY SERVING OFFICIALS ARE AFFORDED THE
OPTION TO REQUEST THAT THEIR SERVICES BE TERMINATED
ON A VOLUNTARY
BASIS
During
a recent meeting of the Central Chamber of the Public Service
Bargaining Council it was brought to the attention of the
representatives of the State as employer that certain departments
do not recognise years of service in the former TBVC states
when
granting personnel the voluntary severance package. Consequently,
the representatives of the employer undertook to issue
a circular
on the matter to clear up any possible incorrect application of
the relevant measures.
Section
2(5)(b) of the Public Service Act, 1994, stipulates that all
persons who immediately before the commencement of this
Act were,
by virtue of a law repealed by this Act, officers or employees in
an institution referred to in section 236(1) of
the Constitution,
1993,shall remain in employment and shall from that commencement
be deemed, without break in service, to
be officers or employees,
as the case may be, and the provisions of this Act shall apply to
or in respect of those officers
or employees.
Continuous
service in the Public Service of the former TBVC states before 10
June 1994 thus must be recognised for purposes
of the voluntary
severance package in respect of those personnel who remained in
the service of the new Public Service after
the said date.
DIRECTOR-GENERALâ
[13] It
will be noted that the last paragraph of circular 1/3/25 was to the
effect that continuous service rendered in the public
service of the
former TBVC states (which included Venda where the appellant had
served) before 10 June 1994 had to be recognised
for purposes of the
voluntary severance package in respect of those personnel who
remained in the service of the new Public Service
after that date. On
the 28
th
August 1997 Mr Badenhorst responded to the appellantâs letter in
the following terms:
â
APPLICATION
FOR VOLUNTARY SEVERANCE PACKAGE
Your
letter dated 25 August 1997 refers.
You
indicate, as [the] main reason for your request to withdraw the
application, that you are not treated equitably in terms of [the]
contents of DPSA Circular 1/3/25 dated 2 May 1997 which instructs
Departments to take all service in previous administrations into
considerations when calculating severance packages.
You,
furthermore, indicate that you withdraw your application
âuntil
such time as I will benefit and be treated in terms of circular
minute 1/3/25 dated 2 May 1997......â
I
wish to point out to you that you are, in fact being treated very
equitably in terms of the contents of the above circular. All
your
benefits, with the exception of pension lump sum have been calculated
based on a service period of 21 years.
As
far as pension benefits are concerned, you are well aware of the fact
that the ex Venda pension fund was liquidated in 1992 and
benefits
paid to members, which you also were at that point in time.
Thereafter, a new fund was established which was eventually
taken
over by the National Government and incorporated into the GEPF.
The
second calculation thus, quite correctly, reflects your membership to
the pension fund as having commenced in 1992 and not 1976
as
previously stated. The reason for this is that you have already
received your pension benefits for the period 1976 to 1992 and
that
you only qualify for pension benefits from the date you joined the
ânew
Vendaâ
pension fund.
You
are, thus, informed that your statement of withdrawal is not accepted
and that your services will officially be terminated, in
terms of the
voluntary severance scheme, on 31 August 1997.
Allow
me to thank you for your contribution to the Department of Finance
and Expenditureâ.
[14] It
will be seen from the penultimate paragraph of Mr Badenhorstâs
letter that he informed the appellant that his
âstatement
of withdrawalâ
of
the request to be discharged was not accepted and that his services
would officially be terminated in terms of the voluntary severance
scheme on 31 August 1997. Prior to this letter the appellant had not
as yet been told the outcome of his request to be discharged.
On
the 1
st
September 1997 the appellant left the public service in the light of
Mr Badenhorstâs letter dated 28 August. He subsequently instructed
attorneys to take his matter up with the Department because he was
unhappy that he had been dismissed despite his letter of the
withdrawal
of his request.
Proceedings
in the Labour Court
[15] In
due course the appellant launched an application in the Labour Court
for an order inter alia reviewing and setting aside the
first
respondentâs decision not to accept the appellantâs withdrawal of
his application for a voluntary severance package, declaring
the
appellantâs services to have been terminated unlawfully on 31
August 1997 and ordering the appellantâs reinstatement and
the
payment of his costs.
[16] One
of the matters that the appellant dealt with in his founding
affidavit was the allegation made by the Director of Legal Services
on behalf of the appellantâs erstwile employer in a letter dated 13
January 1998 addressed to his attorney. In that letter it was
alleged
that the appellant had
âvoluntarily
accepted a severance package offered to himâ
which was then approved and he was accordingly paid the benefits due
to him. The appellant dealt with the contents of that letter
in par
3.9.4 of the founding affidavit. There he said that the allegations
in the letter were â
clearly
wrong
â,
that the second quotation was submitted to him after Mr Badenhorst,
the Director-General and the Provincial Service Commission
had
recommended the approval of his request but before it had been
finally approved by the first respondent, and that no benefits
it
had been paid to him but, on the contrary, that he had ensured the
return by his attorneys to the Department of a cheque that
the
Department had sent to him.
[17] In
the answering affidavit filed on behalf of the first respondent, the
first respondent associated himself with the contents
of the letter
of the 13
th
January from the Director of Legal Services of the Northern Province.
In par 23.3 of the answering affidavit it was said in part:.
â
As
far as the allegation of a voluntary acceptance of the severance
package is concerned, the whole measure was structured upon a
first
step by the employee to identify himself as a possible candidate for
a discharge from service by the employer. The act of self-
identification was the sole voluntary step that the employee had to
take to be taken into consideration for this measure. The
[appellantâs]
belated refusal to accept the severance package after
the second quotation submitted to him, is therefore of no relevance.
The fact
is that after his self-identification for the application of
this measure, he qualified for that severance package and did not
need
to formally â
acceptâ
it thereafter. His entitlement thereto flowed from his own voluntary
act of stepping forward and indication that he wished to be
discharge[sic] from the Public Service.â
The
first respondent admitted that the second quotation was brought to
the appellantâs attention after Mr Badenhorst and the
Director-General
had made their recommendations but before he (the
first respondent) could approve the request.
[18] The
appellant makes the following submissions as to his case in paragraph
4.1 of the founding affidavit:
in
applying to be discharged, he had acted upon an erroneous
representation negligently or otherwise made to him in the first
quotation,
had
he been aware of the true facts, he would not have requested to be
discharged,
he
never accepted the second quotation which was submitted to him
before the executing authority had approved his request,
the
decision not to accept the withdrawal of his request for a severance
package and to terminate his services was taken unlawfully
in
circumstances where the Deputy Director-General was in any event not
authorised to take such a decision, and
his
services were terminated in circumstances where no legitimate reason
existed for such termination and that his services were
accordingly
unlawfully terminated.
[19] In
response to the submissions made by the appellant in paragraph 4.1
the first respondent took the attitude that the contents
thereof were
legal submissions and argument to which he did not need to respond.
However, he proceeded to say the following in par
25.2 of the
answering affidavit:.
â
For
the convenience of the Honourable Court, however, I wish to point out
that the [appellant] is apparently trying to bring in some
principles
of the law of contract and misrepresentations so as to purportedly
set aside an agreement in terms whereof his services
were terminated.
This line of thought is with respect misconceived, because the
[appellant] was at all relevant times dealt with
within the
parameters of section 17(2)(c) of Act 103 of 1994. This is not a case
where the parties have reached a bilateral agreement
that the
services of the [appellant] be terminated; this was an exercise in
terms whereof the employer after consultation with the
employeesâ
organisation and with the co-operation of the employee exercised a
power of dismissal entrusted to it by the relevant
provision.â
[20] In
par 25.3 the first respondent submitted that the procedure that was
followed was fair and objectively above board. He submitted
further
that the appellant was not prejudiced because he ultimately received
what he was entitled to. He went on to say that
â(w)hat [the appellant] is trying to do now, is to benefit from a
bona fide error on the PERSAL - system which was fortunately
detected
by Badenhorst in time. If Badenhorst did not so detect this error,
the [appellant] would in any event have remained liable
to re-pay any
such unlawful remuneration in terms of section 31 of the Public
Service Act 103 of 1994.â
[21] The
basis for the decision of the Court a quo was that the appellant was
not entitled to withdraw his request or application
once he had made
it. In this regard the Court a quo upheld the contention which
Counsel for the first respondent pursued before us,
namely, that the
special initiative contained in the circular was only voluntary at
the initial stage when an employee made the request
to be discharged
but that, once the employee had made that request, he could not
withdraw it.
The
appeal
[22] In
a nutshell the appellantâs case was ultimately the following:-
the
government announced a special initiative in terms of which officers
and employees in the public service could request to be
discharged
from the public service on a voluntary basis in return for the
payment of a special severance package;
he
asked his employer what his severance package would be if he
requested to be discharged and was discharged in terms of the
special
initiative;
he
was advised by the employer of a huge severance package that he
would get in such a case;
he
then requested that he be discharged in terms of the special
initiative;
he
was subsequently advised that the huge severance package quoted to
him earlier was incorrect and that in fact the amount he would
get
was a much smaller amount;
he
then wrote a letter to the employer withdrawing his request before
his request was approved or before any decision thereon was
conveyed
to him but that, notwithstanding this, the employer proceeded to
give effect to his request by discharging him;
the
employer had no right to proceed to dismiss him because he withdrew
his request, and,
therefore,
the dismissal was without any legitimate reason and, was, therefore,
unlawful.
The
appellantâs complaint is essentially the respondentâs failure to
give effect to his letter of withdrawal.
[23] The
first respondentâs defence is that the appellantâs discharge was
not by agreement but was a unilateral exercise of power
by the first
respondent to discharge an officer or an employee in terms of
sec
17(2)(c) of the Public Service Act, 1994.The first respondent took
the attitude that the special initiative did not require that
the
discharge be effected by agreement between the employer and
the
employee but only required that the employee take the initial step of
identifying himself for such discharge and that once an
employee had
taken that step, he could not reverse the process and the employer
was then empowered to proceed to discharge the employee
even without
the employeeâs agreement. However, in paragraph 23.3 of the
answering affidavit the first respondent takes a somewhat
different
line, namely, once an employee had taken the first step of requesting
to be discharged, he qualified to be discharged in
terms of the
special initiative. This is obviously incorrect because the circular
made it clear that the final decision would be
that of the employer
and not that of the employee or official.
[24] The
appellant, having alleged in his founding affidavit that his
discharge was without any legitimate reason and having read
the first
respondentâs defence in the answering affidavit, said in
pararagraph 2.5 of his replying affidavit.:
âIf I understand the submissions made on behalf of the First
Respondent correctly, it is the First Respondentâs contention that
I have been discharged from the public service in terms of sec
17(2)(c) of the Public Service Act, 1994, after having voluntarily
identified myself for a dismissal in terms of that section......â.
He
proceeded to say that he failed to understand how this submission
could be a proper defence to his claim. He highlighted, among
other
things,
the
fact that the provisions of the circular were to the effect that
serving officers were afforded an opportunity to request that
their
services be terminated
âon
a voluntary basisâ.
In
paragraph 2.5.3 of his replying affidavit the appellant conceded that
he had identified himself for consideration for a discharge
in terms
of the special initiative but pointed out that, as stated in his
founding affidavit, he had withdrawn such identification
after having
been
informed that â
the
severance package would entail a much lesser amount
â
.
[25] In
pararagraph 2.5.4 of his replying affidavit, the appellant then said:
âThe
validity of my claim, therefore, depends on the question whether I
was..... entitled to withdraw my application to be considered
for the
severance package offered in Circular Minute 10/12/6 of 26 May 1996.â
In
paragraph 2.5.5 he said further:
âIt
would appear to be the contention of the First Respondent that, if
regard is had to paragraph 16.2 of the answering affidavit,
that the
power exercised in terms of section 17(2)(c) of the Public Service
Act 1994 was a unilateral power of dismissal and that
my services
were not terminated by consensus or agreement.â
In par 2.5.6 he said:
âThis
submission is clearly against the spirit of circular Minute 10/12/6
of 26 May 1996 which provides, as appears from its heading,
for the
termination of the services of certain officers â
on
a
voluntary
basisâ
.â
The
appellant further stated that the allegation that he was discharged
in terms of a unilateral power of dismissal was clearly wrong.
In
paragraph 18.2 of
his
replying affidavit, he repeated his averment that the real issue in
this matter is whether he was entitled in the circumstances
to
withdraw his request and whether the first respondent was entitled,
despite the withdrawal of his request, to discharge him â
from
the service or
terminate
my services on (sic) an involuntary manner.â
[26] In
his replying affidavit the appellant also states that, when the
Department gave him the second quotation indicating that he
would
receive a much lesser package, he was entitled also to change his
mind. He said the Department was entitled to change the quotation
and
that he did not seek to hold it to the first quotation and that that
is why he withdrew his request. He said that, if his attitude
was to
hold the Department to the first quotation, he would not have
withdrawn his request.
[27] There
was some suggestion from the first respondentâs Counsel during
argument that the first respondent was not bona fide in
regarding the
first quotation as correct and that he may have misled the relevant
official which led to him being quoted a wrong
figure. I need not
express a view on the correctness of this argument because the
appellant does not seek to hold the first respondent
to the first
quotation but merely seeks to withdraw his own reaction to it. The
issue before us is whether he is entitled to do so.
[28] On
appeal Counsel for the appellant argued the appellantâs case simply
on the basis that the appellant was entitled to withdraw
his request
before the first respondentâs decision was conveyed to him, that he
withdrew it before the first respondentâs decision
approving the
request was conveyed to him and that thereafter the first respondent
had no right to proceed to give effect to that
request and to dismiss
the appellant. Counsel for the first respondent argued that the
appellant had no right to withdraw the request
once he had made it,
that in any event his letter of purported withdrawal did not have the
effect of withdrawing the request because
the condition that
he
put to his withdrawal, namely, that he was withdrawing the request
until he would benefit and be treated equitably in terms of
the
circular of 2 May 1997, had been met as he was being treated
equitably in terms of the circular.
[29] In
dealing with this matter it is important to bear in mind that in the
letter of the 28
th
August, the appellant was informed that his services were being
terminated in terms of the voluntary severance scheme. This being
the
case, the first respondent has to show that the dismissal was within
the terms of the special initiative The first question to
consider is
whether the discharge of employees and officers provided for in the
circular was one that had to be by agreement between
the employee or
officer and the employer. It seems necessary to consider this
question because a very important part of the first
respondentâs
defence is that it did not, and the appellant has challenged this in
his replying affidavit.
[30] The
first respondent did not in his answering affidavit refer to any part
of the circular or any other document to substantiate
his allegation
that the discharge that was contemplated by the special initiative
did not need to be by mutual agreement. The first
respondentâs
Counsel was also invited during argument to point to any part of the
circular or of the papers that supported the
first respondentâs
contention in this regard but did not do so. By contrast, when the
appellant responded to the first respondentâs
answering affidavit,
he referred in his replying affidavit to the specific wording used in
the circular to support his allegation
that the dismissal had to
occur by agreement.
[31] In
my judgement the first respondentâs contention that the circular
contemplated dismissals that were unilateral as opposed
to dismissals
by agreement between employer and employee is not justified by the
contents of the circular read with its annexures.
I shall point out
some aspects of the circular and its annexures which support this.
They are: the heading which reads:
âapplication
of the special initiative whereby serving officials are afforded the
option
to
request
that their services be terminated on a
voluntary
basis
â
(my underlining), clause 2(b) which refers to the
â
implementation
of a voluntary severance package
â,
clause 3 which also refers to the implementation of the
âvoluntary
severance packageâ,
clause
4 which is to the effect that it was decided that with effect from 1
May 1996
âserving
officials be afforded the option to request that their services be
terminated on a voluntary basisâ,
clause
2(5) of Annexure A to the circular which falls under â
measures
governing voluntary termination of serviceâ,
clauses 2(9) and 2(10) which also contain the words
âvoluntary
terminationâ
,
the heading of annexure B which refers to
âpersonnel
whose services are terminated voluntarilyâ
and
clause
1.1 which refers to personnel who are allowed
âvoluntary
terminationâ.
[32] The
next question to consider then is whether the appellant had a right
to withdraw the request at the time that he purported
to do so.
Through the special initiative the employer issued an invitation -
not an offer - to its serving officials or employees
who wished to be
paid the severance pay provided for in the special initiative to
request or to offer to be discharged, but the employer
reserved the
right to approve or accept the request or offer. If it approved the
request or accepted the offer, the employee would
then be discharged
and be paid the special severance package. However, the employer
could reject the offer or request in which case
the employee would
not be discharged and would, therefore, not be paid the special
severance package.
[33]
The general principle in our law is that an open offer - that is one
which the offeror has not bound himself to keep open for
a specified
period - can be withdrawn at any time before it is accepted.
(Phillips
v
Aida Real Estate (Pty)Ltd 1975(3) SA 198(A) at 207H); Lowe Morna v
Commission on Gender Equality (2001) 22ILJ 352 (W).
A decision by the offeree to accept the offer does not constitute an
acceptance of the offer if it has not yet been conveyed to the
offeror. An acceptance must be communicated to the offeror for it to
be effective
(Bloom
v The American Swiss Watch Company
1915 AD 100
at 102-3; Amcoal
Collieries Ltd v Truter 1990(1) SA 1(A) at 4D.)
[34] Mr
Oosthuizen, who appeared for the first respondent, conceded during
argument that at common law a party to a contract may offer
to the
other that they terminate their contract by agreement. He conceded
further that the former would be entitled to withdraw such
an offer
before it was accepted by the latter party. He conceded further that
that principle is also applicable to a contract of
employment. When
it was suggested to him during argument that what the appellant
sought to do in this case through his request was
effectively to
obtain the consent or approval of the employer that the two terminate
their contract of employment by agreement on
the terms provided for
in the special initiative, Mr Oothuizen sought to distinguish this
case from those where that principle would
apply by contending that
in this case the appellantâs request to be discharged was not an
offer and that, therefore, there was
no case of acceptance of an
offer but simply approval.
[35] Is
there any difference between the acceptance of an offer and the
approval of the request or application within the context
of this
case? I see none. In my view in law it makes no difference that the
special initiative referred to
an
â
approval
â
of the request and not to an acceptance of an offer. In effect the
appellant offered that he be discharged in return for the payment
to
him of a special severance package. The first respondent was entitled
to accept or reject the offer. If he was happy with the
offer, he
could approve or accept it and, once that approval or acceptance had
been conveyed to the appellant, the two parties would
have had an
agreement. If he was opposed to the appellant being discharged in
terms of the special initiative, he could reject the
request and
there would have been no agreement.
[36] Since
the appellantâs request to be discharged constituted an offer which
the first respondent was free to accept or reject,
there can be no
doubt that the appellant was entitled to withdraw his offer/request
at the time that he purported to do so because,
although the first
respondent had made the decision to approve/accept the appellantâs
request/offer, that decision had not as yet
been conveyed to the
appellant when he conveyed his withdrawal.
[37] Mr
Oosthuizen, also submitted that the appellant had no right to
withdraw his request to be discharged once that request had
been
conveyed to the first respondent unless the first respondent
consented to such withdrawal. In this regard he relied on a long
line
of cases starting with
Rustenburg
Town Council v Minister of Labour & Others
1942 TPD 220
for
the proposition that a notice of resignation or termination of a
contract of employment - or even of a lease - is a unilateral
and
final act which becomes effective upon communication and does not
need acceptance. Some of the other cases he referred to were
Potgietersrust
Hospital Board v Simons
1943 TPD 269
, De Vos v Monnik and Visser
1944
CPD 30
, Froneman v Lartz 1949(1) SA 977 (O), Marnitz v Stark 1952(2)
SA 144 (N) at 147 A-D, Bulawayo Municipality v Bulawayo Indian Sports
Ground Committee 1956(1) SA 34 (SR), Collins v Meiring NO 1958(4) SA
420 (C), Jaffer v Falante
1959 (4) SA 360(C)
, Rosebank Television and
Appliances Co (Pty) Ltd v Orbit Sales Corporation (Pty)Ltd1969(1) SA
300 (T).
The
Court a quo also relied on the Rustenburg Town Council case in
support of its decision that the appellant had no right to withdraw
his request.
[38] The
Rustenburg Town Council case related to an employeeâs notice of
termination of his contract of employment or a resignation
by the
giving of a contractual notice. It was held in that case that, where
an employee gives notice of the termination of his contract
of
employment, he has no right to withdraw such notice unilaterally once
it has been communicated to the employer but may only do
so with the
consent of the employer. It was held that such notice of resignation
or of termination of the contract of employment
did not require an
acceptance by the employer. The other cases referred to above
followed the Rustenburg Town Council decision, most
of them within
the context of a contract of lease.
[39] Mr
Oosthuizenâs reliance on the Rustenburg Town Council case and the
cases referred to above is flawed. The flaw is that in
those cases
the notices were notices terminating contractual or other legal
relationships and not notices requesting recipients thereof
to agree
to the termination of such. In this matter the undisputed facts
disclose that the special initiative as explained in the
circular and
annexures thereto provided that an employee or officer who wished to
be paid the special severance package had to make
a request to the
employer that he be discharged and it was up to the employer to
approve or reject the request. That being the case,
there can simply
be no basis for any suggestion in this case that the employeeâs
request was a unilateral and final act which was
binding on the
employer or which the employer had no right to reject. Accordingly, I
conclude that all the cases on which Mr Oosthuizen
relied in this
regard are distinguishable on the facts from the case before us and
have no application to it.
[40] Mr
Oosthuizen also sought to argue that the form which the appellant
signed to convey his request to be discharged was such that
by
signing it the appellant expressly or impliedly dispensed with the
normal requirement that the offeree - in this case the first
respondent - communicate the acceptance of the request or offer to
him. He submitted that the form had â
a
space to record the final (unilateral) decisionâ
of
the discharge of the appellant by the first respondent. I do not
agree. The mere fact that the document containing the offer has
a
space for the offeree to sign if he accepts the offer does not in any
way mean that the acceptance of the offer by the offeree
need not be
conveyed to the offeror. Before a document containing an offer could
be construed in such a way, it would have to contain
clear and
unequivocal words to that effect. The document in this case contained
no such words.
[41] The
next question to consider is whether the purported withdrawal by the
appellant of his request to be discharged constituted
an effective
withdrawal. Counsel for the first respondent submitted that the
appellantâs purported withdrawal was not effective.
The basis for
this submission was that the appellantâs letter of the withdrawal
of his request was to the effect that he was doing
so until such time
that he would
âbenefit
and be treated in terms of circular 1/3/25 dated 2 May 1997 from the
Department of Public Service and Administrationâ
and,
according to the first respondent, he was being treated equitably in
terms of that circular in that his service at Venda was
treated as
part of his continuous service.
[42] The
first respondentâs stance was that whether the appellant was
entitled to the severance package in the first or second quotation
depended on the length of his pensionable service. It took the
attitude that, as the appellant had been paid his pension for the
period 1976 to February 1992, his pensionable service was to be
calculated from March 1992 and not from 1976. In his heads of
argument
Counsel for the first respondent submitted that at best for
the appellant and without conceding that the appellant was entitled
to
withdraw his request, his letter of withdrawal was a conditional
withdrawal of his request
âwhich
conveyed an intention that the efficacy of the [withdrawal] was
suspended for the time being...â
He submitted that there was no total and effective withdrawal of the
said application. Whether one uses the word
âsuspendâ,
to say the appellantâs application or request to be discharged was
suspended, or, whether one uses the word
âwithdrawâ,
to say such application was withdrawn, makes no difference in this
matter. What both words convey is that the withdrawal was not
effective.
[43] The
appellantâs withdrawal of his request to be discharged was, in his
words,
âuntil
such time I will benefit and be treated in terms of Circular 1/3/25
dated 2 May 1997 from the Department of Public Service
and
Administration.â
What did the appellant mean by these words?
To
understand what he meant, one must read his letter quoted in
paragraph [11] above as a whole. In paragraph 1 of his letter the
appellant categorically stated that his request to be discharged was
based on the quotation dated 8 July 1997. That is the quotation
providing for a severance package of over one million rand if he
requested to be discharged and this was approved. In
the
first paragraph of his letter of withdrawal the appellant says that
his request to be discharged was not based on the quotation
of the
19
th
August. That is the quotation that provided for a lesser severance
package. In paragraph 2 of his withdrawal letter he said that
his
request was based on circular minute 1/3/25 of May 1997. Although he
does not say so in so many words, it is as clear as daylight
that
what the appellant was conveying was that his understanding was that
his entire service from 1976 to 1997 was supposed to be
taken into
account in calculating his package. Circular 1/3/25 was to the effect
that the service in the so - called TBVC states
should be taken into
account.
[44]
In adjudicating matters a court is required to have due regard to
substance rather than form and is not to elevate form above
substance. While it may be true that the appellant was being treated
in terms of circular 1/3/25, in substance what he was saying
in his
letter was that he was withdrawing his request to be discharged until
he would be dealt with on the basis that he would be
paid the amount
quoted in the first quotation. His attitude was that, if that was not
done, he was not benefitting. Whether he was
right or wrong in that
conclusion is besides the point. The fact of the matter is that what
he was conveying was that he was not
benefitting and was not being
treated equitably and, because of that, he did not want to be
discharged. The only known reason why
the appellant put in a request
to be discharged in terms of the special initiative was the huge
amount of severance package in the
first quotation and the only known
reason why he decided to withdraw that request was the smaller amount
given in the second quotation.
Technicalities and matters of form
aside, there can be no doubt that in writing the letter of withdrawal
what the appellant intended
to convey - and I think did actually
convey - is that he did not want to be discharged if he would not be
paid the amount given
in the first quotation.
[45] Mr
Badenhorst understood the appellantâs letter to be one of
withdrawal. That is why he referred to it in his letter of 28
August
as
âa
statement of withdrawalâ
and
did not suggest that the withdrawal had lapsed or had not been
effective. The Head of Personnel Administration also understood
the
appellantâs letter as a letter of the withdrawal of his request.
That is why the heading to his letter of 26 August 1997 to
the Deputy
Director-General, which was attached to the answering affidavit,
read:
âWithdrawal
of the application for Termination of Service on the basis of
severance package.â
The
body of the letter, consistent with the heading, read:
âKindly receive letter (sic) dated 25 August 1997 from Mr MJ Maada
indicating his withdrawal of his application to terminate his
services from the civil service on the basis of Severance Package for
your attentionâ.
The first respondent never agreed to pay the appellant the only
severance package that he required. For that reason the appellantâs
request to be discharged remained withdrawn and was never reinstated.
There can be no suggestion that the appellant ever considered
any
lesser amount as sufficient to justify his discharge. I conclude,
therefore, that the request to be discharged was withdrawn
before the
decision to approve it was conveyed to the appellant and such
withdrawal was effective.
[46] There
was an attempt on the part of Counsel for the first respondent to
argue that, since the reason upon which the appellantâs
decision to
withdraw the request was not valid or sound, he was not entitled to
withdraw the request. I do not agree. The question
whether the
appellant was entitled to withdraw is not dependent on whether he had
a valid reason to do so. If he was entitled to
withdraw his offer, he
could do so with or without a sound reason, or, indeed, for no reason
at all.
[47] Once
it is accepted that the appellant was entitled to withdraw his
request or offer and that he did withdraw it, it follows
that the
first respondent had no right to give effect to the request and
dismiss the appellant. Counsel for the first respondent
sought to
argue that, if that is the legal position, the dismissal was voidable
from the date of the judgement of this Court. I do
not agree. The
result is that the dismissal is invalid ab initio and the appellant
is to be treated as if he was never dismissed.
With regard to costs,
both Counsel submitted that costs should follow the result. I agree.
[48] In
the result I make the following order:-
The
appeal is upheld.
The
first respondent is ordered to pay the appellantâs costs of the
appeal.
The
order of the Court a quo is set aside and is replaced with the
following order:
â
(a)
The
applicantâs dismissal is hereby declared unlawful, invalid and is
set aside.
the
applicant is hereby reinstated in his employment as Deputy Director
- General: Department of Finance and Expenditure, Northern
Province.
the
first respondent is ordered to pay the applicantâs costs.â
_
_____________
Zondo
JP
I
agree.
_______________
Goldstein
AJA
I
agree.
________________
Mlambo
AJA
Appearance:
For
the Appellant: Adv P.C. Van der Byl SC
Instructed
by: Mathobo,Rambau &Sigogo Attorneys
For
the Respondent: Adv M.M. Oosthuizen
Instructed
by: The State Attorneyâs Office
Date
of judgement: 19 March 2003