Nxele v Chief Deputy Commissioner, Corporate Services, Department of Correctional Service and Others (CA 9/06) [2008] ZALAC 28; [2008] 12 BLLR 1179 (LAC); (2008) 29 ILJ 2708 (LAC) (31 July 2008)

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[2008] ZALAC 28
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Nxele v Chief Deputy Commissioner, Corporate Services, Department of Correctional Service and Others (CA 9/06) [2008] ZALAC 28; [2008] 12 BLLR 1179 (LAC); (2008) 29 ILJ 2708 (LAC) (31 July 2008)

1
IN THE LABOUR APPEAL COURT OF SOUTH AFRICA
Held in Johannesburg
Case no: CA 9/06
In the matter between
Mnikelwa Nxele
.................................................................................
Appellant
And
The Chief Deputy Commissioner,
Corporate Services,
Department of Correctional Service
.......................................
1
st
Respondent
The National Commissioner,
Department of Correctional Services
....................................
2
nd
Respondent
Minister for Correctional Services
.........................................
3
rd
Respondent
Kenneth Mthombeni
................................................................
4
th
Respondent
___________________________________________________________
JUDGMENT
___________________________________________________________
ZONDO JP
Introduction
[1] This is an appeal from a decision of the Labour
Court sitting in Johannesburg in a dispute between the appellant and
the first
up to the third respondents. For convenience I shall refer
to the first, second and third respondents collectively as “
the
respondents
”. This will exclude the fourth respondent. When
I refer to the fourth respondent, I shall refer to him by that term.
The
dispute was about the validity or lawfulness or otherwise of the
second respondent’s decision to transfer the appellant from
the
position he occupied in the Department of Correctional Services to a
different position at Pollsmoor Prison for about six months,
and,
thereafter, to yet another different position in Pretoria, Gauteng.
The transfer to Pollsmoor was intended as an interim measure
pending
the implementation of the decision to transfer him from the Western
Cape to Pretoria. The reason for the transfer to Pollsmoor
seems to
have been to make way for the fourth respondent who himself had been
transferred from Pretoria to the appellant’s
position in the
Western Cape and to give the appellant more time to make whatever
adjustments he may have needed to make regarding
his personal and
family matters before the decision to transfer him to Pretoria could
be implemented.
[2] In the Labour Court the appellant had sought to in
effect have the decision transferring him from his post and that of
transferring
the fourth respondent to his post in the Western Cape
reviewed and set aside. He also sought an order that, pending the
outcome
of such review application, the first to the third
respondents be interdicted: (a) from implementing:
(i) the decision to transfer him,
(ii) the decision to transfer the fourth respondent to
the appellant’s position in the Western Cape;
from taking any disciplinary action against him for his
failure to report for duty at Pollsmoor, and;
from permanently appointing anybody to his post in the
Western Cape.
[3] The application was brought on an urgent basis and a
rule nisi with an interim order was sought. The respondents gave the
appellant
certain undertakings pending the hearing of the matter and
the delivery of judgment which made it unnecessary for the appellant

to seek interim relief. In due course the matter was argued. The
Labour Court, through Freund AJ, subsequently handed down a judgment

in which it dismissed the appellant’s application with costs
including the costs of two Counsel. The Labour Court later granted

the appellant leave to appeal to this Court. Hence, this appeal.
The facts.
[4] The appellant is a senior employee or official
employed by the Department of Correctional Services. As at the 13
th
December 2005 he occupied the position of Regional Head: Corporate
Services in the Department of Correctional Services in the Western

Cape. In that position he was in charge of various functions of human
resources management, was responsible for recruitment of
staff from
entry to professional level, promotion of personnel, the management
of bursaries, the development of human resources,
training, the
management of employer-employee relations and other functions.
[5] The first respondent, Mr Vivian Patrick Peterson, is
the Chief Deputy Commissioner: Corporate Services of the Department
of
Correctional Services. This post is at the level of Deputy
Director-General and, therefore, falls immediately below that of the

National Commissioner of the Department of Correctional Services
which is at the level of Director-General. The position is based
at
the Head Office of the Department of Correctional Services in
Pretoria. The second respondent is the National Commissioner:

Correctional Services. At all times material to this matter the
incumbent of the position of National Commissioner of the Department

of Correctional Services was Mr L. Mti. The third respondent is the
Minister of Correctional Services. The fourth respondent is
Kenneth
Mtombeni, another employee of the Department of Correctional
Services, whose interest in this matter would have become
apparent
from what I have said above.
[6] On the 13
th
December 2005 the second
respondent addressed a letter to the appellant bearing that date.
That letter was not sent to the appellant
on the same day. I shall
deal with the contents of that letter in due course. On the 14
th
December 2005 a telephone conversation took place between the
appellant and the first respondent in which, (according to the
appellant
and the first respondent accepts this), the first
respondent informed the appellant that the second respondent was
“
contemplating transferring him to the Head Office in
Pretoria”
. The first respondent informed the appellant that
there were prospects for the appellant’s upward mobility. The
first respondent
also informed the appellant that there was a
facsimile on its way to the appellant in this regard. The first
respondent told the
appellant to apply his mind to the contents of
the letter once he had received it and indicated that they would meet
after he had
thought about the contents of the letter.
[7] According to the first respondent, he tried to
“
engage the [appellant] on the reasons for the proposed
transfer
” but the appellant “
was adamant that he
wished to see the formal letter of contemplated (sic) transfer before
he would respond in any way.
” The first respondent states
in paragraph 21 of his affidavit that “
this telephone call
initiated the consultation process which emanated from the decision
referred to in paragraph 6 above and contemplated
in the Transfer
Policy
”. The decision referred to in par 6 is the decision
that “
(t)he Second Respondent on 13 December 2005 approved
the horizontal movement of certain senior managers based on
operational needs
” in terms of which the appellant was
identified as one of the managers to be deployed.
[8] The second respondent’s letter of the 13
th
December 2005 to the appellant reached the appellant on or about 20
or 22 December 2005. The body of the letter read thus:
“
re:
HORIZONTAL
PLACEMENT IN THE DEPARTMENT OF CORRECTIONAL SERVICES: YOURSELF
”
It is my pleasure to inform you that after
consideration of the operational requirements of the Department as
well as your personal
position, I approved your horizontal placement
to the post of
Director: Aftercare: Head Office
This placement will be on the principle of a
horizontal placement with retention of your current salary and
benefits.
If there are any factors which have an influence on
your placement, you are welcome to respond accordingly within seven
(7) days
after you received this letter.
Please note that it is expected from you to sign a
Performance Agreement with the relevant delegated authority after the
transfer
is effected in respect of the new position that is indicated
above.
It is trusted that you will regard this placement as
a challenge and that it will provide a high level of job
satisfaction”.
[9] It will be noticed that the letter gave the
appellant a period of seven (7) days within which he was required to
“respond
accordingly “
(i)f there [were] any factors
which [had] an influence on [his] placement
.” In the letter
the second respondent stated that the decision to transfer the
appellant was taken “
after consideration of the operational
requirements
” of the Department as well as the appellant’s
“
personal position
”. However, he did not specify
what those operational requirements of the Department were nor did he
state what the appellant’s
“
personal position
”
was to which he was referring. The contents of the letter of the 13
th
December 2005 reveal that in effect two decisions had been taken by
the second respondent in regard to the appellant. The one was
to move
him away from the Western Cape Province and place him in Pretoria.
The other was to remove him from his position of Regional
Head:
Corporate Services, Western Cape to the position of Director:
Aftercare, Head Office. The letter did not give any information
about
the status, functions, duties, responsibilities and benefits of the
latter position.
[10] In par 28 of the first respondent’s
affidavit, the first respondent states that, although the wording of
the letter of
the 13
th
December could be interpreted as
suggesting that a final decision had been made on the appellant’s
transfer, the decision
was one in principle and the Department’s
Transfer Policy had “
always been adhered to and
implemented.”
He said in that paragraph that the letter
evidenced a decision in principal (sic) by DCS to transfer subject to
the consultative
process envisaged in the Transfer Policy.
[11] The appellant complained in his affidavit that the
decision to transfer him had been taken “
without any prior
consultation with [him] beforehand
”. He said that this was
“
clearly contrary to the provisions of clause 4.4 of the
Transfer Policy of the Department
”. He said that he had not
“
at any stage prior to the decision
” been “
given
an opportunity to make representations in regard thereto, contrary to
the provisions of clause 6.2.3. of the Transfer Policy
,”
nor had, to his knowledge, the Regional Commissioner, been informed
beforehand. The appellant also drew the Court’s
attention to
the absence or rather, “
a paucity
” of reasons
“
supplied for the proposed transfer
.” He pointed
out that the Department’s Transfer Policy provides that there
has to be a valid and sufficient reason
for any transfer and such
reasons must be supplied in writing to the employee sought to be
transferred.
[12] The appellant also complained that such opportunity
to make representations as the letter of the 13
th
December
gave him was an opportunity to say why the decision should not
prevail as opposed to giving him an opportunity to “
shape
”
it. The first respondent stated in par 24 of his affidavit that the
appellant was invited to make representations “
of any
factors which may have an influence on his proposed transfer
.”
In the last sentence in that paragraph the first respondent stated
that he was at all times aware that the appellant was
entitled to
submit representations “
regarding his personal circumstances
and was satisfied that this had been conveyed to the [appellant] in
the
said facsimile
” In par 25 of his answering
affidavit, the first respondent denied the allegation that there was
“
a paucity
” of reasons supplied for the
appellant’s transfer but all he did in substantiation of his
denial was to repeat the
statement in the letter of the 13
th
December that the reasons were the Department’s operational
requirements. He did not add anything by way of substantiation.
[13] It is common cause that the appellant did not
submit any representations to the second respondent or anyone else in
the Department
for that matter within the seven days referred to in
the second respondent’s letter of the 13
th
December.
He explains in his affidavit why he did not do so but in the view I
take of the matter it is not necessary to deal with
that explanation
and the interactions that took place between the appellant and the
Department between the 14
th
December 2005 and the 13
th
January 2006. In par 33 of his answering affidavit the first
respondent states that, when no response to the letter of the 13
th
December 2005 was received from the appellant, he “
duly
confirmed [the appellant’s] transfer”
in a letter
dated the 18
th
January 2006. The first respondent further
says in par 33: “
In the absence of any further
representations from the [appellant] I, considered his transfer as
finalised.
”
[14] In the letter of the 18
th
January 2006
the first respondent informed the appellant
inter alia
that it
was expected of the appellant to assume duty in the post of Director:
Aftercare: Head Office on the 1
st
February 2006. As,
according to the first respondent, the decision to transfer the
appellant was “
finalised
” after he had failed to
submit representations, it is necessary to refer to paragraph 44.2 of
the first respondent’s
affidavit from which the scope that was
required to be covered by the appellant’s representations
emerges. There the first
respondent says in part:
“
The Department may suspend
or change the timing of a transfer after considering personal and
other
circumstances, but
this would not change the decision itself
.”
[15] On the 13
th
February 2006 the second
respondent addressed a letter to the appellant. In the letter the
second respondent confirmed, among other
things, that he regarded the
matter as finalised as, according to him, the appellant had, in a
meeting with the first respondent
on the 2
nd
February
2006, decided not to discuss “
the reason, or your personal
circumstances, that may have a bearing on your transfer with Mr
Peterson
”.
(sic)
The second respondent then gave the
appellant five days to report for duty in Pretoria and to “
vacate
”
his “
position
” by Friday 17 February 2006. The
appellant denied the allegations that he had decided not to discuss
his personal circumstances
with the first respondent at the meeting
of the 2
nd
February 2006.
[16] The appellant consulted his attorneys of record
after receiving the second respondent’s letter of the 13
th
February 2006. His attorney then addressed a letter to the second
respondent dated the 16
th
February 2006. I do not propose
to quote the contents of that letter. It suffices to simply say that
the appellant’s attorneys
inter alia challenged the fairness of
the decision to transfer the appellant and contended that no reasons
had been furnished for
it. The second respondent was urged to
reconsider his decision to transfer the appellant failing which an
application would be
made to the Labour Court for an order reviewing
and setting that decision aside with an order for costs. The
appellant’s
attorneys also contended that the decision to
transfer the appellant was in breach of the Department’s
Transfer Policy as
well as the provisions of the
Promotion of
Administrative Justice Act of 2000
and that it was therefore
“
unlawful
”.
[17] On the 17
th
February 2006 the second
respondent addressed a letter to the appellant’s attorneys in
reply to their letter of the 16
th
February 2006. In the
letter the second respondent
inter alia
stated that the
appellant had previously been afforded an opportunity to discuss his
transfer with the first respondent. The second
respondent also
expressed the view in the letter that the appellant had been “
given
a reasonable opportunity to discuss his personal circumstances
”
with the Department’s management but had declined the offer. He
also said: “
After satisfying itself that a reasonable and
fair opportunity was given to [the appellant] to discuss his personal
circumstances
before his transfer, Management decided to
confirm his transfer
”.
[18] In the last paragraph of the letter the second
respondent advised the appellant’s attorneys that in the light
of their
letter, he had decided to give “
your client
yet
another opportunity”
to be heard. He went on to say:
(a)
your client is given an opportunity to meet our
Chief Deputy Commissioner: Corrections on Thursday 23 February 2006
at our Pretoria
office
to discuss all issues and personal
circumstances surrounding the transfer to Pretoria.
(b) The CDC: Corrections will submit a response to
the undersigned who will then consider the personal circumstances of
your client.
(c) The implementation of the decision to transfer
your client to Pretoria is hereby suspended for period of seven days
to allow
the process of negotiation to be entertained. At the same
time the transfer (sic) or his replacement (sic) is also suspended
for
the same period.
(d) No further delays will be entertained
”.
The second respondent concluded the letter by expressing
the wish “
that this is final (sic) opportunity given to your
client
.”
[19] The appellant received the second respondent’s
letter of the 17
th
February on the same day. Shortly
thereafter an arrangement was made for a meeting to be held on the
23
rd
February 2006 at which the appellant was to be given
the opportunity to make representations. The meeting was scheduled to
take
place at Leeukop prison in Gauteng. The appellant asked for a
postponement of the meeting so as to have it on a day when his
attorney
or his internal representative could attend as well. This
request was turned down. The appellant then travelled from Cape Town
to Gauteng to attend the meeting at Leeukop.
The meeting of the 23
rd
February 2006
[20] A meeting was held on the 23
rd
February
2006 as previously arranged. The appellant attended the meeting. The
Chief Deputy Commissioner: Corrections, Mr Motseki,
and Mr
Smalberger, the appellant’s immediate superior, represented the
Department at this meeting. Mr Smalberger was the
Acting Regional
Commissioner, Western Cape. The appellant started off by placing on
record that he felt that he had been treated
unfairly in being denied
by the second respondent the opportunity of being represented by a
union official or being assisted by
his attorney at the meeting. He
says in his affidavit that he also asked that the proceedings be
recorded and this request was
accepted. A tape recording machine was
obtained which was used to make a recording of the proceedings.
[21] Since the proceedings of the meeting were recorded
and a transcript thereof forms part of the record before this Court,
it
is not necessary to set out herein in detail what was discussed at
that meeting. It suffices to say that the appellant did articulate
at
least some of the points that he wanted to articulate. Some of the
points he made related to the fact that in the Western Cape
he was
doing a good job in the Department, that the job that he would have
to do in the position to which the second respondent
sought to
transfer him in Pretoria related to the administration of prisoners –
something in which he said he had no experience
as well as certain
family and personal issues arising from his divorce two years earlier
and issues relating to a sister of his
and daughter. He also compared
the second respondent’s decision to transfer him from his
position in the Western Cape to
the position of Director: After Care,
Head Office to the second respondent instructing him to fly an
aeroplane from Cape Town International
Airport to London without
first satisfying himself that he had a licence to fly an aeroplane.
He also made it clear that he accepted
that as a general proposition
he was subject to transfer but he made it clear that he was not
saying that he wanted to be transferred.
[22] At some stage during the meeting and after the
appellant had been given an opportunity to state his case, Mr Motseki
stated
that it seemed to him that there were five issues that the
appellant had raised to which, he said, if and when he was
transferred,
he would like the Department to seriously apply its
mind. Mr Motseki then said:
“
I want to suggest having to
as a background that irrespective of what goes into the tape I want
to ask you as you initially indicated
that you would want to address
the Commissioner direct on this specific set of issues I want to
suggest that we’ll grant
you an opportunity to put them down in
writing as a follow up to this specific meeting for his
consideration”
The effect of what Mr Motseki was saying was that the
appellant would be given another opportunity to put down in writing
what he
wished to say on certain specific issues and this would be
given to the second respondent to consider. The appellant also asked

to be furnished with the Department’s written reasons for its
decision to transfer him. He was given an undertaking that
such
reasons would be furnished to him. It would appear that at the
meeting of the 23
rd
February 2006 an agreement was reached
between the appellant and Mr Motseki that he should send his further
written representations
to Mr Motseki not later than the 27
th
February 2006. An extension of time was later given to the appellant
to send his written representations by 12h00 on the 28
th
February 2006.
[23] After the meeting of the 23
rd
February
2006 the appellant was furnished with a document containing what the
Department put forward as the second respondent’s
reasons for
the decision to transfer him. In his founding affidavit the appellant
took the view that “
(g)iven the subsequent turn of events in
this matter
”, it was not necessary for him “
to go
into this document in any great detail”.
On the 28
th
February 2006 the appellant transmitted to Mr Motseki by fax his
further written representations at 16h15. This was after the expiry

of the 12h00 deadline as Mr Motseki had only extended time for the
appellant to submit his additional written representations to
12h00
on the 28
th
.
[24] About five minutes after the appellant had
transmitted his additional written representations to Mr Motseki, he
received a
call from an assistant in the first respondent’s
office who told him that there was a fax on its way to him which had
been
signed by the first respondent. The appellant asked whether the
first respondent was available. He was told that the first respondent

was available. The appellant then asked to be put through to him.
[25] In the telephone conversation which followed the
appellant asked the first respondent whether he was aware “
of
the processes which had been agreed upon in the meeting of 23
February 2006
” and in this regard he referred specifically
to the fact that he was supposed “
to make a submission for
consideration by second respondent ‘before
” the
second respondent could make up his mind. The appellant also asked
the first respondent whether he had seen his fax
containing his
additional representations which he had sent to Mr Motseki shortly
before that. The first respondent told the appellant
that he had not
seen the additional written representations and that they had not
been considered.
[26] In his answering affidavit the first respondent
states that he told the appellant that the second respondent’s
decision
was not going to be dependent upon the appellant’s
additional representations but was based only on the discussion at
the
meeting of the 23
rd
February. The first respondent
further states that this is what Mr Motseki had told him and that the
purpose of the additional
written representations “
was to
ensure that the [appellant] complied with Departmental procedures and
to further ensure that there was a written record [of]
all of his
representations on file
.”
[27] In his affidavit Mr Motseki says the same thing
with regard to the purpose of the additional representations. It must
be noted
that in paragraph 7 of his answering affidavit Mr Motseki
inter alia
emphasises that the written representations that
the appellant was required to submit by, initially, the 27
th
February and, later, 12h00 on the 28
th
February, “
were
in addition to the representations made by the [appellant] during the
course of the Leeukop meeting …”.
The appellant says
that the first respondent told him that in his view the Leeukop
meeting had provided a sufficient opportunity
for the second
respondent to obtain the necessary information he had needed in order
to apply his mind and to arrive at a decision.
The appellant says
that he responded to this by informing the first respondent that, as
the Department had been unable to supply
him with written reasons for
the second respondent’s decision on the 23
rd
February, it was agreed between himself and Mr Motseki that such
written reasons would be provided thereafter.
[28] The appellant said that he also informed the first
respondent that it was also agreed that he would be furnished with a
copy
of the transcript of the discussion at the Leeuwkop meeting and
he would then have an opportunity to make submissions in regard
to
the transfer whereafter the second respondent would consider the
matter afresh. The appellant says that he informed the first

respondent that in terms of the agreement the second respondent would
indicate whether, as requested, he would see the appellant
or would
make his decision without seeing him. The appellant says that he
informed the first respondent that, as he had now sent
him a letter
containing the decision without a consideration of his additional
representations, the first respondent had gone outside
the agreement
reached at the Leeukop meeting. The appellant says that he pointed
out that this was an indication that the appellant’s
attendance
at that meeting was a sham as the decision had already been taken
beforehand.
[29] At about 16h30 on the 28
th
February 2006
the appellant received the letter that the first respondent and an
assistant in his office had told him was on its
way. The letter was
from the first respondent. It was dated 28 February 2006. The first
respondent said in the letter that he wrote
the letter “
by
direction of the Commissioner of Correctional Services
”,
the second respondent. In the letter the first respondent referred to
the discussion that he said had taken place between,
on the one hand,
the appellant and, on the other, Mr Motseki and Mr Smalberger. He
said that that discussion had taken place on
the 24
th
February. This must have been an error because the discussion had
been held on the 23
rd
February.
[30] The first respondent informed the appellant in the
letter of 28 February that it had been decided, after a consideration
of
the appellant’s personal circumstances which he had related
at the Leeukop meeting, “
to temporarily place you in the
vacant post of Area Co-ordinator: Corrections: Pollsmoor for a period
of six (6) months.
” The first respondent said that he
trusted that this period of six months would allow the appellant
enough time “
to address and solve any aspects which might
still hinder your placement in the post of Director: After Care at
the National Head
office of the Department…”
The
appellant was also requested “
to ensure the smooth handing
over”
of activities relating to the post of Regional
Co-Ordinator: Corporate Services, Western Cape. The first respondent
said in the
letter that this handing over could be finalised by the
15
th
March 2006 in order for the appellant to assume duty
in the post of Co-Ordinator: Corrections: Pollsmoor. The appellant
was surprised
when he learnt from the letter of the 28
th
February that he was being “
transferred
” to
Pollsmoor Prison as he had never been consulted about the possibility
of being transferred to Pollsmoor pending his transfer
to Pretoria.
The Labour Court
[31] The appellant was aggrieved by his transfer both to
Pollsmoor and to Pretoria. Accordingly, he brought an urgent
application
in the Labour Court challenging the validity or
lawfulness of such transfer and asking for the orders referred to
earlier. Before
the Labour Court one of the issues that were argued
was whether or not the decision of the Department to transfer the
appellant
constituted an “
administrative action
”
as defined in the Promotion of Administrative Justice Act of 2000
(“
PAJA
”). The appellant argued that it did whereas
the respondents argued that it did not. After considering and
analysing a number
of decisions, the Court a quo came to the
conclusion that the transfer did constitute an “
administrative
action
” as defined in PAJA.
[32] The Court a quo rejected the appellant’s
contention that the second respondent’s decision to transfer
him was actuated
by malice or ulterior motives. The Court a quo also
rejected the appellant’s contention that his placement at
Pollsmoor Prison
was a demotion. In support of this the Court a quo
relied on the fact that the appellant was going to retain his rank as
a director,
his remuneration and benefits. In par 82 of the judgment
the Court a quo said in part:
“
In my view the temporary
placement at Pollsmoor must therefore be regarded as a ‘transfer’,
as contemplated in Sections
3(5)(g) and 96(3) of the Correctional
Services Act which the Second Respondent is empowered to effect.
There is no basis for holding
that it is a demotion which the Second
Respondent has no power to effect.”
The Court a quo also rejected the appellant’s
contention that his temporary placement at Pollsmoor was irrational.
[33] The Court a quo also dealt with the appellant’s
challenge of the second respondent’s decision to transfer him
on
grounds of procedural fairness. In this regard the Court a quo
stated that the appellant had argued that the second respondent’s

letter of the 13
th
December 2005 demonstrated:-
- that the decision to transfer the appellant was a
fait
acompli
as at that date;
- that he had not been given the reasons for the
decision to transfer him as required by the Transfer Policy of the
Department;
- that his written representations of the 28
th
February 2006 were not taken into account;
- that there was completely no consultation at all with
him on his placement at Pollsmoor, and,
- that the ultimate decision to transfer him was tainted
by the failure to give reasons for rejecting his written
representations
of the 28
th
February 2005.
The Court a quo rejected all the appellant’s
contentions and dismissed his application with costs, such costs to
include the
costs for the employment of two Counsel.
The appeal
Statutory provisions
[34] Before us the appellant challenged the judgment of
the Labour Court on a number of grounds. In considering this matter
it may
be necessary to have a good understanding of the law which
governs transfers in the Department of Correctional Services
including
the relevant statutory provisions. I propose to consider
the relevant statutory provisions before considering the grounds upon
which the transfer is challenged.
[35] Persons employed by the Department of Correctional
Services form part of the public service. Sec 195(1)(a) to (i) of the
Constitution
constitutes the basic values and principles which govern
public administration. Sec 195(1)(b) requires that “
(e)fficient,
economic and effective use of resources must be promoted
”.
Sec 195(1)(f) provides that “
(p)ublic administration must be
accountable
.” Sec 195(1)(h) provides that “(
g)ood
human-resource management and career-development practices to
maximise human potential must be cultivated
.” Sec 195(1)(i)
enjoins inter alia that “
employment and personnel management
practices [be] based on ability, objectivity, fairness …
”.
Sec 13 of the Public Service Act, 1994 (“
the PSA
”)
contains some provisions relating to, among others, transfers but
none of those provisions are pertinent to the present
case. Section
14 of the PSA deals with transfers in the public service. Sec 15
deals with the transfer and secondment of officials
but is of no
application to the present case.
[36] Sec 14(1) and (3)(a) are relevant to the present
case. Sec 14(1) of the PSA reads:
“
(1) Subject to the
provisions of this Act, every officer or employee may, when the
public interest so requires, be transferred from
the post or position
occupied by him or her to any other post or position in the same or
any other department, irrespective of
whether such a post or position
is in another division or is of a lower or higher grade, or is within
or outside the Republic.”
Read on its own sec 14(1) gives a public service
employer the power, when the public interest so requires, to transfer
an employee:
from one position to another;
from a higher position to a lower position
from one place inside the country to another place
inside the country;
from one place in the country to another country.
The requirement that an employee or officer may be
transferred “
when the public interest so requires
”
is of the utmost importance because it qualifies or limits the power
to transfer so that it cannot be exercised at the whim
of some or
other official or functionary when the public interest does not
require it.
Sec 14(3)(a) of the PSA, in so far as it is relevant to
the present matter, provides as follows:
“
(3) An officer-
shall not upon transfer suffer any reduction in his
or her salary or scale of salary without his or her consent, except
in accordance
with the provisions of section 38 and any collective
agreement contemplated in
section 18(b)
of the
Public Service Laws
Amendment Act, 1998
.”
It is interesting to note that, whereas in
sec 14(1)
and
(2) reference is made to both an officer and an employee,
sec 14(3)
is restricted to an officer. On the face of it this seems to suggest
that the protection against a reduction of salary which the
PSA
affords to an officer is not extended to employees.
[37] The word “
transfer
” is defined
in
sec 1
of the PSA as follows:
“
transfer” includes a
change-over to a regraded or renamed post, or from one grade to a
higher grade connected to the same
post, or from one rank to a higher
rank;”
This definition does not include an employee being moved
from his or her position to a lower post or position. It also seems
that
the definition of the word “
transfer
” does
not relate to a physical relocation but it is about being transferred
from one position or post to another post or
position. However,
sec
14(1)
covers the transfer from one geographical place to another and
specifically provides for a transfer from a higher position to a

lower position. From
sec 14(1)
it seems that the transfer of an
employee or officer is only authorised by the PSA “
when the
public interest so requires
.” Where it is not shown that
the pubic interest requires a certain transfer, such transfer would
be unauthorised by the PSA.
[38] It is also necessary to have regard to the
provisions of sec 3(4), (5)(g) and 96(1), (2) and (3) of the
Correctional Services
Act NO 111 of 1998 (“
the CSA
”).
Sec 3(4) of the CSA reads:
“
The Department [of
Correctional Services] consists of the Commissioner, other
correctional officials appointed by the Commissioner
in terms of this
Act and other employees appointed in terms of the
Public Service Act
.”
Sec 3(5)(g) of the CSA reads:
“
(5) The Department is under
the control of the Commissioner who must, without derogating from the
generality of subsection (2) –
…
. (h)
appoint, remunerate, promote,
transfer
,
discipline or dismiss correctional officials in accordance with this
Act, the Labour Relations Act and the Public Service Act”
(my
underlining)
The term “
correctional official
” is
defined in sec 1 of the CSA to mean “
an employee of the
Department appointed under section 3(4).”
[39] Sec 96(3) of the CSA was also relied upon as part
of the statutory provisions which gave the second respondent the
authority
to transfer the appellant as he did. However, that
provision must be read together with sec 96(1) and (2). The heading
to sec 96
is: “
Powers, functions and duties of correctional
officials
”. Sec 96(1) enjoins “
every correctional
official
” in the service of the Department “
to
strive to fulfil the purpose of this Act and to that end every
correctional official must perform his or her duties
under
this Act”
(my underlining). Sec 96(2) provides
as follows:
“
Subject to the provisions
of subsection (1), the relationship between the Department as
employer and every correctional official
in the service of the
Department is regulated by the provisions of the Labour Relations
Act.”
In so far as the provisions of sec 96(3) of the CSA are
relevant to transfers, they read as follows:
“
Subject to the provisions
of this Act and the provisions of the Labour Relations Act and having
regard to the operational requirements
of the Department, the
Commissioner shall decide on the …..
transfer
of correctional officials, but –
……
all persons who
qualify for
appointment,
promotion or
transfer must be considered
.
the assessment of persons shall be based on level of
training, relevant skills, competence, and the need to redress the
imbalances
of the past in order to achieve a Department broadly
representative of the South African population, including
representation
according to race, gender and disability;
despite the provisions of paragraph (c), the
Commissioner may, subject to the conditions prescribed by
regulation, approve the
appointment,
transfer
or
promotion of persons to promote the basic values and principles
referred to in section 195(1) of the Constitution;”
(my
underlining).
Sec 195(1) has been dealt with above in so far as it is
relevant to the present matter.
[40] Special note must be taken of sec 96(3)(b) of the
CSA. It requires that all persons who qualify for a transfer must be
considered.
Obviously what this provision contemplates is that, if
there is a vacancy to which some or other employee of the Department
must
be transferred, all those who qualify to fill such a post must
be identified and the selection of the one to be transferred to such

a post or position must then take place. Sec 96(3)(c) enjoined the
second respondent to assess persons who qualified to be transferred

to the position of Director: Aftercare, Head Office on the basis of
the “
level of training, relevant skills, competence and the
need to redress the imbalances of the past in order to achieve a
Department
broadly representative of the South African population,
including representation according to race, gender and disability.”
[41] The definition of “
dismissal
” in
sec 186(1)(e) of the Labour Relations Act, 1995 (“
the LRA
”)
relating to constructive dismissal is also relevant to transfers
under the CSA because of sec 3(5)(g) and sec 96(2) of
the CSA. Sec
186(1)(e) defines “
dismissal
” as meaning that –
“
an employee terminated a
contract of employment with or without notice because the employer
made continued employment intolerable
for the employee
”.
The relevance of this part of the definition of
“
dismissal
” is that, in my view, it places an
obligation on an employer not to do anything that would make an
employee’s “
continued employment intolerable for the
employee
”. Sec 186(1)(e) of the LRA may come into play
where an employee’s transfer renders the employee’s
continued employment
intolerable.
[42] Sec 186(2)(a) of the LRA is also relevant. In so
far as it is relevant herein, it provides as follows:
“
(2) “‘
Unfair
labour practice’ means any unfair act or omission that arises
between an employer
and an employee involving –
(a)
unfair conduct by the employer relating to the
promotion,
demotion
, … of an employee or
relating to the provision of benefits of an employee.
”
The relevance of this provision lies in the fact that,
in my view, if an employee’s transfer constitutes a demotion,
the employer’s
conduct in transferring the employee may well
constitute an unfair labour practice in a particular case. In my view
sec 186(2)(a)
of the LRA places an obligation on an employer not to
engage in any unfair act “
relating to [the] demotion
”
of an employee. The demotion of an employee without his consent
would, generally speaking, constitute an unfair labour practice
in
our law.
[43] In this matter reliance was placed by the
respondents upon sec 3(5)(g) and sec 96(3) of the CSA and on the
Department’s
Transfer Policy for the proposition that the
second respondent had power or authority to transfer the appellant.
In this regard
it must be borne in mind that the CSA does not spell
out the terms and conditions under which an employee of the
Department may
be transferred other than that it requires such
transfer to be “
in accordance with [the CSA], the
Labour
Relations Act and
the Public Service Act.”
It also provides
that the employment relationship between the Department as employer
and its employees is regulated by the LRA.
The effect of this
requirement is that, if the transfer of an employee which purports to
be in terms of sec 3(5)(g) of the CSA
is in fact not in accordance
with the LRA and/or PSA, it would fall outside the ambit of sec
3(5)(g) of the CSA and would, therefore
be, unlawful. The onus would,
of course, be upon the second respondent to show that he had
authority or power under sec 3(5)(g)
to transfer the employee in a
particular case. In other words the onus would be on him to show that
the transfer fell within the
ambit of sec 3(5)(g) of the CSA. If he
failed to discharge that onus, the transfer would fall to be set
aside.
[44] What does it mean to say, as does sec 3(5)(g) of
the CSA, that the second respondent “
must
”
transfer an employee or a correctional official “
in
accordance with
”, among others, the LRA? It seems to me
that this means that in making the decision to transfer an employee,
the second respondent
is obliged to act in accordance with any
obligations that he may have under the LRA. In this case it must be
pointed out that the
obligations that the second respondent would
have under the LRA that relate to the transfer of an employee would
be sec 186(1)(e)
and sec 186(2)(a) of the LRA. That means that the
transfer of an employee must not constitute a demotion without the
employee’s
consent and that the employer’s conduct in
transferring the employee in a particular case must not amount to the
employer
making that employee’s “
continued employment
intolerable for the employee
”.
[45] What does it mean to say, as does sec 3(5)(g) of
the CSA, that a transfer of an employee or correctional official of
the Department
of Correctional Services must be “
in
accordance with”
the PSA? This requirement enjoined the
second respondent in this case to only make transfers that would be
in accordance with the
PSA in addition to being in accordance with
the LRA. Sec 14(1) of the PSA only authorises the transfer of an
employee or official
where “
the public interest so
requires
.” Accordingly, an employer in the public service
who decides to transfer an employee must show that the public
interest requires
the transfer of such employee. This is obviously
aimed at protecting employees from transfers that may be decided upon
at the whim
of a senior official of a government department. The
employer in a public service bears the onus to show that an
employee’s
transfer is required by the public interest- and not
by the individual interest of that senior official.
[46] Although what is required by the interests of the
government department which employs a particular employee would
usually fall
within the ambit of what public interest requires, this
will not always be the case. There will be cases – albeit
probably
few – where the public interest would require that the
employee should not be transferred while the interests of the
Department
require that he be transferred. The two must not be
conflated and the focus should always be on what the public interest
requires.
The public interest will have a much broader scope or focus
than what the departmental interest requires. Furthermore, the
employer
will not discharge the onus by its
ipse dixit
that
the public interest requires a particular employee’s transfer
but will be required to take the Court into its confidence
and
substantiate that statement.
The Transfer Policy of the Department
[47] Quite apart from the fairness which provisions of
legislation such as the PSA, CSA and the LRA may require to be
observed with
regard to the transfer of employees within the public
service in general and within the Department of Correctional Services
in
particular, the Department itself has a Transfer Policy which
enjoins that transfers be dealt with “
in a fair and
justifiable manner by means of uniform control measures.” (
see
clause 2(c) of the Transfer Policy). In my view this means that a
functionary of the Department of Correctional Services who
exercises
the power to transfer an employee must deal with the transfer in a
fair and justifiable manner. If he fails to do so,
the transfer is
contrary to the Transfer Policy of the Department.
[48] Clause 4 of the Transfer Policy sets out the
principles upon which transfers must be effected within the
Department. Clause
4.1 reads:
“
A transfer must be well
considered in the public interest and ought to be the result of
careful human resources and/ or career planning.
Practices involving
rotation of personnel are also transfers.”
[49] Clause 5 of the Department’s Transfer Policy
provides guidelines for the transfer of employees within the
Department.
Clause 5(a) reads:
“
There must be a valid and
sufficient reason to transfer or not to grant a transfer to an
employee. Reasons to be supplied in writing
to employee concerned.
”
Clause 5(b) of the Transfer Policy requires that it be
shown that an employee’s transfer is required by the interests
of the
Department and “
the broader State interest.
”
It requires that “(
s)uch interest be motivated
.”
Clause 5(d) requires that “
(t)he employee’s career
development and utilisation”
be considered.
[50] The requirement of the Transfer Policy that there
must be fairness in the manner in which transfers are dealt with
should be
borne in mind at all times. It provides a rationale for
certain provisions of the policy. In this regard I think of the
requirement
provided for in clause 6.2.1 of the policy that “
(i)f
a vacancy arises, and taking into consideration the recruitment
policy of the Department, a potential pool of candidates who
can
suitably fill the vacancy
” must be identified. I also think
of the requirement in clause 6.2.2 that “
(t)he Area
Commissioner / Regional Commissioner / DC Human Resources Management
concerned must ascertain
the reasons why a specific
employee
from the pool of candidates should be
transferred
” (underlining supplied).
[51] The requirement of the Transfer Policy that a
“
potential pool of candidates who can potentially fill the
vacancy must be identified
” and that, when a specific
employee from that pool is selected for a transfer to fill the
vacancy, reasons should be furnished
as to why that specific employee
is selected are obviously aimed at ensuring not only that there is
fairness in the selection of
employees to be transferred but also
that justice can be seen to be done and that the Department should
justify why a particular
employee is selected and not any one else of
those in the pool. In other words, if in the pool there were Messrs
Nxele, Smith,
Pretorius, Mrs Dlamini and Miss Jones and Mr Nxele was
selected, the official who selected Mr Nxele must be able to
satisfactorily
answer the question : why Mr Nxele? Why not Miss
Jones? Why Mr Smith? Why not Mrs Dlamini? Why not Mr Pretorius? If he
cannot satisfactorily
explain that selection, the transfer cannot be
said to comply with the Transfer Policy and cannot stand.
[52] In making a selection of which one of the employees
in a pool should be transferred, the official concerned would look at
the
respective qualifications of all the candidates in the pool, the
public interest, the needs of the Department, the qualifications

required for the position and, very importantly, the question of how
such transfer would adversely affect each one of the candidates
in
the pool if he or she was the one selected for a transfer. In other
words consideration would be given to the question of how
much
hardship or inconvenience the transfer would cause to each one of the
employees in the pool if he or she was the one ultimately

transferred. The hardship or inconvenience that a particular
candidate would suffer will not be the decisive factor in every case

but there will be cases where it could be decisive. The official who
makes the decision to transfer would be enjoined to take into
account
all relevant factors and then make his decision.
[53] It seems to me that the potential pool of
candidates required by clause 6.2.1 means that, for example, where it
is sought to
fill a certain vacant position, the “
candidates
who can suitably fill the vacancy
” may include employees of
the Department who are based in different provinces. If in such a
case an employee based in Gauteng
could suitably fill a vacancy in
Gauteng without any inconvenience, it would be unfair to transfer an
employee from far away, e.g.
Kwa-Zulu Natal to fill that position
when this would cause him a lot of hardship. This does not mean that
the selection of a candidate
from a province other than the province
where the vacancy is and despite the fact that such candidate’s
transfer will cause
more hardship than the transfer of a candidate
from the province where the vacancy is will never be in order. It may
well be in
order where the public interest requires it but I think
such cases would be few and far between and would only be in order if
cogent
reasons were shown to exist as to why that candidate as
opposed to another candidate was selected.
[54] Those parts of the Department’s Transfer
Policy which require the identification of a potential pool of
candidates who
can suitably fill a vacancy and the requirement that
reasons should be furnished as to why a particular employee is
selected constitute
good policy aimed at ensuring fairness, good
governance, transparency and accountability. They also seek to avoid
a situation where
senior officials can transfer employees of the
Department as and when they please, at their whim and for no rhyme or
reason. They
seek to outlaw arbitrariness, irrationality and the use
of transfers by senior officials of the Department to settle any
personal
scores with subordinates.
[55] There are also the provisions of clauses 6.2.3,
6.2.4, 6.2.5 and 6.2.6. of the Transfer Policy of the Department.
These provisions
read:
“
6.2.3.The employee
whose
transfer is being considered
and his or her
supervisor must be informed that
the
transfer is being considered,
and
given
the reasons for
the proposed transfer. (S)he must be allowed seven (7) working days
to make representations concerning the transfer,
if (s)he wishes to
do so.
If the employee accepts the transfer and fails to
make any representations, the necessary notice may be issued and
the transfer
carried out.
If the employee makes representations, the person
responsible for considering the transfer must consider the
representations.
After the representations of the employee have
been considered, the employee concerned must be informed in
writing that the
representations were considered, and the outcome
must be stated. If the representations were not favourably
considered, the
reasons why the representations were rejected must
be set out in brief.
The final decision must be communicated in writing
to the employee within seven (7) days after his/her
representation, with
detailed explanations of reasons.”
The provisions dealt with in this paragraph and those of
clause 6.2.3 reflect good policy to some extent at least. However, it
will
be cold comfort to many employees of the Department who have
been promised that transfers in the Department will be dealt with on

the basis of this policy if it is not complied with or observed when
they are transferred. You cannot have a government Department
tell
its employees and the world in its policy that it will deal with
certain matters on the basis of a certain policy but then
have the
same Department acting in breach of its own policy. Its employees and
the world at large are entitled to expect that,
when a government
department has adopted a certain policy on certain matters, it will
observe and comply with such policy. When
it fails to do so, those
who are aggrieved are entitled to have recourse to courts and to seek
to hold the department to its own
policy. Government departments
should not act in breach of their own policies because, when they do
so, they show disrespect for
their own policies. And, if they show
disrespect for their own policies, how can they expect employees and
others to show respect
for such policies?
The audi alteram partem rule
[56] One of the appellant’s complaints about his
transfer is that the Department did not comply with the
audi
alteram partem
rule before it could make the decision to transfer
him. He submitted that the second respondent first made the decision
to transfer
him and then purported to invite him to make certain
representations. In this regard the appellant drew attention to the
fact that
the second respondent’s decision was conveyed to him
by way of the latter’s letter dated 13 December 2005 which has

been reproduced above. It is not in dispute that that is what
happened. Although in his address Counsel for the respondents
initially
seemed to argue that the
audi alteram partem
rule
was not applicable, once he was questioned on this, he, quite
rightly, was quick to concede that the Department was obliged
to
observe the
audi alteram partem
rule. However, he submitted
that it did observe the
audi alteram partem
rule. In this
regard he relied on the opportunity to make representations which the
second respondent gave to the appellant as
contained in the letter of
the 13
th
December 2005 and the opportunity to be heard
which the second respondent gave to the appellant by way of his
letter of the 17
th
February 2006.
[57] My difficulty with reliance upon those
opportunities to say that the Department did observe the
audi
alteram partem
rule is that those opportunities were given after
the second respondent had made the decision to transfer the appellant
on the
13
th
December 2005. In the record there is an
internal Departmental memorandum dated 13 December 2005. It appears
in Volume 7 page 648
of the record and is addressed to “
Commissioner:
Correctional Services
” by a Mr G P Mathibela. Mr G P
Mathibela is there described as “
DC Human Resource
Management”
which must be a reference to the Deputy
Commissioner: Human Resource Management. In paragraph 1 of that
memorandum, Mr Mathibela
stated: “
The purpose of this
memorandum is to obtain approval for the horizontal movement and
placement of Senior Managers
”. He stated in paragraph 2,
which dealt with legal authority, that in terms of sec 3(5)(g) and 9
6(3) of the CSA “
the transfer of officials from the level of
Director and higher is vested in the commissioner of Correctional
Services.”
Paragraph 3 of the memorandum bears the heading
“
discussion
”. In paragraphs 3.1 and 3.2, the
memorandum reads thus:
“
3.1 Due to functional needs
experienced Nationally (sic), within the Department of Correctional
Services it is necessary to consider
the movement and placement of
Senior Managers on a horizontal basis.
Against this background and after consultation with
the relevant Regional Commissioner the following movement of
managers is
recommended:
”
and thereafter follows a list of names of such managers
in the Department of Correctional Services, their positions at the
time,
the places where they were based and the new positions to which
they were recommended to be transferred, the place where they would

be based and the persons whose positions they would be taking. The
last person on that list was the appellant. After the appellant’s

name on the list was a recommendation for the transfer of such
managers including the appellant. That was under paragraph 4.
Paragraphs
5 and 6 of the memorandum read thus:
“
5.
Attached
hereto please find placement letters for signature by the
commissioner subject to approval of the above movements.
Forwarded for your
decision
please
”
(my emphasis).
After paragraph 6 appeared Mr Mathibela’s
signature, position and his name. It will be seen from this
memorandum that Mr Mathibela’s
recommendation was not that the
second respondent should approve that a proposal be put to the
appellant that he be transferred
but it was a recommendation that he
approve the transfer of the appellant. Indeed, paragraph 6, quoted
above, makes it clear that
Mr Mathibela was asking the second
respondent for a “
decision
” on the transfer. Par 6
says: “
For your decision please
.”
[58] After Mr Mathibela’s memorandum referred to
above is a page in which Mr Peterson, the Deputy Commissioner:
Corporate
Services signed to signify that he was also recommending
the transfer of the senior managers concerned including the
appellant.
He indicated next to his signature that he signed that
page on the 13
th
December 2005. After that page comes a
similar page signed by the second respondent – also on the 13
th
December 2005 - in which the word “
approved
” was
used to indicate that the second respondent approved Mr Mathibela’s
recommendation. Once again there is no indication
that that decision
was provisional or was anything other than a final decision. Indeed,
after the page which contained proof of
the second respondent’s
approval is a page on which the third respondent as Minister also
signed to signify his approval
of the transfers including that of the
appellant. After the page containing the Minister’s signature
and approval came the
letter from the second respondent to the
appellant dated 13 December 2005 referred to earlier informing the
appellant that, after
consideration of the operational requirements
of the Department and “
your personal position, I approved
your horizontal placement to the post of Director: Aftercare: Head
Office
”.
[59] There can be no reason why all approvals including
that of the Minister would have been secured for a provisional as
opposed
to a final decision. The decision to transfer the appellant
was made on the 13
th
December 2005. The documentation that
I have referred to above does not anywhere suggest that the second
respondent should make
a decision that is not final e.g a provisional
decision pending representations to be made by the appellant or any
of the other
employees whose transfer he approved. I have no doubt
that, if Mr Mathibela had intended to ask the second respondent to
make a
decision that was provisional and not final, he would have
said so quite clearly. The reason why he did not ask the second
respondent
to make a provisional decision was because he was not
asking for a provisional decision. He was asking for a final decision
and
was provided with a final decision by the second respondent. I
have no doubt that the content of the documentation to which I have

referred above looks exactly the same as it would look in the case of
a final decision.
[60] The appellant also referred to the fact that,
subsequent to his receipt of the letter of transfer, he was contacted
by the
fourth respondent who informed him that he had been instructed
to take up the appellant’s position in the Western Cape as
his
replacement. The appellant says that, after taking legal advice, he
informed the fourth respondent that, whilst he would not
stand in the
fourth respondent’s way, he would not relinquish his position
and would challenge the Department’s decision
to transfer him
in court. The appellant also annexed annexure “
MN22A
”
to his founding affidavit which he said was received at “
the
office of the Regional Commissioner a day or two before the 1
st
March 2006
.” Annexure “
MN22A
” was a
circular containing what appears to be advertisements of various
positions including one of “
Director: Employee Relations:
National Head Office: Pretoria
”. The appellant states that,
even before his meeting with Messrs Motseki and Smalberger on the
23
rd
February 2006, the fourth respondent’s post of
Director of Labour Relations at Head Office was scheduled to be
advertised.
As there is no post of Director: Labour Relations: Head
Office which appears in annexure “
MN222A
”, the
appellant’s reference to such a position must be a reference to
the position of “
Director: Employee Relations: National Head
Office: Pretoria
” which does appear therein. In the light
of this the appellant contended that his transfer was a foregone
conclusion. Against
this background there can, in my view, be no
doubt that the decision to transfer the appellant was taken on the
13
th
December 2005 and that he was not consulted or given
an opportunity to be heard before such decision was taken. The
attempts made
to give him an opportunity to be heard afterwards were,
in this case, not acceptable in law.
[61] In our law the general rule is that, where a body
or state functionary is obliged to observe the
audi alteram partem
rule in a particular case, it is required to observe that rule before
it can take the decision in issue. (see
Administrator of the
Transvaal and others v Traub & others
[1989] ZASCA 90
;
1989 (4) SA 731
(A) at
750C
). In Traub’s case the learned Chief Justice explained
the rationale for the requirement that the audi rule should,
generally
speaking, be observed before an adverse decision is taken
against a subject. He said at 750C “…
that is, while
[the body or official or functionary who is to make such a decision]
still has an open mind on the matter. In this
way one avoids the
natural human inclination to adhere to a decision once taken
.”
[62] There are exceptions to this general rule where the
audi rule can be observed after the decision has been taken but none
of
those exceptions has been relied upon in this case by the
respondents. In the light of the fact that in this case the decision
to transfer the appellant was made on the 13
th
December
2005 which, even on the respondents’ own version, was before
the appellant could be given an opportunity to be heard,
and since
this was not one of those exceptional cases where the audi rule could
be observed after the decision had been taken,
the decision to
transfer the appellant violated the audi rule, is bad in law and
falls to be set aside on this ground alone.
[63] The respondents also sought in their affidavits to
justify their giving the appellant the opportunity to make
representations
after the decision had been made on the 13
th
December 2005 on the basis that that decision was only a decision in
principle. The simple answer to this contention is that a
decision in
principle does not fall outside the ambit of the word “
decision
”
in the rule that before making a decision that may adversely affect
the rights or interests of a subject, a state functionary
is obliged
to observe the
audi alteram partem
rule. The
audi alteram
partem
rule must be observed even before a decision in principle
is taken. I am of the view that the respondents have not shown any
justification
for their failure to give the appellant the opportunity
to be heard before the decision was taken. Such non-compliance with
the
audi alteram partem
rule vitiates the decision to transfer
the appellant and such decision is invalid, void and of no legal
effect.
[64] Even if it were to be said that the second
respondent was entitled to make the decision to transfer the
appellant and only
thereafter invite him to make representations, I
am of the view that such opportunity was fundamentally flawed in that
the decision
to transfer the appellant was a
fait accompli
as
was argued by Counsel for the appellant.
[65] In terms of the letter of the 13
th
December 2005 the appellant was not invited to make representations
for the reversal or withdrawal of the decision to transfer
him but he
was invited “
to respond accordingly”
“
if
there [were] any factors which have an influence on [his] transfer
”.
This seems to suggest that the invitation envisaged factors that
could affect the timing of the implementation of the decision
to
transfer him. Indeed, the first respondent said in his affidavit, and
the second respondent confirmed, that, once the Department
of
Correctional Services has made a decision to transfer an employee, it
does not change that decision but only suspends it or
changes the
timing. Unbelievable as this may be, I have to accept that this is
the approach or policy of the Department of Correctional
Services
when it deals with the transfer of its employees because it is very
high ranking officials of that Department who have
said under oath in
this case that this is how the Department deals with transfers. The
official who says so in his affidavit is
the first respondent –
a man who occupies a position that is at the level of Deputy
Director-General. The other one, the
second respondent – who
was at the time the accounting officer of the Department and,
effectively, the Director-General of
the Department and the highest
ranking officer of the Department - has confirmed under oath what the
first respondent says in his
affidavit in this regard.
[66] In par 44.1 of the first respondent’s
answering affidavit, the first respondent denies that the invitation
to the appellant
to a meeting with the Chief Deputy Commissioner:
Corrections, Mr Motseki, “
constituted a reconsideration of
the [appellant’s] transfer …
” The second
respondent says in his affidavit that he read the first respondent’s
affidavit and confirmed it as true
in so far as it referred to him
“
and/or steps taken by
” him. One of the steps that
the second respondent took was to invite the appellant to have a
meeting with Mr Motseki. This
was by way of a letter that he wrote to
the appellant’s attorneys dated the 17
th
February
2006. That letter is in terms that suggest that the second respondent
was going to reconsider the decision to transfer
the appellant.
However, since the first respondent says that that invitation to the
appellant by the second respondent did not
constitute an opportunity
for a reconsideration of the appellant’s transfer – and
the second respondent confirms this
in his affidavit as true–the
matter must be approached on the basis that the decision to transfer
the appellant was made
much earlier and it was a
fait accompli
.
[67] Just in case one doubts the first respondent’s
statement in par 44.1 of his affidavit that the second respondent’s

invitation to the appellant was not an opportunity for a
reconsideration of his decision to transfer him, the first respondent

effectively says in par 44.2: Look at whether the second respondent
changed his decision to transfer the appellant after the meeting
at
Leeukop! I say that this is what the first respondent says in effect
because in par 44.2 of his affidavit he says:
“
It will be noted that
notwithstanding the fact that the [appellant] was invited and was
granted a further opportunity to address
his transfer and to discuss
his personal and other circumstances, the decision to transfer him
stands.”
As if this did not make it clear enough that the
Department had not intended to reconsider its decision, the first
respondent says
in the next sentence:
“
The Department may suspend
or change the timing of a transfer after considering personal or
other circumstances, but this would
not change the decision itself.”
This is fatal to the respondents’ case against the
appellant. The revelation that this is how the Department deals with
transfers
means that, once it is shown to have taken a decision to
transfer without affording an employee concerned an opportunity to be
heard, any subsequent attempt to hear the employee can be disregarded
altogether because it would be a sham as the Department would
never
change the decision to transfer the employee.
[68] This practice or policy of the Department of
Correctional Services is wrong in law and should be stopped because
the Department
is obliged to observe the
audi alteram partem
rule in regard to transfers of employees. The observance of that rule
means that the affected employee has a right to make representations

– verbal or written – directed at showing that no
decision should be made to transfer him in the first place. By
adopting
the policy or practice that it will not change its decision
to transfer an employee once it has made it, even if the employee was

not heard before the decision was made, the Department is rendering
the employees’ right to be heard in such cases illusory.

Indeed, it is opening itself up to legal challenge that could be
avoided if it were to deal with these matters in the correct manner.
[69] A decision to transfer an employee that is made
before the employee can be heard is, generally speaking, unlawful and
invalid
in law. However, in certain limited circumstances it may be
justified to make the decision first and give the employee the
opportunity
to be heard after the decision has been made. That would
be in cases where it can be shown that the Department was dealing
with
an emergency situation and it would have been impracticable or
impossible to delay the making of the decision until the employee
had
been heard. However, where the decision is taken first and the
employee is only given the opportunity to be heard afterwards

because, for example, there is an emergency, the opportunity to be
heard that is given to the employee must be on the basis that
the
decision to transfer him can be reversed. If it is on the basis that
such a decision cannot or will not be reversed once made
and that the
employee is to be heard only in respect of a possible suspension of
the decision or on the possible change of the
timing of its
implementation, then that opportunity to be heard is not a proper one
in law and is fundamentally flawed. The result
thereof would be that
the decision to transfer the employee is unlawful, invalid and of no
legal effect and can be set aside.
[70] Even the opportunity to be heard which the second
respondent gave the appellant after the intervention of his attorneys
cannot
be relied upon by the respondents as constituting compliance
with the
audi alteram partem
rule because the Department had a
policy or practice that, once a decision to transfer an employee had
been taken, it could not
be reversed.
[71] Even if it could be said that the fact that the
second respondent made the decision on the 13
th
December
2005 without affording the appellant the opportunity to be heard is
irrelevant because he did later invite him by way
of the letter of
the 17
th
February 2006 to make representations and the
appellant made use of that opportunity upto a point, I would say
that, even with
that opportunity, the second respondent failed to
observe the
audi alteram partem
rule. I explain below why this
is so.
[72] It emerges from the last page of the letter of the
17
th
February 2006 which the second respondent wrote to
the appellant’s attorneys that he invited the appellant to a
meeting with
the Chief Deputy Commissioner. It also emerges that the
purpose of that meeting was to “
discuss all issues and
personal circumstances surrounding the transfer to Pretoria
”
and that the Chief Deputy Commissioner would then “
submit
[the appellant’s] response to [the second respondent] who
[would] then consider the personal circumstances [of the
appellant]
.”
The meeting that ultimately occurred pursuant to the second
respondent’s letter and invitation of the 17
th
February 2006 took place at Leeukop Correctional facility on the 23
rd
February 2006.
[73] It is common cause between the parties that it was
agreed at the Leeukop meeting that in addition to the oral
representations
which the appellant had made in that meeting, he
would submit written representations. The dispute between the parties
is that,
on the appellant’s version, the purpose of the written
representations was that the second respondent would consider them

before he could make the decision whether or not to go ahead with the
decision to transfer the appellant whereas the respondents’

version is that such written representations would not be forwarded
to the second respondent nor would they be considered before
the
second respondent could make his decision. The respondents’
version was that the appellant’s written representations
were
intended “
to serve as a written recordal on the
[appellant’s] file of the reasons advanced by him for objecting
to the transfer.
” (see Motseki’s affidavit, par 7
which is confirmed by the second respondent in his affidavit).
[74] It is also common cause that the second respondent
made his final decision to have the appellant transferred or to have
that
decision implemented before the expiry of the extended period
that had been given to the appellant to submit his written
representations.
Quite correctly, the Labour Court rejected the
respondents’ version that the appellant’s written
representations were
not intended to be considered before the final
decision was made. The respondents’ version makes absolutely no
sense and
is in conflict with a statement in the last page of the
second respondent’s letter of 17 February 2006 to the
appellant’s
attorneys that the appellant’s response at
the meeting contemplated in that letter – which ultimately was
the Leeukop
meeting – would be sent to the second respondent
for consideration.
[75] It was accepted by all concerned that the verbal
representations which the appellant made at the Leeukop meeting did
not represent
everything he had to say about why he should not be
transferred. That being the case, why would his verbal
representations be considered
but not his written representations
submitted by agreement between the parties? Why would it have been
necessary to give the appellant
such tight deadlines as he was given
to submit his written representations if the purpose was not to avoid
the further delay of
the final decision? And why would the appellant
file representations simply for recordal purposes?
[76] It is common cause that the second respondent made
the final decision to transfer the appellant or to implement the
decision
to transfer him before the expiry of the extended period
that had been given to him to submit his written representations. The
Court a quo held that in law there was nothing wrong with this since
the appellant filed his written representations outside the
extended
period that he had been given. My view on this point is different
from that of the Court a quo. Whether or not the second
respondent’s
decision to transfer or to implement the decision to transfer the
appellant is valid or lawful or not must be
assessed as at the time
when it was made and not before or after. The question is whether or
not the second respondent had a right
to make that decision at the
time that he made it – which was before the expiry of the
extended period given to the appellant
to submit his written
representations.
[77] In my view there can simply be no doubt that the
second respondent had no right to make that decision at the time that
he made
it. This is because through his officials who had met with
the appellant at the Leeuwkop Correctional Facility the second
respondent
had in effect agreed not to make that decision before the
expiry of such extended period. This was so that the appellant could
submit his written representations which the second respondent was to
consider or which he wanted everyone to believe he would consider.

If, as at the time at which the second respondent made his decision,
he had no right to make it, that is the end of the inquiry
and it
matters not that, subsequently, the appellant failed to submit his
written representations within the extended period afforded
to him.
Indeed, once or if the appellant was told, before the expiry of the
extended period, that the second respondent had already
made his
decision, he would even have been entitled not to proceed to submit
such written representations on the basis that submitting
them would
serve no purpose anymore as the decision had already been made.
Obviously, if, despite all that, he went on to submit
his
representations, whether inside or outside the extended period, this
would not render valid and lawful a decision that was
otherwise
invalid and unlawful.
[78] To my mind that what I have said above is the
correct legal position is very obvious and should not require any
further explaining.
However, just in case it is not as obvious to the
respondents as it is to me, let me make one illustration of the
point. If, within
the context of a disciplinary hearing, an employer
informed an employee to come to a disciplinary inquiry at a certain
time but,
before that time, he made the decision that the employee is
guilty of the misconduct alleged against him and dismissed him, it
would be difficult to find anyone who would say that such a dismissal
was in order. If, in the middle of a disciplinary hearing,
the
hearing had to be adjourned before the employee could complete giving
his evidence and it was agreed that he would give the
rest of his
evidence on a later date and the employer made the decision that he
was guilty of misconduct and dismissed him before
the appointed date
for the continuation of the disciplinary hearing, it would be
difficult to find anyone who would say that that
dismissal was in
order. There is no difference in principle between that scenario and
what the second respondent did in this case.
[79] Another example is that, if an employer in the
public service gave striking employees an ultimatum to return to work
by a certain
time failing which it would dismiss them, it has no
right to dismiss such employees prior to the expiry of the deadline
if the
employees return to work within the stipulated time.
(Administrator, Orange Free State v Mokopanele (1990 (3) SA
AD
at 787 D-H.)
Undertakings and agreements between parties mean
something in our law. And failure to honour them has consequences.
Just like an
employer cannot dismiss striking employees who come back
to work before the expiry of an ultimatum after he has called upon
them
to return to work by a certain date failing which they would be
dismissed, an employer cannot implement a transfer of an employee

prior to the expiry of the time given to the employee to make
representation. In conclusion on the point of the observation of
the
audi rule, the second respondent’s decision to transfer the
appellant to Pollsmoor and to Pretoria was taken without
any
compliance with the audi rule and is, for that reason, unlawful,
invalid and of no legal effect.
The transfer to Pollsmoor
[80] One of the appellant’s complaints about his
transfer from his position as Regional Head: Corporate Services,
Western
Cape to the position of Area Co-Ordinator: Corrections,
Pollsmoor was that that transfer constituted a demotion. I use the
term
“
transfer
” in this regard deliberately. I am
aware that the first to the third respondents contend that that was
not a transfer. The
basis for their stance in this regard is that in
terms of the Department’s Transfer Policy, if an employee or
officer is
moved from one locality to another one on a temporary
basis, that is said not to be a transfer. The answer to this is that
the
Transfer Policy is not an Act of Parliament. If in terms of the
CSA and / or PSA conduct constitutes a transfer, it cannot cease
to
be a transfer simply because the Department finds it convenient to
label it as something other than a transfer in the Transfer
Policy.
In terms of the CSA and PSA this is also a transfer and it is
governed by the relevant statutory provisions on the transfer
of
employees.
[81] The appellant contended that his transfer from the
position he was occupying of Regional Head: Corporate Services to the
position
of Area Co-Ordinator: Corrections in Pollsmoor constituted a
demotion. The respondents disputed this contention and maintained
that such transfer did not constitute a demotion. In support of their
contention that such transfer did not constitute a demotion
the
respondents pointed out that the appellant’s rank and salary
rate were to remain the same. The appellant did not deny
the
statement that his rank and salary rate were going to remain the
same. However, he contended that simply because there was
to be no
change to his rank and salary rate did not necessarily mean that his
transfer was not or could not be a demotion. The
appellant stated
that other factors such as the status, authority, prestige and the
responsibilities of the two positions had to
be taken into account as
well in the determination of the question whether or not the transfer
to Pollsmoor constituted a demotion.
The appellant then went on to
give details relating to the status, authority, prestige and
responsibilities of the two positions.
[82] The appellant stated in his affidavit that the
position of Area Co-ordinator: Corrections, Pollsmoor was a position
at local
level and that it was “
subservient
” to
the position of Regional Head: Corporate Services, Western Cape in
terms of responsibilities, status, job description,
“
powers
and capacities
”. In this regard the appellant stated that
in the position that he was occupying, he served “
on the
Regional Executive together with the Regional Commissioner and his
deputy and three other Co-Regional Heads.
” He said that he
also served on the Regional Management Board together with “
10
(ten) Area Commissioners, the Regional Commissioner and his Deputy
and his four Regional Heads”.
The appellant explained that
the Regional Management Board is responsible for the management of
all of the Department’s correctional
facilities in the whole of
the Western Cape. The appellant says that at regional level there
were seven Deputy/Assistant Directors
reporting to him. He says that
those deputy directors/assistant directors were in charge of the
directorates of Human Resources
Support, Human Resources Development,
Performance Management, Labour (Employee) Relations, Special
Programmes, Legal Services and
Occupational Health and Safety. He
said that he was also the line manager for ten Area-Co-Ordinators:
Corporate Services each of
whom was situated in one of the ten
management areas where correctional facilities are maintained by the
Department.
[83] The appellant said that in contrast the position of
Area Co-ordinator: Corrections (Pollsmoor) was a far more “
limited
position
” which is involved in the day to-day control of
prisoners and prisons. He said that this was something in which he
had no
experience and in which he had not been involved for the
previous eight to ten years. The appellant set out his qualifications
to show that there was no connection between such position and his
qualifications. He said that he had
(a) a certificate in labour law from the “
University
of Pietermaritzburg”,
(
b
)
a diploma in advanced Human Resources
from the Wits Technikon,
(c)
a B.A degree in political science and
sociology from the University of South Africa and had enrolled for a
Master’s degree
in Public Administration at the University of
Stellenbosch in the Western Cape at the time of the institution of
these legal proceedings
in the Labour Court.
[84] The respondents only deny that the appellant is the
line-manager of the Area Co-Ordinators and they clarify that he is in
charge
of a number of sub-directorates. Having noted what the
respondents say in this regard, it is interesting to note that the
respondents
admit the statements made by the appellant in par 72 of
his founding affidavit that in his position in the Western Cape he
supervised
some 10 Area Co-Ordinators: Corporate Services and seven
deputy/assistant directors. The appellant also said in par 73 of his
founding
affidavit that in his position as Regional Head: Corporate
Services, Western Cape, he had overall responsibility for the
management
of the entire portfolio of human resources functions for
the Department’s staff in the Western Cape which ran into some
6
000 personnel members. The respondents admit this.
[85] The appellant also says in par 73 of this founding
affidavit that at his offices “
at the Regional Commissioner
alone
” there were some 30 staff members who fell under him.
He then says “
It will be clear, if one compares the wide and
extensive authorities (sic), responsibilities and powers which I
currently enjoy
with the post to which I have purportedly been
transferred that such transfer constitutes a demotion and a gross and
severe diminution
of my status, responsibilities, prestige and
authority. This is evident even if one
simply compares the job
descriptions of the two posts, copies of which are annexed hereto
marked annexures ‘MN23’ and
‘MN24’
respectively
.” In par 55 of the first respondent’s
answering affidavit in which the first respondent purports to answer
the appellant’s
version as contained in paragraphs 70 –
73 of his founding affidavit, all that the respondents deny is that
the position
they wanted the appellant to occupy in Pollsmoor
constituted a demotion. And even that denial is a bare denial. This
must be viewed
against the fact that the appellant did not just state
that this was a demotion. He substantiated that contention by setting
out
in great detail what his powers, duties, responsibilities and
authority were in his position in the Western Cape. He also said
that, when one has regard to that and the job description of the
other position that he would occupy in Pollsmoor, it was clear
that
the transfer to the position in Pollsmoor constituted a demotion. The
respondents did not put up anything to substantiate
their denial that
this was a demotion.
[86] In par 75 of his founding affidavit the appellant
said that the position at Pollsmoor was “
nothing more than
an administrative or functional position as opposed to the executive
position I currently hold which requires
the kind of sophisticated
skills and abilities which are needed to successfully manage HR
issues such as benefits and promotions,
salaries, workplace
discipline and legal services, on a provincial level, for some 6000
employees
.” The respondents did not deny this part of par
75 of the appellant’s founding affidavit.
[87] In par 77 the appellant stated that “
it is
apparent from the provisions of the Transfer Policy the transfer is
clearly irregular and unlawful in that it was effected
without
consultation with me beforehand.
” He continued: “
As
I have already pointed out, at no stage was any mention made of a
possible transfer to a position at Pollsmoor and the only discussions

which took place centred around a transfer to the post of Director:
Aftercare at Head Office in Pretoria.”
[88] I agree with Counsel for the appellant that the
mere fact that the appellant’s rank and remuneration were not
going to
change does not mean that that the transfer to Pollsmoor
could not or did not constitute a demotion. I agree, too, that the
status,
prestige and responsibilities of the position are relevant to
the determination of whether or not a transfer in a particular case

constitutes a demotion. As can be seen above, the appellant in this
case has set out in great detail a number of matters which
go to the
status, prestige and responsibilities of his then position and the
position he was to occupy in Pollsmoor. Largely, the
respondents have
not challenged the appellant’s version on many aspects of his
evidence in this regard. All of these have
been referred to above. In
the light of the largely uncontradicted evidence that the appellant
has adduced in regard to the status,
prestige and responsibilities of
his position in Cape Town, I have no hesitation in concluding that
such position was of a higher
status, prestige and responsibilities
than the position he was to occupy in Pollsmoor. That being the case,
I also have no hesitation
in concluding that the appellant’s
transfer to Pollsmoor constituted a demotion.
[89] The appellant also did not consent to such
demotion. In terms of the common law a demotion without the
employee’s consent
is unlawful. In terms of the
Labour
Relations Act the
demotion of an employee without his consent would
be unfair. That means that the transfer of an employee which
constitutes a demotion
is not in accordance with the LRA and,
therefore, is contrary to the provisions of
sec 96(2)
and (3) of CIS
and, therefore, unlawful. At any rate, to the extent that the CSA or
the PSA may permit the demotion of an employee
by his employer
without his consent, it would be in conflict with the LRA which does
not allow that and in terms of
sec 210
of the LRA, the LRA would
prevail over the PSA or the CSA.
[90] Furthermore, the decision to transfer the appellant
to the position of Area Co-ordinator: Corrections, Pollsmoor was made
without
the appellant being consulted first or being given an
opportunity to be heard. That is fatal to the transfer and renders it
invalid,
void and of no legal effect.
[91] In the result, I am satisfied that the second
respondent’s decision to transfer the appellant was unlawful,
void and
of no legal effect and should be set aside. In the light of
the conclusions I have reached above with regard to the appellant’s

challenge of the validity of the appellant’s transfer on the
basis of the
audi alteram partem
point/consultation point with
reference to the transfer to Pollsmoor and the transfer to Pretoria
and also on the basis of the
demotion point with reference to the
transfer to Pollsmor, I find it unnecessary to consider other grounds
upon which the transfer
could possibly be invalid. Tempting as it may
be to deal with these other grounds, it seems to me that I should not
do so because
the points were not argued. The points whether the
transfer constituted an administrative action or not was argued but
in the light
of the conclusion I have reached above, it is not
necessary to decide it.
[92] Lastly, I note that, while in this case the
appellant complained that he was a victim of someone else’s
decision to transfer
him that:
(a) was actuated by ulterior motives,
(b) constituted an unfair administrative action, and,
(c) was contrary to the Department’s Transfer
Policy, similar accusations were made against him by another employee
or official
of the Department of Correctional Services in the matter
of
Acting Provincial Commissioner, Correctional Services &
others v Matheyse (1) (2002) 23 ILJ 2192 (LAC)
which came before
this Court in 2002. When one has regard to all of this, it is
difficult not to be reminded of the biblical instruction:
Do unto
others as you would have them do unto you! (Original King James
Version :Matthew 7:12).
[93] The appellant has also sought the setting aside of
that part of the fourth respondent’s transfer which required
him to
take his position in the Western Cape. Such an order would
only relate to that part of the decision to transfer the fourth
respondent
to the appellant’s position and would not in any way
affect the decision to transfer the fourth respondent away from the
position he occupied in Pretoria before the implementation of the
decision to transfer him to the appellant’s position in
Cape
Town. The fourth respondent has not opposed such relief. That order
can and should also be granted. There were also other
orders which
the appellant asked for in his Notice of Motion which can and should
be granted.
[94] In the light of the above the appeal should
succeed. With regard to costs both Counsel submitted that this is a
matter in which
it would not be appropriate to make an order of costs
either way. Accordingly, I do not propose to make an order of costs.
[95] In the result I make the following order:
The appeal is upheld.
No order is made as to costs on appeal.
The order of the Labour Court is set aside and, for it,
the following order is substituted;
“
(a) The decision made by
the second respondent to transfer the applicant to Pollsmoor Prison,
is hereby declared unlawful, invalid
and of no legal effect and is
set aside.
The second respondent’s decision to transfer
the applicant from the position he occupied in the Western Cape to
the position
of Director: Aftercare: Head Office in Pretoria is
invalid, void and of no legal effect and is hereby set aside.
The first and/or second respondents’ decision
transferring the fourth respondent to the position of Regional Head:
Corporate
Services, Western Cape, is hereby reviewed and set aside.
The order in (c) above does not affect the validity
of the decision to transfer the fourth respondent from the position
that he
held in Pretoria but only affects his transfer in so far as
it affected the appellant’s position of Regional Head:
Corporate
Services, Western Cape.
There is to be no order as to costs
”
Zondo JP
I agree.
H.M Musi JA
I agree.
Tlaletsi AJA.
Appearances:
For the Appellant : Mr M L Sher
Instructed by : Parker & Khan
For the 1
st
to the : Mr P Gamble SC
3
rd
Respondents (with T Golden)
Instructed by : State Attorney
For the 4
th
Respondent : No appearance.
Date of Judgment : 31 July 2008