Nxele v Chief Deputy Commissioner, Corporate Services and Others (CA9/06) [2008] ZALAC 36 (31 July 2008)

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[2008] ZALAC 36
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Nxele v Chief Deputy Commissioner, Corporate Services and Others (CA9/06) [2008] ZALAC 36 (31 July 2008)

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,

1
st
Respondent
Corporate
Services,
Department
of Correctional Service
The
National Commissioner,

2
nd
Respondent
Department
of Correctional Services
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;
(b)
from taking any disciplinary action against
him for his failure to report for duty at Pollsmoor, and;
(c)
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:
(a)
from one position to another;
(b)
from a higher position to a lower position
(c)
from one place inside the country to
another place inside the country;
(d)
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-
(a)
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) –
(a)
…
. (h)
(g)
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 –
(a)
……
(b)
all persons who
qualify
for
appointment, promotion or
transfer must be considered
.
(c)
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;
(d)
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
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.
6.2.4
If the employee accepts the transfer
and fails to make any representations, the necessary notice may be
issued and the transfer
carried out.
6.2.5
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.
6.2.6
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.
3.2
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.
6.
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:
1.
The appeal is upheld.
2.
No order is made as to costs on appeal.
3.
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.
(b)
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.
(c)
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.
(d)
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.
(e)
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