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[2012] ZALAC 35
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Public Servants Association of South Africa v Minister of Department of Home Affairs and Others (JA 90/11) [2012] ZALAC 35; [2013] 3 BLLR 237 (LAC) (27 November 2012)
REPUBLIC
OF SOUTH AFRICA
IN THE LABOUR APPEAL
COURT OF SOUTH AFRICA
(HELD AT JOHANNESBURG)
Reportable Yes/No
Case no:
JA
90/11
In the matter between:
Public Servants
Association of South Africa
.............................................
Appellant
and
Minister: Department
of Home Affairs
...............................................
1
st
Respondent
Director –
General: Department of Home Affairs
.............................
2
nd
Respondent
Department of Home
Affairs
...............................................................
3
rd
Respondent
Heard: 24 August 2012
Delivered: 27 November
2012
Coram: Waglay AJP,
Ndlovu JA et Musi AJA
JUDGMENT
___________________________________________________________________
MUSI, AJA
[1] This is an appeal,
with leave of the Court
a
quo
,
against the judgment of the Labour Court (Molahlehi J) in terms of
which it dismissed the appellant’s application for an
urgent
interdict.
[2] In its notice of
motion, in the Court
a
quo
,
the appellant sought an order in the following terms:
“
1.
That the rules of service and process provided for in the rules of
this court be dispensed with in order that this matter be
heard as
one of urgency in terms of Rule 8;
That the third
respondent is hereby interdicted and restrained from continuing with
recruiting employees from the Department of
Home Affairs pending –
Full compliance with
chapter 1, Part VII C.2.4 of the Public Service Regulations;
Conclusion of the
workshop agreed upon between the parties at the GPSSBC:
Departmental Chamber meeting of 21 July 2011; and
Proper and meaningful
consultation with the applicant regarding the effect such
recruitment would have on the members of the
applicant who are
currently employed by the third respondent as agreed between the
parties during the meeting of 21 July 2011.
Costs of suit in respect
of any respondent who opposes this application…”
[3] I pause to deal with
a preliminary issue before considering the merits of this appeal. The
Labour Court,
inter
alia,
ordered
that the appellant’s founding and replying affidavits be struck
out. The appellant is of the view that the striking
out order was
erroneously made. I now consider the correctness of this submission.
[4] Mr Danny-Boy Zamile
Adonis (Adonis) the General Manager of the appellant deposed to the
founding and replying affidavits on
behalf of the appellant. In the
founding affidavit he referred to and attached the minutes of the
General Public Service Sectoral
Bargaining Council (GPSSBC):
Department Chamber: Department of Home Affairs meeting held on 21
July 2011 (the meeting). The appellant’s
case hinged strongly
on what was contained in the minutes and its understanding and
interpretation thereof. It was common cause
that Adonis did not
attend the meeting.
[5] Mr Semenya SC, on
behalf of the respondents, applied, in the Court
a
quo
,
without notice to the appellant, for the striking out of the founding
and replying affidavits on the ground that they contain
hearsay
evidence because Adonis was not at the meeting.
[6] The Court
a
quo
correctly
stated that in urgent applications hearsay evidence will be admitted,
in some cases, provided that the party who relies
thereon gives an
acceptable explanation as to why direct evidence was not or cannot be
presented. The Court
a
quo
found that the appellant
did not tender any explanation why direct evidence was not presented
and that Adonis’
“
testimony
in relation to what transpired at that meeting is hearsay.
”
The Court
a
quo
was
of the view that the averments made by Adonis were central to the
issues in dispute between the parties and therefore struck
out the
founding and replying affidavits.
[7] The Labour Court
Rules do not make provision for the striking out of matter from
affidavits. It is trite that where the Labour
Court Rules are silent
on a particular aspect the Uniform Rules of the High Court may be
applied
1
.Rule
6(15) of the Uniform Rules of Court should therefore be applied.
[8] Rule 6(15) provides
that:
“
The
court may on application order to be struck out from any affidavit
any matter which is scandalous, vexations or irrelevant,
with an
appropriate order as to costs, including cost as between attorney and
client. The court shall not grant the application
unless it is
satisfied that the applicant will be prejudiced in his case if it is
not granted.”
[9] The following meaning
has been ascribed to these words:
“
Scandalous
matter – allegations which may or may not be relevant but which
are so worded as to be abusive or defamatory.
Vexations matter –
allegations which may or may not be relevant but are so worded as to
convey an intention to harass or annoy.
Irrelevant matter –
allegations which do not apply to the matter in hand and do not
contribute one way or the other to a decision
of such matter.”
2
[10] An application to
strike out scandalous, vexations or irrelevant matter is an
interlocutory application or an application incidental
to pending
proceedings.
3
In terms of Rule 11 of
the Labour Court Rules such applications must generally be brought on
notice supported by affidavit. Rule
11 reads as follows:
“
(1)
The following applications must be brought on notice, supported by
affidavit:
Interlocutory
applications
Other applications
incidental to, or pending proceedings referred to in these rules
that are not specifically provided for in
the rules; and
Any other applications
for directions that may be sought from the court.
(2) The requirement in
subrule (1) that affidavits must be filed does not apply to
applications that deal only with procedural aspects.
(3) If a situation for
which these rules do not provide arises in proceedings, the court may
adopt any procedure that it deems appropriate
in the circumstances.
(4) In the exercise of
its powers and in the performance of its functions, or in any
incidental matter, the court may act in a manner
that it considers
expedient in the circumstances to achieve the objects of the Act”
[11] Although affidavits,
for purposes of applications, are pleadings they differ from
pleadings in actions in that they are part
of the evidence that the
court will consider in deciding the merits of the matter. An
application to strike out offending matter
from an affidavit is
therefore not an objection to a pleading, in the strict sense, it is
an objection to evidence that a party
intends to tender.
4
It is therefore not a
mere procedural aspect.
[12] An application to
strike out can be based on any one or all three grounds mentioned
above. It may also be based on other grounds
not mentioned in Rule
6(15). The grounds mentioned in the sub–rule are therefore not
exhaustive.
5
[13] That being the case,
it would be unfair to ambush an opponent with an application to
strike out without notice to such party,
as has happened in this
matter. The other party must be apprised of the grounds on which the
application is based in order to facilitate
informed and sensible
opposition to such application, if it is opposed.
[14] In my view
applications to strike out must be brought upon proper notice to the
other party. The notice must set out the grounds
of the objection and
refer to the specific portions of the affidavit to which the
objection is taken. The facts and circumstances
of the case will
dictate whether it is necessary for the notice to be supported by an
affidavit.
[15] In this matter no
notice was given to the appellant that an application to strike out
matter from its affidavits would be brought.
Moreover the respondents
did not object, in the answering affidavit made on their behalf by
the second respondent, to the matter
being introduced by the
appellant. There being no proper notice to the appellant, the Court
a
quo
should
have refused to entertain the application to strike out.
[16] There is another
reason why the application to strike out should have been dismissed.
In terms of Rule 6(15) an applicant must
surmount two hurdles.
Firstly, the applicant must show that the matter is scandalous,
vexations or irrelevant and secondly, that
the applicant will be
prejudiced in his case if the application is not granted.
6
[17] Mr Mkhari SC, for
the appellant, argued that the Court
a
quo
misdirected
itself in that it did not consider the provisions of
section 3(1)
of
the
Law of Evidence Amendment Act 45 of 1988
. According to Mr Mkhari
the Court a
quo
adopted a
“
fallible
(sic) approach that did not take into account, inter alia, the
probative value of the hearsay evidence, and any prejudice
to the
respondents which the admission of the evidence might entail.”
[18] Section 3(1) of the
Act 45 of 1988 (the Act) reads as follows:
“
3.
Hearsay evidence. – (1) Subject to the provisions of any other
law, hearsay evidence shall not be admitted as evidence
at criminal
or civil proceedings, unless -
(a) Each party against
whom the evidence is to be adduced agrees to Pthe admission thereof
as evidence at such proceedings;
(b) The person upon whose
credibility the probative value of such evidence depends, himself
testified at such proceeding; or
(c) The court, having
regard to –
(i) The nature of the
proceedings;
(ii) The nature of the
evidence;
The purpose for which
the evidence is tendered;
The probative value of
the evidence;
The reason why the
evidence is not given by the person upon whose credibility the
probative value of such evidence depends;
Any prejudice to a party
which the admission of such evidence might entail; and
Any other factor which
should in the opinion of the court be taken into account,
is of the opinion that
such evidence should be admitted in the interests of justice.”
[19] Section 3(1) of the
Act has ushered our approach to the admissibility of hearsay evidence
into a refreshing and practical era.
We have broken away from the
assertion–oriented and rigid rule–and–exception
approach of the past.
7
Courts may receive
hearsay evidence if the interest of justice requires it to be
admitted.
8
In
S
v Ndlovu
Cameron
JA, as he then was, puts it thus:
“
The
1988 Act was thus designed to create a general framework to regulate
the admission of hearsay evidence that would supersede
the excessive
rigidity and inflexibility - and occasional absurdity - of the
common-law position. In the result, as this Court
recently stated in
Makhatini v Road Accident Fund, the 1988 Act retained the ‘common
law caution’ about receiving hearsay
evidence, but ‘altered
the rules governing when it is to be received and when not’,
principally by glossing the common-law
exceptions with the general
criteria of relevance, weight and the interest of justice.”
9
[20] I now turn to
evaluate the hearsay evidence which the appellant wanted to put
before the Court
a
quo
to
determine whether it should have been admitted.
[21] The appellant
endeavoured to adduce the evidence in urgent civil proceedings. The
hearsay rule – as the Court a
quo
correctly observed –
is not applied rigidly in such proceedings, because it is not always
possible to garner all the evidence
in time.
[22] The evidence which
the appellant wanted to put before the Court
a
quo
is documentary evidence
relating to a meeting which was attended by representatives of both
the appellant and the respondents.
[23] The evidence was
tendered in order to show that a meeting was held by the parties and
that certain decisions were taken at
such meeting. The appellant
endeavoured to show that its interpretation of the minutes is
correct.
[24] The probative value
of the evidence is high. Both parties however rely on the minutes of
the meeting for their respective cases.
[25] Although no reason
was given as to why the author of the minutes or any person who
attended the meeting did not file a confirmatory
affidavit, it is
clear that both parties are
ad
idem
that
the meeting was held and that the minutes are a true reflection of
the deliberations.
[26] It is hard to
discern what prejudice the respondents would have suffered had the
Court
a
quo
admitted
the hearsay evidence. I am of the view that the production of the
minutes could not have occasioned any prejudice to the
respondents.
In any event, this being an application for final interdictory relief
the well known rule set out in
Plascon
Evans Paints (Pty) Ltd v Reebeeck Paints (Pty) Ltd
would apply.
10
The respondents would be
in an advantageous position. Adonis attached an unsigned copy of the
minutes to his founding affidavit.
The respondents attached a signed
copy to their answering affidavit. The dispute between the parties
was not whether the meeting
was held or whether the minutes were a
true reflection of the decisions taken. The dispute is based on the
interpretation or understanding
of what was captured therein. The
deponent to the answering affidavit attached the minutes of a meeting
of the GPSSBC Department
Chamber: Department of Home Affairs meeting
held on 12 July 2011 in support of its case. Ironically, he too did
not attend any
of the two meetings.
[27] It is abundantly
clear that the interest of justice dictates that the evidence
contained in the minutes should have been allowed.
So even if it is
assumed that the Court
a
quo
was
correct in entertaining the application; it erred in disallowing the
evidence.
[28] Furthermore, it is
also clear that the Court
a
quo
erred
in striking out the entire affidavits. As stated above, an affidavit
is evidence. When the Court
a
quo
considered
the striking out application it should have asked itself which
portions of the affidavits constituted hearsay evidence.
The fact
that Adonis stated in his affidavit that he is an adult male and the
General Manager of the appellant cannot be hearsay
evidence. Likewise
his evidence as to who the parties are, the purpose of the
application and the reasons why it is urgent can
surely not be
hearsay evidence. I agree with Mr Mkhari that the Court
a
quo
erred in striking out the
founding and replying affidavits.
[29] The advent of
democracy in South Africa in 1994 resulted in the government scaling
down the deployment of members of the erstwhile
South African Defence
Force to our porous borders. This and other reasons let to an
exponential increase in foreigners, legal and
illegal, entering the
country. The ingress and egress through our borders presented a huge
challenge to the Department of Home
Affairs (DOHA).
[30] Cabinet took a
decision to redeploy members of the South African National Defence
Force (SANDF) to our borders in order to
secure the borders. This was
to be done in collaboration with other government departments. It was
also decided to transform the
DOHA into a security department. Allied
to this the security and justice cluster of the government, of which
the DOHA is a part,
decided to use employees within the cluster when
transforming the DOHA into a security department.
[31] As part of the
transformation process, the DOHA studied best practices in other
jurisdictions. The DOHA decided that the Cuban
model, suitably
adjusted to this country’s needs, should be implemented.
[32] The study revealed
that to affect a coherent and efficient border control system the
Republic of South Africa (RSA) would require
a diverse range of
disciplines that include comprehensive training, with a large element
of such training being military expertise,
which resides with the
SANDF. The DOHA did not have the particular skills set which was
needed for the migration to a security
department.
[33] It was discovered
that the SANDF has a significant number of its members who are above
the age of 35 and therefore not ordinarily
deployed to do active
duty. It was determined that they were often senior members whose
expertise could better be exploited to
help achieve more efficient
border control.
[34] The DOHA decided to
implement a pilot project at the O.R. Tambo International Airport
with the assistance of Cubans.
[35] According to the
DOHA, the pilot project would yield 344 posts of which 291 are entry
level posts which would need to be filled
by applicants from outside
the DOHA because employees of the DOHA already earned above the
salary level indicated for such posts.
The remaining 53 positions
were positions that required military training which would be in line
with Cabinet’s decision
to utilize members of the SANDF at
borders, thereby tightening security at ports of entry.
[36] The minutes of the
meeting held on 12 July 2011 reflect the following which is germane
to this matter:
“
4
PARTNERSHIP BETWEEN THE DEPARTMENT OF HOME AFFAIRS AND THE CUBAN
GOVERNMENT”
The employer
representative Mr J Mamabolo made a presentation on the partnership
between the Department of Home Affairs and the
Cuban Government.
Labour indicated that
they appreciate the Employer’s initiative but they should have
been part of the process from the beginning
and furthermore they
should be part of the delegation delegation (sic) for the Russian
study tour. Labour further indicated that
they would like to see the
report from the Cuban delegation studies.
The employer noted
Labour’s comments and indicated that they appreciate Labour’s
cooperation and that as parties they
should in principle commit
themselves to this process. Furthermore, they will share the key
observations of the report and
maybe
even have a workshop or a meeting
.
The Employer noted Labours (sic) proposal that they to (sic) be part
of the delegation that will be going to Russian.” (My
underlining.)
[37] The signed minutes
of the meeting held on 21 July 2011 records the follow-up discussion
as follows at paragraph 6.11:
“
6.11.
PARTNERSHIP BETWEEN THE DEPARTMNET OF HOME AFFAIRS AND THE CUBAN
GOVERNMENT
The Employer reported
that the agreement with the Cuban Government has been signed and that
the gist of the matter is to build DHA
as a security Department and
that this will include training and skilling staff in HR an IT. The
employer indicated that they are
still committed to having an
information sharing session with Labour and that they still awaiting
a response on the issue of organized
Labour being part of the next
round trip to Russia.
The Employer indicated
that as part of their vision to build DHA as a security Department
they would want to recruit a cadre who
has competencies acquired in
security training and that for this purpose they intend to recruit
any person with advanced or basic
military background particularly in
the core business of security.
The Department is also
looking into the Department of Defence, as it becomes the ideal
Department to collaborate with and to find
the people with these
particular attributes and Cuban training as well. The direction that
the Department seeks is to meet the
security requirements of the
country.
Labour welcomed and
supported the employer’s efforts to improve the country and
requested that the issue of the workshop should
be speeded
up
to get the whole report of this process
,
including the Russian tour.
Labour indicates that
they need to be careful that they do not send their members for
military training but they do support the
initiative. Labour
requested clarity if there is any relationship between DHA, SAPS and
DOD.
The Employer welcomed
Labour’s sentiments and reaffirming their commitment to the
workshop. The Employer indicated that the
Department is intending
recruiting the military personnel for their expertise and competency
not to militarize the Department.
The Department has an arrangement
with other departments and that there are consultations taking place
with the Intelligence as
well.
Labour requested clarity
as to what will happen to employees who do not have military
background.
The Employer indicated
that the Department has a qualification that is recognized by SAQA
that they can go through. The Department’s
intention is to
empower and re-skill their employees. This process will not affect
their employees negatively. The Department has
not taken a decision
if they will provide military training to their current employees.
The Employer indicated
that all area of core business that affected building DHA as a
security Department starting at Ports.
It was agreed that
:
A workshop will be held
on the 12 August 2011”
[38] It is common cause
that the workshop was not held on 12 August 2011. The workshop was
ultimately held on 30 September 2011.
According to the DOHA a
detailed report relating to the Cuban report and pilot project was
presented at the workshop. Questions
and concerns relating to the
effect that the pilot project will have on the appellant’s
members, which directorates will
be affected thereby, training and
up–skilling of the appellant’s members were addressed.
After the presentation and
question and answer session, which ran for
approximately 3½ hours, the appellant’s representatives
stated that they
will not engage in the process and left the
workshop. The appellant on the other hand alleges that it expected
the DOHA to make
a presentation on issues that would have an impact
on labour relations when it operationalise the recommendations
contained in
the report, which was not done.
[39] On 7 September 2011
the appellant discovered that the DOHA circulated advertisements for
the posts within the Department of
Defence (DOD).
[40] On 9 September 2011
the appellant wrote to the DOHA, demanding that the advertisements
circulated within the DOD be withdrawn
because the procedure
prescribed in the Public Service Regulations was not followed, and
secondly, because circulating the advertisements
exclusively within
the DOD unfairly excluded and discriminated against other potential
applicants.
[41] On 16 September 2011
the DOHA responded to the letter of 9 September 2011 and pointed out
that it does not intend to withdraw
the advertisements. The DOHA
indicated that it has complied with the prescripts of the Public
Service Regulations. It also indicated
that it is prepared to engage
the appellants on the issues mentioned in its letter of 9 September
2011.
[42] Pursuant to the
DOHA’s invitation the parties met on 22 September 2011. At the
GPSSBC chamber meeting held on 23 September
2011 the DOHA reiterated
its stance to continue with the recruitment process.
[43] The Court
a
quo
after
striking out the founding and replying affidavits said the following:
“
Accordingly,
the Applicant’s application stands to fail for this reason. The
striking off (sic) of the affidavits means that
no proper application
was put before the Court.”
[44] The Court
a
quo
thereafter
stated that the application stands to fail even if the founding and
replying affidavits are admitted. The Court
a
quo
found
that the applicant sought a final interdict but that it failed to
show that it had a clear right. It also found that in relation
to the
Public Service Regulations, the appropriate order that the appellant
ought to have sought was a declaratory order rather
than an
interdict. It further found that if the appellant’s complaint
is the possible non–promotion of its members
then it has an
alternative remedy, in that it may refer an unfair labour practice
dispute to the GPSSBC.
[45] The appellant listed
the issues to be determined by this Court as follows:
“
Whether
the third respondent contravened or breached the provision of Chapter
1 Part VII,C.2.4 of the Public Service Regulations
by recruiting
employees from the DOD, and by failing to properly advertise the
recruitment process.
6.2 whether the third
respondent’s actions or conduct in recruiting employees from
the DOD breached the Constitutional rights
of the third respondent
relating to prohibition (sic) against discrimination and to right to
be treated equally and fairly.
6.3 The proper
interpretation of Chapter 1, Part VII, C.2.4 of the Public Service
Regulations.
6.4 Whether the Court a
quo was entitled to strike out the applicant’s affidavits when
no application to strike out was made,
and if so whether the
applicant’s affidavits were inadmissible and disserved (sic)
out.”
[46] Mr Semenya argued
that the issues to be determined as listed in the appellant’s
heads of argument differed substantially
from the relief sought in
the Court
a
quo
and
that we should not allow the appellant to raise new issues on appeal.
[47] A party may raise a
new point of law on appeal for the first time if it involves no
unfairness to the other party and raises
no new factual issues. Where
the issue raised for the first time on appeal is a pure legal one due
notice must be given to the
other party of the intention to rely upon
it. A party may not raise a point for the first time on appeal which
is dependent upon
factual considerations that were not fully explored
in the court of first instance.
11
[48] The constitutional
issue was not canvassed or pursued in the Court
a
quo
.
The closest that the appellant came to raising the constitutional
point was in paragraph 56 of the founding affidavit where the
following was stated:
“
Secondly,
it is the appellant’s contention that the inherent requirement
of the positions advertised by the third respondent
exclusively
within the DOD was arbitrarily designed to limit and/or discriminate
against other potential applicants within the
Public Service when, it
is absolutely clear that such positions do not need any military
training skills(sic).”
[49] Based on the
aforementioned paragraph Mr Mkhari, in his heads of argument, argued
that the Court
a
quo
was
also called upon to determine a constitutional provision relating to
the rights of the appellant’s members employed in
the DOHA not
to be discriminated against when employment opportunities became
available within the DOHA. According to the appellant’s
argument, its members employed by the DOHA were discriminated against
and this constituted an infringement of their constitutional
rights
when the DOHA decided that the advertisements would target only one
class of people employed in the DOD to the exclusion
of any other
person in the DOHA irrespective of whether such person would meet the
requirements of the post advertised.
[50] It is clear, as I
will demonstrate shortly, that the constitutional issue that the
appellant endeavours to raise is a poor
attempt to embellish its
case.
[51] The Constitution of
Republic of South Africa, 1996 (the Constitution) does not prohibit
discrimination. What is disallowed
is unfair discrimination. Section
9 of the Constitution reads as follows:
“
9.
Equality.-
(1)
Everyone is equal before the law and has the right to equal
protection and benefit of the law.
(2) Equality includes the
full and equal enjoyment of all rights and freedoms…
(3) The State may not
unfairly discriminate directly or indirectly against anyone on one or
more grounds, including race, gender,
sex, pregnancy, marital status,
ethnic or social origin, colour, sexual orientation, age, disability,
religion, conscience, belief,
culture, language and birth.
(4) No person may
unfairly discriminate directly or indirectly against anyone on one or
more grounds in terms of subsection (3)…
(5) Discrimination on one
or more of the grounds listed in subsection (3) unfair unless it is
established that the discrimination
is fair”
[52] Nowhere in the
founding affidavit is it alleged that the DOHA unfairly discriminated
against members of the appellant.
[53] More importantly, if
unfair discrimination is alleged it is incumbent on the complainant
to show whether the discrimination
is based on one of the grounds
listed in sub-section (3) or not. If the differentiation is based on
an unlisted ground then an
objective inquiry must be held by the
court in order to determine whether such differentiation constitutes
discrimination based
on an unlisted ground.
12
[54] If the complainant
proves that the discrimination is based on a listed ground then it is
presumed that the discrimination is
unfair unless the other party
shows that the discrimination is fair. If the discrimination is based
on an unlisted ground then
the complainant bears the onus to prove on
a balance of probabilities that the discrimination is unfair and
hence outlawed by section
9(4).
13
[55] In my view the mere
allegation of discrimination is not an invocation of section 9 of the
Constitution. A proper factual basis
must be laid in the founding
affidavit, at least, as to the ground on which the allegation of
unfair discrimination is based. The
mere assertion that there was
discrimination without a factual basis to show the unfairness thereof
is not enough. There was no
proper factual basis placed before the
Court
a
quo
to
consider this issue. This issue was not canvassed before the Court
a
quo.
All
that the Court
a
quo
had
to decide, as Mr Semenya correctly pointed out, was whether the
appellant proved that it was entitled to a final interdict pending
full compliance with Chapter 1 Part VII, C.2.4 of the Public Service
Regulations; conclusion of a workshop as agreed upon between
the
appellants and the DOHA at the meeting of 21 July 2011 and proper and
meaningful consultation with the appellant regarding
the effect of
the recruitment process would have on the appellant’s members
as agreed upon between the parties at the meeting
of 21 July 2011.
[56] Although the other
issues, for consideration by this court, are couched somewhat
differently from the notice of motion it is
clear that in order to
decide whether a clear right has been established regard must be had
to the provisions of the Public Service
Regulations. This seems to me
to be a situation of six of the one, half a dozen of the other.
[57] I am constrained to
say the following before dealing with the merits. The reason why
litigants are required to delineate the
issues that fall to be
determined on appeal is not a mere formality. It assists the Court to
focus on the real issues to be adjudicated
upon. It obviates the
inconvenience of reading page upon page of irrelevant matter. Where a
party is of the view that a matter
that was canvassed and contested
in the Court
a
quo
need
not be considered by this Court it should state so clearly. In this
matter, the appellant does not list its purported entitlement
to a
workshop and the proper and meaningful consultation as issues that
fall to be considered. It also does not state that it does
not rely
on those issues anymore. Those issues were canvassed and dealt with
by the Court
a
quo.
We
are therefore constrained to deal with them.
[58] Mr Mkhari argued
that the Court
a
quo
failed
to deal with the merits of the application. According to him, when
the Court
a
quo
decided
to strike out the founding and replying affidavits and found that
there is no proper application before it, spelt the end
of the
matter. According to him, the Court
a
quo
was
not supposed to continue to deal with the merits. I must confess I
fail to understand this argument. On the one hand it is said
that the
Court
a
quo
failed
to consider the merits but on the other hand it is said that the
Court
a
quo
was
not supposed to consider the merits after it found that there was no
proper application before it.
[59] In my view the Court
a quo
was correct to deal with
the matter in the manner in which it did. In essence it found that
there is no proper application before
it. It however also decided the
matter on the assumption that the affidavits contained admissible
evidence.
[60] A judgment is not a
one note symphony. It is not defined by one conclusion to the
exclusion of others. One must have regard
to the entire judgment. It
is clear that the Court
a
quo
found
that there is no application before it and alternatively that the
appellant did not prove its case on the substantial merits.
My view
is fortified by the fact that the application was dismissed. This is
an indication that the merits of the application were
considered and
found wanting. Had the matter been disposed of based on the fact that
there was no proper application before it,
the Court
a
quo
would
have struck it off the roll. I now turn to the merits.
[61] The appellant’s
notice of motion is not a good example of how an application for an
interdict (interim or final) should
be couched. The Court
a
quo
found
that it is an application for final relief. I agree. It has been said
that:
“…
an
interim interdict does not involve a final determination of the
rights of the parties and does not affect such a determination.
In
short, an interim interdict serves to adjust the applicant’s
interest until the merits of the matter are finally resolved.
That
final decision has to be arrived at by a Court of law or,
conceivably, another body or person such as an arbitrator.
Consequently
a temporary injunction does not necessarily constitute
interim relief in the above sense: if an applicant seeks an interdict
which
is to be operative for a fixed or determinable period, it may
still be final in its nature and effect…”
14
[62] Although the
application in this matter was dressed up as an interim interdict,
its nature and effect is indeed for final relief.
Mr Mkhari did not
challenge the Court
a
quo’s
finding
in this regard.
[63] The requisites for a
permanent interdict are a clear right, injury actually committed or
reasonably apprehended, and the absence
of any other ordinary
remedy.
15
[64] The appellant’s
case is that the Minister of Home Affairs as an executing authority,
was supposed to advertise the posts
within the DOHA because Chapter 1
Part VII C.2.4 of the Public Service Regulations provides that:
“
C.2.4.
An executive authority shall advertise any other vacant posts within
the department as a minimum, but may also advertise
such posts
elsewhere in the public
service; or
outside the public
service either nationwide or locally.”
[65] It further contends
that the Minister of Home Affairs has no authority to deviate from
the Public Service Regulations. In as
far as the Minister did not
comply with the Public Service Regulations her actions were unlawful.
It is this alleged unlawful conduct
which the appellant sought to
stop.
[66] The issues to be
determined are, firstly, whether the Minister of Home Affairs
breached the provisions of Chapter 1, Part VII
C.2.4. of the Public
Service Regulations and, if so, whether such contravention gave the
appellant a clear right deserving of protection,
secondly whether the
appellant had a clear right to the workshop and, lastly, whether the
appellant had a clear right to be consulted.
[67] The provisions of
Chapter 1, Part VII C.2.4 (a) and (b) are only part of the picture. A
clear and full picture emerges when
the entire Chapter 1 Part VII C.2
is considered. Unfortunately a repetition is necessary. Chapter 1
Part VII C.2 reads as follows:
“
C.2.1
An executive authority shall ensure that vacant posts in the
department are so advertised as to reach, as efficient and
effectively
as possible, the entire pool of potential applicants,
especially persons historically disadvantaged.
C.2.2 An advertisement
for a post shall specify the inherent requirements of the jobs, the
jobs title and core functions.
C.2.3 Any vacant post in
the SMS shall be advertised nationwide.
C.2.4 An executing
authority shall advertise any other vacant post within the department
as a minimum, but may also advertise such
post –
(a) Elsewhere in the
public service; or
(b) Outside the public
service either nationwide or locally.
C2.5
An
executing authority may fill a vacant post without complying with
regulations VII C.2.3 and C.2.4 if
–
The department can fill
the post from the ranks of supernumerary staff of equal grading;
The department can
absorb into the post an employee who was appointed under an
affirmative action programme, if she or he meets
the requirements of
the post;
The department plans
to fill the post as part of a programme of laterally rotating or
transferring employees to enhance organizational
effectiveness and
skills
or;
The post is filled in
terms of section 38 of the Act.
C.2.6 An executive
authority may utilize an appropriate agency to identify candidates
for posts, as long as the advertising and
selection procedures comply
with regulations VII.C and D.
C.2.7 The Minister may
issue directives regarding the matter in which vacancies must be
advertised within the public service.”
(My emphasis).
[68] The DOHA contents
that the aforementioned regulation should be read with section 14 of
the Public Service Act, Proclamation
103 of 1994 (the PSA) which
reads as follows:
“
14
(1) Subject to the provisions of the Act, every 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 another division, or is of a lower or higher grade, or is
within or outside the Republic.
(2)(a) The transfer of an
employee from one post or position to another post or position may,
subject to the provisions of paragraph
(b); be made on the authority
of the person having the power of transfer.
(b) In the case of a
transfer from one department to another department the approval of
the persons who in respect of each of those
departments have the
power to transfer, shall first be obtained.”
[69] According to the
PSA, an executing authority in relation to a department or
organisational component within a Cabinet portfolio,
means the
Minister responsible for such portfolio. Transfer, on the other hand,
includes a change-over to 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.
16
It does not exclude an
inter–departmental transfer.
[70] The provisions of
section 14 of the PSA are clear. An employee may be transferred from
one department to another when the public
interest so requires
provided that the approval of the persons who, in respect of each of
those departments, have the power to
transfer, must first be
obtained.
[71] In terms of Public
Service Regulation C.2.5(c) a Minister may fill a vacant post without
advertising such post if the department
plans to fill the post as of
a programme of laterally rotating or transferring employees to
enhance organizational effectiveness
and skills.
[72] The appellant
disputes the fact that a decision was taken to transform the DOHA
into a security department. It also denies
that foreign lessons have
revealed that to affect a coherent and efficient border control
system the RSA would require a diverse
range of disciplines that
include comprehensive military training with a large element of it
being some military expertise which
resides within the DOD.
[73] The appellant’s
denial is hollow and clearly out of sync with the minutes of the
meeting. The minutes reflect unambiguously
that the DOHA indicated
that it is their vision to develop the DOHA into a security
department and that it would want to recruit
persons who have
competences acquired in security training and for that purpose it
intended to recruit persons with an advanced
or basic military
background particularly for the core business of security. It was
also recorded that the DOHA will collaborate
with the DOD in that
regard.
[74] I have no doubt that
the public interest required that members of the DOD be transferred
to the DOHA. It cannot be gainsaid
that such transfers would enhance
the organizational effectiveness of and skills in the DOHA.
[75] That being the case,
the persons in the DOHA and DOD who have the power to transfer
employees from one department to another
could do so. It follows that
the Minister of the Department of Home Affairs, as the executing
authority, could recruit members
of the DOD who were interested in
being transferred to the DOHA in order to enhance its effectiveness
and skills, without advertising
the posts in the DOHA or elsewhere.
[76] In my view the
appellants did not show that they have a clear right to the relief
sought in terms of the PSA or the regulations
promulgated thereunder.
[77] The rosetta stone to
decipher the workshop issue lies glaringly in the minutes of 12 July
2011. The relevant part reads as
follows:
“
Furthermore,
they will share the key observations of the report and maybe even
have a workshop or a meeting.”
[78] It is clear that
there was no agreement to hold a workshop. The DOHA only indicated
that it might even have a workshop to share
the key observations of
the Cuban delegation studies. The purpose of the workshop was to
share key observations of the Cuban delegation
studies only.
[79] On 21 July 2011 it
was agreed that the workshop would be held on 12 August 2011. The
workshop was ultimately held on 30 September
2011. A presentation was
made and the appellant’s representatives were given the
opportunity to ask questions. After they
did that they indicated that
they would not engage in the process and left the workshop. The
respondents fulfilled their undertaking
to hold an information
sharing workshop. According to the appellant it expected issues
relating to the impact of the operationalisation
of the
recommendations to be discussed but this was not done. A mere
expectation – without more – is not at clear right.
Even
on the appellant’s own version it had not shown a clear right
to a further workshop.
[80] The appellant also
prayed that the interdict be issued pending proper and meaningful
consultation with it regarding the effect
such recruitment would have
on the members of the appellant who were at that stage employed by
the third respondent as agreed between
the parties during the
meeting.
[81] The minutes of the
meeting reflect that the DOHA indicated that it is its intention to
empower and re–skill its employees
and that the recruitment
process will not affect the appellant’s members negatively.
[82] The appellants do
not challenge the rationality of the implementation of the pilot
project or the Department of Home Affair’s
migration to a
security department.
[83] The only issue is
whether there was meaningful and proper consultation. In
Bel
Porto School Governing Body and Others v Premier, Western Cape, and
Another
it
was stated that:
“
It
is true that, in determining what constitutes procedural fairness in
a given case a court should be slow to impose obligations
upon
government which will inhibit its ability to make and implement
policy effectively. It is also true in a country such as ours
that
faces immense challenges of transformation that we cannot deny the
importance of the need to ensure the ability of the executive
to act
efficiently and promptly. On the other hand, to permit the
implementation of a scheme that would have an adverse financial
effect on the appellants without affording them a fair opportunity to
make representations would flout the important principle
of
procedural fairness.”
17
[84] What is required is
a balancing act between the DOHA’s right to implement the pilot
project in order to enhance its efficiency
and skills level and the
right of the appellant to be consulted properly. In balancing the
right to implement and the duty to consult,
the prejudice to or
adverse effect on the appellant should also be considered.
[85] In
casu
there were consultations
held on 12 July 2011 and 21 July 2011. Missives wherein the project
and its implications were explained
were exchanged between the
parties. A workshop was held whereat the appellant’s
representatives were given the opportunity
to interrogate the
process, which they did. They indicated that they would not be part
of the process and walked out. During the
meetings it was stressed
that the appellant’s members would not be adversely affected by
the pilot project.
[86] Given all the
consultations between the appellant and the respondents, the
appellant’s intimation that they would not
be part of the
process and the ultimate walk out, the appellant has not, in my view,
succeeded in showing that it has a clear right
to any further
meaningful and proper consultations in this matter.
[87] In my view the
appeal ought to fail.
[88] The appellant won a
battle but lost the war. Its success and failure coincided. The
respondents did not ask for costs. In my
view equity and the law
dictate that no order as to costs should be made.
[89] I accordingly make
the following order:
a. The appeal is
dismissed.
b. No order as to costs
is made.
____________
CJ MUSI, AJA
I agree,
_______________
WAGLAY, AJP
I agree,
_______________
NDLOVU, JA
APPEARANCES:
FOR THE APPELLANT: Adv.
Mkhari SC
Instructed by: WERKSMANS
ATTORNEYS
FOR THE RESPONDENT: Adv.
Semenya SC
Instructed by: THE STATE
ATTORNEY PRETORIA
1
See
Vita Foam (Pty) Ltd v CCMA & Others
[1999] 12 BLLR 1375
(LC) at
paragraph 5. Myburg and Others v Autonet (Passenger Services) and
another (C 428/00)
[2002] ZALC 75
(12 September 2002) at paragraphs
5 and 6. Mathenjwa v State Information Technology Agency &
Others unreported LC case JS
801/2010 delivered 7/3/2012.
2
Vaartz
v Law Society of Namibia
1991 (3) SA 563
(NMHC) at 566 C-E
3
See
Viljoen v Federated Trust Ltd
1971 (1) SA 750
(0) at 755 A-B; Swartz
v Van Der Walt T/A Sentraten
1998 (1) SA 53
(WLD) at 56 H
.
4
See
Elher (Pty) Ltd v Silver
1947 (4) SA 173
(W) at 176
5
See
Titty’s Bar & Bottle Store v A. B. C Garage & Others
1974 (4) SA 362
(TPD) at 368 F-H
6
See
Steyn v Schabort en Andere NNO
1979 (1) SA 694
(0) at 697 F-H.
7
D
T Zeffert et al : The South African Law of Evidence. Butterworths
2003 at pages 365 to 366.
8
See
The South African Law of Evidence : Butterworths 2003 at pages
365-366.
9
See
S v Ndlovu
2002 (6) SA 305
(SCA) at paragraph 15. footnotes omitted.
10
[1984] ZASCA 51
;
1984
(3) SA 623
(A) at 634E-635C
11
Naude
and Another v Fraser 1998(4) SA 539(SCA)at 558 A-E.
12
See
generally Prinsloo v Van der Linde and Another 1997(3) SA 1012 (CC);
President of South Africa and Another v Hugo 1997(4)
SA 1 (CC).
13
See
Harhsen v Lane WO and Others 1998(1) SA 300 (CC) at paragraph 63.
14
See
Airoadexpress v TRTB Durban 1986(2) SA 663 (AD) at 681 D-F
15
Setlogelo
v Setlogelo
1914 AD 227
at 227, Sanachem (Pty) Ltd v Farmers
Agri-Care & Others
[1995] ZASCA 2
;
1995 (2) SA 781
(A) at 789 B-D. See LF
Boshoff Investments (Pty) Ltd v Cape Town Municipality
1969 (2) SA
256
(c) at 267 A-F for the requirements for interim interdicts.
16
See
section 1 of the PSA
17
[2002] ZACC 2
;
2002
(3) SA 265
(CC) at paragraph 244