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[2012] ZALAC 37
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De Milander v MEC for the Department Finance: Eastern Cape and Others (PA7/11) [2012] ZALAC 37; (2013) 34 ILJ 1427 (LAC) (30 November 2012)
REPUBLIC OF SOUTH AFRICA
IN THE LABOUR APPEAL
COURT OF SOUTH AFRICA
HELD AT PORT ELIZABETH
REPORTABLE
CASE NO: PA7/11
In the matter between:-
YVONNE DE MILANDER
............................................................................................
Appellant
and
THE MEMBER OF THE
EXECUTIVE COUNCIL
FOR THE DEPARTMENT OF
FINANCE: EASTERN CAPE
.........................
First
Respondent
THE GENERAL PUBLIC
SERVICE SECTORAL
BARGAINING COUNCIL
...........................................................................
Second
Respondent
KELVYN KAYSTER
.......................................................................................
Third
Respondent
Heard
: 17 August
2012
Delivered
: 30
November 2012
Flynote
: Dismissal – Non-renewal of fixed term contract –
Question whether employee had reasonable expectation of renewal
involves two-legged test – existence of expectation and
reasonableness of expectation – The former is the subjective
element and the latter objective – Nature of enquiry under
section 186 (1) (b).
JUDGMENT DELIVERED ON 30 NOVEMBER 2012
ZONDI,
AJA
Introduction
[1] This appeal is
against the whole of the judgment and order made by Molahlehi J in
which he reviewed and set aside an arbitration
award issued by the
third respondent (“the Commissioner”) under the auspices
of the General Public Service Sectoral
Bargaining Council (“the
GPSSBC”) on 9 November 2009, the second respondent.
[2] In terms of the
arbitration award the Commissioner had found that the appellant had
been dismissed within the meaning of that
term in section 186 (1) (b)
of the Labour Relations Act 66 of 1995 (“the LRA”).
[3] The Court
a quo
found and ruled that the Commissioner erred by finding that the
appellant had proved the requirements of section 186 (1) (b) of
the
LRA. It held that the appellant had failed to show that she
subjectively had the expectation that her fixed-term contract would
be renewed or that she reasonably expected that it would have not
terminated but for the failure of the respondent to renew it.
It
accordingly set aside the arbitration award. The appeal against the
judgment, which has since been reported as
Member of the Executive
Council for the Department of Finance, Eastern Cape v De Milander &
Others
[2011] 9 BLLR 893
(LC), is with the leave of the Court
a
quo
.
Factual
Background
[4] The issues presented
in this appeal must be determined against the background of the
following facts which are largely common
cause.
[5]
The appellant commenced her employment (as a public servant) during
September 2000, at which time she was employed in the Office
of the
Premier: Eastern Cape. That contract was one in terms of section 12A
of the Public Service Act, 103 of, 1994
1
,
(the “Public Service Act”). It was linked to the term of
the office of the then Premier, Reverend Stofile.
[6] The appellant’s
first fixed term contract of employment endured until 01 May 2004.
After the expiration of the first fixed
term contract the appellant
was engaged on a second fixed term contract of employment, on this
occasion linked to the term of office
of Premier Balindlela. The
relevant provisions of the second fixed term contract are the
following:
“
1.
The Employer hereby undertakes to engage the Employee and the
Employee hereby agrees to serve the Employer for a period of sixty
(60) calendar months period (
subject
to compliance to the conditions set out in this agreement
)
reckoned from the date on which the employee actually assumes duty at
the place in the Republic of South Africa mentioned in clause
2
hereof, on the following conditions. (
Period
from 1 May 2004 to 30 April 2009
)
10. Before or upon
completion of the period of service mentioned in clause 1 of this
Agreement, the Employer undertakes to consider
the Employee for
employment in terms of this Agreement for a further specified period.
11. The parties agree
that the employment is a role playing position linked to the terms of
Office of the Premier as provided for
in the ministerial hand book
and that such employment must terminate at any stage when the Premier
ceases to hold such office whether
or not the period referred to in
clause 1 or extended term in clause 10 has been completed.
”
[7] The appellant’s
second fixed term contract of employment was due to endure for the
five year period commencing on 01 May
2004, and terminating on 30
April 2009. But this was never to be as during early 2006, less than
two years into the five year contract,
the appellant’s personal
circumstances took a dramatic turn. This resulted in her
communicating with numerous high-ranking
provincial officials with a
view to securing either a transfer or a secondment to any vacant
public service position in Port Elizabeth.
[8] The transfer was
granted, subject to certain conditions. One of those conditions was
that the appellant would lose her so-called
role-playing allowance.
It was further recorded that she was to be appointed on a contract
basis “
... for the remainder of your contract period with
Premier’s Office with effect from 1 September 2006 to 30 April
2009.”
The letter went on to record that “.
.. you
will be held against a post of a Manager (Deputy Director): Cacadu
District Office
”.
[9] Some five months or
so after her transfer, the position she was occupying at the district
office was advertised for the purpose
of filling it permanently.
Shortly after the advertisement, the appellant addressed a letter to
the first respondent (“the
MEC”) requesting that her
appointment be translated from fixed term contract to permanent
appointment. Her letter reads as
follows:
“
I
am formally requesting that you consider translating my post from
contract to permanent position
Background:
1.
I joined the Premier’s office on 1 September 2000, and served
under two Premiers. Both terms were on contract for the duration
of
the Premiers’ tenures. However, in October 2006 I requested a
transfer to your department at your Port Elizabeth offices.
The
transfer was granted for the duration of my current contract with the
Premier’s office, which expires in April 2009.
2. I am
currently in a fully funded post of Deputy Director according to the
approved organogram for the district office.”
[10] In motivating her
request the appellant had this to say:
“
3.
Since joining your Port Elizabeth District Office, the work ethics
and standards of the staff have improved significantly, especially
concerning meeting the deadlines for monthly, quarterly and yearly
reports and the Debt and Revenue Management side of our work.
Our
District Office has been commended on several occasions by Senior
Management for the efficiency in which we respond to deadlines
and
queries from Head Office.
4. It also needs to be
said that since I rejoined the Government Service in 2000, I have
received annual performance bonuses for
work done above satisfactory
level. I think that the reason for this is that I have more than 20
years experience in various government
departments and para-statals
and the experience gained there stood me in good stead when having to
work under extreme pressure
and make level-headed quick decisions.
5. I have also, since
joining your Department, attended several workshops and short courses
which has enhanced my work ability and
those of the staff in our
office. I feel that I have a very valuable service and the knowledge
to enhance service delivery in your
department and have many more
years of service left.
6. Also, one of the
main reasons for requesting a translation to a permanent position is
that although I have made provision for
my own pension, I now feel
that it will not be sufficient for my retirement one day. I wish to
join the Government Service Pension
Fund to build for my future.
Currently under contract, I cannot subscribe to the Pension Fund.”
[11] On the 12 May 2008,
Prof Kusi, the then Superintendent General, Provincial Treasury
acknowledged receipt of the appellant’s
request and responded
thereto as follows:
“
1.
In response thereto kindly be advised as follows: (a) Your transfer
to this department was on contract and it will expire on
30 April
2009, as it is linked to the term of office of the Premier of the
Provincial Administration. (b) Contract employees cannot
be absorbed
into permanent positions as this is contrary to the Public Service
Rules and Regulations. (c) To be considered for
permanent employment
you have to apply for an advertised post and therefore compete with
other candidates.”
[12] During August 2008,
Ms Balindlela vacated her office as Premier of the Province. This was
prior to the expiry of her term as
Premier. The MEC allowed the
appellant to continue with the remainder of the period which the
Premier would have served had she
not left earlier.
[13] On the 16 September
2008, the appellant addressed a further letter to Prof Kusi, on this
occasion requesting that her contract
be extended. The letter reads
as follows:
“
Request
: EXTENSION OF CONTRACT : MYSELF
1.
Further to my initial request for translation of my contract post to
a permanent position and subsequent discussions between
yourself, Adv
Makinde and myself, I hereby formally request that you consider
extending my contract with another three years. 2.
I am in the
process of enrolling at UNISA for a three year diploma in Human
Resource Management. I am also in contact with their
Unit of
Recognition of Prior Learning to ascertain whether I will not be able
to get credit for some of their units, either due
to work experience
and a Certificate in Public Relations that I already possess. If I do
get credit for some of these modules,
obviously the duration of a
study period will be reduced. I am enrolling in this programme so
that I will be able to conduct my
work more professionally and
provide the correct advice to the staff in this office. It will also
mean that I am engaging in an
exercise to better myself and my
working conditions so that I can add more value to the day to day
work in this office. 3. I am
respectfully requesting you to consider
extending my contract for this period, so that I can apply for a
Department bursary for
the course of my studies.”
[14] It would seem that
the first respondent did not respond to the above letter and this
prompted the appellant to address a further
letter on 29 September
2008, to the first respondent stating the following:
“
Further
to my email and attached letter (dated 19 September 2008), I
respectfully request a response. The reason why I am pressing
this
issue is that I have to register with UNISA before 30 September 2008.
I cannot register with UNISA if I don’t know if
I will qualify
for a bursary. I contacted Human Resources and they told me that they
will not even consider my application for
a bursary as my contract is
ending next year. I informed them that I am in negotiation for an
extension of my contract, but they
say they cannot act on that until
they have anything in writing indicating that my contract has been
extended. So I am in catch
(sic) two situations, as my future with
the department depends on my obtaining a formal qualification, but I
cannot move on this
issue without a formal letter indicating that my
contract has been extended.”
[15] Prof Kusi responded
to the appellant by a letter dated 30 September 2008, in which he
stated: “
REQUEST FOR EXTENTION OF CONTRACT: YOURSELF
(a)
Your transfer to this Department was based on the agreement that the
condition as stipulated in the contract from the Office
of the
Premier would remain the same. The contract that you signed with the
Premier states that it is linked to the term of office
of the Premier
which was expected to be ending on 30 April 2009. The Department has
decided to retain the expiry date of your contract
as 30 April 2009.
Your contract states that you will be informed of the decision to
extend or terminate your services at least
three months before the
expiry date. The Department cannot give you an assurance of contract
extension at this stage as it is deemed
to be too early to take
decision and will be contrary to the contents of your contract. (b)
With regard to the bursary application
you are free to apply for a
bursary as you are currently the employee of the Department and your
application will be subject to
the same criteria as any other
official.”
[16] During February
2009, the first respondent informed the appellant that her employment
contract would not be extended. The appellant
was clearly not happy
with that development and accordingly referred an alleged unfair
dismissal dispute to the bargaining council,
contending that the
termination of her contract constituted an unfair dismissal in view
of the fact that she had reasonably expected
that it would be renewed
on the same or similar terms.
[17] An attempt to
conciliate the dispute failed and the appellant referred the dispute
for arbitration on 22 May 2009. The Commissioner,
who presided at the
arbitration hearing, found that the appellant had proved that she had
a reasonable expectation that her contract
would be renewed and held
that the first respondent’s failure to renew it constituted a
dismissal which he found to have
been unfair. The Commissioner
thereafter proceeded to order the first respondent to reinstate the
appellant and pay her a sum of
R202 216.00. The reasons
underpinning this conclusion are encapsulated in these paragraphs in
the award:
“
It
is common cause that the applicant’s contract was renewed only
once after the departure of Premier Stofile. She submitted
that she
was re- appointed when Premier Balindlela took office and that the
renewal of her contract was regarded as continuous
service. The
once-off renewal of the contract in itself cannot be seen to have
created an expectation of further renewals. During
the duration of
her second contract she requested and was indeed transferred to the
respondent department. The transfer letter
clearly states that her
role playing allowance would fall away, thereby relieving her of the
constraint that her contract would
be aligned with that of the
Premier’s. In fact, the letter expressly mentioned dates with
the end date being 30 April 2009.
Before discussing the
grounds for the applicant’s contention one needs to have regard
to the relevant clauses in the applicant’s
employment contract.
Clause 1 stipulates the contract period as 01 May 2004 to 30 April
2009. Clause 4 (a) summarised her functions,
which were mostly
administrative in nature. Clause 6 (b) stipulates that “... In
the event of any extension of the original
currency of this
agreement, the extended period must be regarded as continuous with
the original period of service”. This
implies that
renewal/extension of the contract is not prohibited. Clause 10 (b)
provides for termination in the event of breach
of the contract or
misconduct. Clause 10 stipulates that “...Before or upon
completion of the period of service mentioned
in clause 1 of this
agreement, the employer undertakes to consider the employee for
employment in terms of this agreement for a
further specified
period.” This implies that extension/renewal should be
considered before the contract comes to an end.
This is a further
indication that extension is a possibility and gives further weight
to the principle in the Malandoh case referred
to above that the
reason for appointing people on fixed term contracts should be
considered. Madikiza admitted that there was still
a need for the
service that the applicant rendered, hence the advertisement for the
permanent position.”
Review Proceedings
[18] The MEC applied to
the Court
a quo
for the review and setting aside of the
arbitration award in terms of section 145 of the LRA contending
mainly that the conclusion
reached by the Commissioner was incorrect.
The MEC advanced various grounds upon which his attack on the
arbitration was based.
In particular he submitted, firstly, that the
Commissioner failed to appreciate that the alleged “
expectation
”
which the appellant allegedly held, was per se unreasonable. In this
regard, it was argued by the MEC that it is inherently
unreasonable
for the appellant to expect the State to reserve a position for an
employee for three years until he or she is properly
qualified and,
moreover, to continue to employ that employee for these three years
so that it may fund her or his studies.
[19] Secondly, the
arbitration award was attacked on the ground that the Commissioner
failed to appreciate that, even if such a
“
representation
”
had been made to the appellant, it would not have been
competent/lawful for the official concerned to have made such a
representation.
[20] The Court
a quo
reviewed and set aside the arbitration award. It held that the
appellant was not dismissed and, that being the case, the
Commissioner
did not have jurisdiction to entertain the unfair
dismissal dispute referred in terms of section 186 (1) (b) of the
LRA. The basis
of its finding was that the appellant had failed to
discharge the
onus
of showing that she subjectively had an
expectation that her contract would be renewed when it expired or
that she had a reasonable
expectation that her contract would not
have terminated but for the failure by the MEC to renew it. It held
that the written communication
between the appellant and the MEC was
destructive of the appellant’s case.
Proceedings in this
Court
[21]
The judgment of the Court
a
quo
is
attacked mainly on the ground that the Court
a
quo
erred
in failing to conclude that the appellant had a subjective
expectation of renewal of her fixed-term contract of employment.
To
assess the correctness of the appellant’s contention, it is
necessary to have regard to how the appellant had characterised
the
dispute in the request for arbitration forms.
[22]
In the arbitration referral form, the appellant characterised the
issues in dispute as unfair dismissal arising out of the
MEC’s
failure to renew a fixed-term contract of employment on the same or
similar terms and as a relief she requested the
“
renewal
of the contract on the same terms
”
.
[23] The nature of the
issues in dispute as set out in the arbitration referral form was
confirmed by the appellant’s legal
representative in addressing
the Commissioner in his opening address at the arbitration hearing.
In outlining the appellant’s
case, he told the Commissioner
that the dispute that was before him was whether or not the appellant
had been dismissed and pointed
out that there would be evidence that
the appellant reasonably expected the MEC to renew the fixed term
contract of employment
on the terms similar to those that prevailed
at the time of her dismissal.
[24]
Thus the issue before the Commissioner, whether or not there had been
a dismissal, was a jurisdictional issue. This means that
if there was
no dismissal the bargaining council did not have jurisdiction to
entertain the dispute referred to it by the appellant
(
SA
Rugby Players’ Association (SARPA) and Others v SA Rugby (Pty)
Ltd and Others; SA Rugby (Pty) Ltd v SARPU and Another
[2008] ZALAC 3
;
[2008]
9 BLLR 845
(LAC) at para
[39]
). The question whether, on the facts of
the case, a dismissal had taken place within the ambit of section 186
(1) (b) involves
the determination of the jurisdictional facts. A
jurisdictional ruling is subject to review by the Labour Court on
objectively
justifiable grounds and not on the reasonableness test
approach as enunciated in
Sidumo
2
.
The test is whether, objectively speaking, the facts which would give
the GPSSBC jurisdiction to entertain the dispute existed.
[25] The appellant’s
case is founded upon section 186 (1) (b) of the LRA and that being
so, she had to provide facts which,
objectively considered, would
bring her case within the ambit of that section. This section
provides as follows: “
186 Meaning of dismissal and
unfair labour practice
(1)
'Dismissal'
means that-
(a) ...
(b) an
employee reasonably expected the employer to renew a fixed term
contract of employment on the same or similar
terms but the employer
offered to renew it on less favourable terms, or did not renew it...”
[26] In
SA Rugby
Players’ Association supra
at para [44] it was held that
the onus is on an employee to establish the existence of a reasonable
or legitimate expectation. The
test whether or not an employee has
discharged the
onus
is objective, namely whether a reasonable
employee would, in the circumstances prevailing at the time, have
expected the employer
to renew his or her fixed-term contract on the
same or similar conditions. But once it is found that there had been
a dismissal
as contemplated in section 186 (1) (b), the
onus
shifts to the employer to justify its fairness.
[27] In
Joseph v
University of Limpopo and Others
[2011] 12 BLLR 1166
(LAC) this
Court pointed out that, in deciding whether or not an employee has
established that he had a reasonable or legitimate
expectation that
the contract would be renewed, the Court will have regard
inter
alia
to previous regular renewals of his contract of employment,
terms of the contract and the nature of business but it pointed out
that the list was not exhaustive. This means that where there is
evidence of regular renewal of the employee’s contract of
employment in the past by the employer the Court will most likely
consider it as a strong indication that the parties intended
to
extend their employment contractual relationship.
[28] Mr
Le Roux
,
who appeared for the appellant, in his argument before us, relied
heavily on the letter of 30 September 2008 for the submission
that it
provided sufficient evidence to support the appellant’s
contention that she had expected the MEC to renew her contract
of
employment and that her expectation was reasonable. He argued that
this letter together with the appellant’s evidence
regarding
the source of her expectation, which he submitted, in the absence of
evidence by the MEC, remained unchallenged, had
to be accepted. He
submitted that the Commissioner’s finding that there was a
reasonable expectation of the referral was
unassailable and there was
therefore no basis for the Court
a quo
to find that the
Commissioner’s decision was unreasonable.
[29] I disagree with Mr
Le Roux’s
contentions. In order to assess the
correctness of Mr
Le Roux’s
contention that the
appellant had a reasonable expectation that her contract would be
renewed and that the MEC’s failure
to renew it constituted a
dismissal, it is first necessary to determine whether she in fact
expected her contract to be renewed,
which is the subjective element.
Secondly, if she did have such an expectation, whether taking into
account all the facts, that
expectation was reasonable, which is the
objective element. Whether or not her expectation was reasonable will
depend on whether
it was actually and genuinely entertained.
(
University of Cape Town v Auf der Heyde
[2001] 12 BLLR 1316
(LAC).
[30] In my view the
letter of 30 September 2008, upon which the appellant seeks to rely,
is at best for appellant ambivalent as
to reasonable expectation. It
makes it clear that her transfer was based on the terms of the
agreement she had concluded with the
Premier which agreement was
expected to end on 30 April 2009, being the date to which her
employer was committed. It is apparent
from the contents of the
letter that the employer considered itself bound by the contract
which the appellant concluded with the
Premier and in terms of which
her transfer was facilitated. In order to succeed in her claim that
she had an expectation that her
contract would, upon its expiration,
be renewed, the appellant had to demonstrate that, after her transfer
from the Premier’s
office, she no longer considered herself
bound by the terms of that contract.
[31] There is no evidence
on record that the appellant challenged the correctness of the
employer’s assertions in the letter
of 30 September 2008. In
the circumstances, the letter of 30 September 2008 could not have led
the appellant, on any plausible
basis to expect that her contract
would, upon its expiration, be renewed. Even if it did, her
expectation could not, given the
correspondence, have been genuinely
or honestly held.
[32] The other evidence
upon which the appellant relied for the contention that she had a
reasonable expectation that her contract
would be renewed involves
the communication between her and Prof. Kusi and Advocate Makinde
during which she says, she was promised
that her contract would be
renewed. In this regard the appellant’s evidence was that,
after her transfer to the MEC’s
office, she requested the MEC
to translate her “
post from contract to a permanent post
”
as at that stage she was implementing the management workplace flow
system which she had introduced when she joined the
MEC’s
office.
[33] Prof. Kusi and
Advocate Makinde considered the appellant’s request but told
her that her fixed term contract of employment
could not be
translated to a permanent position as the employer’s rules and
regulations did not make provisions for it. Some
few days thereafter,
the appellant met Prof. Kusi with a view to persuading him to
reconsider the matter. Prof. Kusi undertook
to find a solution for
her. He told her to arrange an appointment with Advocate Makinde. She
met Advocate Makinde, who told her
that, in terms of the employer’s
policy memorandum to be considered for permanent position, an
employee above assistant director
level had to be in possession of a
diploma or degree, which qualification she did not have Hence a
permanent post had to be advertised.
In this regard, the appellant’s
evidence was that she was advised by Kusi and Makinde to apply for an
extension of her contract
while studying towards a relevant diploma
or degree. She says she was promised that her contract would be
extended “
for at least another three years
” while
she was studying. On the strength of this promise she registered with
University of South Africa for a relevant diploma.
[34] The appellant says,
besides the aforementioned discussions with Prof. Kusi, she also had
further discussions with him in or
about October or November 2008
during which Prof. Kusi assured her that he would sort out the matter
regarding her contract renewal
before he left the employ of the first
respondent. Her impression after these discussions was that her
contract would be extended.
[35] I disagree with the
appellant. The question whether the employer’s failure to renew
the fixed-term contract of employment
constitutes a dismissal within
the meaning of section 186 (1) (b) is a legal one. In other words the
Commissioner hearing the matter
is called upon to determine the
conclusion of law. It is therefore incumbent upon an employee who
brings an unfair dismissal dispute
in terms of section 186 (1) (b) to
set out the material facts upon which he relies for the conclusion of
law he wishes the Commissioner
to draw from those facts and it will
not be sufficient, therefore to plead a conclusion of law without
pleading the material facts
giving rise to it. The mere
ipse dixit
of an employee, without further evidence, is not sufficient. The
setting of this standard will prevent the opening of the floodgates
for large numbers of other cases involving claims based on section
186 (1) (b).
[36] I am not convinced
in the instant matter that the appellant has succeeded to set out the
necessary facts, on which her belief
that her contract would be
renewed, was based. It is clear from the totality of the objective
facts that the appellant’s
employment was linked to the term of
office of the Premier and had to terminate at any stage when the
Premier ceased to hold such
office.
[37] The fact that she
was no longer working in the Premier’s office and had been
transferred to another department when she
requested her contract to
be extended does not change the nature and character of her
employment contract. That this is the case
is confirmed by the
employer’s letter addressed to the appellant on 30 September
2008, in which
inter alia
it is stated that her transfer to
the department was based on the understanding that the conditions as
stipulated in her contract
with the Premier would remain the same.
The appellant’s claims that she had a reasonable expectation
that her contract would
be renewed are therefore irreconcilable with
the content of this letter, the correctness of which, it would
appear, she never disputed.
[38] In the light of the
MEC’s letter of 30 September 2008, the appellant’s
evidence that Kusi had promised to extend
her contract means nothing
more than that there was an attempt to explore the possibility of
extending her contract which is quite
different from an unconditional
undertaking to renew the contract. Before September 2008 the
appellant had unsuccessfully requested
the MEC to translate her
contract to a permanent position. She was told it could not be done
and why it was not possible. She abandoned
the idea and instead
requested that her contract be extended. It was explained to her that
a vacant position had to be advertised
first and the appellant like
all other candidates would be free to apply for it. A diploma or
degree was a requirement for the
position in which the appellant was
interested.
[39] The appellant was
aware that she did not have a degree or a diploma, which was required
for the position in which she was interested
and that it would have
taken her three years of study to acquire it. The discussions between
the appellant, Kusi and Makinde were
therefore an attempt to see how
the appellant could be assisted in order to meet the job
requirements. According to the appellant,
she was advised by Kusi and
Makinde to obtain the necessary diploma and in the meantime to seek
an extension of her contract for
three more years. She needed funds
to register for a three year diploma which funds she did not have.
[40] These promises,
which depended for their realisation on a number of conditions being
fulfilled, could not give rise to the
reasonable expectation that her
contract would be renewed. For her to have her contract extended at
least two things would have
to occur. First, a permanent position
would have to be created for her and second, she had to enrol for a
relevant diploma for
which she needed funds which she did not have.
In these circumstances, there can be no basis for the contention that
the appellant’s
discussions with Kusi and Makinde provide
sufficient material facts from which to draw a conclusion that the
appellant reasonably
expected the MEC to renew her contract and that
the latter’s failure to renew her contract constituted a
dismissal. In the
light of these facts, in my view, the appellant’s
expectation that her contract would be extended was unreasonable.
[41] As far as the costs
of this appeal are concerned, although the appellant is a losing
party, in the exercise of my discretion,
I will not order the
appellant to pay the first respondent’s costs. The appeal was
not frivolous. The appellant was entitled
to challenge the first
respondent’s failure to have her fixed term contract renewed.
Order
[42] In the result the
appeal against the Court
a quo’s
judgment must fail and
no order is made as to costs.
_______________
ZONDI, AJA
DAVIS and NDLOVU JJA
concur in the judgment of ZONDI AJA.
APPEARANCES
For the appellant : Mr
F Le Roux
Instructed by :
Francios Le Roux Attorneys
For the first
respondent : Adv. J G Grogan
Instructed by : Wesley
Pretorius & Associates
1
12A. Appointment
of persons on grounds of policy considerations.
—
(1) Subject
to this section, such executive authorities as the Cabinet may
determine may appoint one or more persons
under a contract, whether
in a full-time or part-time capacity—
(a)
to advise the executive authority on the exercise or performance of
the executive authority’s powers and duties;
(b)
to advise the executive authority on the development of policy that
will promote the relevant department’s objectives;
or
(c)
to perform such other tasks as may be appropriate in respect of the
exercise or performance of the executive authority’s
powers
and duties.
(2) The
maximum number of persons that may be appointed by an executive
authority under this section and the upper
limits of the
remuneration and other conditions of service of such persons shall
be determined by the Cabinet in the national
sphere of government.
(3) The
special contract contemplated in subsection
(1) shall include any term and condition agreed upon between the
relevant executive authority and the person concerned, including—
(a)
the contractual period, which period shall not exceed the term of
office of the executive authority;
(b)
the particular duties for which the person concerned is appointed;
and
(c)
the remuneration and other conditions of service of the person
concerned.
2
Sidumo
& Another v Rustenburg Platinum Mines Ltd & Others
[2007] 12 BLLR 1097
(CC)