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[2008] ZALCJHB 71
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Mofubetsoana v Deputy Minister of Justice and Another (J533/08) [2008] ZALCJHB 71 (22 April 2008)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
Case
no: J533/08
In
the matter between:
LEFA
EPHRAIM
MOFUBETSOANA
Applicant
And
THE
DEPUTY MINISTER OF
JUSTICE
1
ST
Respondent
THE
REGIONAL HEAD
(GAUTENG
2
ND
Respondent
REGIONAL
OFFICE OF JUSTICE)
JUDGMENT
MOLAHLEHI
J
Introduction
[1]
This is
urgent
application in terms of which the applicant sought an order
compelling the second respondent to reinstate his salary payment
into
the state salary computer system with immediate effect dating back to
the 1
st
March 2008.
[2]
The second order sought by the applicant was to compel the second
respondent to retain him in his post for a period of 2 (two)
years
which is until the end of February 2010.
Background
facts
[3]
The applicant was employed by the respondent as a senior court
interpreter stationed at the high court of South Africa (WLD)
in
Johannesburg. The case of the applicant is that he commenced
employment with the respondents on the 1
st
November 1991
and being born on the 25
th
February [.....] he would have
reached the age of 65 which is the retirement age on the 25 February
2008.
[4]
On the 24
th
February 2008 the applicant addressed a letter
to the court manager indicating amongst others that in term of S16
(1) (a) of the
Public Service Act 103 of 1994 (the Act) he had:
“
A
right to be retired from service with effect from March 01, 2008”.
[5]
He contended in this letter that the Act gave him the right to
retire and consequently the discretion whether to retire or
not rests
with him. At Paragraph 4 of the same letter the applicant
states the following:
“
4
My application to you is that I should
be retained in my post beyond February, 2008 for a period of 2 years
until the end of February
2010. It is in the public interest to
retain me in my post.
(i)
I am in good health;
(ii)
I have vast experiences as court interpreter.
(iii)
There is a need for my services at the institution where I am
stationed, particularly because use is made
of temporary interpreters
as a result of a shortage of experienced interpreters.
(iv) My
capability and experience are indispensable in my work; I interpreted
in serious cases where life sentences
are usually imposed. It
would be a compromise of the interest of justice to retire an officer
who is in good health, efficient,
capable and experience for some one
who is of a lower quality in a profession that serves one of the
fundamental human rights (the
right to a fair trial) S35 (3) of Act
108 of 1996.
(v)
I have school going children. Their interest would be better served
if I am retained in my post as I
have requested.
(vi) I
hope that my application will meet your favourable consideration.
Thanking you in anticipation. Yours
faithfully)
[6]
According to the applicant, he received no reply to his letter but
received a note from Mr Kgoisitsile of the respondent on
the 19
February 2008 requiring him to furnish certain documents in order to
complete the retirement process. The applicant
responded to the
note in a letter dated 20
th
February 2008 wherein he
replied as follows:
“
1.
I received your note addressed to
the Court Manager (Mrs Mngomezulu) dated February 15, 2008.
You
informed her that:” they want these matters” (which are
retirement documents).
2.
On January 24, 2008 I made a written representations; the receipt of
it was duly acknowledged
by the court manager on January 25.
3.
The manner in which this matter is being dealt with is
unprofessional:
3.1
The human resource department of the regional office must reply my
letter.
3.2
they must reply the letter because there are implications of my
rights in this letter and, in the event of
my rights being violated
they must take it possible for me to seek relief accordingly
4.
I am not prepared to comply with what “they want” before
they have fully complied
with my letter of January 24, 2008.
Thanking you in anticipation. Yours Faithfully)
[7]
The second respondent replied to the applicant letters of the 25
th
January 2008 and 20
th
February 2008 and advice that it was
not possible for the respondent to retain the services of the
applicant on a permanent basis
beyond the age of 65 as in terms of
the Public Service Act, employees who attain the age of 65 years are
to be retired. The
applicant was further advised in the same
letter if he so wish to submit a request to be considered for an
appointment on a contract
basis which will not exceed a period of 2
(two) years.
[8]
The applicant contended that Mrs Hardien misinterpreted the
provisions of s 16 (1) (a) when she indicated that the applicant
had
to be retired because he had reached the age of 65. The
applicant argued that the proper context and interpretation of
the
Act is to read s16 (1) (a) together with subsection7 of the same
section.
[9]
The applicant further argued that the stopping and reversal of his
salary which was due to the misinterpretation and misunderstanding
of
the provisions of the Act had caused him serious problems because he
was not yet ready to retire.
[10]
It is trite that before this court will grant an urgent relief an
applicant must satisfy the following requirements in its
urgent
application:
(a)
a clear right or a right prima facie
established though opened to some doubts;
(b)
a well- grounded apprehension of
irreparable harm if the interim relief is not granted;
(c)
A balance of convenience in favour of
the granting of an interim relief;
(d)
The absence of any other satisfactory
remedy. SEE
Phutiyagae v Tswaing Local
Municipality 2006 27 ILJ 1921 (LC) at Page 1930A -B, Spur Steak
Ranches v Saddles Steak Ranches
1996 (3) SA 706
(C) at 714B-C and
Setlogelo v Setlogelo
1914 AD 21.
[11]
In the case of Phutiyakgae (Supra),Mokgoatlheng AJ as he then was in
dealing with the issue of urgency held that the question
of urgency
has to be determined inconjuction with the establishment of a right
to obtain the relief the applicant seeks at the
stage when the urgent
application was instituted.
[12]
In the present case it was the duty of the applicant, in order for
him to succeed, to show that he had a right (though may
be in doubt)
in terms of the Act not to be retired when he reach the age of 65
(sixty five) years. It is evidently clear
that the applicant
relied on the provisions of s16 (1) (a) read with subsection 7 of the
same section in order to establish a
prima facie
right that
entitled him to the relief he sought. The relevant parts of s
16 read as follows:
“
(1)
(a) Subject to the provisions of
this sections, an officer, other than a member of the
service or an
educator or a member of the National Intelligence Services, shall
have the right to retire from the public service,
and shall be so
retired, on the date when he or she attains the age of 65 subsection
(7) of S16 reads as follows:
[13]
Section 16(7) reads as follows:
“
(7)
If it is in the public interest to retain an officer other than a
member of the services or an educator or a member
of the National
Intelligence Services in his or her post beyond the age at which he
or she is required to retire or to be retired
in terms of subsection
(1) , he or she may with his or her consent be so retain from time to
time on the recommendation of the
Commission and the approval of the
relevant executing authority, for further periods which shall not
attach to the application
in the files except with the approval by
resolution of Parliament exceed in the aggregate 2 years”.
[14]
In my view retirement of an employee comes into effect by operation
of the law. Thus in terms of s16 (1) an employee
who has
reached the age of 65 years is automatically retired. I
therefore do not agree with the applicant that the provision
in s16
(1) (a) of the Act gave him the right to choose whether or not to
retire when he reached the age of 65 (sixty five) years.
[15]
The choice which is available to both the employer and employee is
that which is provided for under section 16 (7) which allows
for the
extension of the employment of an employee after reaching the age of
65 (sixty five) years. In terms of this subsection
the
employment of the employee can be extended if he or she consent to be
retained and such retention has to be done on the recommendation
of
the Public Service Commission and the relevant executing authority.
[16]
Where the employees agrees to be retained in the employ of the
employer such retention shall not exceed a period of 2
(two) years.
Any retention exceeding 2 (two) years would require a resolution of
Parliament to that effect.
[17]
In the present case it is common cause that the applicant has reached
the age of 65 (sixty five) and therefore is automatically
retired in
terms of the law. It is apparent that the applicant has
initiated steps towards evoking the provisions of section
16 (1) (7)
of the Act.
[18]
The other complaint of the applicant seems to suggest that the
employer is frustrating the processing of s16 (7) coming into
operation. This is not however pleaded in the applicant’s
notice of motion and therefore this court does not have to
consider
this compliant.
[19]
In the light of the above it is my view that the applicant has failed
to prove that he has a prima facie case.
[20]
It was on the bases of the above reasons that I issued the order
that:
1.
The application is dismissed.
2.
There is no order as to costs
_______________
MOLAHLEHI
J
Date
of Hearing: 01 April 2008
Date
of Reasons: 22 April 2008
APPEARANCES:
For
the Applicant: LEFA MOFUBETSOANA (In person)
For
the Respondent: L Moyse