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[2009] ZALCD 9
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Health and Other Services Personnel Trade Union of SA (HOSPERSA) and Others v Member of the Executive Council for Works, KwaZulu Natal and Another (D62/08) [2009] ZALCD 9 (17 February 2009)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
IN
DURBAN
D62/08
Reportable
HEALTH
AND OTHER SERVICES PERSONNEL
TRADE
UNION OF SA
(Hospersa) APPLICANT
HUGH
KENNETH VERREYNNE
SECOND
APPLICANT
STEPHON
LESLIE BURNS
THIRD
APPLICANT
And
THE
MEMBER OF THE EXECUTIVE
COUNCIL
FOR WORKS, KWAZULU NATAL FIRST
RESPONDENT
DEPARTMENT
OF WORKS, KWAZULU NATAL SECOND
RESPONDENT
JUDGMENT
Cele J
INTRODUCTION
[1]
The second and the third applicant have approached this court on an
urgent basis, duly assisted by the first applicant, Hospersa,
their
union. They seek a final order, now that the matter has been fully
opposed, in the following terms:
1.1 That the decision to
advertise the posts of District Manager (Ugu District Office) and
District Manager (Umgungundlovu District
Office) (being posts on the
establishment of the Second Respondent’s staff organizational
structure in Pietermaritzburg)
and to proceed with a selection
process to fill the said posts, is set aside;
1.2 That the respondents
are ordered to appoint Second Applicant to the post of District
Manager ( Ugu District Office) and to appoint
the Third Applicant to
the post of District Manager (Umgungundlovu District Office);
1.3 Alternatively to para
1.2 above, that Respondents are ordered to act in terms of Chapter 1,
Part V C.6 of the Public Service
Regulations, and exercising
the power conferred by that regulation, to continue to employ Second
and Third Aplicants in their present
posts without holding any
further selection process aimed at filling the posts;
1.4 Alternatively
to para 1.1, 1.2 and 1.3 above, granting Applicants such further or
alternative relief as to the above Hounarable
Court may seem fit;
1.5 Ordering Respondents
to pay Applicants’ costs of this application.
[2]
On 5 February 2008 this court, per Pillay J, issued a
rule nisi
in
terms very similar to paragraph 1.1 of the notice of motion
returnable on 11 November 2008 while simultaneously permitting the
parties to file their papers within stipulated time frames.
Background
Facts
[3]
The second applicant, Mr Verreyne, is in the employ of the
respondents and is stationed at Ugu District Offices of the second
respondent at Port Shepstone where he holds the position of a
District Manager (Ugu District Office). It is a post on the
establishment
of the staff organization of the second respondent. The
third applicant, Mr Burns, is similarly in the employ of the
respondents,
stationed at the Umgungundlovu District of the second
respondent at Pietermaritzburg where he holds the position of a
District
Manager (Umgungudlovu District Office), a post on the
establishment of the staff organisation of the second respondent.
Messrs
Verreyne and Burns are both members of Hospersa. It is
convenient to refer to both respondents henceforth as “the
Department”.
Both Messrs Verreyne and Burns (“the
applicants”) have been in those positions for a number of years
and have performed
more than satisfactorily.
[4]
The Premier of Kwazulu-Natal requested the Department of the Public
Service and Administration and the Public Service Commission
to
conduct an investigation onto the provincial departments to determine
their readiness for the service delivery. The second respondent
was
one of the departments that were found not ready to deliver. It was
found that the departmental organisatonal structure was
not aligned
to the core functions of the department and to the district
municipalities’ boundaries. The previous MEC then
introduced a
“Change Agenda” in the department which also necessitated
the review of the departmental structure. The
Department commissioned
a consultant, Heiter and Bouer, to review the organizational
structure. A proposed structure was presented
to and approved by the
MEC on 26 June 2006. The date to implement the new structure was
scheduled as 1 April 2007. The intention
for the deferred date was to
allow for consultation with the organised labour and the staff. In
September 2006 a departmental Restructuring
Forum was appointed for
the task by the Head of Department. The forum agreed to conduct road
shows pertaining to the implementation
of the new approved structure.
The consultation plan (road show) was scheduled thus:
No
Institution
Date
1
Midlands region
14/02/07
2
Southern Region
21/02/07
3
Head Office
22/02/07
4
North Coast Region
28/02/07
01/03/07
5
Ethekwini Region
07/03/07
[5]
The road show for the Southern Region, where the applicants are
based, was re scheduled for 27 February 2007. The Chief Work
study
Officer, Mr V.S Khumalo indicated during the presentations that hand
outs being used for presentations were not a complete
structure, but
an overview of the structure for the region. He said that the new
structure was aligned to the service delivery
model and municipal
boundaries. He reported that depot systems had been done away and
that districts and sub-districts were introduced
in some regions. He
indicated that the Southern Region had three districts namely,
Umgungundlovu, Ugu and Sisonke Districts and
that the districts were
then aligned to the municipal boundaries.
[6]
Ms J. Nel, Assistant Manager: HRM Southern Region reported that three
filled posts namely, Telcom Operator, General Foreman
and Registry
Clerk had been abolished in the new structure and this had resulted
in three employees being in excess. She indicated
that posts would be
identified for the absorption of the three employees, but further
explained that the Head Department had given
assurance that no staff
in excess would be retrenched. Questions were then invited from the
floor and the first question and the
answer to it are recorded as:
“
Question 1:
When would the staff on the excess list be accommodated in the new
structure.
Answer
: Southern Region is not affected by the new structure as is
the case with Ethekwini and North
Coast Regions. Posts will be
identified for the three employees on the excess list and these
employees are still to be addressed
individually. “
[7]
The respondents then advertised the post of a District Manager for
various districts within KwaZulu –Natal under their
reference
090702. The centers for which the advertisement was published were:
Ugu, Ethekwini, Ilembe, Umgungundlovu, Sisonke, Uthungulu,
Uthukela
and Amajuba Districts. The body of the advertisement reads:
“
Requirements
:
A degree or National Diploma, plus appropriate managerial
experience, computer literacy. Qualifications in built will be an
added advantage. A valid driver’s licence.
Knowledge, Skills
and Compelencies
: Expert knowledge of administration policies
and practices. Understanding of transformation. Project and finance
management and
knowledge of procument process.
Key responsibility
areas:
Manage works inspection services and projects.
Construct, adapt and physical facilities. Manage General
Administration support services.
Manage implementation of policies,
procedures and resources of the District. Liaise with consultant
professionals, client departments
and stake holders. Conduct
inspectors of new existing Works according to plans and
specifications and/or confirm to prescribe standards.
Analyse
compilations of inter alias plans and specification bills of
quantizes and contractual stipulations with regard to new
maintenance
and other works in terms of quality control savings and costs
savings. Advise with the use of new existing technical
systems,
techniques, material equipment and compounds. Organise the work of
technical, work Inspectors, artisans and general auxiliary
personnel
in the execution of projects. Prepare and control other financial
related matters”.
[8]
The closing date for the applications was 12 October 2007. Both
applicants are not possessed of the academic requirement stated
in
the advertisement. The positions held by the applicants are graded as
salary level 10 while the advertised posts are graded
salary level
11. The applicants formed a view that the advertised posts for
centres Ugu and Umgungundlovu Districts are infact
the very positions
they are occupying and that these have merely been upgraded in terms
of salary level. They then initiated the
present application in
February 2008, on urgent basis.
Applicants’
version
[9]
The advertised posts for Ugu and Umgungundlovu Districts are already
filled by the applicants. The respondents have decided
to advertise
the posts and to invite the applications from persons wishing to be
considered for appointment to the posts. As a
consequence, the
applicants are placed in a position where, in the absence of an
intervention such as is sought by them in this
application, they
would have to apply for their own posts and to take their chances in
a selection process in which they then put
their chances against
sundry other applicants for the posts. The action by the Department
is inherently and per se unfair, apart
from being irrational.
[10]
The applicants meet all the requirements in the advertisement save
that neither has a degree or national diploma. Both
have the
necessary “appropriate managerial experience.” Both are
computer literate to a considerable degree. Both have
valid driver’s
licenses. Both have had formal training in fields relevant to
the so- called “built environment”.
In addition both of
them have extensive experience gained over many years in a built
environment. By a “built environment”
is meant in
Department of Works parlance the sphere embracing the building
construction and project management fields. However,
although neither
applicant has a degree or national diploma, the advertised key
performance areas are exactly what is contained
in job description
and are, in effect, their daily duties.
[11]
The imposition of the degree or national diploma requirement would
effectively preclude the applicants from being considered
for the
posts were they to apply for them. They would likely not be
shortlisted because they would most probably be excluded at
that
stage of the process for not meeting the requirement of a “degree
or national diploma”. Even were they to be shortlisted,
it is
likely that the selection panel would give preference to applicants
for the post who met the requirements of “a degree
or national
diploma” because the advertisement stipulates that such is a
requirement. It is likely that the selection panel
would give those
persons preference notwithstanding the applicants’ extensive
experience in the very same post; and extensive
experience in the
built environment.
[12]
To advertise an employee’s post with a view to
interviewing others and choosing from those interviewed, even if
the
employee himself is interviewed, is, in the absence of some
satisfactory reason justifying such a course,
prima facie
an
act of bad faith on the part of the employer and therefore
necessarily unfair. Where there is no reason to terminate the
employment
of the present incumbent of the position or to demote him,
then to advertise his post while he still occupies it with the
intention
of possibly choosing a replacement for him is tantamount to
a repudiation of the contract of employment by the employer. It
amounts
to a refusal to continue to employ the employee in terms of
his contract of employment. It evinces a clear intention not to
continue
to employ the employee in terms of his contract of
employment.
[13]
Neither Second nor Third Applicant have given the Department any
reason to terminate their employment or to demote them. Second
and
Third Applicants presently fulfil the function of the posts of
District Manager which they hold, and do so by performing more
than
satisfactory. It may be that the Department will attempt to justify
the course it has embarked upon on the basis that the
post advertised
are supposedly “new posts” created in the course of a
restructuring exercise, or on the basis that
because the posts have
been upgraded from salary level 10 to level 11 the Department is
entitled to advertise and hold a selection
process and even, if it
wishes, appoint new persons to the posts. As to any such
contention by the Department it is contended
that the advertised
posts and posts presently held by Second and Third Applicants are in
essence identical posts.
[14]
The Department does not have a free hand in the restructuring of its
organization. It is bound to ensure that any restructuring
exercise
is carried out within the constraints that are laid down by the
Department of the Public Service and Administration. The
guidelines
which have been laid down by the Department of the Public Service and
Administration which the Department is obliged
to follow in
conducting any restructuring exercise emphasize the concepts of an
analysis of the skills and competencies of existing
staff, skills
audits, absorption of existing staff against appropriate posts, and
“matching and placing” of existing
employees, the
consulting of employees on the process of placement, minimizing
disruption to service delivery, minimizing inconvenience
to affected
employees, and the adoption of procedures that are “fair,
transparent and in accordance with applicable employment
labour
legislation”. In terms of a “Guide on
Transformation and Restructuring: Human Resources” and
which
contains the guidelines approved by the Minister of the Public
Service and Administration applicable to restructuring exercise.
It
states that:
“
If a post occupied
by the employee is regraded to a higher salary level during the
restructuring process, following the prescribed
job evaluation
exercise, the provisions of PSR Chapter 1, Part V C.6 may be
applied.”
[15]
The reference to “PSR” is a reference to the Public
Service Regulations. Chapter 1, Part V C.6 of the Public Service
Regulations which states as follows:
“
C.6 If any
executing authority increases the salary of a post as provided under
regulation V C. 5, she or he may continue to employ
the incumbent
employee in the higher- graded post without advertising the post if
the incumbent-
(a) already
performs the duties of the post
(b) has
received a satisfactory rating in her or his most recent performance
assessment: and
(c) Starts
employment at a minimum notch of the higher salary range.”
[16]
The applicants fall in the category of employees occupying a post
which is regraded to a higher salary level during a restructuring
process. The guidelines laid down by the Department of the Public
Service and Administration apply and so do the provisions of
PSR
Chapter 1, Part V C.6. It is thus open to the Department, even though
the salary level of the District Managers’ post
has been
increases, to “continue to employ the incumbent employee(s) in
the higher-graded post(s) without advertising the
posts(s)”.
Second and Third Applicants do already perform the duties of those
posts. Second and Third Applicants have both
received satisfactory
ratings in their most recent performances assessment. Both Second and
Third Applicants are prepared to be
remunerated “ at the
minimum notch of the higher salary range” , that is , at the
minimum notch of salary level 11,
as they both state in their own
affidavits. All the requirements of PSR Chapter 1, Part V.6 are met,
and the Department may continue
to employ them in the higher-graded
posts without advertising the posts. There is thus no need to
advertise the posts and hold
a selection process.
[17]
It is within the power of the Departmnet to leave them in the posts.
It is of course, so that Chapter 1, Part V C.6 of the
public Service
Regulations is not couched in peremptory terms but use the word “may
“. The use of the word “may”
in that context does
not confer on the executing authority a free discretion. The
provision confers a discretion which the executing
authority is
obliged to exercise in each case in such a way as not to lead to the
loss of employment by a satisfactory incumbent
as a consequence of
the upgrading of his post. The provision not only empowers the
executing authority to retain an encumbering
an upgraded post without
advertising it, but places the executing authority under duty to do
so in appropriate cases.
Respondents’
Version
[18]
The restructuring process was decided upon and there is an agreement
that no employee will be redundant and/ or possibly retrenched.
To
this end the Respondents have embarked on a re-structuring programme
that is necessitated by the policies of central government
to make
service delivery more effective in all spheres of government,
including the Respondents. Re-structuring therefore became
necessary.
Respondents have issued an undertaking to all employees, including
those who may be in excess, that there will be no
retrenchments.
[19]
The allegation that in the course of the supposed restructuring, the
respondents have merely re-named and re-graded the post
presently
occupied by Second and Third Applicants are denied. In
amplification thereof the Respondents aver that:
Ø The posts
that Second and Third Applicants presently occupy are salary level
ten posts;
Ø The new
post being advertised, with which applicants take issue is pitched at
a salary level eleven grading;
Ø There are
many other level ten posts that are available which have not
yet been matched;
Ø The said
salary level ten posts are currently sub-district posts in the new
structure of the Respondents;
Ø The
applicants re presently employed in those posts at the sub-district
level;
Ø The level
eleven posts are not sub-district posts but district post. In respect
of the advertisement an example
of a district would be the
Ethekwini District in this instance;
Ø The salary
level ten and salary level eleven posts are substantially different.
The salary eleven posts require a
higher level of management
expertise than the salary level ten posts. In addition, the salary
eleven posts require responsibility
of a much larger area than the
salary ten posts.
Ø The salary
eleven post also requires knowledge of management of finances and
other allied issues;
Ø The salary
eleven post was created by the virtue of a need that arose as a
result of re-restructuring;
Ø The
creation of a new post (in this instance the salary level eleven
post) is subject to a rigorous process whereby
the establishment of
the aforementioned new post is not an arbitrary decision but has been
subjected to a rigorous evaluation process
in terms of the policy
manual for job evaluations.
Ø Qualified
job analysts are required to evaluate a proposed post and attach
appropriate weight levels to such posts.
These analysts and their
recommendations are not arbitrary in nature.
Ø The job
evaluation process is a complex exercise, which requires more than a
cursory examination of functions and
duties that a particular post
may require. The job evaluation exercise looks at issues such as
communication, the number of subordinates
under the proposed posts,
the level of the managerial component, interaction with senior stake
holders, ect.
[20]
The respondent’s action in regard to the manner in which it
advertised the salary level eleven post is in accordance
with the
guidelines as laid down by the Department of Public Service and
Administration. To this end the respondents have effectively
complied
with the Public Service Regulations.
[21]
The new post is a management post but with a greater degree of
responsibility then level ten by virtue of its being a post
in a
bigger geographical area than sub-district post and is subject to the
provisions of the Public Service Chapter 1 Part VII
paragraph C 2.3.
In respect of this provision it is peremptory that any vacant post in
the management be advertised nationally.
The applicants are therefore
not entitled to be absorbed into the new post by virtue of the
requirement to advertise the said post.
In any event, the Regulations
provide that for absorption to take place there must be incumbent to
the post and the incumbent must
meet all the requirements of the new
post. Second and Third Applicants are not incumbents to the posts.
They cannot be absorbed.
[22]
Although there are similarities between the key performance areas in
the salary level ten post and level eleven post, the Applicants
have
not taken note of the fact that the salary level eleven post is a
regional post and the incumbent to the post will be responsible
for a
much larger area. The work load will thus be greater than the salary
level ten post, which is a sub district post. All sub-districts
attract posts that are salary level ten and under.
[23]
The evaluation committee has evaluated the salary level eleven post
and have established that a degree of national diploma
is necessary
in so far as the demands of the salary level eleven post requires.
[24]
It is true that the requirement for the salary level eleven post
(district manager requires a degree or national diploma, which
will
effectively preclude the applicants being considered for the post. It
must be borne in mind that the applicants are not automatically
entitled to apply for these posts by virtue of their so –called
extensive experience in the salary level ten post. This would
constitute a promotion for them if they were successful in their
application for the district manager post. It is not true that
the
applicants’ present posts will “disappear”. The
salary level ten post will always exist in the sub-districts.
The
respondents have therefore not advertised applicants’ posts.
They are presently in a salary level ten post. In
addition, it is not
the intention of the Respondents to terminate or demote them.
[25]
Although the applicants were called district managers in the old
structure, they were in fact working in a much smaller geographic
area. In the new structure the position of district manager is
pitched at a regional level for example the Ethekwini District and
not at the sub-district. The new district manager post is
substantially different from the old district manager’s post in
the old structure, although the title appears to be the same. There
is, therefore no basis for the allegation that the salary level
ten
post has been upgraded to a salary eleven post. There has been no
upgrading. The salary level ten posts continue to exist
in the
sub-districts in the new structure. Although the duties appear to be
similar, the responsibilities demanded by the posts
are substantially
different. The new salary level eleven post demands accountability
from a greater geographical area, hence the
responsibilities and
duties are of a greater magnitude.
[26]
It is clear that re-structuring process was a well thought out
programme necessitated by the central government demand for
service
delivery. There are valid reasons why re-organisation had to take
place. Such re-structuring is the prerogative of the
Respondents and
was necessary because the old structure was cumbersome and not
user-friendly. In the previous structure the Department
of Works had
four regions. In these regions there was considerable overlap. The
region was vast in geographical terms for example
the North Coast
area extended up to Tugela. Central Government recommended that the
Departmnet re-structures in terms of municipal
boundaries thereby
making the areas easily manageable. The Department is in the building
industry and clients require building
structures in all parts of the
province. Re-structuring according to municipal boundaries are in
line with Treasury’s demand
that budget allocations be
indicated in terms of district municipalities. The reason for this is
that if two regions were overlapping
the budget will be skewered, as
well as for the purposes of uniformity at a national level.
[27]
In the old structure:
Ø
Respondents had regional offices, district offices and depots;
Ø There were
no district offices in some areas;
Ø Respondent
had only regional offices in some areas; and
Ø There was
overlap between the regions.
[28]
As a result of the above it was necessary to establish uniformity in
line with Treasury’s requirement that budget allocations
should
be indicated in terms of district municipalities.
[29]
As can be seem from above, the Respondent’s decision to
re-structure and create the new salary level eleven post was
part of
a rigorous evaluation process and certainly not malicious or
arbitrary in nature.
ANALYSIS
[30]
The applicants have approached this court by way of application
proceedings, on urgent basis, seeking an order whose terms
are final,
prohibitory and mandatory in nature. They had then to show the court
that they have a clear right, an injury has been
committed or is
reasonably apprehended and that they had no other suitable
alternative remedy, see
Fawu v Premier Foods Industries
Ltd
(Epic Foods Division) 1997 15 ILJ 1082 (LC)
[31]
The dispute between the parties is about whether or not the two
posts, District Manager Ugu and Umgungundlovu, advertised by
the
respondents are the same posts which are presently occupied by the
applicants. If they are, it follows necessarily that the
applicants
would be severally prejudiced by the advertisement of their posts and
the subsequent filling of such posts by incumbents
other than the
applicants. It has been shown in their papers that the applicants
have a reasonable apprehension of a loss of their
jobs. Further, it
has been shown that the applicants were devoid of any suitable remedy
than to have approached this court on urgent
basis. What falls to be
decided is whether or not they have a clear right to the order they
seek. That largely depends on whether
they have made out a case in
their papers that it is their posts that are in jeopardy consequent
upon the intention of the respondents
to replace them. The
respondents’ position is simply that the positions for which
the advertisement was issued and published
are different from those
occupied by the applicants.
[32]
The applicants do not seek to have recourse to oral evidence for the
resolution of the dispute. In such a case, the applicable,
general
principle as stated in
Stellenbosch Framers Winnery Ltd v
Stellenvale Winery (
Pty) Ltd 1957 (4) SA 234( C) and
subsequently qualified in
Plascon Evans
Paints (Pty) Ltd v
Van Riebeek Paints
[1984] ZASCA 51
;
1984 (3) SA 623
(AD), applies. It states:
“
where in the
proceedings on notice of motion disputes of fact have arisen on the
affidavits, a final order, whether it be an interdict
or some other
relief, may be granted if those facts averred in the applicant’s
affidavit which have been admitted by the
respondent, together with
the facts alleged by the respondent, justify such an order. The power
of the Court to give such final
relief on the papers before it is,
however, not confined to such a situation. In certain instances the
denial by respondent of
a fact alleged by the applicant may not be
such as to raise a real, genuine or bona fide dispute of fact
(see
in this regard Room Hire Co Pty Ltd v Jeppe Street Mansions Pty Ltd
1949 (3) SA 1155
(T) at 1163-5; Da Mata v Otto No
1972 (3) SA 858
(A)
at 882D-H). If
in such a case the respondent has not availed
himself of his right to apply for the deponents concerned to be
called for cross-examination
under Rule 6 (5) (g) of the Uniforms
Rules of Court ( cf Peterson v Cuthbert & Co Ltd
1945 AD
420
at 428; Room Hire case supra at 164) and the court is satisfied
as to the inherent credibility of the applicant’s factual
averment, it may proceed on the basis of the correctness thereof and
include this fact among those upon which it determines whether
the
applicant is entitled to the final relief which he seeks (see eg
Rikhoto v East Rand Administration Board and another
1983 (4) SA
278
(W) at 283 E-H)
. Moreover, there may be exceptions to
this general rule as, for example, where the allegations or denials
of the respondent
are so far-fetched or clearly untenable that the
Court is justified in rejecting them merely on papers”
[33]
The applicants’ case appears to be that the appellation of the
advertised posts together with knowledge, skills and the
competencies
of the candidate to whom the advertisement is sought to be directed,
are identical to those of the posts they currently
hold. Further,
they aver that the key responsibility areas of the advertised posts
are those that apply to their positions. They
then conclude that the
respondents want to replace them with people who have degrees or
diplomas, which the applicants do not have.
They say that it is their
positions that are to be upgraded and that, in that eventuality they
are the ones who must be preferred
to the exclusion of all others.
[34]
The respondents refute these allegations. They concede though that
the duties of the posts appear to be similar but say that
the
responsibilities demanded by the post are substantially different.
They say that the new salary level eleven post demands accountability
from a greater geographical area, hence the responsibilities and
duties are of a greater magnitude. They say that the posts of
the
applicants are unaffected by the restructuring process as they will
continue to exist in the sub-district level in the new
structure.
They say that the new salary level eleven post is not an upgrading of
the applicants post.
[35]
In their replying affidavit, the applicants say that there has been
no organizational change to the structures in the Southern
Region and
that they are not in the sub-strict posts.
[36]
The roadshow undertaken by the respondents included a visit to the
Southern Region. This was in February 2008. Mr V.S Khumalo
said in
that show that the hand outs being used for presentation were not a
complete structure, but an overview of the structure
for the region.
In response to the first question, it was said that the Southern
Region was not much affected by the new structure
as was the case
with Ethekwini and North Coast Regions. Three employees were
identified as affected but they were not the applicants.
[37]
The respondents came to court to oppose this application knowing very
well that the complete organogram of the Southern Region
was never
presented to the staff in February 2008. Surely if a completed
organogram was subsequently produced and explained to
the staff in
the Southern Region, this court would have been told of it. Had such
an organogram been produced in court, it would
dispel all doubt in
the minds of the applicants, who would see where in it their
positions are featured. In my view, the denials
raised by the
respondents of the facts alleged by the applicants did not go far
enough so as to raise a real, genuine or
bona fide
dispute of
facts. The respondents did not apply for the matter to be referred to
oral evidence. I am satisfied as to the inherent
credibility of the
applicants’ factual averments. On the papers before me, the
applicants have shown, on a balance of probabilities
in their favour,
that the posts for which the respondents seek to advertise are those
which they occupy.
[38]
The respondents have shown though that the process of restructuring
was approved of and the implementation process had started.
It has
not been shown when such restructuring would end. Should the
restructuring process continue in future and affect the Southern
Region, it is expected that proper consultation agreed to by the
parties would take place. In such an instance, tools such as an
organogram, would no doubt help to allay fears of those whose
positions might in one way or another be affected.
[39]
In the circumstances I make the following order:
1. The
decision to advertise the posts of Districts Manager (Ugu District
Office and District Manager (Umgungundlovu
District Office), being
posts on the establishment of the Second Respondent’s Staff
Organisational Structure in Pietermaritzburg,
and to proceed with a
selection process to fill the said posts, is set aside.
2. Any
restructuring process of the Department as already approvedby the
Premier, and to be carried out in the
Southern Region of
kwaZulu-Natal is to be preceded by a consultation plan (road show)
for the benefit of the staff concerned.
3. The
respondents are ordered to pay the costs of this application.
__________________
Cele
J
17
February 2009
APPEARANCES
For
the applicant: P. J Blomkamp
Assisted
by: Llewellyn Cain Attorneys
For
the applicant: N.G Winfred
Assisted
by: State Attorney