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[2011] ZALCJHB 222
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South African Democratic Teachers Union v Gauteng Department of Education (J916/2011) [2011] ZALCJHB 222 (21 June 2011)
IN THE LABOUR COURT
OF SOUTH AFRICA
HELD AT JOHANNESBURG
Case no: J916/2011
In the matter
between:
SOUTH AFRICAN
DEMOCRATIC TEACHERS’ UNION
..................................
First Applicant
M W NDEVU
......................................................................................................
Second
Applicant
and
GAUTENG DEPARTMENT
OF EDUCATION
.................................................
First
Respondent
D MCUACUA
..................................................................................................
Second
Respondent
Date of hearing: 01
June 2011
Date of judgment: 21
June 2011
JUDGMENT
VAN VOORE AJ:
This is an
application, launched on an urgent basis, by the South African
Democratic Teachers’ Union (the union) and by
the Second
Applicant, Mr M W Mdevu (Mdevu). In essence the applicants seek an
order that the first respondent, the Gauteng Department
of Education
(the department) not transfer him from the post of District
Director, Operations Management to a post in Fleet Management
with
effect from 1 June 2011.
The background and
material facts in this matter are largely undisputed. Ndevu is
employed by the department and has been sincc1996.
Ndevu is still
employed by the department and his continued employment is not under
threat. Until 1 June 2011 Ndevu
was employed in the post
District Director, Operations Management. Mdevu is also a shop
steward of the union. It is not contended
by Ndevu or the union that
the department’s decision to transfer him is as a result of or
on account of his union membership
or activities.
Ndevu trained as a
teacher and qualified in 1971. His first appointment as a teacher
was in 1975 and in the period 1975 to 1996
Ndevu held various
teaching posts in the Eastern Cape and in Gauteng. In 1996 Ndevu
joined the department as an inspector of
schools and in 1997 was
promoted to the level of Deputy Director. Ndevu held various
managerial posts in the department and after
successfully applying
for an advertised post in 2010 he was appointed to the post of
District Director, Operations Management
for the period 1 April 2010
to 30 March 2011. Ndevu describes himself as
‘quintssentially a teacher’
and says further that he
‘cannot imagine [himself] rendering any service not related,
in some way and to some degree, to
teaching or management of
schools’. However it is undisputed that Ndevu sought and was
promoted into various managerial
positions rising to the level of
Deputy Director, albeit related to the management of schools.
Nonetheless Ndevu’s career
since 1996 when he joined the
department as an inspector of schools has seen him being involved in
managerial activity rather
than that of teaching and learning.
When applying for
the post District Director, Operations Management Ndevu knew and
understood that his appointment to that post
would be for the period
1 April 2010 to 30 March 2011. This was not a
fixed term employment contract but
rather an appointment to that
position for a period of twelve months whereafter a decision would
then be made.
On 23 May 2011
Ndevu’s Head of Department called him to a meeting. The
meeting was also attended by the department’s
Chief Director,
the Head of Department, the Chief Director of Human Resources and
the Director of Legal Services. At this meeting
Ndevu was informed
that it was proposed that he be transferred from his current
position to a managerial position in Fleet Management
position. He
was further informed that the reason for the proposed transfer was
that the department considered him to be the
type of person to start
the new fleet management unit on its behalf. Ndevu contends that at
the meeting he was informed that
he was allowed to object to the
proposed transfer and that on 25 May 2011 he sent a letter
to his Head of Department.
In that letter Mdevu writes the
following:
“
The
meeting in the HOD’s office dated 23 May 2011 has
reference.
I note that
the manner in which the above meeting was called and carried out as
well as the decision to consult on my transfer to
Fleet Management.
I will also be
failing if I do not express my view on the option of the transfer. My
placement by the then acting HOD Mr Len Davids
at Johannesburg West
in June 2009 was as a result of extensive consultation between
the current MEC and stake holders.
I hope and
trust that the meeting was consulting and has not taken a decision
already because it will be folly of me to think that
I was consulted
yet a decision had already been done.
In light of
the above, I would appeal that your office takes this explanation
into account and allow me to remain in Johannesburg
West to complete
the mandate that was given.”
(emphasis added)
This was the full
extent of Ndevu’s response to the meeting of 23 May 2011
at which he was apparently informed
that he had an opportunity to
object to his proposed transfer.
On 25 May 2011,
and before any correspondence from attorneys, to which I will return
later, the department called a
meeting which Ndevu was required to
attend. At this meeting the department informed those present of
Ndevu’s ‘imminent’
transfer and the appointment of
the second respondent, D Macuacua (Macucua) to the post of District
Director, Operations Management.
It appears that a decision had in
fact been made in respect of Ndevu’s transfer.
It appears that
Ndevu and a number of other employees of the department sought legal
advice and consulted attorneys. On 26 May 2011
attorneys
on behalf of Mdevu and a number of other employees wrote to the
department. In this letter the attorneys requested
a ‘withdrawal’
of the decision to transfer Ndevu and the other employees. The
letter also alleged that the department’s
conduct and decision
to transfer the union’s members was ‘without good
reason, proper consultation and hearing’
and was ‘unlawful’.
The attorneys’ letter of 26 May 2011 further claimed
that Ndevu and the other
employees had informed the department that
they did not accept the decision to transfer them and further that
the department
had in fact proceeded to call a meeting in which it
announced the decision to transfer Ndevu and the other employees.
Notwithstanding
the fact that the letter from the attorneys refers
to Ndevu and other employees, by the time that this matter was heard
on 1
June 2011 it was common cause that the other employees,
excluding Ndevu, did not seek to challenge their transfer.
Whilst on the
papers it is contended that Ndevu had objected to his proposed
transfer and that in the face of an ‘unresolved
objection’
the department decided to transfer him, this allegation is not
supported by the facts of the matter. Ndevu in
his letter of 25 May
2011 did not in fact object. His letter of 25 May records quite
simply that, “
in the light of the above, I would appeal
that your office takes this explanation into account and allow me to
remain in Johannesburg
West to complete the mandate that was given
.”
On a plain reading this is not the language of objection. Rather
Ndevu accepts that the department does indeed have the
power to
transfer him and requests that he be allowed to remain in the post.
Accordingly, the claim in the attorneys’ letter
that Ndevu had
informed the department that he did not accept the decision to
transfer him is not supported by Ndevu’s
letter of 25 May
2011 in which he records, in part, what transpired at the meeting of
23 May 2011. Further Ndevu’s
own version as to what
transpired in the meeting of 23 May 2011 does not include
any allegation or facts from which
it can be concluded that Ndevu
had during the meeting of 23 May 2011 objected to the proposed
transfer. My assessment of Ndevu’s
letter does not mean that
he does not have the right to make representations and to be
informed of the department’s response
and attitude to such
representations. However, those aspects do not make this matter
urgent.
Prior to the
launching of this application the department did not respond to the
letter from the attorneys dated 26 May 2011.
It is common cause
that after the transfer Ndevu will remain an employee of the
department. On the papers it is not alleged that
the transfer
amounts to a demotion or that Ndevu’s benefits will be
altered, adversely, as result of the transfer. Other
than a bald
statement as to the transfer having the ‘potential to
adversely impact [his] circumstances’, no case
as to demotion
or other adverse consequences is made out.
Ndevu contends that
the decision to transfer him amounts to a contravention of section
14 of the Public Service Act, 103 of 1994
(the Act). In this regard
Ndevu seeks to rely,
inter alia
, on section 14(4) of that Act
which provides that:
“
14(4)
A member of any of the three branches of the
services
shall not without his or her consent be transferred to a post in the
A or B division, and a member of the Agency or the
Service shall not,
subject to the provisions of any law regulating the service of such a
member, without his or her consent to
be transferred to a post in a
division.”
However, Ndevu’s
reliance, albeit apparently prompted by the department, on section
14 of the Public Service Act is misplaced.
The three branches of the
services as contemplated in s14(4) are defined in section 1(1) of
the Act to mean the Permanent Force
of the National Defence Force,
the South African Police Services and the Department of Correctional
Services. Ndevu is not employed
in any of these services and it is
not proposed that he be transferred to any of these services.
Further, ‘agency’
in section 1(1) of the Act is defined
to mean the ‘agency’ as defined in
section 1
of the
Intelligence Services Act, 1994
. Yet further, ‘service’
is defined in
section 1(1)
of the
Intelligence Services Act to
mean
the South African Secret Service. Accordingly
sections 14(3)(e)
and
section 14(4)
do not apply to Ndevu. In the circumstances the
provisions of the Act as relied on by Ndevu do not point to a right
not to be
transferred without his consent.
The other basis of
the application is an alleged general right to be heard. For the
purposes of determining the matter before
me, it is not necessary to
decide whether Ndevu, on the facts of this matter, has such a
general right. Even he did have such
a general right, that would not
make this matter urgent.
The union and Ndevu
have approached this Court for final relief. Ndevu accepts that is
appointment to the post District Director,
Operations Management was
for a period of 12 months from 1 April 2010 to
31 March 2011 and that thereafter
a decision would be
made. Accordingly Ndevu cannot claim that he has a right to remain
in the post of District Director, Operations.
Further, Ndevu does
indeed have an adequate alternative remedy in that he may, having
exhausted such internal remedies available
to him, approach the
appropriate dispute resolution authorities and this Court in the
ordinary course. Absent a clear right Ndevu
cannot establish proper
grounds for urgency.
Ndevu approached
this Court for final relief and accordingly is obliged to satisfy
the requirements for such final relief which
include a clear right
and the absence of an adequate alternative remedy. The application
must fail at the first hurdle.
Given that the
applicants have not met the requirements for final relief in an
urgent application, the application is dismissed
for lack of
urgency. In the circumstances I make the following order:
The application is
struck off the roll.
The applicants are
ordered to pay the costs.
____________________
VAN VOORE AJ
Appearances:
For the applicants:
Adv Raulefe
Instructed by:
Cheadle Thompson & Haysom Inc
For the respondents:
Adv T Motau SC
Instructed by: The
State Attorney Johannesburg