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[2012] ZALCJHB 122
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Motaung v Department of Education (JS 196/2010) [2012] ZALCJHB 122; 2013 (3) SA 44 (LC); (2013) 34 ILJ 1199 (LC) (15 October 2012)
Reportable
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT OF
SOUTH AFRICA
IN JOHANNESBURG
JUDGMENT
Case
No: JS 196/2010
In
the matter between:
NOMSA
CECILIA MOTAUNG
Applicant
AND
DEPARTMENT
OF EDUCATION
First
Respondent
D
HINDLE
Second
Respondent
MOLAPO
QHOBELA
Third
Respondent
CHIKA
SEHOOLE
Fourth
Respondent
Heard
:
28 - 30 November 2011
Delivered
:
15 October 2012
Summary:
(Unfair discrimination
based on obeying dictates of conscience in relation to the
performance of duties concerning instructions
which might have
entailed flouting a regulatory framework )
JUDGMENT
LAGRANGE, J
Introduction
The applicant in this matter, Ms N
Motaung, who has held the position of Director: Private Higher
Education in the employment
of the respondent, the Department of
Education since 1999. She claims that since 2006, she was subjected
to unfair discrimination
for her refusal to succumb to pressure from
Dr M Qhobela to pay selective or alternatively no attention to the
regulatory framework
governing the private higher education
institutions. She believed that she was being asked not to comply
with legal obligations
imposed on her, and thereby would have been
guilty of misconduct in terms of the Public Service Act, Proc 103 of
1994 (‘the
PSA’), read with Annexure A of chapter 7 of
the Senior Management Service Handbook (‘the SMS Handbook’).
This
would have amounted to misconduct. Unlike most of the disputes
about the performance of an employee’s duties which come
before this court, this case has the unusual distinction that it
concerns an employee who claims to have been prejudiced on account
of her diligence and conscientiousness.
The main prejudicial treatment she
claims to have suffered for obeying the dictates of her conscience
about what she could or
could not lawfully do was the following:
The assignment of her functions to
her supervisor, Qhobela, and thereafter to his successor, Prof C
Sehoole, the fourth respondent
during the period 2006 to 2010,
which she claims was an unlawful divestiture of her functions in
terms of section 32 (1) of
the public service act, 1994 read with
paragraph C. 1 and C. 2. of part one of chapter 4 of the public
service regulations,
2001.
Her performance for the 2008/2009
financial year was assessed as unsatisfactory, owing to the fact
that her supervisor at the
time, Sehoole, could not give a rating
of her performance as a result of her being divested of her
responsibilities resulting
from the reassignment.
The applicant was further denied a
notch increase on the basis of the unsatisfactory performance
assessment.
The department never finalised a
performance agreement with her for the 2009/2010 financial year,
which prevented her from fulfilling
her legal obligations in terms
of paragraph A of part III of chapter 4 of the regulations and
paragraph 8.1 of chapter 4 of
the SMS Handbook, apart from being a
breach of the employers obligation to conclude such an agreement.
Motaung also claimed to have suffered
other forms of prejudice relating to:
unexplained variations in her PAYE
tax rate;
unexplained deductions for medical
aid between January and May 2008;
the failure of the Department to
appoint someone to the position of secretary for the directorate;
the failure of the director general
at the time, Mr D Hindle, to respond to her complaints about a
competency assessment test
in September 2008;
the Director-General's failure to
respond to her complaints about psychological harassment she was
suffering at the hands of
Qhobela in October 2008;
Qhobela’s exclusion of her
from discussions and meetings on the review of Regulations for the
Registration of Private
Higher Education Institutions, and
Sehoole’s unilateral variation
of a previously agreed upon short list of candidates to be
interviewed for the post of
administration officer for the
Directorate: Private Higher Education.
Prior to the matter being set down
for trial, the parties had followed a tortuous route getting there.
I do not intend to set
out in detail the various processes and
applications preceding the hearing of the matter, but will only
mention those that have
a direct bearing on the trial. A substantial
part of the saga of events leading up to trial is set out in a
useful memorandum
prepared for the Judge President by respondent’s
Counsel, Mr Pio in June 2011.
The first matter relates to the
absence of a pre-trial minute signed by both parties. On 2 March
2011, the parties appeared before
Basson J to conclude a pre-trial
minute. It is clear from the following order issued by her that
Basson J understood the parties
to have agreed on a pre-trial minute
on that date, which both parties would then sign. When the first
respondent asked the applicant
for a signed copy of the minutes
which had been concluded before the judge, the applicant disputed
the minute. This prompted
Bassson J to make the following order on 4
March 2011:
"it is ordered that:
The applicant has failed to sign
the pre-trial minutes as agreed upon between the parties on 02 March
2011. The respondent has
signed the pre-trial minutes as agreed upon
between the parties.
The applicant is barred from
proceeding with the matter until such time she has explained in
writing why she has failed to sign
the pre-trial minutes as agreed
upon between the parties on 02 March 2011.
The registrar is directed to place
the explanation before a judge in chambers for a decision or
directive."
Before the applicant filed an
explanation as directed, she first applied to have her version of
the pre-trial minute declared
the correct version of what had been
agreed before Basson J. To complicate matters further, the applicant
also filed an amended
statement of claim, to which the first
respondent took exception. The exception was argued before myself
before the trial proceedings
got underway. Perhaps because of the
further complications caused by the filing of the amended statement
of case, the explanation
provided by the applicant for not signing
the pre-trial minute was never placed before a judge in chambers for
a decision or
directive. In consequence, no decision was ever taken
on what should constitute the pre-trial minute which the parties
agreed
to on to March 2011. However, to some extent that regrettable
omission has been overtaken by the application to amend the state
of
case and SAPO’s exception thereto.
Before hearing evidence, two
preliminary points had to be dealt with. Firstly, the applicant
sought to consolidate another matter,
which had been initiated by
way of an urgent application under case no: J2466/10, with the trial
in this case. Secondly, the
first respondent, the Department of
Education raised an
in limine
objection on the basis that the
applicant’s amended statement of claim did not disclose a
cause of action. Both applications
were dismissed and
ex tempore
rulings were made at the time. For the sake of completeness,
they are repeated below. The applicant subsequently appealed against
the court’s dismissal of the consolidation application.
The application to consolidate
case J2466/10 with this matter
On 9 December 2010 the applicant
launched an urgent application for further relief. Firstly, she
sought a declaration that the
reassignment of her functions was an
act of unfair discrimination in terms of section 6 (1) of the
Employment Equity Act, 55
of 1998 (' the EEA’) and that the
department's failure to finalise a performance agreement with her
for the 2010/2011 financial
year was unlawful. Further, she wanted a
declaration that certain statements, which were uttered by senior
figures in the Department
purporting to explain the failure to
conclude the agreement, to be unlawful and defamatory. In addition
she asked for an order
compelling the department to advise her in
writing of the reasons why the performance agreement had not been
concluded and compelling
it to restore to her all her functions and
responsibilities. The applicant also requested the court to order
the department to
furnish her with a written report of the measures
it would take to ensure that she would not be prejudiced in the
performance
assessment be conducted for that financial year or in
the application of pay progression to her. Lastly, she wanted the
respondent
to be ordered to arrange an inspection of her office and
equipment by energy experts to determine if she was being subject to
excessive radiation which might have caused her to display symptoms
of illness since the beginning of September 2010.
When the matter came before court on
the urgent role on 14 December 2011 it was struck off the roll for
lack of urgency. Since
the merits of the application were not
determined, the applicant decided to apply to consolidate that
application with these
trial proceedings. My ruling on that
application is set out below.
“
The
applicant has applied to consolidate an amended application brought
under case number J2466/10, together with case number JS196/10.
This
application arose out of an alleged continued discrimination of the
applicant since the establishment of the Department of
Higher
Education.
The respondent did not respond to
the amended application, but opposes the consolidation of this matter
with the trial proceedings.
Since this application was originally
dismissed for lack of urgency, the applicant did not refer a dispute
to the CCMA about the
alleged unfair discrimination by the Department
of Higher Education. She also did not set the application down on the
ordinary
motion roll for determination as an application.
I appreciate that the applicant may
have been ill-advised in the way she has proceeded with this matter.
However, the court’s
jurisdiction to entertain this dispute
with the Department of Higher Education as a matter for trial, is
non-existent.
In order to determine a dispute of
unfair discrimination under the
Employment Equity Act 55 of 1998
, a
dispute must first be referred to conciliation and then referred to
this court in the form of a statement of claim. Without
been referred
to conciliation, this court has no jurisdiction to entertain the
dispute in terms of
section 10
of the
Employment Equity Act as
a
matter for trial.
Accordingly, I have no power to
consolidate this matter with the trial proceedings in JS196/10 and
the application for consolidation
is dismissed. No order is made as
to costs.”
First respondent’s
exception to the applicant’s amended statement of case
My
ex tempore
decision on the
first respondent's exception to the applicant’s amended
statement of case read as follows:
“
a. The
applicant in this matter has referred to a claim of unfair
discrimination in terms of the employment Equity act 55 of 1998
to
this court. The respondent has taken exception to the claim on the
basis that it does not disclose a cause of action in one
or more
respects.
b. The parties had concluded a
pre-trial minute
1
and in terms of the pre-trial minute the respondent reserves its
right to proceed with an exception to the applicant's claim. The
basis of the exception is threefold. Firstly the respondent argues
that in order to succeed with the claim of discrimination under
the
EEA the applicant must allege and prove she's been subjected to
differential treatment which it claims she has not done in
her
statement of claim. Secondly, it argued that the applicant's claim
about the basis on which she was unfairly treated is her
belief about
the proper interpretation of the regulations governing her work. The
respondent argues that the applicant's belief
about the correct
application of those regulations is a matter of opinion and is not
the type of belief which is protected by the
prohibition against
unfair discrimination in
section 6
(1) of the EEA. Thirdly, the
respondent objects to the applicant's claim on the basis that she
also refers to it as an unfair labour
practice in her statement of
claim.
c.The applicant claims that she was
denied certain entitlements to performance evaluations and notch
increases which would have
followed from those evaluations and the
conclusion of a performance agreement. The reason she claims she was
subject to this treatment
she explains as follows in her amended
statement of claim:
"... I am now of the firm
impression that the events described under 13.1 and 13.2 above are
not isolated incidents but elements
of a broader campaign of
harassment and/or unfair discrimination dating back to at least 2006.
As stated under paragraph 14.2,
I am of the view that the campaign
was unleashed after I questioned an approach propagated by Dr
Qhobela, which sought to place
pressure on the directorate to pay
selective, or no attention, to the regulatory framework for the
private provision of higher
education. I resisted this approach
because I believed that, as a civil servant, I was under a legal
obligation to comply with
the provisions of the Public Service Act:
Annexure A of chapter 7 of the SMS handbook deems an SMS member
guilty of misconduct
if he or she fails to comply with, or
contravenes an act, regulation or legal obligation. I thus view the
unlawful reassignment
of my functions as Director: Private Higher
Education, the rating of my work performance as unsatisfactory in
2008/2009 financial
year, the consequent denial of a notch increase
in the non-finalisation of my performance agreement for 2009/2010 as
unlawful actions
affected for no reason other than to subject me to
harassment and/or unfair discrimination for my belief and/or the
dictates of
my conscience that, as a public servant, I am required to
comply with the provisions of the public service act. The court
should
do is find the said actions as an intentional contravention of
section 6 (3) read with six (1) of the
Employment Equity Act."
d
. In short, the applicant is
claiming that because she followed the dictates of her conscience or
her belief that she was required
to comply with the provisions of the
Public Service Act and that she was treated in a variety of
prejudicial ways by the respondent,
which amounts to unfair
discrimination on the grounds of conscience or belief in terms of the
EEA.
e.The primary question is whether
the interpretation of ‘conscience’ and, or alternatively,
‘belief’ in
the EEA includes the type of belief or
conscientious objection which the applicant claims she was motivated
by to refuse to apply
the regulatory framework less rigorously as
demanded by her employer. The applicant’s belief in this case
is a belief that
the statutory framework governing the performance of
the employee’s duties must be complied with. On the question of
conscience
the applicant is saying that her conscience will not
permit her to perform her responsibilities in a way that deviates
from the
requirements of the statutory framework which would amount
to an act of misconduct.
f. Both in the EEA and in section 9
(3) of the Constitution of the Republic of South Africa, act 108 of
1996 (' the Constitution')
conscience and belief follow closely on
the heels of religion in the list of prohibited grounds of
discrimination . In the commentary
by the authors of Constitutional
Law of South Africa, the following is stated in relation to
discrimination on the basis of religion,
conscience and belief:
"protection against discrimination on the basis of religion
includes protection of individual and group
identification with
particular religion as well as practices and beliefs in terms of that
religion. Belief and conscience may extend
to moral or other value
systems part of, or separate from, faith-based systems of religion.
Discrimination on the basis of conscience
might result where a person
is required by law to do something that contradicts their values or
ethics."
g. There is regrettably no case
authority I was able to find which has dealt with the interpretation
of the concepts of conscience
or belief in a legal context. Black’s
Legal Dictionary defines conscience in the following terms: “1.A
moral sense
of right or wrong especially a moral sense apply to one's
own judgement and actions. 2. In law, and the moral rule that
requires
justice and honest dealings between persons.”
h. The shorter Oxford English
dictionary identifies one meaning of conscience as: "a moral
sense of right or wrong; a sense
of responsibility felt for private
or public actions, motives, et cetera; the faculty of principle that
leads to the approval of
right thought or action and condemnation of
wrong." It also describes belief: in the following terms: "1.
Trust, confidence;
faith... 2. Mental acceptance of a statement,
fact, doctrine, thing, etc., as true or existing... 3. The thing
believed; a proposition
or set of propositions held to be true; a
religion; an opinion or persuasion."
i. I have some difficulty in
identifying a belief in the importance of strict adherence to
regulations as being the kind of belief
that was intended to be
protected by the prohibitions against unfair discrimination. If one
is to distinguish between the conscience
and belief, it seems that
the latter involves some attachment and commitment to the truth of
some fundamental proposition or set
of propositions, that also entail
certain moral precepts, whereas conscience does not seem to
necessarily entail adoption of a
belief in certain truths, but does
entail a deeply held conviction about what is morally right or wrong.
j. I am satisfied that it is
possible for the applicant to claim that she was unfairly
discriminated against on account of acting
according to the dictates
of her conscience.
k. The respondent claims that the
applicant has failed to demonstrate differential treatment. The
respondent is claiming that the
applicant has failed to show that she
has been treated differently to other employees. I agree that in
claims such as claims for
unfair discrimination between men and women
in the payment of remuneration, it would be necessary for the
applicant to make out
a case that mean in the same job grades were
paid more than women. In such cases the need to establish the
existence of comparators
to show the differentiation in treatment is
obviously essential to the claim. However where a woman claims to
have been subject
to sexual harassment, it is not necessary for her
to demonstrate that men are not subject to the same harassment in
order to succeed
with a claim of unfair discrimination. I believe the
same principle applies in this instance accordingly, it is not
necessary for
the applicant to have made out a case that other
employees who refused to comply with the regulations because of the
dictates of
their conscience were not prejudiced in order to make out
a claim of unfair discrimination on the basis of conscience.
l. In the circumstances, the
respondent’s exception is dismissed. No order is made as to
costs.”
The regulatory framework
governing Private Higher Education Institutions
Before turning to the evidence, it is
useful at this point to outline some of features of the regulatory
framework governing private
higher education institutions.
The overarching legislation governing
the functions performed by the applicant directorate is the Higher
Education Act, 101 of
1997 (' the HEA'). Amongst other things,
chapter 7 of the HEA provides for the registration of private higher
education institutions.
Section 51 of the HEA prevents any
unregistered private body offering higher education. Sections 52 to
64 deal with the registration
process and appeals against decisions
of the registrar of private higher education institutions. The
Director-General is designated
as the Registrar in terms of section
50 (1) of the same act. The basic requirements for registration
stipulated by the HEA are
set out in section 53 of the act, which
permits the registrar to register an institution if the registrar
has reason to believe
that:
it is financially capable of meeting
its obligations to students;
it will maintain acceptable
standards in all the programs it offers;
it will comply with the strictures
of the higher education quality committee, and
with any other reasonable
requirements prescribed by the Minister.
Section 54(1)(c) of the HEA permits
the Registrar to register the institution if the requirements of s
53 have been fulfilled.
In terms of section 64 of the HEA an
appeal against any decision of the registrar can be made to the
Minister. The registration
requirements of the Act are supplemented
by regulations published by the Minister under
Regulation
No. R1564 of
Government Gazette No.
24143
dated 13 December 2002. These
regulations substantially expand the requirements that must be met
by a private institution seeking
registration. Amongst other things
the regulations also limit the time periods within which fresh
applications may be made. For
example, regulation 7 provides that:
"7. Subsequent application for
registration
(1) An applicant that
has withdrawn an application in terms of regulation 6(1) may submit a
subsequent application to the registrar
not less than 12 months after
the date of withdrawal.
(2) An applicant
whose-
(a) application has
been denied other than in terms of regulation 16(6); or
(b) provisional
registration has lapsed; or
(c) registration has
been cancelled
may submit a
subsequent application not less than 36 months after the date of
denial, lapsing or cancellation respectively.
(3) A person whose
application has been denied in terms of regulation 16(6) may submit a
subsequent application not less than 60
months after the notification
of such denial of registration has been issued by the registrar.
(4) Despite (2) a
person who has been found guilty of an offence in terms of section 66
of the Act may submit a subsequent application
not less than 60
months after paying the fine or serving the term of imprisonment as
the case may be.
(5) Regulation 3 applies to the
submission of a subsequent application.”
Also of relevance to this matter is
Regulation 6(1) which provides that:
“
An
application made in terms of regulations 3, 4 or 5 may be withdrawn
by notice in writing to the registrar, but no notice of withdrawal
is
valid if it is submitted after the registrar has notified the
applicant in writing of the result of the application.”
Lastly, Regulation16(1)(a) states
that:
“
16.
Determination of an application
(1) The registrar
must consider
and determine an application for registration
-
(a)
in accordance with section
54 of the Act and these regulations
;
(b) at least six months before the
applicant intends to commence operations.
(2) In determining the application
of a foreign applicant, the registrar must independently verify the
information contemplated
in regulation 14(a).
(3) In determining an application,
the
registrar must consider
-
(a) all the information and
declarations provided by the applicant and any other relevant
information;
(b) the advice of the HEQC on the
applicant’s application for accreditation;
(c) whether, if registered, the
applicant in all its higher education programmes will maintain
acceptable standards that are not
inferior to standards at a
comparable public higher education institution;
(d) whether, if registered, the
applicant in all its higher education programmes will comply with the
requirements of the HEQC in
terms of section 53(1)(b)(ii) of the Act;
(e) whether the applicant has
met all other relevant requirements of the Act
;
(f) a determination by the Minister
relating to the scope and range of operations of institutions in
terms of section 3(3) of the
Act;
(g) the distinction between a
foreign juristic person and a local juristic person in terms of
section 54(1)(b) of the Act;
(h) the proposed programmes and
qualifications and the respective sites where they are to be offered;
(i) section 54(3) and (4) of the
Act concerning provisional registration;
(j) section 60 of the Act
concerning conditions attached to registration or provisional
registration;
(k) regulation 21 concerning the
registration name;
(l)
the rights of the general
public, the students and the applicant
; and
(m) the interests of the higher
education system as a whole
.
(n) any other requirement
prescribed by the Minister in terms of section 53(1)(c) of the
Act....”
The evidence
Only the applicant and her current
supervisor, Chief Director M Mabizela, gave evidence. Mabizela was
initially appointed in an
acting capacity from 1 December 2010 and
his appointment was made permanent from 1 June 2011. He therefore
had no direct knowledge
of what transpired between Motaung and her
previous supervisors, Qhobela and Sehoole. The salient portions of
their testimony
are set out below.
Motaung confirmed that Qhobela, the
deputy Director-General for higher education, had been her
supervisor until 2008, when he
was replaced by Sehoole.
In 2002/2003 and 2003/2004 financial
years the applicant's performance appraisal rating was 72.9% and 81%
respectively, for which
she received a notch increase and a cash
merit bonus. Those performance assessments were conducted by a
former supervisor Director-General
T D Mseluku. The next performance
appraisal for the 2004/2005 financial year was conducted by Mr D
Hindle, who was the acting
Director-General. Consequently Motaung
also received a notch increase on that occasion.
The first hint of a problem occurred
following the performance appraisal for the 2005/2006 financial
year. Although her performance
was assessed at the rate of 73% she
was advised that she did not qualify for a notch increase. It was
only when she challenged
this decision at ministerial level that it
was reversed. Despite her misgivings about that anomaly, in the
2006/2007 financial
year she was advised that her "performance
has been rated as very good and you have received a 103% performance
rating."
She also received a notch increase with effect from 01
April 2007 as a result of that evaluation conducted by Hindle. This
was
repeated in the performance assessment for 2007/2008 in which
she received 100% rating and was awarded a notch increase, also by
Hindle.
On 2 April 2009, Sehoole gave the
applicant and undated letter from the Director-General, Hindle,
advising her that her work performance
for the 2008/2009 financial
year had been rated unsatisfactory and as a result she did not
qualify for a notch increase.
The applicant referred to a letter
written by Qhobela on 11 December 2006 in which he raised his
concerns about the approach she
was taking to the work in her
directorate. At this juncture, it should be mentioned that the
applicant accepted that the function
of her directorate was to
provide administrative support to the Director-General of the in the
performance of his functions as
the Registrar of Private Higher
Education Institutions. The letter referred to numerous discussions
on the issue then state:
"I am sure you will recall
that on numerous occasions, I have informed you that the purpose of
the work of the directorate
to support the Director-General in
regulating the provision of private higher education institutions.
This task in part involves
using positively the enabling legislation
and not merely to find fault with each application that is submitted,
and therefore find
reason not to register the applicant. You are
aware that I have returned a significant number of evaluations from
your office as
a consequence. I have on numerous occasions also
indicated that the distance between us and thus with the
Director-General, regarding
your approach towards the work of the
directorate is untenable and could lead to loss of confidence and
judgement.
It is against this background that
felt it necessary to write to you formally about your attitude
towards the evaluation of a number
of submissions. As discussed, I
noted your report dated 12 October regarding applications for
registration for TSIBA Education,
FEDISA and the Institute for
Advanced Studies. On numerous occasions I have reminded you that you
do not make decisions about the
registration of institutions. Why he
acknowledged this fact, you continue to refuse to evaluate the
applications of the above institutions.
Please note this letter is an
instruction to you to ensure that the evaluations of the above three
institutions reach the Director-General
for 15 December 2006, as the
department will close on that date."
The applicant wrote a formal reply to
this letter on 14 December 2006. In her reply she expressed surprise
that previous meetings
had been described as ones concerning her
attitude, rather than concerning substantive issues. She disputed
the claim that she
refused to evaluate the applications of the
institutions in question and referred to what she had stated in a
previous report
dated 12 October 2006 namely:
"1) Registrar of Private
Higher Education Institutions declined the initial application for
registration as a private higher
education institution submitted by
Tsiba Education on 27 September 2005. Tsiba Education did not follow
due process and submit
an appeal. It instead submitted a second
application on 22 June 2006, which the Directorate Private Higher
Education returned to
the institution on 17 July 2006, in accordance
with the Regulations. In terms of regulation (2), Tsiba Education can
only reapply
for registration in 2008. On 16 August 2006, the
institution submitted the application under discussion.
This further application for
registration submitted by Tsiba Education has as yet not been handled
due to lack of clarity on what
provisions of the
Higher Education Act
and
the Regulations would apply to its handling. Under consideration
must also be how any kind of departure from implementing legislation
as it stands should be interpreted against the background of the
Public Service Act of 1994 and the Public Services Regulations
which
lists [a] "failure to comply with, or contravene an act,
regulation or legal obligation" by a public servant as
an act of
misconduct.
2) The Registrar of Private Higher
Education Institutions declined the initial application submitted by
the Institute of Advanced
Studies on 11 October 2005. The institution
submitted an appeal which the Directorate duly processed. The
institution then withdrew
the appeal and has indicated it wishes to
submit an application. The same considerations as applies to the
further application
submitted by Tsiba Education would apply to a
further application by the Institute.
3) Subsequent to the decline of the
appeal lodged by FEDISA CC on 28 March 2006, the HEQC sent the
institution and accreditation
report granting the institution
accreditation for the programs it wished to offer.
Two issues arise, however. The
first is the same issue that has been outlined above with respect to
the further applications by
Tsiba Education and the Institute for
Advanced Studies. The second is that, in my own recollection as a
member of the Accreditation
Committee, the Committee has not approved
the accreditation for the program (s) that the institution had
applied for. I raised
the latter matter with Mr Theo Bhengu of the
CHE. He said that he was going to look into the matter.
The feedback obtained by the
director from Mr Theo Bhengu is that the HEQC concedes that the
Accreditation Committee did not grant
the institution accreditation.
The minute writer however failed to capture this decision in the
committee’s minutes; the
minute states that the institution was
granted accreditation. However, the strategy agreed on in discussion
with Ms Mala Singh
and Professor Africa was that the accreditation
should not be withdrawn, as the institution was already informed in
the minutes
were adopted."
The applicant agreed that it was the
registrar’s responsibility to take decisions on applications
by private education institutions
but she expressed her concern
about the issues raised by the applications of the institutions
mentioned above. Motaung did not
see it as finding fault with the
applications in order not to register the applicants, but believed
that in order to achieve
the transformative intentions of the EEA,
the provisions of the Act had to be adhered to. In her letter she
recorded that Qhobela
had refused to discuss the relevance of
Regulation 7 to the fresh applications for registration made by the
institutions referred
to.
Despite her misgivings, the applicant
accepted that Qhobela, as her line manager, had the prerogative to
issue a written directive
to her directorate to disregard regulation
7 and, in the case of Tsiba Education, also section 64 of the Act,
so that they could
proceed to evaluate the application despite those
provisions. She said she asked him to do this in order to avoid any
confusion
in the future about whether or not she had refused to take
an instruction. However, Motaung’s superiors were not prepared
to clarify matters in this way. Under cross-examination, it was put
to her that she was not asked to mislead the Director-General
by
proceeding with the evaluation, but Motaung was adamant that
processing the application would have required her to act in
a
manner inconsistent with the regulatory framework. Mabizela
confirmed the department's view that Motaung was entitled to make
her comments in the recommendations to the registrar, but should
have processed the application and forward it to his predecessor.
In relation to the Tsiba Education
application, Mr Pio presented the applicant with two letters from
Tsiba Education. The first
dated 3 November 2005 indicated that
Tsiba Education had applied for registration as a private higher
education institution in
error in the belief that because it was
offering the degree programme of CIDA City Campus it had to
register, whereas what was
actually required was for CIDA City
Campus to amend its own registration so that it could have an
additional site for delivery
of its degree programme. Accordingly,
it requested the department to expunge the previous application made
in error. The second
letter dated 3 August 2006 was a fresh
application for registration of Tsiba Education as a private higher
education institution.
It records that the Director-General had
agreed to sanction the submission of the application before 36
months have elapsed since
the last application so that Tsiba could
start operating from January 2007.
Mr Pio put to the applicant that the
policy of the Department was to apply a ‘liberal approach’
to the registration
of such institutions, as suggested in the letter
addressed to her by Qhobela in December 2006. Motaung said she was
not aware
of such a policy and could only deal with the applications
in terms of the framework. It was further suggested to her that even
though Tsiba Education’s second application, which was made in
2006,was less than three years since the original erroneous
application, it ought to have been granted registration in the
spirit of encouraging registration of such institutions if proper
consideration was given to the erroneous nature of the first
application. Motaung said that it could be difficult to do that
and
added that Qhobela returned almost every submission she sent to him.
When it was her turn to cross-examine Mabizela, the
latter agreed
that the legislation and regulations made no provision for dealing
with applications made in error. She further
put to him that nothing
had prevented Tsiba Education from appealing the decision on the
basis of the same error, which he conceded
they could have done. She
further suggested that it would create an intolerable situation in
administering such applications
because it was necessary for the
people in her department to know how to evaluate an application. If
they had to do so using
the exercise of their discretion it could
make things very difficult and inconsistency would develop. Mabizela
persisted, saying
that the duty of Motaung’s directorate was
simply to advise the Director-General as to why the application
should be refused
or granted.
From the Department’s
perspective it saw the conflict between Motaung and her superior as
simply a difference of opinion
about how the Act and regulations
should be implemented, and that the applicant should have accepted
that this was the case and
allowed her superior’s opinion as
to the proper way to implement the provisions to prevail.
Under cross-examination, Motaung
elaborated on the role performed by her directorate in evaluating
applications for registration
of private higher education
institutions. Her directorate would process an application and
evaluated it for its accuracy, whether
it met the requirements for
registration, and whether the information in the application was
correct. Once the pre-requisites
were met then the recommendation
would be made to grant registration. If the pre-requisites were not
met, the directorate would
write to the institution to say what
needed to be completed. The Registrar would not be involved at this
stage. Once the institution
had been given an opportunity to correct
anything in the first stage then the application would be evaluated,
and a recommendation
made to the Director-General with all the
relevant information attached so that he could make a decision as
the registrar whether
or not to proceed with the registration.
The recommendation and evaluation
took place in terms of the regulatory framework, which had been
discussed and agreed on in the
Department and which Qhobela had in
fact drafted. Motaung said she never refused to process an
application. The problem with
the three applications in question
from the institutions mentioned was that they should never have been
tabled as subsequent
applications in terms of regulation 7. Under
cross-examination, it was put to her that Qhobela was entitled to
tell her to continue
to evaluate and submit the applications, to
which she agreed, save only that because of the problems with the
applications she
asked that the instruction be in writing. Motaung
pointed out that it would be pointless to evaluate an application
that would
not be approved in terms of the regulations. While
Motaung accepted that the registrar had to take the decision, she
could not
see the purpose of performing an evaluation of an
institution that should not to be registered in terms of the act or
the regulations.
Thus, in the case of Tsiba Education, it could not
reapply for registration until 2008 in terms of Regulation 7. The
correct
procedure in terms of the HEA was that it should have
appealed against the decision.
Motaung then testified about the
disadvantages that she believed she suffered as a result of her
obstinacy on the question of
regulatory compliance. She then gave
evidence of letters she had written to the Chief Director: Personnel
Administration and
Development, Mr A Schoeman, complaining about the
variations in PAYE levied on her salary in April, August and
December 2007.
She was dissatisfied with the explanation given for
the source of the increased tax deduction. Likewise in the same
letter she
complained that an amount of R1700 per month was deducted
from her basic salary as a medical aid contribution from January to
May 2008, when her contribution ought to have been R 988 per month.
However, she could not be sure that it was never rectified,
or why
Schoeman would have been involved in a campaign to prejudice her.
What made her suspicious was that these apparent anomalies
had
happened in the first place for no clear reason during periods when
there were no other adjustments to her salary. She agreed
that
Schoeman had subsequently written a letter responding to her
queries.
Motaung also testified about the
vacant senior secretary’s post in the Directorate which he had
mentioned in her grievance,
though the grievance was not part of the
bundle. Although she drafted the advertisement and forwarded it to
her superior the
post was never advertised. Since there was no valid
reason why that should be the case, Motaung believed that it was
part of
the campaign to make her work difficult.
In August 2008 the applicant was
subjected to a competency based assessment conducted by Deloitte and
Touche. She testified that
such assessments are important
evaluations because they are required by the Department of Public
Service and Administration and
are available for scrutiny by anyone
else in government, for example someone considering a job
application by the member concerned.
A bad report could therefore
hinder someone's career progression in the public service. Schoeman
was unable to advise her how
to challenge the assessment. She then
lodged detailed objections to the report, which, judging from a
letter seemed in the main
to characterise her as merely ‘competent’.
The letter was directed to Hindle, who never responded directly to
on
the issue.
When Motaung did not get a response
she wrote to Hindle again on 31 October 2008 setting out the
difficulties she was having in
accepting instructions from Qhobela
and his then deputy Sehoole which required her to disregard the
legislation relating to the
evaluation of applications for
registration and the monitoring of registered private higher
education institutions. In that letter
she also complains how
Qhobela had barred her from carrying out the responsibilities such
as attending Higher Education Qualification
Committee accreditation
meetings and meetings to discuss amendments to the regulations.
Staff in her section no longer took instructions
from her, but only
took instructions from Qhobela and Sehoole.
If the applicant had hoped for a
constructive response from the Director-General that was not to be:
Hindle's response was terse
and dismissive. Without responding to
any of her detailed concerns or expressing any view on whether or
not it was appropriate
for Qhobela and Sehoole to run the
directorate, he noted:
"It is for me a matter of
regret that your time at the Department appears to have been
characterised by ongoing disagreements
with your supervisors, and
their track record and delivery, resulting in your being moved
through a number of offices."
Hindle was clearly not prepared to
intervene, despite the serious implications of some of her
complaints, and simply advised Motaung
to follow formal dispute
procedures if she wished to take the matter further, but he
cautioned her that such a process would
expose her "departmental
history of conflict and non-performance".
On 23 April 2008, Motaung launched a
detailed formal grievance summarising the prejudicial treatment she
was suffering and the
supposed motivation behind it. Shortly before
that, at the end of March 2008, she submitted a comprehensive 50
page document
entitled Draft Evaluation Report on the Implementation
of the Regulatory Framework Governing the Private Provision of
Higher
Education from 1997 to Date, to Qhobela, Hindle and the
Minister of education, Dr GNM Pandor. The report had been prepared
at
the request of the Minister. In the space provided for the
signatures of Qhobela and Hindle neither of them commented on the
report other than Qhobela who merely said that it was “a
detailed and frank personal report by Mrs Motaung”. The
handwritten comments from the Minister's office are not entirely
legible but it is clear at least that her office identified the
report as containing several matters requiring attention and some of
the case studies mentioned suggested consideration of policy
interpretation by the Department was needed.
While the report was critical of the
registration of a number of institutions, it is relatively
dispassionate and places the difficulties
created by such
registrations squarely on the table. It suffices to cite just two
examples from the report.
The CTI Education Group (Pty) Ltd was
registered under the name Computer Training Institute (CTI) in 2004.
However in July 2007
a company by the name of Computer Training
Institute (Pty) Ltd lodged an application to change its name to CTI
Education Group
(Pty) Ltd. No proof of such change of the letter
companies registered name was provided by the registrar of
companies. The applicant
pointed out that the computer training
Institute (Pty) Ltd was reported as being in the final liquidation
according to the CIPRO
database. She then rightly raises the
following questions. Which is the Computer Training Institute (Pty)
Ltd that was registered
by the Department of Education in 2004? Is
it the company registered in 1998 and currently shown on the CIPRO
database which
was under liquidation, or the company supposedly
registered in 2000 but which appeared to be non-existent on the
Cipro database.
Motaung continued "The papers submitted by the
institutions suggest That CTI Education Group (Pty) Ltd is a change
of name
from the seemingly non-existent Computer Training Institute
(Pty) Ltd. If This [is] the Case, the standing of CTI Education
Group
(Pty) Ltd as a legally constituted company is brought into
question.”
Motaung went on to question why these
issues were not raised in the evaluation of the application for
amendment and pointed out
that the possibility existed that the
department had registered a private higher education institution
which had ‘no constitution’.
In this reqard, it is
noteworthy that the registrar is bound by Regulation 19(1)(d) to
de-register an institution that is liquidated,
and also under
Regulation 19(1)(a)(ii), if an institution ceases to meet
eligibility criteria such as being an entity registered
under the
Companies Act.
A second more general example cited
in Motaung’s report concerned the failure of Qhobela to refuse
applications, despite
recommendations to do so, when company
registration papers did not feature the seal of the registrar of
companies, which was
a pre-requisite for a valid certificate of
incorporation. In the light of the regulations, Qhobela’s
approach did not merely
reflect a difference of opinion, but went
directly to the question of whether or not the peremptory
eligibility requirement of
incorporation had actually been met.
When questioned why she had referred
the matter to the Minister, Motaung said that she saw that as a
collegial way of trying to
resolve the conflict with her supervisor.
Mr Pio suggested to her that she was a difficult person and that she
fought with everyone.
He alluded to the paragraph mentioned above in
Hindle’s response to Motaung’s grievance. Motaung
pointed out that
the statements made by Hindle were completely at
odds with her previous performance assessments and that she had
challenged the
assertions made in that letter. She agreed that both
Sehoole and Qhobela had since resigned from the Department. She was
asked
whether she saw her new superior, Mabizela, or as part of the
campaign against her. She answered that she only saw him in this
light to the extent that her performance agreement had still not
been finalised despite there being an obligation on the Department
to do so. Motaung defended the fact that she had not been at work
since April 2009 as something beyond her control because when
she
went to the office there was nothing for her to do following the
reassignment of her functions. She had submitted a draft
performance
agreement which would have defined her functions for the year, but
she could not assume those tasks without the employer
concluding the
performance agreement.
Importantly, the employer did not
dispute that it had removed her functions from her, but Mr Pio
suggested that she should instead
have been disciplined. Motaung
vehemently disputed this contention because she said she had never
refused to do her work, but
she could not see how she could perform
functions falling outside a performance agreement relating to her
directoral functions.
Motaung argued in reply that the reason
Qhobela did not take any steps against her was because she knew he
was correct.
In justifying her failure to accept
the department’s earlier offer of a restoration of her duties
in March 2011, Motaung
said that the offer did not acknowledge the
unfair treatment she had been subjected to. She also said that she
regarded all her
letters of complaint about the reassignment of her
functions and the referral of disputes to the bargaining Council as
attempts
to mitigate the fact that she was not working, but the
Department had not been prepared to settle at that stage. She
disputed
that matters were resolved now that she was working under a
new manager, because she still did not have a performance agreement
and he wanted to assign functions which did not fall under her
responsibilities in her directorate. His instructions were not
in
line with the department’s offer to restore her to her
previous role. It was obvious from her cross-examination of Mabizela
that her underlying concern was that if she acceded to working on
tasks unrelated to the core responsibilities that this would
amount
to capitulating to the reassignment of her functions. She felt she
was entitled to approach the court given the unwillingness
of the
Department in addressing her complaints.
It was suggested to her more than
once that, in terms of the SMS Handbook, her superior was entitled
to assign her other duties.
Mabizela also believed that there was
such a provision in the handbook but also could not identify it. He
complained that in
2011 although he tried to conclude a performance
agreement with Motaung so that he could assess her she would not do
so. In fact
Motaung identified the elusive provision when she was
questioning Mabizela. It is not in the SMS Handbook but is s 32(1)
of the
PSA, and reads:
“
32.
Assignment of other functions to officers and employees.—An
executing authority or the head of a department, branch, offic
e or
institution may direct any officer or employee under his or her
control temporarily to perform duties other than those ordinarily
assigned to such an officer or employee or appropriate to the grade,
designation or classification of his or her post, and he or
she shall
comply with such a direction.”
Motaung admitted that she had
originally referred to complaints as an unfair labour practice to
the bargaining Council and had
been wrongly advised by Bargaining
Council staff to characterise her complaint as a unilateral
variation of terms of employment
in terms of section 64 of the act,
which the council declined to arbitrate. Mr Pio referred the
applicant to Chapter 6, paragraph
8.4 of the SMS Handbook, which
states:
“
Senior
managers may also complain to the Public Protector
Provincial Public Protector, the
Public Service Commission or the
Auditor General where they believe
that a department has acted
wrongly in its decision-making or
actions.”
Motaung claimed not to have been
aware of that provision and that in any event it did not address her
claim of unfair discrimination.
She also pointed out that the
department itself did not even address her internal grievance, and
these mechanisms involved third
parties.
In support of a claim of what she
ought to have received had she been properly assessed in the
2008/2009 and the 2009/2010 financial
years she produced a letter
issued by the Director-General on 24 March 2011 which showed that
between April and the end of December
2009 she would have earned R
7,461-00 and more, from January to the end of March 2010 she would
have earned R 2,636-25 more and
between April and the end of
December 2010, she would have earned a further R 16,158-75. The
letter also contained calculations
for part of 2011.
It must be mentioned that the
Department reiterated its offer of reinstating the applicant to her
previous functions with immediate
effect and to compensate for any
financial loss she may have suffered. However, even though the
applicant conceded that this
proposal was not insignificant, she
felt it did not take account of the emotional distress she had
suffered of working in a hostile
environment since 2006 and would
not have addressed her concern that she had been discriminated
against for her actions. She
felt that the Department would be
accommodating her on its own terms if she simply accepted the offer
to return to work.
Evaluation
The essence of this case concerns
whether or not the applicant was prevented from performing her
normal work because she had refused
to be party to flouting the
regulatory framework governing the registration of private higher
education institutions, which she
felt would have been morally wrong
as a civil servant and would have entailed her committing misconduct
in terms of he PSA.
The Department maintains that because
it was the Director General in his capacity as the Registrar, who
took the decision on registrations,
she was not required to do
anything untoward by evaluating what might appear to be a defective
application and submitting it
to him through her supervisor, the
Deputy Director General.
Firstly, it must be said that in
respect of the three objections she raised that gave rise to the
sharp disagreement with Qhobela
about what she was required to do,
it seems that in terms of the regulations it would have been
irregular to grant the relevant
institutions the registration that
they sought in the circumstances. Thus in the case of Tsiba
Education, it is not really a
matter of dispute that it was allowed
to make a fresh application for registration sooner than permitted
by the regulations,
without having appealed against the original
decision. Granted, an appeal against a decision declining
registration might have
been difficult to pursue since the relief
sought by Tsiba Education in 2005 would not have been to overturn
the refusal to grant
registration, but to have the application
expunged, which is actually a different kind of application rather
than an appeal.
On the other hand, Regulation 6(1) does not permit
the withdrawal of an application once a decision had been taken.
What the
Tsiba Education case pointed to is a difficulty in the
regulations, which provided no appropriate avenue for obtaining the
relief
it sought, except the somewhat artificial one of an appeal.
These difficulties suggest to me that the applicant’s concerns
about the lawfulness of considering a fresh registration application
from Tsiba without it having appealed the original decision
were not
ill-founded and she might well have formed the
bona fide
belief
that if she evaluated the applications notwithstanding
non-compliance with regulations it would entail her tacit complicity
in advancing an application that could not be granted.
In the case of the Institute for
Advanced Studies, there was no evidence led to suggest that the
reason for its premature second
application could be justified on
similar grounds to that of Tsiba Education. In the case of FEDISA,
there was also no evidence
led to show that it’s
non-compliance with time frames for applications was justified.
It is clear from the provisions of s
54 of the HEA that the registration decision rests with the
Registrar and in making the decision
there are a myriad of factors
he or she is required to consider. However, it is also clear from
regulation 16(1)(a) read with
s 54(1)(c) of the HEA, that
registration may not occur if the requirements for registration are
not met which includes compliance
with reasonable requirements
prescribed by the Minister under s 53(1)(c). In turn, such
requirements must include reasonable
requirements for registration
set out in the regulations. It was never suggested in this matter
that any of the prescripts in
the regulations affecting registration
were unreasonable, even though some of the applications have
revealed there may be some
flaws in them. Thus, even if there might
be an argument made that consideration of other provisions of s 54
of the HEA might
bestow some discretion on the Registrar to register
a PHEI despite non-compliance with some formalities in the
registration application
pre-requisites, there was a good basis for
Motaung believing the requirements in the regulations were
prescriptive. The argument
advanced by the Department was simply
that because Motaung did not have to take the decision on
registration, she should not
have refused to process applications
that did not comply with the regulations, without a written
instruction to do so despite
those problems.
Consequently, it was not unreasonable
of the applicant to ask for an assurance in writing that she could
process the application
notwithstanding her possible involvement in
non-compliance with the regulations. This situation could have been
avoided if her
superior had simply told her to record her
reservations in the evaluation itself. There is also no dispute that
Motaung was effectively
relieved of the functions of her Directorate
following this disagreement, and one cannot escape the most natural
inference that
it was because she would not simply go along with
processing applications that did not qualify to be evaluated. This
did prejudice
her both in relation to her standing as a Director and
in relation to assessment in terms of her designated responsibility.
It
seems that by offering to restore the notch increases she most
probably would have got had she continued to perform her duties,
the
department recognised that she had been prejudiced to this extent.
In respect of the 2008/2009 financial
year, because Motaung had been stripped of her functions, no
meaningful assessment of her
performance could be conducted and
Sehoole concurred that this was the case. Yet her performance was
rated as unsatisfactory
and as a result she did not receive a notch
increase as in previous years. The inescapable inference is that had
she not had
her duties re-assigned she would in all probability have
obtained a performance in line with her previous ones and would have
received the notch increase.
I am not persuaded that the
applicant’s concerns about variations in her PAYE, provident
and medical contributions were
attributable to some intention to
prejudice her. The applicant did not explain why Schoeman’s
reply to her complaints did
not satisfy her that they were the
consequence of legitimate factors. There was also no reason to
suppose that Schoeman was party
to attempts to prejudice her.
In summary, I am satisfied that the
applicant was discriminated against on account of her acting in
accordance with her conscience
that if she processed the problematic
applications she would be complicit in flouting the regulations
governing the registration
of PHEIs and possibly guilty of
misconduct in terms of the PSA read with the relevant provisions of
the SMS Handbook.
Relief
I accept that in terms of working
conditions and remuneration, the Department effectively undertook to
restore those, which would
have included the backpay of notch
increases foregone in the absence of existing performance agreements
against which her performance
in her post would have been assessed.
Certainly that prejudice relating to notch increases might have
continued until the end
of the 2010/2011 financial year. However,
her new superior, Mabizela did not appear to be acting outside the
ambit of section
32(1) of the PSA when he tried to assign her other
duties and was prepared to motivate her performance assessment in
relation
to an agreement being concluded in respect of those duties.
Nothing prevented the applicant from entering into such an
arrangement
subject to reserving her rights to pursue her claim.
Certainly it was Mabizela’s understanding that such a
provisional
arrangement was not intended to compromise her pending
claim.
The respondent suggested that the
applicant’s decision to persist with her claim in view of the
settlement offer made in
March 2011 was essentially vexatious and
resulted in the department incurred further unnecessary legal costs.
There is certainly
merit in this claim, but I am not persuaded that
the applicant was unreasonable in pursuing the claim in order to
obtain an order
that she had been unfairly discriminated against
becaus here actions were not unjustified. Failing that order, the
very same
situation might arise in the future where once again
Motaung would be asked to process an application for the Registrar’s
decision, in circumstances where there are good grounds for
believing it did not qualify to be considered, without her superior
at least giving her an opportunity to place her misgivings on record
in the evaluation she prepares or supervises. In short,
without some
confirmation that her actions were not unjustified, the scenario
which led to court could easily be repeated. For
this reason, I
believe the applicant was not vexatious in insisting on the matter
proceeding to court, despite the settlement
offer.
In the circumstances, the applicant
has substantially justified most of the relief set out in her
statement of case.
On the question of costs, since there
was an ongoing employment relationship when this matter was heard, I
do not think it would
be appropriate to order costs to either party.
Order
In view of the above, the following
order is made:
It is declared that:
The first respondent’s
re-assignment of the applicant’s duties and functions in her
post of Director: Private Higher
Education commencing at the end of
2006, amounted to unfair discrimination on account of her acting in
accordance with the
dictates of her conscience in the bona fide and
reasonable belief that, if she proceeded to evaluate registration
applications
that did not meet the pre-requisites for registration
of PHEIs under the provisions of the Higher Education Act 101 of
1998
or the Regulations issued under that Act, she would be
complicit in flouting those statutory instruments and would
possibly
be guilty of misconduct in terms of Public Service Act,
Regulations, Chapter 4.I.D and 4.viii.D read with Chapter 7,
Annexure
A par 1 of the SMS Handbook.
The first respondent’s work
performance assessment outcome in 2008/2009 and the failure to
grant her a notch increase
for that financial year was an act of
unfair discrimination for the reason stated in paragraph 54.1, and
is deemed invalid.
The first respondent’s failure
to finalise the applicant’s performance assessment agreement
and failure to conduct
a performance assessment for the 2008/2009
financial year was an act of unfair discrimination for the reason
stated in paragraph
54.1.
It is ordered that the Department of
Higher Education and Training, as the successor to the Department of
Education must:
restore to the applicant her normal
functions and duties as Director: Private Higher Education in so
far as the applicant is
still in the employment of the first
mentioned department, by 15 November 2012;
pay the applicant the following
salary notch increases with retrospective effect, by no later than
15 November 2012:
a salary notch increase to R
673,164-00 per annum with effect from 1 April 2009, and
a salary notch increase to R
724,553 per annum with effect from 1 April 2010,
and further advise staff of the
Directorate: Private Higher Education and Training in writing of
the restoration of the applicant’s
functions and duties no
later than when it complies with paragraph 55.1.
No order is made as to costs.
_______________________
R LAGRANGE, J
Judge of the Labour Court of South
Africa
APPEARANCES
APPLICANT: In person
RESPONDENT: P C Pio, instructed by
the State Attorney
1
At
that stage of the proceedings I was under the impression that a
pre-trial minute had been finalised, thought in fact, as the
outline
of matter earlier in the judgment shows this was not the case. It
does not alter the legitimacy of the first respondent’s
challenge since it had excepted to the amended statement of case and
the applicant did not further seek to amend her statement
of claim,
so the exception still had to be determined before trial could
commence.