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[2012] ZALCPE 9
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NEHAWU and Another v MEC for the Department of Health and Others (P118/2011; P125/2011; P127/2011) [2012] ZALCPE 9 (16 August 2012)
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
Reportable
Case no’s: P118/2011; P125/2011 and P127/2011
In the matter between:
NEHAWU
.........................................................................................................
First
Applicant
PSA
..............................................................................................................
Second
Applicant
and
MEC FOR THE DEPARTMENT OF HEALTH
..............................................
First
Respondent
SUPERINTENDENT-GENERAL
OF THE DEPARTMENT OF HEALTH
....................................................
Second
Respondent
PREMIER OF THE EASTERN CAPE PROVINCE
....................................
Third
Respondent
Heard: 16 August 2012
Delivered: 16 August 2012
Summary: Dismissal of an application to extend an interim order.
Issue in dispute has become moot by virtue of the fact that the
parties have concluded a settlement agreement that constitutes an
agreement of compromise of the original issue in dispute.
JUDGMENT
AC BASSON J
Introduction
[1] The application for the extension of an interim interdict was
dismissed with costs, including the costs of three counsel. Here
are
brief reasons for my order.
[2] This is an application in terms of section 158(1)(a) of the
Labour Relations
1
read together with Rule 11(3) of the Rules by the first and second
applicants. The first applicant is NEHAWU and the second applicant
is
the PSA (hereinafter collectively referred to as the “applicants”
except where reference is made to a specific applicant).
The
applicants seek an order to extend the interim interdict which was
first granted on 18 March 2011.
[3] The three respondents are the MEC for the Department of Health,
the Health Superintendent – General of the Department
of Health
and the Premier of the Eastern Cape Province. (I will collectively
refer to the three respondents as “the respondents”
except where reference is made to a specific respondent. I will refer
to the Department of Health as “the Department”.)
[4] The respondents oppose the application on the following grounds:
Notwithstanding the respondents’ agreement to the interim
interdict and its extension from time to time, there were as
a
matter of law, no good grounds for its granting in the first place.
The issues which gave rise to the original application are now moot
as they are the subject of an agreement of compromise.
Even if a
causa
for the interim interdict had existed in the first
place, that
causa
no longer exists.
A court may not and will not extend an interim interdict to serve a
purpose (that is, allegedly to support the 2012 Settlement
Agreement) for which it was not granted in the first place.
To the extent that an interim interdict is sought (and may be
granted) on new grounds, the requirements for an interim interdict
are entirely absent. In particular, there is no clear substantive
right supporting the need for an interim interdict; the balance
of
convenience now clearly favours the Department of Health (“the
Department”) and if the interim interdict is
extended, the
Department will suffer substantial and irreparable harm.
Lastly it was submitted that the applicants’ founding
affidavits are entirely lacking in the allegations necessary to
found an interim interdict.
Background facts
[5] This matter has a long history and I do not intend for purposes
of this judgment to set out the history in great detail. What
is,
however, of more importance is the history of the matter as from
early 2011 when this matter served before this Court for the
first
time.
[6] This dispute dates back to 1994 when it became
necessary to incorporate the former Ciskei and Transkei into the
Easter Cape
Province. This incorporation necessitated the
rationalisation of the Ciskeian and Transkeian Public Services with
the Eastern Cape
Public Service.
Shortly before this
rationalisation, and in the expectation of incorporation, many
irregular promotions were effected. This resulted
in inflated
salaries of many public servants of the former Transkei and Ciskei.
[7] A dispute arose in respect of the lawfulness
of these promotions. The President of South Africa appointed in terms
of his constitutional
powers the so called “White Commission”
to investigate the lawfulness of these
en
masse
promotions
. The brief of
the White Commission was to review,
inter alia,
promotions
which had occurred between 27 April 1993 and 30 September 1994 in
respect of persons employed (
inter alia
) in the former
Transkei and Ciskei. In November 1998, the White Commission declared
16 650 promotions to be irregular.
[8] Pursuant to a circular issued in July 1999, the National Treasury
directed that officials whose promotions had been set aside
by the
White Commission had to repay monies wrongly received as a result of
the irregular promotions. Some of these findings were
successfully
challenged by the High Court whilst others were not and therefore
remained unchallenged. The accumulated debt as a
result of
overpayments that were not recovered from these employees were
eventually written off by the Eastern Cape after the Executive
Council (‘EXCO’) of the Eastern Cape Province resolved on
4 October 2006 that the total balance of R73 174 000,
00
owed by 2 558 employees in nine departments pursuant to the findings
of the White Commission be written off (‘the 2006
EXCO
Resolution”).
[9] The Resolution further authorised Heads of Departments to
consider the promotion of those employees who were adversely affected
by the findings of the White Commission who were deserving of such
promotions. According to the respondents this Resolution did
not,
however, authorise Departments to ignore treasury regulations which
require that the Head of the Provincial Treasury not approve
expenditure not budgeted for. Furthermore, according to the
respondents this Resolution did not authorise the promotion of
categories
of employees (specified in the Resolution) without regard
to the applicable regulatory framework. The Department set up a task
team (the Special Departmental HROPT Task Team – hereinafter
referred to as ‘the Task Team’) to give effect to
the
2006 EXCO resolution. According to the respondents the Task Team
recommended promotion and increases to categories of employees
some
of whom were promoted without regard to the relevant regulatory
framework and without consideration of individual qualifications.
According to the respondents payment by the MEC was made even though
no funds had been budgeted and allocated for the
en masse
promotions. The respondents further submitted that this resulted in
the incurring of unauthorised expenditure amounting to millions
of
rands.
[10] On 2 September 2009, the EXCO resolved that departments
immediately stop all further payments made or to be made in terms
of
the 2006 EXCO Resolution (dated 4 October 2006), pending the outcome
of an independent audit to be conducted by each Department.
Independent Chartered Accountants were appointed to conduct the
audit. An interim report was submitted on 1 November 2010 and the
final report on 1 January 2011. Both reports found that the promotion
of the affected employees had been irregular. In respect
of some
employees it was found that they were entitled to lawful promotions
and increases. The report further found that some employees
had been
awarded incorrect salaries, incorrect salary levels and incorrect
salary scales and had been overpaid and received benefits
not due to
them. The report was made available to all the relevant trade union
representatives.
[11] Upon receipt of these reports the Department resolved to reverse
the promotions and salary increases in accordance with the
provisions
of section 38 of the Public Service Act
2
.
This section imposes the duty on the executive authority to correct
an incorrect salary and to recover amounts overpaid.
3
[12] Those employees who were adversely affected by the
aforementioned decision were informed of the findings of independent
auditors
and were afforded an opportunity to make representations in
regard to why the Department should not reverse their promotions.
4
Trade unions were also furnished with the report and were informed of
the Department’s intention to give effect to the findings
of
the report. Some employees took up the invitation and made
representations. Those employees who made representations were
informed
of the decision that the Department will reverse their
salaries with effect from 1 March 2011 to the salary position which
the
employee held prior to 1 April 2009.
5
Those who did not make any representations were likewise informed of
the intention to revert to the employee’s salary position
applicable prior to 1 April 2009.
Proceedings before this Court
[13] When the Department sought to reverse the promotions, the
applicants launched an application which was followed by various
further orders of the Labour Court and agreements between the
parties, some of which were made orders of this Court to prevent
what
the applicants referred to as the first and second respondents’
decision to proceed with the demotion and reversal of
the promotion
of a large number of employees of the Department of the Eastern Cape.
In essence what the applicants sought was an
order restraining the
Department from implementing its decision to reverse the promotion
and salary increases of the employees
made by the Department during
2009 and restraining the Department from deducting monies from the
employees’ salaries pursuant
to such reversal. These orders
were sought pending a dispute to be referred to the Public Health and
Social Development Bargaining
Council (“PHSDBC”) and
possibly the launching of proceedings before the Constitutional Court
in terms of which section
38 of the Public Service Act, 1994 would be
challenged as being unconstitutional.
The first Court order – 18 March 2011
[14] On 18 March 2011 Van Niekerk, J granted an order by consent
pending the final determination of the hearing on 30 May 2011.
Paragraphs 1 and 5 of the order reads as follows:
‘
1. The matters under
case numbers 118/2011; 125/2011 and 127/2011 are consolidated and
postponed for hearing on 30
th
May 2011.
…
.
5. Pending the final
determination of the hearing on 30
th
May 2011, the
respondents are to restore the status quo ante in respect of all the
affected applicants in case number 118/2011
and members of the
applicants’, such as to ensure that the salaries to be paid on
15
th
April 2011 reflect the salary scales of such
employees as they existed prior to the reductions in salaries
effected on 15
th
March 2011, and such restoration to
include repayments of the reductions which were effected on 15
th
March 2011.’
[15] The Department was therefore prevented from implementing the
2009 EXCO Resolution in terms of which the promotions
en masse
would be reversed and the salary position of employees reversed to
the position which existed prior to 1 April 2009.
[16]
The matter again served before Van Niekerk, J on 30 May 2011. The
application was postponed by agreement to 15 August 2011.
[17]
The parties thereafter concluded an agreement to refer the main
dispute to private arbitration. This agreement was made an
order of
Court (hereinafter referred to as the “2011 arbitration
order”). The parties agreed that the principal issue
that was
to be decided by the arbitrator was whether the decision taken by the
Department pursuant to the findings contained in
the report by the
chartered accountants was in accordance with their terms of
reference.
[18] The Court order further stipulated
that
“
[i]n the light of the agreement . . .and subject to the
successful conclusion of the process set out herein, the
constitutional
challenge to section 38 of the Public Service Act and
the referrals to the Bargaining Council are withdrawn
”.
Interlocutory application (dated 10 August 2011) and the Court
order dated 15 August 2011.
[19] On 10 August 2011 the Department filed an interlocutory
application requesting the Labour Court to appoint an arbitrator as
the parties were unable to reach consensus on who should be
appointment. The application was set down for 15 August 2011.
[20] On 15 August the parties reached an agreement that Mr. Floors
Brand be appointed as the arbitrator. This agreement was made
an
order of Court. In terms of this order the arbitrator was given
powers to determine whether each individual adversely affected
by the
reversal process had been provided with adequate information in
relation thereto. This latter issue was, in terms of the
Court order,
to be finally determined at the commencement of the arbitration
process which was set down for 12 and 13 October 2011.
The
interim
interdict was also further extended to 8 November 2011.
[21] The parties convened on 12 October 2011 but the arbitration did
not proceed. Instead the parties concluded a “procedural
agreement” which provided for a comprehensive “road-show”
throughout the Eastern Cape in terms of which each
individual
employee would be interviewed and provided with a bundle of
information relating to the contemplated reversal process.
The said
road-show did in fact take place and was supervised by the
arbitrator. Affected employees were represented by their trade
unions
during the process.
[22] On 8 November 2011 the interim order was extended to 15 February
2012.
The settlement agreement dated 26 January 2012 and made a Court
order on 15 February 2012
[23] The arbitration hearing was set down for 26 January 2012. During
the deliberations the parties reached a settlement agreement.
This
settlement agreement was made an order of Court on 15 February 2012.
The settlement agreement reads as follows:
‘
1. The parties hereto
withdraw this dispute from arbitration, subject to the agreement set
out hereunder.
2. Subject to the provisions
of clause 4,
the promotion of the employees of the Department of
Health whose names are set out in Annexure “A” hereto is
hereby
reversed with the result that the employees shall revert to
the pre-May 2009 ranks / grades / levels held as at that time and
shall
be paid the salaries and/or remuneration commensurate with
those ranks / grades / levels
3.
The reversal of the
promotion shall take effect on 31 March 2012
.
4. The affected employees
shall be considered for whatever promotion that has, in the course of
time, become lawfully due, regard
being had to the relevant
instruments, namely
4.1 the Public Service Act,
1994 (Proclamation 103 of 1994);
4.2 the Public Service
Regulations; and
4.3 any and all Collective
Agreements, Circulars, Resolutions, Directives, Arbitration awards,
Court orders and the applicable PAS
documents duly issued during the
period 1994 to the date when the employees concerned are considered
for promotion in terms of
this agreement.
NB: for the sake of
certainty, a list of the regulatory instruments contemplated in
paragraph 4.3 above shall be provided by 3 February
2012.
5. The promotion process
(referred to in clause 4 above) shall be conducted by the Arbitrator,
Mr. Floors Brand, and shall take
place from 6 February 2012 to 31
March 2012. The parties agree that the arbitrator’s terms of
reference shall be those set
out in annexure “B” hereto.
6. The parties pledge and
undertake to give their full co-operation and support to the process
and the arbitrator with a view to
concluding the process on an
expedited basis.
7. For those persons whose
assessment in terms of clause 4 takes place after 31 March 2012, any
salary adjustment will be made retrospective
to 31 March 2012. Where
the process referred to in clause 4 above results in an employee
being promoted before 31 March 2012, the
promotion contemplated in
clause 4 above shall be implemented on 31 March 2012.
8.
All affected employees
shall be liable to repay arrear salaries and/or remuneration, if any,
resulting from the reversal process
at the rate of R100.00 (One
Hundred Rand), per month, which shall be deducted from the employees’
monthly salaries with effect
from the date contemplated in paragraph
3 above
.
9. The liability of an
employee to repay arrear salaries and/or remuneration shall only
lapse upon –
9.1 ordinary or early
retirement from the Public Service at the prescribed age;
9.2 medical boarding from the
Public Service;
9.3 death;
9.4 retrenchment from the
Public Service; and
9.5 transfer to an entity
outside the Public Service.
10. Notwithstanding clause 9
above –
10.1 the obligation to pay
the full outstanding debt consequent upon the reversal of the
promotion of the affected employee(s) shall
continue where the
employee is dismissed or resigns; and
10.2 in the event of an
employee’s transfer within the public service, such employee
shall be liable to continue remitting
the debt in monthly
installments of R100.00.
11. This agreement shall,
upon its conclusion, be made an order of Court on 15 February 2012,
with the Rule Nisi being extended
and the interim relief granted on
30 May 2011 extended until 30 March 2012.
12. This
agreement is subject to the parties obtaining a final mandate from
their respective clients by no later than 03 February
2012. In the
event of the parties not agreeing to the terms proposed herein, the
arbitration shall be reinstated and shall resume
on 19 to 20 March
2012 and 7 May to 11 May 2012.’
6
[24] The two annexures to the settlement agreement provided for the
arbitrator to sit at various venues and the dates at which
the
arbitrator would be sitting at these various venues. Pursuant to this
agreement the parties each submitted lists of legal instruments
relied on.
[25] On 15 February 2012 the interim interdict was extended to 19
March 2012.
Arbitration hearing dated 1 March 2012
[26] The parties attended the arbitration hearing on 1 March 2012
principally to argue the issue of the applicability of the legal
instruments of the various parties. The arbitration hearing was
postponed to 20 March 2012 at the instance of the unions.
Application heard on 19 March 2012 to extend the interim order
before Lallie, J
[27] On 12 March 2012 the applicants filed a further application to
extend the interim order. On 30 March 2012 the application
was argued
before Lallie, J. The Court ordered that the application be postponed
to 31 May 2012 and that the interim order and
the Rule
Nisi
granted on 18 March 2011 be extended to 31 May 2012.
[28] I am in agreement with the submission that the effect of this
order was that the Department was effectively prevented from
reversing the promotions on 31 March 2012 as was purportedly agreed
upon in terms of the settlement agreement dated 26 January
2012 (and
made and order of court on 15 February 2012) and from recovering the
amounts owed to the department. (I will return to
this point herein
below.)
[29] Despite this order the remainder of the settlement agreement
remained in place.
Arbitration proceedings dated 11 April 2012
[30] The parties appeared at the arbitration on 11 April 2012. The
parties were in dispute in respect of the validity of certain
legal
instruments relied upon by the respective parties. The parties argued
that the arbitrator should exercise its discretion
and refer the
issue of the validity of the regulatory instruments to the Labour
Court. The arbitrator acceded to the request and
on 17 April 2012
referred the issue to the Labour Court. The roads show was stayed
pending the outcome of the proceedings referred
to the Labour Court.
This application was filed on 24 April 2012.
The present application
[31] The present application was preceded by a request sent by the
PSA to the Department to consent to the further extension of
the
interim interdict. The Department refused to consent to a further
extension of the interim interdict and indicated that it
reserved its
right to apply to this Court for the setting aside of the January
2012 settlement agreement depending on the outcome
of the proceedings
of 31 May 2012. The applicants filed this application on 25 May 2012.
[32] The PSA and NEHAWU rely on essentially the same grounds for
seeking an extension of the interim interdict. The PSA however,
now
also relies on an alleged collective agreement purportedly entered
into between NEHAWU and the Department. In respect of this
collective
agreement the respondents submitted that this agreement is unsigned
and only concluded between NEHAWU and the Department.
[33] As already pointed out, the respondents are opposing this
application on various grounds
.
7
Of importance in my view is the submission that the issues
which gave rise to the original application are now moot. I am in
agreement
with this submission. The settlement agreement dated 26
January 2012 - which was made an order of Court by agreement on 15
February
2012 – is valid and binding on the parties. This
agreement effectively settled the issue in dispute between the
parties.
In this regard I am in agreement that the settlement
agreement constitutes an agreement of compromise if regard is had to
the history
of this matter and to the contents of the agreement.
[34] An agreement of comprise is described by Christie
8
as follows:
‘
Compromise,
or transaction, is the settlement by agreement of disputed
obligations, whether contractual or otherwise… it
is a form of
novation differing from ordinary novation in that the obligations
novated by the compromise must previously have been
disputed or
uncertain, the essence of compromise being the final settlement of
the dispute or uncertainty.’
The effect of a compromise is further described by Christie as
follows:
‘…
.
The effect of a compromise is the same as res iudicata on a judgment
given by consent. That is to say it is an absolute bar to
action on
the cause of action compromised …..’
9
[35] In light of the above it can, in my view, be concluded that the
settlement agreement resulted in a compromise: If regard is
had to
the provisions of the settlement agreement it is in my view clear
that the parties have in fact agreed to settle the unions’
claim namely that the reversals may not lawfully take place. In this
regard paragraph 2 and 3 of the 26 January 2012 settlement
agreement
is clear: The parties agree that the Department is entitled to
reverse the promotions with effect 31 March 2012. Paragraph
[8] of
the said agreement further provides that the affected employees shall
be liable to repay arrear salaries resulting from
the reversal
process at a rate of R 100.00 (one hundred rand) per month which will
be deducted from their salaries with effect
from 31 March 2012.
Moreover, and most importantly, in place of the original claim namely
that the Department may not reverse the
promotion, the parties have
agreed that the Department may reverse the promotion but that the
affected employees shall be considered
for whatever promotion that
has in the course of time became lawfully due with regard to certain
instruments. The agreement further
provides for the procedure that
will be followed in this regard. (See paragraphs [4] – [7] of
the settlement agreement.)
[36] I am in agreement with Mr Pretorius that what is clear from this
agreement is that the parties have agreed on an arbitration
process
to determine
another
claim which is different from the claim
that the Department may not reverse the promotion and repay arrear
salaries (which was
the subject matter of the proceedings before this
Court when it first served before Van Niekerk, J). The claim that is
now before
the arbitrator is the claim as set out in the settlement
agreement which is entirely different from the claim that served
before
the Court and which gave rise to the interim interdict. The
parties have since (as already pointed out) agreed that the
Department
may reverse the promotions and require that the said
employees repay arrear salaries resulting from the reversal. I am
further
in agreement with Mr. Pretorius that the parties have entered
into an agreement of compromise of disputed rights and that they are
bond to pursue their rights set out in the agreement of compromise.
There is therefore is no longer a cause for an interim interdict
or
for its extension as the claim for effective enforcement (by
preventing the reversals) of the May 2009 promotions and increases
has been compromised. In these circumstances there can, according to
Christie, be ‘no question of returning to the original
contract. Action must be brought on the compromise. If the compromise
of an action is not fully complied with, the remedy is not
to
continue with the previous action but to institute a new action on
the compromise’
.
10
Because the parties have entered into an agreement of compromise of
disputed rights, the parties would therefore, in my view, be
bound to
pursue their rights set out in the agreement of compromise. The
January 2012 agreement still exists and has not been set
aside. This
agreement has created new rights and obligations for the parties and
any redress that the applicants may seek must
be founded in the terms
of this agreement.
[37] It is therefore concluded that in light of the fact that the
issues relating to the underlying
causa
for interim relief are
moot and the subject of the compromise agreement, final relief cannot
ever be granted and it also follows
that an interim interdict cannot
now be extended. Interim relief can only be sought pending final
relief. The final relief contemplated
when the original interim
interdict was granted is no longer contemplated
.
11
Lastly, the applicants have not met the requirements to obtain
the interim interdict. I am not persuaded that the applicants had
furnished proof which if contradicted and believed at the trial would
establish their rights.
12
I am satisfied that the relevant issues are now moot because
the applicants have effectively abandoned their claim in respect of
the unlawful increases when the settlement agreement had been
concluded in January 2012. In addition, the claim has now furthermore
been substituted with different claims namely that of the right to
apply for a lawful increase. Furthermore, the initial claim
was that
the individual employees must be heard in relation to the reversal of
the unlawful promotions and increases. The claim
was not that the
lawful increases had not been considered. The claim now is that
lawful increases must be considered. The applicants
have therefore
failed to prove a
prima facie
right. The applicants have
likewise not alleged that any right in the 2012 settlement agreement
has been infringed unlawfully nor
that they will suffer irreparable
harm:
13
In respect of the granting of the interdict in 2011, the applicants
alleged that irreparable harm would result in them not being
heard
prior to the deductions being effected. This claim has now been
compromised and rendered moot. I am also not persuaded that
the
applicants will suffer irreparable harm in that their salaries will
decrease whereas the prejudice that the Department will
suffer will
be irreparable. In this regard the evidence before this Court was
that the amount incorrectly paid as a result of the
unlawful
promotions and increases is more than R 420 million. This amount will
only increase if the unlawful promotions are not
reversed with no
prospect of ever recovering this amount. In respect of the balance of
convenience I am likewise persuaded that
the balance of convenience
favours the respondents.
14
I am therefore persuaded that the inconvenience to be suffered by the
respondents is irreparable and irrecoverable even in those
circumstances where the settlement agreements provides that the
employees must make repayments at a rate of R 100.00 per month.
This
amount is negligible in light of the immense amounts spent by the
Department on the unlawful promotions. In respect of an
alternative
remedy, the applicant has such a remedy and that is to enforce the
settlement agreement. Lastly, this Court maintains
a discretion
whether to grant the interim interdict. I am persuaded that this
Court should exercise its discretion not to grant
the extension of
the interim interdict particularly in light of the fact that the
extension of the interdict will destroy the effect
of the 2012
settlement agreement and will allow unlawful promotions to continue.
15
The settlement agreement allows for employees to claim justifiable
promotions and increases. This process should be allowed to
continue.
It is apparent from the settlement agreement that it now allows for a
new process to resolve this on-going dispute between
the parties. For
this purpose an arbitrator has been appointed to consider legitimate
claims for promotion.
[38] For the reasons set out above, the application is dismissed.
[39] In respect of costs I am of the view that costs should follow
the result. The costs include the costs of three counsel.
_____________
A.C Basson J
Judge of the Labour Court
APPEARANCES:
For Applicant: Advocate A Beyleveld SC, Advocate C Mey and Advocate M
Elijah
Instructed by: Brown Braude & Vlok Incorporated
For Respondent: Advocate Pretorius SC. Advocate Mbenenge SC and
Advocate De Vos
Instructed by:
The State
Attorney
1
Act
66 of 1995
2
Proclamation
103 of 1994
3
‘
38.
Wrongly granted remuneration.—(1) (
a
)
If an incorrect salary, salary level, salary scale or reward is
awarded to an employee, the relevant executive authority shall
correct it with effect from the date on which it commenced.
(
b
)
Paragraph
(a)
shall
apply notwithstanding the fact that the employee concerned was
unaware that an error had been made in the case where the
correction
amounts to a reduction of his or her salary.
(2)
If an employee contemplated in
subsection
(1)
has
in respect of his or her salary, including any portion of any
allowance or other remuneration or any other benefit calculated
on
his or her basic salary or salary scale or awarded to him or her by
reason of his or her basic salary—
(
a
) been underpaid, an amount equal to the
amount of the underpayment shall be paid to him or her, and that
other benefit which
he or she did not receive, shall be awarded to
him or her as from a current date; or
(
b
) been overpaid or received any such other
benefit not due to him or her—
(i)
an amount equal to the amount of the overpayment shall
be recovered from him or her by way of the deduction from his or her
salary
of such instalments as the relevant accounting officer may
determine if he or she is in the service of the State, or, if he or
she is not so in service, by way of deduction from any moneys owing
to him or her by the State, or by way of legal proceedings,
or
partly in the former manner and partly in the latter manner;
(ii)
that other benefit shall be discontinued or withdrawn
as from a current date, but the employee concerned shall have the
right
to be compensated by the State for any patrimonial loss which
he or she has suffered or will suffer as a result of that
discontinuation
or withdrawal.
(3) The
accounting officer of the relevant department may remit the amount
of an overpayment to be recovered in terms of
subsection
(2) (b)
in
whole or in part.”
4
“
2.
I regret to
advise you that your rank promotion due to the findings of the
Auditors were found to be irregular since the Auditor
was unable to
trace any valid documentation to substantiate the promotion and the
back pay.
3.
Due to this finding and in support of the Executive Council
resolution, the Department will be implementing the following:
3.1
Incorrect Notch and Rank Reversal
Reversal
of your current notch and rank back to the original position (see
table 1 below).
This
will be implemented with effect from the 1 February 2011.
If you disagree with this action, you are hereby
requested to indicate within 7 days of receipt of this letter why
your salary
and position should not be changed as indicated in Table
1 below.”
5
“
After
careful consideration of your written representation, it is the
department’s firm view that despite your submission,
your
promotion remains irregular and shall be reversed. Please refer to
the relevant PAS Code available at your local HR office,
for
reference.
Please note that the department will, with effect
from 01 March 2011 – reverse your salary position to the one
you held
prior to 01 April 2009.”
6
Court’s
own emphasis.
7
Supra
ad para 4.
8
Christie
and Bradfield, Christie’s The Law of Contract in South Africa,
6
th
edition, at page 473.
9
Ibid
at 478.
10
Ibid
478 to 479.
11
See
in this regard
Singh v Adam
(2006)
27 ILJ 385 (LC) at para [16]
where an
application for an interim interdict
pendente
lite
was dismissed on the basis that there
was no suit
pendente lite
:
“
Before an interim interdict pendent
lite can be granted there must be a pending lis . . . On that basis
alone the grant of an
interim interdict is incompetent as there is
no suit pendente lite.”
12
See
Webster v Mitchell
1948
(1) SA 1186
(W)at 1189 – 1190 the court held that:
“
.
. . the first question for the Court in my view is whether, if
interim protection is given, the applicant could ever obtain
the
rights he seeks to protect. Prima facie that has to be shown. The
use of the phrase 'prima facie established though open
to some
doubt' indicates I think that more is required than merely to look
at the allegations of the applicant, but something
short of a
weighing up of the probabilities of conflicting versions is
required. The proper manner of approach I consider is
to take the
facts as set out by the applicant, together with any facts set out
by the respondent which the applicant cannot dispute,
and to
consider whether, having regard to the inherent probabilities, the
applicant could on those facts obtain final relief
at a trial. The
facts set up in contradiction by the respondent should then be
considered. If serious doubt is thrown on the
case of the applicant
he could not succeed in obtaining temporary relief, for his right,
prima facie established, may only be
open to 'some doubt'.”
See also
Manong and Associates (Pty) Ltd v
Minister of Public Works and Another
2010
(2) SA 167
at para [22]:
“
The
requirements for the grant of an interim interdict are well settled.
I will limit myself solely to a consideration of the
first - a prima
facie right - as in my view the application had to fail at that
preliminary hurdle. It is thus unnecessary to
range beyond that to a
consideration of the other requirements.”
13
See
National Council of Societies for the Prevention of Cruelty to
Animals v Openshaw
[2008] ZASCA 78
;
[2008] 4 All
SA 225
(SCA);
“
The
test in regard to the second requirement is objective and the
question is whether a reasonable man, confronted by the facts,
would
apprehend the probability of harm. The following explanation of the
meaning of 'reasonable apprehension' was quoted with
approval in
Minister of Law and Order v Nordien:
'A reasonable apprehension of injury has been held to
be one which a reasonable man might entertain on being faced with
certain
facts. The applicant for an interdict is not required to
establish that, on a balance of probabilities flowing from the
undisputed
facts, injury will follow: he has only to show that it is
reasonable to apprehend that injury will result. However the test
for
apprehension is an objective one. This means that, on the basis
of the facts presented to him, the Judge must decide whether there
is any basis for the entertainment of a reasonable apprehension by
the applicant.'”
14
See
Webster v Mitchell
supra
at 1192 – 1193:
“
Normally the Court acts on the balance of convenience. If
there is greater possible prejudice to the respondent an interim
interdict
will be refused. . . . if, though there is prejudice to
the respondent, that prejudice is less than that of the applicant
the
interdict will be granted, subject, if they can be imposed, to
conditions which will protect the respondent
.”
15
See:
Limbada v Dwarka
1957 (3) SA 60
(N) at p 62:
‘
Well
now, what is the Court to do about all this? The applicant's
counsel, with creditable detachment, urges simply that all the
requisites for an interdict are present, in that:
The
applicant has, at the least, a
prima
facie
case;
the
balance of convenience favours him;
his
claim falls within the principles governing vindicatory actions, on
the authority of
Ncongwane
v Morolane,
1941 OPD 125
, or alternatively;
he
will suffer irreparable harm.
I shall assume, without deciding,
in favour of the applicant, that
counsel's
submissions are correct. But that does not end the matter, for the
Court always has a discretion whether to grant or
refuse the
extraordinary remedy of an interdict. The decisions are fairly
unanimous on this point, from
Setlogelo
v Setlogelo,
1914 AD 221
, down to
Olympic
Passenger Service (Pty.) Ltd v Ramlagan,
1957
(2) SA 382
(N)
.
This means that an applicant who establishes the requisites for an
interdict is not necessarily entitled to that relief. I do
not think
that that proposition needs any authority, but as a matter of
interest I quote with respectful agreement the following
obiter
dicta
by
BROOME, J. (as he was then), in Yusuf v Abboobaker and
Pietermaritzburg Local Road Transportation Board,
1943 NPD 244
at p.
247. After referring to
three
different sets of circumstances which afford grounds for an
interdict, the learned Judge said:
'And I ought to add that the cases make it clear that
an applicant who establishes one of the three propositions I have
quoted
above is not necessarily entitled to an interdict. The grant
of an interdict is always in the discretion of the Court. Quite
apart from the applicant's inability to establish any of the three
propositions, I am not satisfied, for reasons which it would
be
undesirable to set out in view of the probability of this litigation
going further, that the
discretionary
remedy of an interdict ought to be granted.'”