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[2015] ZALCJHB 98
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Maloka v Department of Justice And Constitutional Development and Others (JR 1740/12) [2015] ZALCJHB 98 (18 March 2015)
REPUBLIC OF SOUTH
AFRICA
THE LABOUR COURT
OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case no: JR
1740/12
DATE: 18 MARCH
2015
Not Reportable
In the matter
between:
MMDIRA G
MALOKA
............................................................................................................
Applicant
And
DEPARTMENT
OF JUSTICE AND CONSTITUTIONAL
DEVELOPMENT
.........................................................................................................
First
Respondent
THE
CHIEF MASTER OF THE HIGH COURT,
PRETORIA
...............................................................................................................
Second
Respondent
THE
MINISTER OF JUSTICE AND CONSTITUTIONAL
DEVELOPMENT
.......................................................................................................
Third
Respondent
Heard: 8 October
2014
Delivered: 18
March 2015
JUDGMENT
Nkutha-Nkontwana
AJ
Introduction
[1]
This is an application in terms of section
158(1)(h) of the Labour Relations Act, (“
LRA”
)
to review the Second Respondent’s decision not to reinstate the
Applicant subsequent to the applicant’s termination
of services
in terms of section 17(3)(a) of the Public Service Act (“
PSA”
).
[2]
The muddled manner in which the Applicant
approached its case is attributed to its long history. As such, I do
not intend to deal
with irrelevant historical facts and it will
become clearer later in this judgment as to what are pertinent
issues. Nonetheless,
I must state upfront that these proceedings were
instituted prior to the First Respondent issuing its decision of 17
July 2012,
which effectively confirmed the Applicant’s
termination of services.
[3]
Subsequently, the Applicant filed
supplementary heads of argument wherein she abandoned prayers 1, 2, 3
and 5 of her notice of motion
and, in effect, the relief sought is as
follows:
‘
1.
Reviewing and setting aside termination of the Applicant’s
services in terms of section 17(3)(a) of the Public Service
Act.
2.
Directing the first and second respondents to reinstate the Applicant
in a position as estate controller with effect from 18
October 2011.
3.
Condoning the non-compliance of Rule 7A of the Rules of the
Honourable Court.
4.
Costs of the application.
5.
Further and alternative relief.’
Factual
background
[4]
Applicant was arrested on 18 October 2011
regarding allegations of fraud. On 19
October 2011, the Applicant was
released on bail. According to the Applicant, she reported for duty
on 19
October
2011, but left early because of medical reasons and Ms Phaka, her
supervisor, was aware. The allegations of fraud were never
pursued in
a disciplinary hearing or criminal action.
[5]
On 25 October 2011. the Applicant was
served with a letter of possible precautionary suspension. However,
according to the First
Respondent the precautionary suspension was
never followed through.
[6]
The Applicant remained off duty under the
impression that she was on suspension. On 17 November 2011, she was
notified by Ms Phaka
to report for duty because she had to fill the
leave forms as her suspension was never effected.
[7]
Indeed, on 18 November 2011, the Applicant
reported for duty and signed leave forms for the period from which
she was arrested,
19
October
to 17 November 2011.
[8]
On 5
December 2011, the Applicant reported
for duty as normal. However, on 8
December 2011 she was issued with a
letter dated 23
November
2011 invoking the provisions of section 17(3)(a)(i) of the PSA.
[9]
The Applicant referred an unfair dismissal
dispute to the General Public Service Sectoral Bargaining Council
(“GPSSBC”).
On 25 April 2012, the arbitrator ruled that
the GPSSBC lacked jurisdiction to handle the matter because the
Applicant’s services
were terminated by operation of law and
advised the Applicant to invoke section 17(3)(b) of the PSA by making
submissions to the
First Respondent to show good cause why she should
be reinstated.
[10]
The Applicant submitted the said
representation to the First Respondent on 25 May 2012. First
Respondent’s response is contained
in a letter dated 17 July
2012 and is as follows:
‘…
The
position of the Department still remains that Ms Maloka absented
herself from her official duties without permission of head
of
department, office or institution for period exceeding one calendar
month, thereby invoking section 17(3)(a) of the Public Service
Act
upon herself
No compelling
reason has been advanced to convince me that she should be
reinstated.’
[11]
In essence, the First Respondent found that
the Applicant failed to show good cause and accordingly confirmed her
termination.
Applicable legal
principles
[12]
The provisions of section 17(3) of the PSA
are as follows:
‘
(a)(i)
An employee, other than a member of the services or an educator or a
member of the Intelligence Services, who absents himself
or herself
from his or her official duties without permission of his or her head
of department, office or institution for a period
exceeding one
calendar month, shall be deemed to have been dismissed from the
public service on account of misconduct with effect
from the date
immediately succeeding his or her last day of attendance at his or
her place of duty.
(ii) If such an
employee assumes other employment, he or she shall be deemed to have
been dismissed as aforesaid irrespective of
whether the said period
has expired or not.
(b)
If an employee who is deemed to have been so dismissed, reports for
duty at any time after the expiry of the period referred
to in
paragraph (a), the relevant executive authority may, on good cause
shown and notwithstanding anything to the contrary contained
in any
law, approve the reinstatement of that employee in the public service
in his or her former or any other post or position,
and in such a
case the period of his or her absence from official duty shall be
deemed to be absence on vacation leave without
pay or leave on such
other conditions as the said authority may determine.’
Jurisdiction
[13]
The
Court’s jurisdiction to decide the matter is not disputed. In
any event, the Labour Appeal Court settled this issue in
MEC
for the Department of Health, Western Cape v Weder, In Re: MEC for
the Department of Health, Western Cape v Democratic Nursing
Organization of South Africa obo Mangena
[1]
where
it stated that:
‘
Irrespective
of the classification of the decisions of appellant as administrative
action, appellant’s actions are open to
review in terms of s
158 (1) (a) of the LRA on the ground of legality, a principle that
has been developed significantly by the
courts over the past decade.
So much so, that a parallel system of review for action
which falls outside of the strict
definition of administrative action
in terms of the poorly drafted PAJA, has developed.’
Section 17(3)(a)
of the PSA
[14]
The Applicant patently persists with her
attack on the application of section 17(3)(a)(i) of the PSA despite
the GPSSBC’s
ruling on this issue. By the same token, the
Applicant went ahead and invoked section 17(3)(b) of the PSA and
unfortunately, as
stated above, the First Respondent communicated its
decision in this regard after these proceedings were instituted. It
is my view,
however, that by taking further steps to invoke section
17(3)(b) of the PSA, the Applicant’s attack on section
17(3)(a)(i)
of the PSA was rendered
moot.
[15]
The
principles relating to mootness have been well established in
National
Coalition for Gay and Lesbian Equality and others v Minister of Home
Affairs and others
[2]
in
which the Constitutional Court said:
‘
A
case is moot and therefore not justiciable, if it no longer presents
an existing or live controversy which should exist if the
Court is to
avoid giving advisory opinions on abstract propositions of law.’
The Section
17(3)(b) of the PSA
[16]
Accordingly,
the main issue to be decided is whether the Second Respondent passed
legality test within the context of review. It
is trite that public
functionaries are required to act within the powers granted to them
by law. The Constitutional Court laid
down the core element of
principle legality in
Pharmaceutical
Manufacturers, Association of South Africa: In re Ex Parte President
of the Republic of South Africa
.
[3]
The Court stated the following:
‘
It
is a requirement of the rule of law that the exercise of public power
by the Executive and other functionaries should not be
arbitrary.
Decisions must be rationally related to the purpose for which the
power was given, otherwise they are in effect arbitrary
and
inconsistent with this requirement. It follows that in order to pass
constitutional scrutiny the exercise of public power by
the Executive
and other functionaries must, at least, comply with this
requirement.’
[17]
In
Weder
/Mangena,
the
Labour Appeal Court held that these principles are applicable to the
decisions taken by an employer in terms of section 17(3)(b)
of the
PSA. Referring to a well written judgment of Van Niekerk J in
De
Villiers v Education, Western Cape Province,
[4]
the Labour Appeal Court stated that:
‘
Save
for this legislation, as Van Niekerk J remarked in
De
Villiers,
supra, ‘no other employer enjoys the right to consider
reinstatement of its employees within its sole discretion’.
Thus, it followed that the requirement of ‘good cause referred
to in s 14(2) (or in the present case s 17(3)(b)) should be
interpreted to mean ‘that unless the employer, having regard to
the full conspectus of relevant facts and circumstances is
satisfied
that a continued employment relationship has been rendered
intolerable by the employee’s conduct, the employer
should as a
general rule approve the reinstatement of the employee.’
[5]
[18]
It is therefore, imperative that the First
Respondent’s decision be tested for rationality as outlined
above, in particular,
given the Applicant’s constitutional
right to fair labour practice.
Analysis and
application
[19]
Coming to the issue at hand, it is common
cause that consequent to the arbitration award, the Applicant filed a
detailed submissions
in terms of section 17(3)(b) of the PSA and to
no avail. The First Respondent solely relied on the arbitrator’s
ruling that
the Applicant’s absence was unauthorised to justify
its decision not to reinstate her.
[20]
It is clear that the First Respondent
misconstrued the purpose of section 17(3)(b) of the PSA. The
arbitrator correctly held that
the bargaining council lacked
jurisdiction to deal with the matter since the Applicant had absented
herself for 30 consecutive
days and, as such, her absence
automatically triggered the application of section 17(3)(a)(1) of the
PSA. However, in paragraph
28 of the arbitration award, the
arbitrator observed pertinently that:
‘
From
the evidence it is clear that while the Applicant may have had
justification for being away from work for more than one month
calendar, she did not have authorisation required by section
17(3)(a)(i) of the PSA’.
[21]
Unlike the Second Respondent, the
arbitrator was alive to the issues beyond his scope of jurisdiction,
in particular evidence sought
to justify the Applicant’s
absence from work. He, also, correctly advised the Applicant to place
that evidence before the
Second Respondent in terms of section
17(3)(b) of the PSA. Therefore, the arbitrator’s findings could
not be used as a basis
to refuse the Applicant reinstatement.
[22]
In her attorney’s letter dated 25 May
2012, the Applicant submitted,
inter
alia,
the following reasons in support
of her request for reinstatement:
‘
18.1
My client’s circumstances being understandably distraught at
the reality of her son dying and her having to fetch and
carry him to
hospital and to nurse him at home and being incapacitated for work.
18.2
The fact that my client and her
supervisor, Willica Phaka, was under the reasonable impression that
she had been suspended and did
not report for duty because she
believed she was under suspension and stayed at home.
18.3
The prosecution against my client
for alleged fraudulent activities was withdrawn by the State.
18.4
The Master’s office held no
disciplinary enquiry to establish my client’s alleged
fraudulent activity despite Mahole
having used the words “
pending
the finalisation of a disciplinary hearing investigation into all
fraudulent activities”
in
her letter dated 25 October 2011.
18.5
My client’s absence from the
office could only have commenced on the 19 October 2011 after her
arrest on the 17 October 2011
and her release on bail on the 18
October 2011 and her reporting for work in the afternoon of the 18
October 2011.
18.6
The period of one calendar month
referred to in your letter dated 23 November 2011 would thus have
started on 19 October 2011 and
the last day thereof would have been
18 November 2011. Willica Phaka testified that my client in
fact reported for work on
18 November 2011 and the calendar month was
thus interrupted and was never completed.
18.7
My client qualified for leave for
period 19 October 2011 to 2 December 2011 and had permission of
Willica Phaka to be away from
her official duties for part of this
period.
19.
…
20.
There is nothing to suggest that my client’s reinstatement
would cause disruption in the workplace or that good working
relationship between her and her colleagues cannot be restored.’
[23]
It is undisputed that the Applicant kept
contact with Ms Phaka throughout her absence from work and that at
some stage both of them
were under the impression that she was on
suspension. That impression was reasonable, I believe, since the
First respondent had
communicated its intention to suspend the
Applicant. As such, her suspension remained an enigma and, up until 8
December 2011,
even her managers were uncertain about her situation.
[24]
In the Applicant’s supplementary
affidavit filed as directed by this Court, annexed thereto is Mr
Freddie Legoka’s affidavit,
a mortician who assisted her with
the burial of her son. According to him, he met the Applicant at her
place of work on 18
November
2011 and witnessed her filling some leave forms and submitted them
back to her supervisor the same day.
[25]
It is common cause that the said leave
forms never reached the management. However, nothing turns on the
lost leave forms because
when the Applicant returned back to work on
the 5
th
of December 2011, a second set of leave forms was completed and
handed over to management. Mr Cilliers, Applicant’s manager,
conceded during arbitration that it was not an anomaly to file leave
forms after leave had been taken, subject to the approval
by a
manager or a senior official.
[26]
Furthermore, the Applicant managed to file
her son’s death certificate as proof that she had been
distressed by his illness
and his subsequent passing. It is,
therefore, disingenuous of the Respondents to submit in their heads
of argument that the Applicant
failed to satisfactorily explain the
absence without authority simply by failing to submit doctor’s
notes and also by failing
to submit her son’s death
certificate. There is no evidence on record to support these
assertions. On the contrary, the First
Respondent’s answering
affidavit placed much emphasis on the fact that the Applicant was
absent without authorisation and
obviously was premised on the
arbitrator’s findings.
[27]
In the premises, it cannot be said that the
Applicant was wilfully absent from work. Also, there is no evidence
proffered by the
Second Respondent to support its assertion that it
had taken into consideration the Applicant’s submissions
chronicling her
circumstances and satisfied itself that continued
employment relationship had been rendered intolerable by her
conduct.
[28]
The
interpretation given by Van Niekerk J in the case of
De
Villiers
and endorsed by the Labour Appeal is spot on as it is in line with
the Constitutional Court approach eloquently crystallised by
Olivier
JA in of
Govender
v Minister of Safety and Security
[6]
by stating the following:
‘
This
method of interpreting statutory provisions under the Constitution
requires a court to negotiate the shoals between the Scylla
of the
old-style literalism and the Charybdis of judicial law-making. This
requires magistrates and judges:
(a)
to examine the objects and purport of the Act or the section under
consideration;
(b)
to examine the ambit and meaning of the rights protected by the
Constitution;
(c)
to ascertain whether it is reasonably possible to interpret the Act
or section under consideration in such a manner that it
conforms with
the Constitution, i.e. by protecting the rights therein protected;
(d)
if such interpretation is possible, to give effect to it, and
(e)
if it is not possible, to initiate steps leading to a declaration of
constitutional invalidity.’
[29]
To adopt any other mode of interpretation
would lead to absurdity,
especially given
the Applicant’s right to fair labour practice. It is my view
that the Second Respondent obliviously relied
on the arbitrator’s
findings and as a result failed to consider the Applicant’s
written submissions which patently
make a good case for her
reinstatement.
Conclusion
[30]
The Second Respondent’s decision not
to reinstate the Applicant was capricious and absurd. The decision
must be reviewed and
set aside.
Relief
[31]
The Applicant has submitted that the Court
should substitute the First Respondent’s decision of 17 July
2012 with its decision
ordering that she be reinstated into the same
post that she held before her statutory termination. Certainly, given
the history
of this litigation, it makes sense not to refer it back
to the First Respondent for a decision.
[32]
Section
193 of the LRA is a relevant guideline in these matters. As such, the
following sentiments expressed by the Constitutional
Court on
reinstatement in
Equity
Aviation Services (Pty) Ltd v Commission for Conciliation, Mediation
and Arbitration and Others,
[7]
are
apposite:
‘
Reinstatement
is the primary statutory remedy in unfair dismissal disputes. It is
aimed at placing an employee in the position he
or she would have
been but for the unfair dismissal. It safeguards workers’
employment by restoring the employment contract.
Differently put, if employees are reinstated
they resume employment on the same terms and conditions that
prevailed at the time
of their dismissal. As the language of section
193(1)(a) indicates, the extent of retrospectivity is dependent upon
the exercise
of a discretion by the court or arbitrator. The only
limitation in this regard is that the reinstatement cannot be fixed
at a date
earlier than the actual date of the dismissal. The court or
arbitrator may thus decide the date from which the reinstatement will
run, but may not order reinstatement from a date earlier than the
date of dismissal. The ordinary meaning of the word “reinstate”
means that the reinstatement will not run a date from after the
arbitration award. Ordinarily then, if a Commissioner of the CCMA
order the reinstatement of an employee that reinstatement will
operate from the date of the award of the CCMA, unless the
Commissioner
decides to render the reinstatement retrospective. The
fact that the dismissed employee has been without income during the
period
since his or her dismissal must, among other things, be taken
into account in the exercise of the discretion, given that the
employee’s
having been without income for that period was a
direct result of the employer’s conduct in dismissing him or
her unfairly.’
[33]
There is no evidence led by the Respondents
to indicate that Applicant’s reinstatement would not be
reasonably practicable.
However, I am of the view that the
reinstatement should not have full retrospective effect. The
Applicant has been represented
by her attorneys of record since the
commencement of this litigation. However, Applicant’s approach
to this litigation if
fraught with procedural bungles which caused
unnecessary delay. By way of example, instead of invoking the
provisions of 17(3)(b)
of the PSA, she referred the matter to the
GPSSBC and, consequently, the First Respondent’s decision not
to reinstate was
only made on 17
July
2012.
[34]
Therefore, the period during which the
Applicant was absent from work should be deemed to be leave without
pay in accordance with
section 17(3)(b) of the PSA. That period
should run from 18 October 2011 until 17 July 2012.
Costs
[35]
For the same reasons alluded to above, I am
of the opinion that it would be unfair to award cost against the
Respondents.
Order
[36]
In the circumstances, I make the following
order:
1.
That the First Respondent’s decision
not to reinstate the Applicant is reviewed and set aside;
2.
The First Respondent
is ordered to reinstate the applicant to her former post
retrospectively to 17 July 2012, on the same terms
and conditions of
employment as previously held and without the loss of any
remuneration or benefits;
3.
The Applicant is not
entitled to any remuneration for the period 18 October 2011 to 17
July 2012; and
4.
There is no order as to costs.
Nkutha-Nkontwana
AJ
Judge
of the Labour Court of South Africa
APPEARANCES:
FOR THE
APPLICANT: Advocate P Kitkstein
Briefed by Keith
Whitaker Attorneys
FOR THE
RESPONDENTS: M Bothma
Briefed
by the State Attorneys
[1]
[2014]
7 BLLR 687
(LAC); (2014) 35 ILJ 2131 (LAC) at para 33.
[2]
[1999] ZACC 17
;
2000
(1) BCLR 39
(CC); See also
Radio
Pretoria v Chairman of the Independent Communication Authority of
South Africa and Another
2005 (3) BCLR 231 (CC).
[3]
2000
(2) SA 6775
(CC) at para 85.
[4]
[2010]
31 ILJ 1377 (LC).
[5]
Supra
at para 36.
[6]
2001
(4) SA 273
(SCA) at para 11.
[7]
[2008]
12 BLLR 1129
(CC) at para 36.