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[2015] ZALCJHB 122
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Zungu v Premier of the Province of KwaZulu-Natal and Another (D244/15) [2015] ZALCJHB 122 (14 April 2015)
REPUBLIC OF SOUTH
AFRICA
IN THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
CASE NO: D244/15
DATE: 14 APRIL 2015
Not Reportable
In the matter between
DR SIBONGILE
ZUNGU
........................................................................................................
Applicant
And
THE PREMIER OF THE PROVINCE
OF
KWAZULU-NATAL
..............................................................................................
First
Respondent
THE MEMBER OF THE EXECUTIVE COUNCIL
FOR
THE DEPARTMENT OF HEALTH,
KWAZULU-NATAL
.................................
Second
Respondent
Heard: 10 April 2015
Delivered: 14 April 2015
Summary: An applicant alleging that the
respondent has breached an agreement between the parties on the
postponement of a matter
may not seek to rely on grounds which fall
outside the agreement.
JUDGMENT
LALLIE J
[1] The applicant launched an urgent
application mainly for an order in the following terms:
2. That a rule nisi be hereby issued
calling upon the respondents to show cause … why an order in
the following terms should
not be made:
2.1 That the Respondents be and are
hereby interdicted from making any appointment for the Head of
Department of the Department
of Health, other than that Applicant,
including making any acting appointment in that position;
2.2 Directing the Respondent to appoint
the Applicant as the Head of Department of the Department of Health
in KwaZulu-Natal pursuant
to the recommendation of the Independent
Selection Panel recommending the appointment of the Applicant as the
Head of Department
for Department of Health in KwaZulu-Natal;
2.3 Declaring that the First Respondent
is not entitled to take into account provisional report prepared by
the investigating team
concerning the Applicant;’
[2] The matter was set down for 31
March 2015. It was, however, not argued but the parties reach an
agreement in terms of which
the first respondent “undertook not
to appoint anyone into the position which is the subject matter of
this application (HOD
KZN Health);
2 The matter would be adjourned to 17th
April 2015”.
[3] After the postponement of the
matter the applicant became aware that the first respondent appointed
Dr Simelane as the acting
Head of Department for Health in
KwaZulu-Natal (the HOD position) with effect from 1 April 2015 until
the appointment of a new
Head of Department. On 2 April 2015 the
applicant received a letter dated 1 April 2015 in which the first
respondent advised her
that her contract had expired. He further
expressed an intention not to renew it. The letters prompted the
applicant to launch
the present urgent application seeking the same
relief she sought in the one postponed to 17 April 2015. The only
difference in
the relief she is presently seeking is costs in that
she now seeks costs de boni propriis on an attorney and client scale.
The
applicant submitted that by issuing the letters the first
respondent undermined the undertaking made on 17 March 2015. The
actual
relief sought by the applicant is the enforcement of the
agreement reached by the parties on 17 March 2015 (the agreement).
[4] The respondents opposed this
application on the basis that the first respondent did not breach the
agreement. They submitted
that the applicant sought to rely on facts
which fall outside the realm of the agreement. Had the first
respondent fail to appoint
an acting HOD he would have been in
breach of section 36 of the Public Finance Management Act (the PFMA)
which precludes him from
leaving a position of an accounting officer
vacant. It is common cause that the HOD is an accounting officer. In
an attempt to
prove that the first respondent breached the agreement
the applicant submitted that the first respondent was aware that she
performed
her official duties on 1 April 2015. The first respondent
advised her of the termination of her contract with the intention not
to renew it. He appointed Dr Simelane to act in the HOD position
after making an undertaking not to appoint anyone in the capacity
of
the Head of Department, acting or otherwise in the intervening period
until the matter was argued on 7 April 2015.
[5] The applicant’s submission
that the first respondent made an undertaking not to appoint an
acting HOD until the matter
was argued on 17 April 2015 is not
supported by the letter in which her attorneys reduced into writing
the terms of the agreement.
A reading of the letter which the
agreement is recorded makes it clear that the undertaking was not to
appoint anyone in the position
which is the subject matter of the
original application. The subject matter of the original application
is the appointment in the
HOD position for a period of five years. It
is common cause that the first respondent has not made that
appointment yet. The respondents’
submission that the first
respondent was compelled by legislation not to live the HOD position
vacant was not challenged. The applicant
therefore failed to prove
that the first respondent breached the agreement.
[6] The respondents sought a costs
order against the applicant. Having considered the submissions on
behalf of the parties on the
issue I am of the view that the
undertaking not to appoint anyone to the HOD position does create the
incorrect impression that
it included the appointment of an acting
HOD. The applicant’s error is therefore not unreasonable. In
the premises granting
a costs order against her will not be fair.
[7] In the premises the following order
is made:
7.1 The application is dismissed.
7.2 The application postponed to 17
April 2015 will proceed in terms of the agreement reached by the
parties on 31 March 2015.
7.3 No order is made as to costs.
Lallie J
Judge of the Labour Court of South
Africa
APPEARANCES
For the Applicant: Advocate
Madonsela
Instructed by: Strauss Daly Inc
For the Respondents: Advocate Van
Niekerk SC with Advocate Patel
Instructed by:State Attorney