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[2015] ZALCPE 16
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Peter v Member of the Executive Council Department of Education Eastern Cape Province and Others (P 276/12) [2015] ZALCPE 16 (5 March 2015)
REPUBLIC OF SOUTH
AFRICA
IN THE LABOUR COURT OF
SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
Case No: P 276/12
DATE: 05 MARCH 2015
Not Reportable
In the matter between:
NOMANDLOVU EDNA
PETER
............................................................................................
Applicant
And
THE MEMBER OF THE EXECUTIVE COUNCIL
DEPARTMENT OF EDUCATION
EASTERN CAPE
PROVINCE
...................................................................................
First
Respondent
THE HEAD OF DEPARTMENT
DEPARTMENT OF EDUCATION
EASTERN CAPE
PROVINCE
...............................................................................
Second
Respondent
THE MINISTER OF BASIC
EDUCATION
............................................................
Third
Respondent
THE DIRECTOR-GENERAL
DEPARTMENT OF BASIC
EDUCATION
...........................................................
Fourth
Respondent
Heard: 26 February 2014
Delivered: 5 March 2015
Summary:
The applicant cannot
seek this court to compel the Department to determine her application
for a transfer when she has not submitted
a completed application
form in terms of the transfer policy.
JUDGMENT
LALLIE J
[1] The applicant is employed by the
Department of Education of the Eastern Cape Province (“the
Department”) as an educator,
attached to the post establishment
of Lilithalethu Junior Secondary School (“Lilithalethu”)
in Idutywa. She has, for
some time requested the second respondent,
to consider her transfer in terms of section 8 of the Employment of
Educator’s
Act of 1998 (“the EEA”). Her request is
based on her need to work in Port Elizabeth, closer to her family. In
this
application she seeks an order directing the respondents to
consider her application from Lilithalethu to another post and
thereafter
to advise her through her attorneys of the outcome of her
application. The application is opposed by the respondents on the
grounds
that the applicant has not submitted an application for
transfer in accordance with the required procedure as set out in
circular
19 of 2007 which provides for the procedure to transfer
permanent serving employees (“the circular”). The
circular
requires an employee who wishes to be transferred to
complete an application form for transfer.
[2] It is common cause that the
applicant’s headmaster told her in 2010 to complete the
transfer application form. The applicant
conceded that she submitted
an incomplete application form on or about 11 August 2011. I have
perused the applicant’s transfer
application form. It is
incomplete and does not comply with the circular. The applicant
indicated in the form that she seeks an
inter district/ inter
provincial transfer. The form required her to complete and submit the
whole of sections A and C for the
inter district transfer and the
whole of sections A and D for the inter provincial one. The way the
directions for the completion
of the transfer application form are
couched is telling. It requires specific information for a specific
application. I have perused
the application form and it supports the
respondent’s version. The applicant has given no valid reasons
for her failure
to complete the application form properly. The
correspondence between the applicant and the Department did not
sanitize her omission
to complete the form properly. The form forms
part of the transfer policy which the Department has to enforce as
part of its obligation
to manage its many employees properly. The
information the applicant did not provide would have placed the
Department in a position
to determine her transfer application
properly. The correct completion of the application form is a
prerequisite for the consideration
of the application for transfer.
This court cannot compel the Department to consider the applicant’s
application for transfer
when she has not completed and submitted her
application correctly and in terms of the transfer policy.
[3] In the premises, the following
order is made:
3.1 The application is dismissed.
Lallie J
Judge of the Labour Court of South
Africa
APPEARANCES
For the Applicant: Advocate Grobler
Instructed by: Michael Randell
Attorneys
For the respondent: Advocate Gauss
Instructed by: The State Attorney