About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2019
>>
[2019] ZALCJHB 37
|
|
Public Servants Association of South Africa obo Nkukwana and Others v Minister of Justice and Constitutional Development and Others (J1434/2017) [2019] ZALCJHB 37 (5 March 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not reportable
Case
No: J 1434/2017
In
the matter between:
PUBLIC SERVANTS
ASSOCIATION OF SOUTH AFRICA
obo
ISAKE NKUKWANA AND OTHERS
Applicant
and
MINISTER OF JUSTICE
AND CONSTITUTIONAL
DEVELOPMENT
First
Respondent
DIRECTOR GENERAL:
DEPARTMENT OF JUSTICE
AND
CONSTITUTIONAL DEVELOPMENT
Second
Respondent
MINISTER OF PUBLIC
SERVICE AND
ADMINISTRATION
Third
Respondent
Heard:
16 January 2019
Delivered:
05 March 2019
JUDGMENT
BECKENSTRATER,
AJ
Introduction
[1]
The Applicant seeks an order declaring that “
The
translation of the Individual Applicants to the positions of Senior
State Law Advisor remains extant and enforceable
”.
The Applicant relies upon a decision of Advocate Menzi Simelane, the
then incumbent Director General: Department of Justice
and
Constitutional Development dated 28 June 2018 (“the Decision”).
The Applicant asserts that the decision amended
the Individual
Applicants’ titles from Senior Legal Administration Officers to
Senior State Law Advisors and with it their
concomitant remuneration
and benefits. The Applicant also sought the payment of various
amounts of back-pay in relation to its
nine cited members. These
members were referred to in the application and will be referred to
in this Judgment as “
the
Individual Applicants
”. For
convenience, I will refer to the Department of Justice and
Constitutional Development as “
the
Department”.
[2]
The First and Second Respondents, the Minister of Justice and
Constitutional Development
and the Director General: Department of
Justice and Constitutional Development opposed the application.
[3]
Initially the application was not opposed and it was enrolled as an
unopposed application.
The deponent to the belatedly filed Answering
Affidavit explained that the matter had been allocated to some State
Attorney who
appears not to have dealt with it. The Notice of Set
Down came to the deponent’s attention and, after he had some
difficulties
tracking down the history and background to the matter,
he saw to the delivery of an Answering Affidavit shortly before the
unopposed
hearing. At the date of the unopposed application on 12
September 2017, the Court removed the matter from the unopposed roll
so
that it could be placed on the opposed roll and reserved the
question of costs.
[4]
In their Answering Affidavit the Respondents sought condonation for
the late delivery
of their affidavit. This application for
condonation was opposed in the Applicant’s Replying Affidavit.
Mr Geldenhuys, who
appeared on behalf of the Applicant, did not
persist with this opposition at the hearing of the matter. This
matter has a long
history giving rise to several matters. In order
that it could be properly ventilated I granted condonation.
[5]
The Individual Applicants are all employed by the First Respondent in
the office of
the Chief Directorate: International Legal Relations as
Senior Legal Administration Officers. Around 23 June 2018, a
Memorandum
was written to the Second Respondent, the subject of which
was the Amendment of Titles of Positions in the Chief Directorate:
International
Legal Relations. The express purpose of the Memorandum
was to obtain his approval: “
For
the amendment of titles of positions of Legal Administration Officers
(LAOs), Senior Legal Administration Officers, Directors
and Chief
Director and upgrade the rank of LAO’s to Level 12
”.
The Memorandum contained a motivation that the jobs of the LAOs and
Senior LAOs embodied legal work similar to that of
State Law Advisors
and Senior State Law Advisors. It recommended the amendment of
various titles including that “
the
title of Senior LAO be amended to Senior State Law Advisor
”
and that “
the rank of LAO be
upgraded from Level 11 to Level 12
”.
The Second Respondent approved the change in titles, but did not
approve the recommendation pertaining to the upgrading,
stating that:
“
There is no need for this
upgrading
”.
[6]
The Applicant contends that the Second Respondent rejected the
recommendation that
the rank of LAO be upgraded to salary Level 12 as
there was no need for such separate decision because the appropriate
salary of
the LAOs would be determined by the applied title, as with
other amended titles. The Answering Affidavit did not dispute this
assertion
in any material manner. It simply noted the Second
Respondent’s rejection of that recommendation. In argument Mr
Mokhari
SC, who appeared on behalf of the Respondents, did not
dispute this interpretation of the Second Respondent’s
Decision. The
Respondents’ defence was more principled.
[7]
Subsequent to the Decision, there was a Memorandum calling upon the
Decision to be
implemented. However, on 25 November 2008, the Third
Respondent wrote to the First Respondent in relation to “
the
translation of employees to the Occupation Specific Dispensation
(OSD) for legally qualified employees
”
(“the Third Respondent’s Letter”). The letter was
written to “
assist the relevant
departments in the implementation of the OSD
”.
In relation to LAOs, the Third Respondent stated the following:
“
Legal
Administration Officer
The current decentralised
human resource framework allows departments to give a post any
designation and as the job evaluation system
was also inconsistently
applied between departments, difficulties were being experienced in
translation legally qualified employees
to the OSD. Adding to
this concern some departments indicated their intent to translate
legally qualified employees to the
state law advisor’s
dispensation. To this extent it should be highlighted that the OSD
only provides from the translation
from a specific post to a similar
post. For example, an employee who held the post of legal
administration officer (and who
were performing the related
functions) on 1 July 2007 will translate to the corresponding post of
legal administration officer
and may not translate to a different
post such as a state law advisor...
I have therefore
determined, with effect from 1 July 2007, the following translation
measures for legal administration officers:
...
b.
all posts graded on salary levels 11 and 12, irrespective of
designation, shall translate to the post of senior legal
administration
officer (MR-6), with effect from 1 July 2007”.
[8]
On 19 January 2009, an official from the Department’s Human
Resources Directorate
wrote a memorandum to the Second Respondent in
relation to the Third Respondent’s Letter. The memorandum
recommended that
“
the posts of
State Law Advisor created in terms of the Director General’s
approval be abolished
”. There is,
however, no proof that the memorandum was ever approved by the Second
Respondent. The plethora of subsequent
correspondence does not
include any confirmation that such memorandum was approved by the
Second Respondent. It rather reflects
that the original memorandum
had, at some stage, been misplaced and that the Second Respondent
subsequently refused to sign a replacing
report insisting that the
original memorandum be located.
[9]
The Applicant complains that, while there is no proof that the Second
Respondent ever
approved the memorandum overturning his initial
Decision of 28 June 2008, the Decision was not implemented. In the
result, the
LAOs did not get the titles of State Law Advisors nor the
related remuneration increments. When the Individual Applicants did
not
obtain satisfaction through correspondence, they lodged
grievances with the Department. After much time, those grievances
were
rejected as being late.
[10]
On 12 November 2014, seven of the Individual Applicants referred a
dispute relating to an unfair labour
practice pertaining to promotion
to the General Public Services Sectoral Bargaining Council. They
claimed “
the reinstatement of the
State Law Advisor dispensation as approved by the former DG Advocate
Menzi Simelane
”. After a number
of events at the Bargaining Council it was ruled that the seven
Individual Applicants were obliged to apply
for condonation. When
they did apply for condonation it was refused by a Bargaining Council
panellist.
[11]
It was after these events that the Applicant launched the present
application. The Applicant firstly
argued that the Third Respondent’s
letter did not, in its own terms, purport to overturn the Decision
and was, at most, guidance
from the Third Respondent as to what the
Second Respondent should do within the Department. This, it was
argued, is why the Third
Respondent’s letter was the subject of
the later Memorandum of 19 January 2009 which, if approved, would
have constituted
the implementation thereof. This, it was argued,
also explained the need for the subsequent correspondence aimed at
determining
whether the Memorandum of 19 January 2009 had ever been
approved by the Second Respondent.
[12]
The Applicant’s primary argument on the merits was that the
Second Respondent’s Decision
had never been reversed by the
Second Respondent or set aside. The Respondents had simply chosen to
ignore the Decision which the
Applicant argued they were not entitled
to do because, as with invalid administrative decisions, such a
decision must be given
effect until set aside. In this regard, the
Applicants relied upon the principles expounded in
MEC
for Health, Eastern Cape and Another v Kirland Investments (Pty)
Limited t/a Eye and Laser Institute
[1]
.
[13]
The Respondent opposed the application contending:
13.1
That the Bargaining Council’s refusal of condonation
constituted
res judicata
to the present application;
13.2
That the Individual Applicants’ claims have, in any event,
prescribed; and
13.3
That the Decision of the Second Respondent was invalid as it was in
conflict with the OSD
as pointed out in the Third Respondent’s
letter and that, in any event, the Third Respondent’s letter
constituted a
valid countermanding of the Decision.
[14]
I do not accept the Applicant’s contention that the Third
Respondent’s letter only amounted
to guidance to the Second
Respondent. It sets out in clear terms that what had transpired was,
in the Third Respondent’s
view, contrary to the OSD. The Third
Respondent’s letter, moreover, ends by stating:
“
You
are also advised that the salary and grading of legally qualified
posts covered by the OSD are centrally determined by the Minister
for
the Public Service and Administration. Therefore, departments
may not job evaluate or re-evaluate any of these posts.
Your
department is informed not to deviate from the provisions of GPSSBC
Resolution 1 of 2008, PSCBC Resolution 3 of 2008 and the
Minister’s
determination in this regard. Where departments have
erroneously translated and adjusted employees’
salaries such
translations and adjustments will be regarded as incorrectly granted
remuneration and departments must recover the
overpayment, in terms
of the provision of Public Service Act, 1994, section 38, from the
affected officials”.
[15]
To my mind, the Third Respondent had, in his letter of 25 November
2008, countermanded the Decision.
The question that arises for
consideration is whether the Third Respondent had the power to do so
in relation to the Department
and whether, if he had such power, he
could simply exercise that power by way of a letter rather than
taking appropriate steps
to have the Decision set aside.
[16]
The Third Respondent is “
the
Minister
”
as defined in the Public Services Act
[2]
.
Section 3(1) of that Act stipulates that:
“
The
Minister is responsible for establishing norms and standards relating
to - ...
(b)
the organisational structures and establishments of departments and
other organisational
and government arrangements in the public
service;
(c)
the conditions of service and other employment practises for
employees;
(d)
labour relations in the public service ...
”
.
[17]
Moreover, in its Founding Affidavit the Applicant describes the Third
Respondent as being: “
Responsible
for the administration of the PSA and the Regulations promulgated in
terms thereof and which, inter alia, govern the
employment of State
employees across the public service, both national and provincial
departments
”.
[18]
The Respondents recorded in their Answering Affidavit that: “
The
Third Respondent is the guardian of OSD and any implementation and
translation of OSD must comply with the guidelines and circulars
issued by the Third Respondent
”.
The Applicant did not deny this description of the Third Respondent,
but simply asserted that the Second Respondent was
entitled to make
decisions regarding staff within the Department.
[19]
Given the above circumstances, I find that the Third Respondent did
have the power to take decisions
in respect of and issue directives
relating to staff ranks and titles, the translation of posts and
staff remuneration throughout
the public service – subject, of
course, to the rights of those affected by such decisions
[3]
.
[20]
In passing, I note that the Respondents contended that the Decision
was invalid for being in conflict
with the OSD. The precise terms of
the OSD were never, however, pleaded as part of the affidavits. I,
thus, cannot make a finding
that the Decision was invalid as being in
conflict with the OSD. On the papers before me what I have to
consider is whether the
Third Respondent’s letter validly
countermanded the Decision. To do this I turn to the Applicant’s
primary argument
as outlined in paragraph 12 above.
[21]
Mr Geldenhuys drew my attention to Section 158(1)(h) of the Labour
Relations Act
[4]
(LRA) as well
as the cases dealing with situations where employers were obliged to
approach the Labour Court to review and set
aside decisions of
disciplinary enquiry chairpersons. The leading case in this
regard appears to be
Hendricks
v Overstrand Municipality and Another
[5]
.
He contended that the Second Respondent’s Decision was such a
decision and that in accordance with those cases and the principles
set out in
Kirland
[6]
the Respondents were obliged to have approached the Court to set
aside the Decision and were not entitled to simply ignore or not
implement it.
[22]
Advocate Mokhari SC argued on behalf of the Respondents that the
Decision was not a decision of the
nature of those referred to in
either
Kirland
or
Hendricks
[7]
.
[23]
Having regard to the decisions of the Constitutional Court in
Chirwa
v Transnet and Others
[8]
and
Gcaba
v Minister of Safety and Security and Others
[9]
I doubt that the Decision can be said to amount to an administrative
action. In
Hendricks
the Labour Appeal Court contemplated the circumstances in which
employment decisions could still be classified as being
administrative
action having regard to the source of the power, the
nature of the power, its subject matter and how closely it related to
policy
matters or the implementation of legislation. None of the
hallmarks of an administrative decision as considered in
Hendricks
arise in the present matter. To my mind, the Second Respondent was
purely giving consideration to and making a decision in relation
to
employment issues
[10]
.
[24]
The Applicant did not, however, press that the Decision was an
administrative one, but rather that
it was akin thereto. In
Economic
Freedom Fighters v Speaker of the National Assembly and Others
[11]
the Constitutional Court found that the
Kirland
decision has application to matters beyond administrative action
having regard to the rule of law in the following terms:
“
No
decision grounded on the Constitution or law may be disregarded
without recourse to a Court of law. To do otherwise would ‘amount
to a license to self-help’. Whether the Public Protector’s
decisions amount to administrative action or not, the disregard
for
remedial action by those adversely affected by it, amounts to taking
the law into their own hands and is illegal. No binding
and
constitutionally or statutorily sourced decision may be disregarded
willy-nilly. It has legal consequences and must be
complied
with or acted upon. To achieve the opposite outcome lawfully, an
order of Court would have to be obtained”
[25]
However, the Second Respondent’s Decision does not constitute a
binding constitutionally or statutorily
sourced decision. It is
rather a decision which he made acting as an employer and not because
of some statutory or constitutional
power. I can see no reason why
such a decision cannot be reversed by the employer. This situation
would, of course, be different
if the Decision had become a term of
employment or where it had created a labour practice or legitimate
expectation on the part
of employees. Those are, however, not
the issues before me.
[26]
In
Hendricks
[12]
the Labour Appeal Court found that the Decision of a disciplinary
chairperson was reviewable under Section 158(1)(h) of the LRA:
“
On
i) the grounds listed in PAJA, provided the decision constitutes
administrative action; ii) in terms of the common law in relation
to
domestic or contractual disciplinary proceedings; or iii) in
accordance with the requirements of the constitutional principle
of
legality, such being grounds ‘
permissible
in law”. It appears to me that the requirement for a court to
set aside a decision would only apply to the type
of decisions
envisaged in this summary in
Hendricks
.
The Second Respondent’s Decision is not such a decision. This
appears evident from the nature of the Decision. On the face
of the
Decision, there seems to be no reason why the Second Respondent
himself could not have subsequently reversed it. The Second
Respondent did not become
functus
officio
when he made this Decision precisely because it was not a final
decision.
[27]
Consequently, I am of the view that the Second Respondent’s
Decision was capable of being countermanded
without the need for any
court order setting it aside and that the Third Respondent had the
power to do so. As set out above, I
find that the Third Respondent’s
letter of 25 November 2008, indeed, amounted to such a countermanding
instruction.
In the circumstances, the Applicant is not
entitled to the relief it seeks.
[28]
Given this conclusion it is not necessary for me to deal with the
Respondents’ defences of
res
judicata
or prescription.
[29]
I am mindful of the ongoing relationship between the parties as well
as the length of time over which
this dispute has dragged and the
uncertainty that has pervaded the matter. In those circumstances, I
do not think an order of costs
is warranted save in respect of the
unnecessary wasted costs occasioned by the late delivery of the
Answering Affidavit.
[30]
Consequently, I make the following order:
Order
1.
The application is dismissed.
2.
The First and Second Respondents are ordered to pay the wasted costs
relating to the appearance of 12 September 2017.
______________________
C. Beckenstrater
Acting
Judge of the Labour Court of South Africa
Appearances:
For the Applicant:
Mr Elco Geldenhys of
Macgregor & Erasmus Attorneys
For the Respondents: Mr M
Mokhari SC
Instructed
by:
The State Attorney
[1]
2014 (3) SA 481
(CC) at paras 64, 103 and 105.
[2]
Act
103 of 1994.
[3]
For example, the Third Respondent would not have the power to direct
how Collective Agreements must be interpreted, see:
Western
Cape Department of Health v MEC van Wyk and Others
(2014)
35 ILJ 3078 (LAC).
[4]
Act
66 of 1995 as amend.
[5]
(2015) 36 ILJ 163 (LAC).
[6]
Supra
n
1.
[7]
Id
n 5.
[8]
(2008) 29 ILJ 73 (CC).
[9]
2010 (1) SA 238 (CC).
[10]
See:
Hendricks
n 5 at paras 17 to 20.
[11]
2018 (2) SA 571
(CC) at para 74.
[12]
Supra
n 5 at
para
29.