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[2020] ZALCJHB 223
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South African Medical Association and Another v Member of the Executive Council for Health North West (JR2580/12) [2020] ZALCJHB 223 (22 May 2020)
The
Labour Court of South Africa, JOHANNESBURG
Judgment
Not reportable
case
no:
JR2580/12
In the matter between:
SOUTH
AFRICAN MEDICAL ASSOCIATION
1
st
Applicant
DR ELIE
MUTUNZI
2
nd
Applicant
and
MEMBER OF THE
EXECUTIVE COUNCIL
FOR
HEALTH IN NORTH
WEST
Respondent
Heard
:
(In Chambers)
Delivered
:
22 July 2020
Summary:
The
test for application for leave to appeal remains that of an
appeal having reasonable prospects within the contemplation
of
section 17(1) (a) (i) of the Superior Courts Act
[1]
.
The application failed to meet the test. Held (1) The application for
leave to appeal is dismissed with costs.
Judgment-Leave
to Appeal
MOSHOANA, J
Introduction
[1]
This is an application to seek leave to
appeal against the whole judgment and order of this court handed down
on 22 May 2020. The
application is duly opposed by the first and
second applicants. For ease of reference, the parties are cited in
this judgment as
they were in the main application. However, the
applicant for leave to appeal in the present application is the
Member of the Executive
Council: Health North West Province (MEC) and
the respondents are the applicants in the main application Parties
filed written
submission in terms of the provisions of Rule 30. The
application was considered in chambers.
Background facts
[2]
The
relevant facts are as set out in the impugned judgment and are not to
be repeated herein. Suffice to mention that the MEC is
aggrieved by
the judgment and order made by this Court. According to the main
judgment, there was no deemed dismissal because one
of the
jurisdictional requirements of section 17 of the Public Services Act
(PSA) is absent. As a result this Court ordered
as a remedy,
reinstatement of Mutunzi without any loss of benefits as the Labour
Appeal Court in the judgment of Gangaram did it
[2]
.
[3]
The respondents contend that this Court
arrived at a conclusion that no other Court may disturb and as such
the application must
be refused.
Grounds for
leave to appeal
[4]
The MEC contends that this Court erred in
concluding that the jurisdictional requirement of absent without
permission was not met.
Further the MEC contends that this Court
erred in its interpretation of section 20 of the Basic Conditions of
Employment Act (BCEA)
and its interpretation is at variance with the
interpretation of the similar provisions by the earlier judgment of
this Court.
The MEC also contends that this Court issued a
declaratory relief without it being sought by the aggrieved party. A
further contention
is that this Court applied the provisions of
section 20 of the BCEA without warning the parties that it would do
so. Lastly, it
is contended that the remedy afforded to Mutunzi was
inappropriate.
Evaluation
[5]
The
test for leave to appeal requires a measure of certainty that another
court will differ with this court.
[3]
The bar has been raised higher than normal. This Court has carefully
considered the grounds set out above together with the MEC’s
lengthy submissions as well as the submissions of the applicants in
the main application. It is apparent that the MEC has missed
the
import of the main judgment by a proverbial mile. The issue is not
about review of a decision to dismiss. The dismissal in
this instance
happened by operation of law thus not reviewable as a legal fiction.
The authorities properly cited by the MEC are
perspicuous. The
dismissal happens by operation of law. The issue is did all the
jurisdictional facts presented themselves in order
for the legal
fiction to take effect. This Court in the main judgment concluded
that the legal fiction did not happen.
[6]
The letter of 17 April 2012 had legal
consequences for Mutunzi’s employment. This legal consequences
was brought about by
the MEC’s believe that the provisions of
the law had kicked in. In the Court’s view, in the main
judgment that believe
is wrong. The question for Mutunzi was whether
he should leave a decision with dire consequences for him? He decided
against that
and launched a review.
[7]
In
MEC
for Health, Eastern Cape and Another v Kirkland Investments (Pty)
Ltd
[4]
,
the majority judgment penned by Cameron J stated the law as follows:
[64]
…Even where the decision is defective…government should
generally not be exempt
from the forms of process of review…
[65]
The reason spring from deep within the Constitution’s scrutiny
power. The Constitution
regulates all public power…When
government errs by issuing a defecitive decision, the subject
affected by it …to
be afforded a proper hearing, on whether
the decision should be set aside… The decision, despite being
defective, may have
consequences that make it undesirable or even
impossible to set aside. That demands a proper process, in which all
factors for
and against are properly weighed.
[8]
The MEC holds a view that calling into aid
statutory provision does not amount to exercise of public power. It
is truly difficult
to understand this view. What the MEC communicated
to Mutunzi on 17 April 2012 was done on the strength that the
statutory fiction
had kicked in. in other words the MEC used the law
to bring about the undesirable consequences for Mutunzi. If this is
not exercise
of some statutory power then this Court does not know
what to call it. It cannot be seriously argued that when the MEC
informed
Mutunzi on 17 April 2012 that the legal fiction has taken
effect such does not amount to a decision. In
Kirkland
,
the Court stated the following:
[92]
It is true that the word “decision” in its ordinary
meaning may signify a proper
decision, namely one taken lawfully
after a full application of the mind. Yet in administrative law an
approval granted under unlawful
dictation is still a decision. Like
any other, it has effect until it is reviewed and set aside. That it
was granted under dictation
makes it vulnerable to judicial review.
It does not mean that it is a non-decision.
[9]
Clearly in my view, calling into aid the
provisions of a section in order to achieve a particular consequences
and effect amounts
to a decision susceptible to judicial review.
Whether such a decision is administrative in nature is neither here
nor there in
order to be reviewed under PAJA or the Constitution
under the rubric of legality. The distinction becomes irrelevant
particularly
because PAJA itself defines an administrative act as a
decision by the state exercising a public power or performing a
public function
in terms of any legislation. It can hardly be said
that when the MEC acted on 17 April 2012 by calling into aid the
provisions
of the section was performing private function not
attached or sustained by legislation. No Court can arrive at a
conclusion that
no exercise of public power or function was involved.
As pointed out above, the decision I am referring to is not one of
saying
Mutunzi you are dismissed. The decision I am referring to is
one that says the jurisdictional requirements of the section are
present.
The Court in
Kirkland
clarified the law as follows:
[98]
…Jurisdictional facts refer broadly to preconditions or
conditions precedent that must
exist before the exercise of power…It
is true we sometimes refer to lawfulness requirements as
“jurisdictional facts”…
[99]
So the absence of a jurisdictional fact does not make the action a
nullity. It means only that
the action is reviewable; usually on the
grounds of lawfulness… Our courts have consistently treated
the absence of a jurisdictional
fact as a reason to set the action
aside, rather than as rendering the action non-existent from the
outset. The absence of jurisdictional
facts did not entitle Mr Boya
to withdraw the approval but only to approach a court to set it
aside.
[10]
It does seem apparent that the MEC takes a
view that because it has been held that in a deemed dismissal there
is no decision required,
an affected party cannot approach a court of
review to question amongst others the presence of the jurisdictional
facts to enable
the legal fiction to take effect. That is an
untenable situation and at odds with what the Constitutional Court ha
said. It offends
the principle of legality and the rule of law to
allow such an invocation of the law even in instances where the
lawfulness of
such application of the law is questionable. This Court
in the main judgment took a view that action of calling into aid the
provisions
of section 17 of the PSA even where the jurisdictional
facts are absent offends section 1 (c) of the Constitution. In terms
of
section 169 (1) of the Constitution, the High Court of which the
Labour Court is one is empowered to decide any constitutional matter.
In terms of section 167 (7) of the Constitution, a constitutional
matter includes any issue involving the interpretation, protection
or
enforcement of the Constitution.
[11]
In launching a section 158 (1) (h), which
subjects any act performed by the state in its capacity as an
employer to review by the
Labour Court, Mutunzi was seeking to
protect and enforce the rule of law, thus involved in a
constitutional matter.
[12]
The
MEC incorrectly interprets to order declaring that there was no
deemed dismissal to mean that this Court was exercising powers
under
section 158 – granting of a declaratory relief. A judgment or
order is to be interpreted by having regard to the judgment
as a
whole.
[5]
Before making the
order this Court pronounced itself in paragraph 33 of the main
judgment that the jurisdictional requirements
of the section have not
been met and the deemed dismissal did not kick in. Section 172 (1) of
the Constitution provides that when
deciding a constitutional matter
within its powers, a court must – (a) declare that the conduct
that is inconsistent with
the Constitution is invalid to the extent
of its inconsistency. Where the jurisdictional facts of section 17 of
the PSA are absent
an employee may not be deemed dismissed. Deeming
an employee dismissed in the absence of the jurisdictional facts is a
conduct
that is inconsistent with section 1 (c) of the Constitution.
[13]
The
Constitutional Court in
Merafong
City Local Municipality v Anglo Ashanti Ltd
[6]
,
Jafta J stated the following:
[117]
Consistent with its supremacy, in section 172 (1) (a) the
Constitution obliges
every court,
in deciding a matter within
its competence,
to declare
law or
conduct
inconsistent
with it invalid.
[14]
As
pointed out above deeming Mutunzi dismissed within the statutory
provision – on 17 April 2012 – is a conduct inconsistent
with the Constitution in instances where the jurisdictional
requirements were not met. The obligation of this Court after
reaching
a conclusion that the jurisdictional requirements were not
met was obligated to declare as invalid any assertion or conduct that
Mutunzi was deemed dismissed. As mentioned above the conduct of
calling into aid a statutory provision when all the requirements
are
met is an exercise of public power. Such an exercise must comply with
the Constitution
[7]
. In light
thereof, no other Court may arrive at a conclusion that absent
jurisdictional facts of the enabling section, Mutunzi
was not deemed
dismissed.
[15]
With
regard to the remedy, the MEC again takes a wrong view that the
reinstatement ordered is one dependent on the fairness or otherwise
of a dismissal. It is not. At paragraph 34 of the main judgment, this
Court stated that an illegality is remedied by simply declaring
it as
such and for the
status
quo ante
to prevail. Zondo J in a dissenting judgment of
NUM
obo Fohlisa & others v Hendor Mining Supplies
[8]
stated the following persuasive position:
“
Another
point that supports the proposition that paragraph (a) of Cele AJ’s
is not a prospective order is this.
Outside
of the LRA
, if a court make an order
that someone be reinstated in a certain position from which he or she
had been
unlawfully removed
,
that order would mean both that that person should be put back into
the position he or she occupied before his or her removal…”
[16]
It
cannot be gainsaid that removing an employee under the guise of a
legal fiction, when the legal fiction did not take effect,
amounts to
an unlawful removal
[9]
.
Therefore, the reinstatement order made by this Court is one outside
the LRA and in response to the unlawful removal. Accordingly,
I take
a view that another Court may not provide a different remedy. What
this Court did remedy wise was done by the LAC in
Gangaram
.
[10]
[17]
Section 17 (1) (a) (ii) of the Superior
Courts Act provides that where there is some compelling reason why
the appeal must be heard
including conflicting judgments on the
matter under consideration, leave to appeal may be given. The MEC
takes a view that there
are conflicting judgments on the issue of
section 20 of the BCEA. As a point of departure, section 20 of the
BCEA was not a matter
under consideration. This Court made reference
to section 20, when seeking to give meaning on the words “without
permission”.
The enquiry whether permission exists is a hybrid
one. It is one of facts and where necessary one of law.
Interpretation is a legal
task and not dependent on what the parties
say. It is a task reserved for a Court of law. That being so, a
complaint that the parties
were not warned that section 20 of the
BCEA shall be considered en route interpretation of a statutory
provision is not one that
makes this matter a compelling one in order
to gain leave to appeal. A doctrine in statutory construction exists
which states that
statutes in
pari
materia
must be construed together.
Section 17 makes reference to vocational leave that is unpaid. An
absence without permission within
the contemplation of the section
may morph into a vocational leave. The BCEA is one statute that deals
with leave of absence in
an employment context. Thus it is a statute
in
pari materia
.
In search for the meaning of words employed by the legislature it was
not incongruent for this Court to apply the doctrine of
pari
materia
.
[18]
Turning
to the alleged conflict between the main judgment and the judgment of
the Labour Court per Van Niekerk J in
Ludick
v Rural Maintenance (Pty) Ltd
[11]
.
There is no conflict between the two judgments. In Ludick the Labour
Court was involved in a claim of forfeiture of accrued annual
leave.
This Court in the main judgment interpreted section 20 of the BCEA to
mean that no approval is required in order to take
leave. In
paragraph 18 of the Ludick judgment, my brother Van Niekerk J states
that the ideal situation and not the legal position
is to have the
timing of the leave once accrued to be a subject of agreement between
the parties. On the other hand this Court
in the main judgment
stated, “the practice of the supervisor recommending is more
operational and accords with the issue
of the timing within the
contemplation of section 20 (10) (b) of the BCEA.” This is not
in conflict with the “ideal”
situation propagated by Van
Niekerk J. Nowhere in the judgment does Van Niekerk J state that an
approval of leave is a statutory
requirement.
[19]
The MEC is oblivious of the fact that the
genesis of this matter is the taking of annual leave. The statute
that governs the taking
of annual leave is the BCEA. There are two
periods involved in this matter. In relation to the first period
counsel for the MEC
correctly conceded that the provisions of section
17 of the PSA could not cover the first period. With that well made
concession,
the issue is the second period.
[20]
Before the expiry of the first period not
affected by section 17 of the PSA, Mutunzi requested an extension.
This request is nothing
but a request to be on leave. It was for that
reason that this Court referred to section 20 (6) of the BCEA. On
proper interpretation
of section 20 annual leave is earned and is
different from an ordinary absence from work. With annual leave once
earned there is
no need for approval. Whereas with an ordinary
absence, permission is required. On the facts, there is no evidence
that the annual
leave so earned was not extended. This conclusion was
reached in the main judgment at paragraph 32 – therefore my
conclusions
are that Mutunzi did request for extension of the annual
leave…the respondent was by law obliged to grant him that. In
Grootboom
,
it was found that an employee who has been placed on suspension is
not obliged to perform duties and as such the requirement of
absence
without permission was not present and a jurisdictional requirements
is lacking. Similarly, where an employee requests
an extension of
annual leave and there is no evidence that such an extension was not
granted, then the without permission requirement
shall not have been
met. Mutunzi was paid for the months of February and March 2012. Such
implies that even if the provisions of
the deeming provisions had
taken effect from 1 February 2012, being paid implies that he was
reinstated and on 12 April 2012 was
suspended and his absence was
with permission. In
Ramonetha
,
the LAC stated the following:
[23]
… In accepting the appellant’s tender of performance and
remunerating him for his
services, the only conclusion to be drawn on
the facts is that, on his return to work, the Department implicitly
reinstated the
appellant into his employment with it
[25]
The Department was, following the appellant’s reinstatement,
not entitled thereafter to rely on his deemed dismissal,
when
no further period of unauthorized absence from work had arisen after
the appellant’s return to work.
[26]
It follows that in relying on the appellant’s deemed dismissal
after he had been reinstated,
the MEC acted unlawfully, irrationally
and outside the powers granted to him by law. This is so in that
it
was not legally permissible for the Department on 21 May 2012 to rely
on a deemed dismissal
…when the employment relationship
between the parties had thereafter been restored.
[21]
For all the reasons set out above, the MEC
has failed to meet the heightened test for leave to appeal.
Conclusions
[7]
In summary, it is my finding that the application for leave to appeal
must fail with
costs.
Order
[8]
In the results, I make the following order:
1.
The application for leave to appeal is
dismissed.
2.
The MEC is to pay the costs of the
respondents.
_______________________
G. N. Moshoana
Judge
of the Labour Court of South Africa
APPEARANCES
(NONE)
WRITTEN
SUBMISSIONS
For
the MEC: Advocate
M J Ramaepadi SC and Advocate S B Nhlapo
Instructed
by: State
Attorney Johannesburg
For the
Respondents: Advocate
M Van As
Instructed
by: Solomon
Holmes Attorneys, Johannesburg.
[1]
Act
10 of 2013
[2]
Se
citation in the main judgment.
[3]
See
Mont Chevraux Trust v T Goosen and 18 others Case T28/2012.
[4]
{2014]
ZACC 6 (25 March 2014)
[5]
See
Firestone
SA (Pty) Ltd v Genticuro
AG
1977
(4) SA 298 (A)
[6]
[2016]
ZACC 35
(24 October 2016)
[7]
See
Affordable Medicine Trust v Minister of Health 2006 (3) SA 247 (CC)
[8]
[2017]
6 BLLR 539 (CC)
[9]
Maswanganyi
v Minister of Defence and Military Veterans and others
2020
(4) SA 1
(CC)
[10]
Similarly
in Maswanganyi, the order of the Constitutional Court has similar
effects – it is declared that the applicant’s
services…did not terminate as contemplated in section 59 (1)
(d) and that he continues to be in the employ…in the
same
position and capacity was on 18 July 2014.
[11]
[2014]
2 BLLR 178
(LC).