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[2020] ZALCJHB 274
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South African Medical Association and Another v Member of Executive Council For Health In North West (JR2580/12) [2020] ZALCJHB 274 (22 May 2020)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case
No:
JR2580/12
In
the matter between:
SOUTH
AFRICAN MEDICAL ASSOCIATION
First
Applicant
DR
ELIE MUTUNZI
Second
Applicant
And
MEMBER
OF THE EXECUTIVE COUNCIL
FOR
HEALTH IN NORTH WEST
Respondent
Heard
:
14 May 2020 (Due to Covid19 lockdown, this
matter was heard
via
video
conferencing and both parties agreed to this arrangement)
Delivered
:
22 May 2020 (Due to Covid19 lockdown,
this judgment was handed down electronically by emailing a copy to
the parties and the 22
nd
May 2020 shall be deemed to be the date of the delivery of this
judgment)
Summary:
An application to review and set aside a decision to invoke the
provisions of section 17 (3) (a) (i) of the Public Services Act (PSA)
alternatively a decision not to approve re-instatement of the
applicant who was deemed discharged by the operation of law. Where
one of the requirements is lacking the invocation of the provisions
is unlawful and is bound to be reviewed and set aside on the
principle of legality. Where the decision is set aside on the basis
that same is unlawful, the Court is empowered to order the
status
quo
ante
. Held: (1) The decision to
invoke the provisions of section 17 (3) (a) (i) is reviewed and set
aside. (2) The second applicant
is reinstated to his position with
immediate effect. Held: (2) The respondent to pay the applicant’s
costs.
JUDGMENT
MOSHOANA, J
Introduction
[1]
This
is a review application brought in terms of section 158 (1) (h) of
the Labour Relations Act. In terms of that section this
Court is
empowered to review any decision taken or any act performed by the
State in its capacity as an employer. Involved in this
matter are two
acts and or decisions. The first of which is when the respondent
called into aid, the statutory provisions to effect
the termination
of the second applicant’s employment. The second of which is
when the respondent failed to approve the reinstatement
of the second
applicant. In this judgment, if a conclusion is arrived at that the
statutory provisions were not evocable, then
the consideration of the
second act or decision would be academic. Put differently, it shall
be the end of the matter for the respondent.
Matters involving
this section of the PSA remain difficult horses to ride. However
given the approach I take at the end,
it was unnecessary for me to
ride the difficult horse, in my view, regarding the decision whether
to approve reinstatement or not.
Although it seemed that the question
whether refusal to reinstate amounts to an administrative action or
not is not settled
[1]
, the
Labour Appeal Court (LAC), later seems to have somewhat settled the
issue in
Ramonetha
v Department of Roads and Transport Limpopo and another
[2]
,
when the court said:
“
[19]
The current matter is concerned with the exercise of a power in terms
of s17 (3) (b), which neither has its source
in the contract of
employment, nor falls within the ambit of the LRA’s unfair
dismissal or unfair labour practice jurisdiction.
As such, the
decision whether to approve the reinstatement of an employee on good
cause shown, while the decision is taken by the
state as an employer,
it
involves the exercise of public power by a public functionary
.”
[2]
Similarly
calling into aid a statutory provision is an act that involves
exercise of public power. It is by now settled law that
when the
provisions of the section kick in, there is no need for a decision by
a functionary. However, where a functionary calls
into aid a
statutory provision, which act in itself is an exercise of public
power, such an act is susceptible to judicial scrutiny
under the
rubric of legality. It is by now settled law that section 158(1) (h)
of the Labour Relations Act
[3]
(LRA) is available to review the decisions of the state in its
capacity as an employer. I shall proceed to consider this matter
under the provisions of the LRA as opposed to Promotion of
Administrative Justice Act
[4]
(PAJA). It is also settled law that the principle applicable in
section 158 (1) (h) is that of legality.
[5]
Background
facts
[3]
The bulk of the relevant facts of this
matter are common cause. The quibble is around the interpretation and
meaning of those facts.
The second applicant, Doctor Mutunzi
(Mutunzi) was employed as a Medical Doctor by the Department of
Health, which is under the
leadership of the respondent (MEC for
Health). Mutunzi was absent from work effective 28 December 2011 and
returned to work on
10 April 2012.
[4]
Two days after his return, Mutunzi received
a letter from the Clinical Manager of Mafikeng Provincial Hospital
(MPH), Doctor Mabote
(Mabote). The letter sated the following to
Mthunzi:
“
You
are advised
not to work
until further notice.”
[5]
According to Mutunzi, the above amounted to
a suspension from work. According to the respondent, Mutunzi was
simply sent back home
and the letter was a “follow up”.
Mutunzi wrote a detailed protestation letter and perspicuously made
the point that
he was placed on an unfair and unlawful suspension. He
received the letter with astonishment and considered it as
coup
d’état
following a meeting
held on 10 April 2012, when his return was largely accepted. His
letter was not dignified with any response.
[6]
That notwithstanding, on 17 April 2012, the
Acting Chief Executive officer of MPH, addressed a further letter to
Mutunzi, which
in parts reads as follows:
Re: Your deemed
dismissal in terms of section 17 (3) (a) (i) of the Public Service
Act, Act 103 of 1994 as amended
“
Please
be advised that
you have been deemed as
having been dismissed
from the
continued employment of the public services with effect from 1
February 2012 and that deemed dismissal is occasioned by
your
unauthorized absence
in excess of one calendar month…
In the event of you not
being pleased with the above, you may, in terms of subsection (3) (b)
of the same provision
make written representation for the
consideration of the Honourable MEC for possible reinstatement
and until such date you shall, with respect, remain deemed as having
been dismissed.
[7]
On 7 May 2012, the first applicant
addressed written representations to Dr M Masike, the MEC. On 14 July
2012, the MEC said the
following to the representations:
1.
The above matter refers.
2.
It has come to our attention that while the
Department was
still in a process of
considering your representations
, you
decided to lodge a dispute with the Public Health and Social
Development Sectorial Bargaining Council.
3.
Your decision to lodge a dispute at this
stage, has undermined any further efforts of ensuring that your
representations are dealt
with internally.
4.
The
Department
will not substantively deal with your representations
.
It is, however, worth noting, that the Department has attended to
your dispute at the forum that you have chosen…
we
will await the outcome of take guidance thereof.
[8]
On 20 August 2012, in response to the above
correspondence, the first applicant implored the MEC to consider the
representations
nonetheless. On 7 September 2012, an Employment
Relations Official, Bokaba, provided a response which in parts reads
thus: -
5 Notwithstanding
the above and even where Dr Mutunzi could have not abandoned the
internal processes,
his deemed dismissal would still not stand on
the grounds that his representations did not
show good
cause
for reinstatement as contemplated by the
section under reference.
[9]
Consequently, on 9 November 2012, the
applicants launched the present application. The application is duly
opposed by the MEC.
Grounds for review
[10]
The pleading of the grounds was with
considerable regret done in a haphazard manner. But on the reading of
the founding affidavit
as a whole, the following emerges:
1.
The purpose of the application
is
to review and set aside
the
respondent’s decision not to
reinstate
the Applicant in terms of
section 17 (3) (b) of the Act
and
the initial discharge in terms of
section 17 (3)
(a)
2.
The
bulk of the other grounds are directed to the failure to approve the
reinstatement following the
De
Villiers
[6]
decision of this Court.
[11]
What
the Court is able to decipher from the papers, is that the attack is
on the initial decision to invoke the discharge, which
was
communicated to Mutunzi on 17 April 2012 and the decision not to
reinstate him, which decision was communicated to him on 7
September
2012. The applicants’ notice of motion specifically attacks the
decision of September 2012.
[7]
In addition, the applicants seek a further and alternative relief.
[8]
In
Geza
v Minister of Home Affairs and Another
[9]
,
the following was said:
“
Whatever
the ambit of a prayer for further or alternative relief, such relief
may
only be granted if it is consistent with the case made out by the
applicant in her founding affidavit and is consistent with
the
primary relief claimed.
In
Johannesburg
City Council v Bruma Thirty-Two (Pty) Ltd
,
Coetzee J described the prayer for alternative relief as being
‘redundant and mere verbiage’ in modern practice adding
that
whatever
a court ‘can vividly be asked to order on papers as framed, can
still be asked without its presence’ and that
it ‘does
not enlarge in any way “the terms of the express claim”
as pointed out by Tindall JA’…
[10]
[12]
In the founding papers, Mutunzi amongst
others states the following:
10.
Dr Mutunzi took his
annual leave
from 28 December 2011 and
left the country to visit his family abroad. Dr Mutunzi was scheduled
to return to work on the 30 January
2012.
[13]
According to the respondent, Mutunzi was
dismissed with effect from 1 February 2012 for having being on an
unauthorized absence
in excess of one calendar month. The primary
relief sought by Mutunzi is to review and set aside his dismissal
effected in line
with the section employed by the Department.
Evaluation
[14]
As pointed out above two acts or decisions
are implicated in this matter. I shall deal with the first decision
communicated on 17
April 2012. In my view a Court decision on it is
dispositive of the whole matter.
[15]
By
way of introduction, South Africa is founded on values of supremacy
of the Constitution and the rule of law.
[11]
The principle of legality simply implies that any decision or act
must be in line with the law. In
Minister
of Defence and Military Veterans v Motau
[12]
the following was said:
“
[69]
The principle of legality requires that every exercise of public
power, including every executive act, be rational.
For the exercise
of public power to meet this standard
it
must be rationally related to the purpose for which the power was
given…”
[16]
As
the Constitutional Court in
State
Information Technology Agency SOC ltd v Gijima Holding (Pty) Ltd
[13]
felicitously puts it, once there is compliance with the prescripts
that is the end of the matter in a legality review. Crucial
in this
matter is the question whether the jurisdictional requisites of
section 17 (3) (a) (i) were met. Both parties before me
are in
agreement that the requisites of the section are:
(a)
There must be an employee;
(b)
That employee must have absented himself
from his official duty;
(c)
His absence has to be
without
permission of the head of the department
;
and
(d)
The absence should be in excess of a
calendar month.
[17]
In terms of the section once the requisites
are met the dismissal takes effect on the date immediately succeeding
the last day of
attendance at his place of duty. Thus, the dismissal
of Mutunzi should have taken effect from 29 December 2011, since his
last
day of attendance was 28 December 2011. Curiously, the letter
addressed to Mutunzi refers to 1 February 2012, thus suggesting that
his last date of attendance was 31 January 2012.
[18]
In
an instance where one of the requirements is lacking, the section
cannot be invoked
[14]
. The
question I now turn to is was the absence of Mutunzi without
permission.
Was the absence of
Mutunzi without permission?
[19]
Before
I consider the factual allegations around this question, it is
important to consider the language employed by the legislature.
The
phrase “without permission” is employed. Care must always
be exercised when considering this phrase. In terms of
section 20 (2)
of the Basic Conditions of Employment Act (BCEA)
[15]
,
an employer is obligated to grant an employee annual leave.
Perspicuously, if an employee takes annual leave, such an employee
does not necessarily require the permission of an employer. Section
20 (10) of the BCEA provides that annual leave must be taken
either
in terms of an agreement or in terms of the provisions of the
section. Section 20 (6) provides that an employer is obligated
to
permit an employee at the employee’s written request to take
leave during a period of unpaid leave. To my mind, once annual
leave
or any form of leave for that matter, is involved there can be not
mention of absence without permission.
[20]
The section is there to cater for
abscondment. Such an abscondment may be converted into vocational
leave if the executing authority
is satisfied that it was not an
abscondment in the first place. The phrase that “
his
or her absence from official duty shall be deemed to be absence on
vacation leave without pay or leave
”
simply buttress the point that leave cannot be seen as absence
without permission.
[21]
The word permission must be given its
literal dictionary meaning. Permission means an act of permitting,
especially giving formal
consent; authorization. Therefore, if an
employee who is not on leave is absent for a period in excess of one
calendar month, such
an employee must exhibit a formal authorization
from the Head of the Department. One myth that must be dispelled with
immediate
adequacy is that the permission need not be in writing. An
oral permission is sufficient for the purposes of the section. Like
oral agreements, it is difficult but not impossible to prove an oral
arrangement.
[22]
Turning to the facts of this case, the
first strange feature is that the provisions of the section were
invoked on the return of
Mutunzi. This Court fails to understand the
reason of gaging Mutunzi to continue with his work on 12 April 2012.
I am inclined
to agree with Mutunzi that he was placed on suspension,
something the Department is not entitled to without following the
applicable
prescripts on suspension. In any event, if it is accepted
that Mutunzi ceased to be an employee on 1 February 2012, then the
Department
was not empowered to suspend him. That notwithstanding,
the respondent’s case on Mutunzi’s allegation of annual
leave
was as follows:
50
Ad paragraph 10
I admit that, according
to what is recorded in the leave form, second respondent (applicant)
took leave from 28 December 2011 which
was due to end on 31 January
2012.
Leave was not approved
[23]
From
the above evidence, it is clear that the issue is that the leave was
not approved. To that end section 20 (6) of the BCEA does
provide
that at the written request of an employee, an employer is obligated
to grant it. On 15 December 2011, Mutunzi made a written
application
for leave of absence.
[16]
The
remarks of Dr Mabote, in not recommending – notably, permission
was not an issue – He recorded thus: “
This
leave was not discussed with the clinical manager
for
approval before the officer left
.”
The leave form does indicate that what Mutunzi was seeking to take
was annual leave.
Ex
facie
the
form appears the following above the signature of Mutunzi:
“
Furthermore,
I full understand that if I do not have sufficient leave credits from
my previous or current leave cycle to cover for
my application, my
capped leave as at 30 June 2000 will be automatically utilized.
”
When it comes to annual leave the question is does an employee have
days accumulated for that cycle or not? By law an approval
of the
supervisor is not required. The practice of the supervisor
recommending is more operational and accords with the issue of
timing
within the contemplation of section 20 (10) (b) of the BCEA. I
therefore conclude that the approval was not required. Thus
the
conclusion to arrive at is that Mutunzi was on annual leave and his
absence is not one contemplated in the section under discussion.
[24]
Turning to the period from 30 January 2012
up to and including 10 April 2012. The first issue to be disposed is
that according to
respondent, the deeming provisions kicked in on 1
February 2012. Accordingly, from 1 February 2012, Mutunzi was no
longer an employee
of the department. If this is accepted to be
factually correct, then during this period Mutunzi was an employee
for effectively
two days. Of course the contention of the respondent
is not legally correct. As pointed out above, if the period covered
by the
annual leave is for a moment considered to be a period of
absence without permission within the contemplation of the section
concerned,
then the last day at work was 28 December 2012 and by end
of January 2012 – the calendar month – the deeming
provisions
kick in but with effect from 29 December 2011. Therefore,
the deemed dismissal date has to be 29 December 2011.
[25]
Assuming for now that this period is to be
taken into account for the purposes of the section concerned, I take
into account that
on 30 January 2012 – a day before the end of
the annual leave, Mutunzi firstly applied orally and confirmed it in
writing,
for an unpaid leave of absence. The respondent’s case
on that period is as follows:
Ad paragraph 11
51.1
I admit that there was a conversation between the second applicant
and Dr Mabote as recorded in a letter dated 30 January 2012.
What
Mabote told him
when refusing
to extent the leave is now a
matter of record.
51.2
What the second respondent (applicant) left out of the letter can
only be seen as an attempt to conceal or withhold vital information.
According to Mabote, he made it clear to him that he could not extend
leave that was never authorised.
51.3
…It is highly improbable that transmission by email would have
failed to reach Mabote.
Ad paragraph 12
The contents therein
contained and
what is recorded from the letter of 30 January are
admitted
.
[26]
Few comments are appropriate on this
evidence. Firstly, the deponent admits the contents of the letter.
The letter makes no reference
to a refusal to extend the leave as
having been mentioned in the telephonic conversation which preceded
the latter. The contents
of the telephonic conversation is captured
in the letter. The conversation itself is not disputed. The deponent
is hugely ambivalent
as to whether Dr Mabote did or did not receive
the letter of 30 January 2012. On the assumption that this Court
gives Dr Mabote
the benefit of doubt, his admission of the telephonic
conversation and the contents of the letter is fatal to any denial of
knowledge
of the letter. Therefore, my conclusions are that Mutunzi
did request for the extension of the annual leave and as pointed out
above, the respondent was by law obliged to grant him that.
[27]
In
the final analysis, it is perspicuous that the jurisdictional
requirements of the section were not met. This simply implies that
the effect of the section – deemed dismissal – cannot
come into play. On application of the principle of legality,
the
decision or action taken on 12 April 2012 to the effect that the
provisions of the section had kicked in is invalid, ineffectual
and
has no force of law. Since Mutunzi was not deemed dismissed, it was
not necessary for him to seek reinstatement by showing
good
cause
[17]
.
The issue of the
remedy
[28]
An illegality is remedied by simply
declaring it as such and for the
status
quo ante
to prevail. The
status
qou
before 12 April 2012 was that
Mutunzi was an employee of the hospital. On 12 April he was
unlawfully stopped from performing his
duties. Given my conclusions
above, the appropriate remedy would be to declare that Mutunzi was
not deemed dismissed and order
the respondent to reinstate him
without a loss of any benefits effective 12 April 2012.
[29]
One
aspect that requires clarification is that as it was done in
De
Villiers
,
this Court, by reinstating Mutunzi, is not stepping in the shoes of
the MEC, as empowered to approve reinstatement within the
contemplation of section 17 (3) (b) of the PSA. In another judgment,
I have taken a view, which is divergent from
De
Villiers
,
to the effect that the power in section 17 (3) (b) is reserved
statutorily for the MEC, it being different, in my view, from the
reinstatement power approbated to the Courts and the Dispute
resolution bodies
[18]
. I still
hold that view to date. However that issue does not arise in
casu
.
However, I afforded the parties a further opportunity to consider the
Nyamane
case. The applicant’s counsel agreed that on the weight of the
authorities in the Labour Court,
Nyamane
is correct. In the event there is still doubt lingering on this
point, the Supreme Court of Appeal (SCA) in
Minister
of Defence and Military Veterans v Mamasedi
[19]
,
said
the following:
[25]
The second reason is that Wentzel AJ purported to substitute her
decision for that of the Chief of SANDF,
she misdirected herself in
doing so.
Administrative decision-making powers are vested by
legislation in administrators and not judges
. When an
administrative decision is set aside on review, generally speaking,
it must be taken again by the administrator concerned.
As a
general rule, judges are precluded by the doctrine of the separation
of powers, which allocates powers among the branches of
government,
from taking such decisions themselves. They also often do not have
the expertise to do so.
[27]
…She simply was not in a position, let alone as good a
position as the Chief of the SANDF, to take
the decision to
re-instate Mamasedi. Without the factual dispute having been resolved
one way or the other, it could not be said
that the decision was a
foregone conclusion. There is furthermore, no indication that the
Chief of the SANDF is biased or otherwise
precluded from taking the
decision again when the facts are properly determined.
(My own emphasis)
Costs
[30]
When
it comes to costs, this Court possesses a wide discretion. I take a
view that the approach taken by the respondent in this
litigation was
the most cavalier one. After suspending Mutunzi, and realizing that
there is no legal basis to do so, simply called
into aid, the most
drastic provision of the PSA, whilst fully knowing that when Mutunzi
left he had applied for leave – fact
that Dr Mabote did not
approve it is of no moment and does not discard the fact that the
respondent had an idea of the whereabouts
of Mutunzi. It would be
unfair and unlawful
[20]
to
deprive Mutunzi of his litigation costs. Accordingly, having been
substantially successful, the applicants are entitled to their
litigation costs.
[31]
In the results, I make the following order:
Order
1.
It is declared that Mutunzi is not deemed
dismissed.
2.
The respondent is to reinstate Mutunzi with
immediate effect retrospective 12 April 2012 with benefits on the
same terms and conditions
that previously applied to him as if he had
not been dismissed.
3.
The respondent is to pay the costs of this
application.
GN Moshoana
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicant:
Advocate
L A Roux.
Instructed
by:
Kruger
Venter Inc, Welkom
For
the Respondent:
Advocate
T L Manye
Instructed
by:
State
Attorney – Bloemfontein
[1]
The LAC per Davis JA left the question open: [32] if correct, the
approach adopted in De Villiers, supra would apply equally
to the
present disputes. But it may not be necessary to determine this
specific question in order to resolve these disputes.
[2]
[2018] 1 BLLR 16 (LAC).
[3]
66 of 1995, as amended.
[4]
3 of 2000.
[5]
Weder
at [33] …Irrespective of the classification of the decisions
of the appellant as administrative action, appellant’s
actions
are open to review in terms of s 158…on the ground of
legality, a principle that has been developed significantly
by the
courts over the past decade.
[6]
De
Villiers v Head of Department Education, Western Cape
[2010] 31 ILJ 1377 (LC)
[7]
See paragraph 1 of the Notice of Motion.
[8]
See paragraph 4 of the Notice of Motion.
[9]
[2010] ZAECGHC 15 (22 February 2010) at para 12
[10]
See also
Elefu
v Lovedale Public Further Education and others
[2016] ZAECBHC 10 (11 October 2016) and
National
Stadium South Africa (Pty) Ltd and others v FirstRand Bank Ltd
2011 (2) SA 157 (SCA)
[11]
Section 1 (c) of the Constitution 108 of 1996.
[12]
2014 (8) BCLR 930
(CC)
[13]
2018 (2) BCLR 240 (CC).
[14]
See
Grootboom
v NPA and another
2014 (2) SA 68
(CC) and
Gangaram
v MEC for Department of Health Kwa-Zulu Natal and another
[2017] BLLR 1082 (LAC)
[15]
Act 75 of 1997
[16]
Annexure NWH1.
[17]
Paragraph 30 of Gangaram judgment. “…the jurisdictional
requirements …have not been satisfied, and as such
there was
no need for her to make representations in terms of s 17 (3) (b) for
her reinstatement.
[18]
See
Nyamane
v MEC: Free State Department of Health
[2019] 12 BLLR 1371
(LC) para 43-44.
[19]
(622/2017)
[2017] ZASCA 157
(24 November 2017)
[20]
Recently the Constitutional Court confirmed that the rule of costs
following the results is still intact in the Labour Court.