IN THE LABOUR COURT OF SOUTH AFRICA, DURBAN
Case No: D533/2023
Not Reportable
In the matter between:
SIBUSISO JEROME ZIKHALI Applicant
and
MINISTER OF JUSTICE AND
CONSTITUTIONAL DEVELOPMENT First Respondent
THE KWAZULU-NATAL REGIONAL HEAD:
JUSTICE AND CONSTITUTIONAL DEVELOPMENT Second Respondent
Heard: 13 March 2025
Delivered: This judgment was handed down electronically by circulation to the
parties and / or their legal representatives by email. The date and time for handing-
down is deemed 14h00 on 28 July 2025
JUDGMENT
ALLEN-YAMAN J
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Introduction
[1] The applicant applied for orders in the following terms,
‘Part A
1. The decision of the first and / or second respondent of 11 August 2021
that the applicant is deemed to have been discharged from duty by hereby
reviewed and set aside;
2. The respondents are to pay the costs of this application; and
3. Further and / or alternative relief.
Alternatively, Part B
1. That the respondents (employer) be ordered to make a decision in
terms of section 173)(b) of the Public Service Act, 1994;
2. The respondents be ordered to pay the costs of this application; and
3. Further and / or alternative relief.’
[2] The respondents opposed the application, having raised a point in limine as
well as having articulated their defence on the merits.
Background
[3] The present application constitutes the second attempt on the part of the
applicant to be reinstated to his position. Pursuant to the respondents having issued
a notice to the applicant in terms of s17(3)(a)(i) of the Public Service Act, 1994 (‘the
PSA’) on 26 August 2021 in terms of which he was informed of the termination of his
services with effect from 1 June 2021 he referred a dispute to this court under case
number D792/2021. In such referral he alleged that he had been dismissed, and that
such dismissal had been both substantively and procedurally unfair.
[4] Upon the matter having been enrolled for trial, Van Niekerk J (as he then was)
issued a directive to the parties in which they were notified that they would be require
to address the issue of this court’s jurisdiction in view of the fact that in terms of
s17(3)(a)(i) of the PSA the applicant’s employment had been terminated by
operation of the law. Having heard argument on this issue, the matter was struck
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from the roll for want of jurisdiction by way of a judgment handed down on 9 May
2023.
[5] Some nine months later, the applicant initiated the present application, in
which described the relief sought by him as having been to,
‘3.1.1 Have the decision to terminate my employment in terms of section 17
of the PSA reviewed and set aside; and
3.1.2 Alternatively, have the respondents ordered to respond to my
representations.’
Despite the findings of this court in its judgment under D792/2021, the
applicant nonetheless continued to categorise the termination of his
employment as a dismissal.
[6] The circumstances which led to the respondents’ reliance on s17(3)(a)(i) of
the PSA are set out hereunder.
[7] The applicant was employed by the Department of Justice in April 1992 in his
capacity as an interpreter. On the applicant’s version, unbearable working conditions
in the Language Services Department of the Verulam Magistrate’s Court at which he
had been placed led him to tendering his resignation from his employment to the
Area Court Manager, Mr Dlamini. Mr Dlamini refused to accept his resignation and
offered instead to move him to Administration. The applicant accepted the off er,
withdrew his resignation, and applied for a transfer to become an administration
officer. To this end he commenced training as a member of the administration staff in
the Verulam Magistrate’s Court.
[8] Without any decision having been taken in relation to his application for
transfer, he performed the services of an administration officer from 2018 until the
end of December 2020. At that stage, he received correspondence from Mr Nzuza,
who had been appointed as the Area Court Manager in Mr Dlamini ’s stead. The
letter read,
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‘1) Due to the current shortages in the language services within Verulam
office, management has reviewed the staff complement in the office.
2) Management has taken the decision to correctly place all the staff who
are not performing their duties in terms of their appointments and job
descriptions.
3) You are required to report to the language services, the Principal court
interpreter as from 07 December 2020. Should you wish to appeal this
decision you can submit your appeal to Ms J Ngema (Director Court
Operations) within five days after receiving letter.’
[9] The applicant appealed the instruction requiring him to report to his
substantive post which was never decided, with the respondents ultimately having
informed him that he enjoyed no right of appeal.
[10] The applicant alleged that he had, in the meantime, reported to the Language
Services Department, where he reported to the manager thereof, Ms Bennet. She
refused to allow him to report for duty , having expressed the view that he no longer
worked in that section. A similar fate befell him at the Administration Section where
his name had been removed from the attendance register and he was denied access
to the ‘full use’ of the computer he had been using. As there was then nowhere to
which he could report for duty, he ceased to go to work at the beginning of 2021,
although he reported to the Verulam Magistrate’s Court almost weekly. Ms Bennet
repeated her advice to him that she had no authority to accept him unless she was
given a directive to do so by her superiors.
[11] At a meeting subsequently convened on 2 March 2021 and attended by
various individuals in positions of authority vis a vis the applicant, including Mr
Nzuza, the applicant was informed that he had no right to appeal the instruction
given to him to perform the services of his substantive post, with which instruction he
was required to comply. The applicant required this to be communicated with him in
writing, which was not done.
writing, which was not done.
[12] The next communication received from the Department by the applicant was a
letter in which it demanded that the amount of R103 954.76 be repaid to it . Such
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amount was claimed on the basis that the applicant had been absent from work but
nonetheless remunerated from February 2021 to 31 May 2021 in circumstances in
which he had exhausted both his annual and sick leave. On 24 August 2021, the
applicant’s attorney requested the department was requested to suspend its decision
pending a formal enquiry regarding the applicant’s absence from work.
[13] No response to his attorney’s letter was received and instead, on 26 August
2021, by way of a letter dated 11 August 2021 Ms P Moodley, the Regional Head:
KwaZulu-Natal, notified the applicant of his discharge from the Public Service,
‘1. You are hereby informed that you are deemed to have been
discharged from the Public service in terms of section 17(3)(a)(i) of the Public
Service Act, 1994 with effect from 1 June 2021 due to the fact that you have
absented yourself from official duties without permission for a period
exceeding one calendar month.
2. In terms of section 17(3)(b) of the aforementioned Act, you may submit
a written motivation presentation for re- instatement. Should you elect to do so
please note that this submission must be delivered to the Deputy Director:
Employee Relations, Mrs M Matthews, Room 329, Regional Office KZN,
P/Bag x54372, Durban 4000. In the event such a request is received a
submission will be made to the delegated authority for consideration and you
will be informed of the outcome in writing.’
[14] Acting in terms of s17(3)(b) of the PSA the applicant delivered representations
on 22 October 2021, which had not been responded to by the time he approached
this court under D792/2021. Upon his claim having been struck for want of
jurisdiction, he delivered supplementary representations on 23 May 2023 to Ms
Matthews on 23 May 2023. In response to his submissions he was advised that that
such representations had been transmitted to the delegated authority for that body’s
consideration. The applicant alleged that notwithstanding enquires made by his
consideration. The applicant alleged that notwithstanding enquires made by his
attorney, he received no response to his application for reinstatement.
[15] On the strength of the aforementioned facts, the applicant sought the relief set
out above.
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Analysis
[16] Despite the applicant having clearly articulated the relief sought by him in his
Notice of Motion, by the hearing of this matter he had, in effect, abandoned his initial
claims and sought to substitute them with others.
[17] The point in limine raised by the respondent s related to the first of the
applicant’s claims, the respondents having asserted that the relief so sought was
incapable of being granted by this court: as no decision had been taken to discharge
the applicant in terms of s17(3)(a) of the PSA, no decision capable of being reviewed
and set aside existed. The applicant disputed the correctness of such proposition in
reply, having asserted that,
‘It is common cause that a provision of law does not by itself take effect or
application upon a set of facts, a person’s intervention is necessary to give
effect thereto. It is on this basis that the respondents ’ reliance on section
17(3)(a) constitutes a decision capable of being challenged.’
[18] The respondents ’ in limine point was correct, and the applicant correctly
conceded as much in his Heads of Argument: the application of s17(3)(a)(i) of the
PSA does not amount to a decision capable of being interfered with on review.
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[19] This being so, the applicant sought orders that the applicant be deemed to
have been discharged from the public service, together with an ancillary order that
he be reinstated to his position on the same terms and conditions as pertained to
him as if he had not been dismissed. The applicant suggested that such varied relief
could competently be granted under the applicant’s claim for ‘further and / or
alternative relief.’ From this, and the remainder of the argument posited in the
applicant’s Heads of Argument, this court understands that the applicant’s varied
relief was premised on his contentions that the factors required to be present in order
1 See, for example, Grootboom v National Prosecuting Authority and Another 2014 (2) SA 68 (CC) at
paragraph 16
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for the respondents to have relied upon s17(3)(a) were not present, and that he is
accordingly entitled to be reinstated to the respondents’ employ.
[20] The question is then whether in the present proceedings the applicant is
capable of obtaining relief other than that which was expressly sought by him in his
Notice of Motion. It may firstly be mentioned an all encompassing prayer for ‘further
and / or alternative relief’ does not entitle a litigant to relief extraneous his or her
pleaded case. It is trite both that parties are bound by their pleadings , and that a
respondent is entitled to be made aware of the case it is required to meet.
[21] Such principles notwithstanding, the Constitutional Court in Grootboom
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appears to have determined the appeal before it in circumstances similar to the one
before this court, where the relief ultimately granted was not that which had been
sought by the appellant in the Notice of Motion which had served before this court at
the outset. The nature of the appellant’s application was explained in the following
terms by the Constitutional Court,
‘The applicant instituted proceedings in the Labour Court in terms of section
158(1)(h) of the Labour Relations Act – to have his deemed discharge
reviewed and set aside under section 6(2) of the Promotion of Administrative
Justice Act – (PAJA).
In dismissing the application the Labour Court held, first, that in terms of
section 17(5)(a)(i) the applicant was discharged by operation of law and that
therefore the respondents had not taken any decision that could be reviewed
and set aside in terms of PAJA. …’
3
The Labour Appeal Court had likewise found that no decision had been taken which
could be reviewed and set aside.
4
[22] On this point, the Constitutional Court was in agreement with both this court
and the Labour Appeal Court.
5 Despite that the original application had constituted
2 Footnote 1
3 At paragraphs 12 - 13
4 At paragraph 14
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the review of a decision taken, and despite having found that no decision had been
taken, the Constitutional Court never theless interrogated whether the factors upon
which the provisions of s17( 3)(a)(i) of the PSA would ordinarily become operative
had been present when it had been invoked. Having found that the jurisdictional
requirements embedded therein had had not been satisfied, the appeal was upheld.
In light of the fact that the original application was described as the review of a
decision taken in terms of s17(3)(a)(i) of the PSA, it is not clear from the judgment on
what basis the jurisdictional requirements of s17(3)(a) (i) of the PSA had been of
relevance to the issue, nor on what legal basis (distinct from a review) the appeal
was then upheld.
[23] This court finds itself confronted with a claim akin to that in Grootboom : an
application to set aside a decision by way of review proceedings, with the applicant
having conceded the absence of a decision in argument, and seeking instead a
declarator that the provisions of s17(3)(a) (i) of the PSA were erroneously applied,
together with an order of reinstatement. In light of the judgment of the Constitutional
Court in Grootboom , wherein the court was seemingly disposed to dealing with the
matter on a basis other than the review which had been sought ab initio , this court
will be obliged to consider the issue of the applicability of s17(3)(a) (i) of the PSA,
provided that the issues were adequately addressed in the parties’ pleadings.
[24] Despite the applicant having sought relief in the form of a review of a decision
taken, his failed in his founding affidavit to particularise a single reviewable
irregularity in relation to what he alleged had been a decision taken by the
respondents. Instead, in framing the legal issues to be determined he stated these to
have been,
‘Whether the respondents’ reliance on section 17 of the PSA to terminate my
employment was correct and / or lawful?
employment was correct and / or lawful?
Whether I absented myself from duty for a period exceeding one calendar
month immediately prior to 1 June 2021 which is the date on which my
deemed dismissal took effect; and
Whether the respondents should be ordered to respond to my representations.’
5 At paragraph 16
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[25] In consideration of the facts upon which the applicant relied, it is clear that his
case was impliedly premised on an argument that the respondents had not been
entitled to rely on s17(3)(a) (i) of the PSA. The respondents were alive to this issue
and responded comprehensively to the applicant’s assertions regarding his absence
from work in their answering affidavit. The issue of the applicability of s17(3)(a) (i) of
the PSA was addressed in both parties Heads of Argument, and was argued in the
course of the hearing. This court is accordingly satisfied that despite the fact that the
applicant did not seek such declaratory relief in his Notice of Motion, the respondents
will not be prejudiced by this court determining the first part of the application on the
basis of the applicability or otherwise of s17(3)(a) of the PSA.
[26] S17(3)(a)(i) of the PSA provides that,
‘An employee, other than a member of the services or an educator or a
member of the Intelligence Services, who absents himself or herself from his
or her official duties without permission of his or her head of department,
office or institution for a period exceeding one calendar month, shall be
deemed to have been dismissed from the public service on account of
misconduct with effect from the date immediately succeeding his or her last
day of attendance at his or her place of duty.’
The conditions which are required to be met in order for the provision to find
application are set out therein: (i) the public servant must have absented himself
from his or her official duties; (ii) without the permission of his or her head of
department, office or institution; (iii) for a period in excess of one calendar month.
Whether these conditions were met in the case of the applicant will be considered
hereunder.
[27] The applicant was appointed to the substantive post of an interpreter, and
was placed in the Language Services Department of the Verulam Magistrate’s Court.
was placed in the Language Services Department of the Verulam Magistrate’s Court.
Unsupported by any documentary evidence to substantiate his claim and denied by
the respondents, he alleged that he applied for a transfer with a view to becoming an
administration officer. Whether or not such application was made, on his own version
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that application was never approved. Accordingly, despite that he may have been
permitted to work elsewhere performing functions other than those required of him
as an interpreter, the situation which prevailed until the end of 2020 was not one
which was authorized in terms of any prescript governing the employment of
individuals in the Public Service and his substantive post was never varied.
[28] Whatever informal arrangement may have prevailed under the erstwhile Area
Court Manager’s supervision, Mr Nzuza set about regularising the situation at the
beginning of December 2020 at which time all staff who were not performing their
duties in accordance with their appointments and job descriptions were instructed to
report to their substantive posts for duty. This included the applicant who was
instructed on 1 December 2020 to report to the Principal Court Interpreter with effect
from 7 December 2020. Such instruction was repeated to him personally by Mr
Nzuza at the meeting on 2 March 2021.
[29] On the applicant’s version, he attempted to report to the Manager, Ms
Amanda Bennet, immediately upon receipt of the first instruction and thereafter
periodically until he eventually received notification that his services had been
terminated by operation of the law. There are, however, a number of difficulties with
the applicant’s own version.
[30] Firstly, save for the ipse dixit of the applicant and Ms Bennet (whose affidavit
was delivered only in reply) there is no extraneous, objective evidence corroborating
any attempt on the applicant’s part to have presented himself for duty at the
Language Services Deparment at any time after having been instructed to do so in
December 2020. Moreover, his own version that he reported was both vague and
contradictory,
‘Verulam is where I live and as such, although I stopped going to work, I
almost reported to work on a weekly basis but Ms Amanda Bennet would tell
me the same thing that she had no authority to accept me unless her
me the same thing that she had no authority to accept me unless her
superiors gave her a directive to do so.’
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‘This6 was said despite the fact that I had been reported to Language
Services on a regular basis, every month and was rejected.’
‘I admit that, at times I would come to court to visit my friends but would
always ask Ms Amanda Bennet if I could start working and she would say no.’
[31] The affidavit delivered by Ms Bennet in reply merely confirmed the
correctness of the allegations made by the applicant in his founding and replying
affidavits, with her only amplification having concerned events post August 2021,
upon the applicant having been given the letter in which he had been notified of the
termination of his services.
[32] Wholly unexplained by either the applicant or Ms Bennet was why neither,
when allegedly confronted with an apparent impasse concerning Ms Bennet’s
authority to receive the applicant into service in the Language Services Department,
neither deemed it necessary to alert Mr Nzuza or anyone else in authority, as to the
predicament in which they then found themselves.
[33] The final, and insurmountable difficulty with the applicant’s case is that he
failed even to allege that he had, in fact, reported to the functionary to whom he had
been instructed to report at any time prior to the termination of his services. Mr
Nzuza’s letter was unambiguous: the applicant was required to report for duty to the
Principal Court Interpreter. At no stage in the application was such designation ever
attributed to Ms Bennet, whom the applicant himself described as ‘the Manager’ and
‘the responsible line Manager’. She herself did not detail the official designation held
by her in the course of her employment by the Department. On the applicant’s own
version, the first and only time he reported to the Principal Court Interpreter was in
2023, after his claim under D792/2021 had been dismissed.
[34] Having failed to establish in the present proceedings that he had reported for
duty in accordance with the first instruction given to him, it is evident that he formed
duty in accordance with the first instruction given to him, it is evident that he formed
the view that the second instruction given to him in March 2021 could simply be
disregarded as it had not been reduced to writing.
6 ‘This’ being the respondents’ demand for repayment of the applicant’s overpaid salary.
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[35] Given the events which led to the application of s17(3)(a) of the PSA, there is
no doubt that the factors necessary to trigger the effect thereof were indeed present:
the applicant absented himself from his official duties as an interpreter, not only
without the permission of the Head of Department, but in the face of two direct
instructions to the contrary by the Area Court Manager, for a period in excess of six
months. The applicant is accordingly not entitled to the declaratory order sought.
[36] Having conceded that the respondents had taken a decision to refuse him
reinstatement, the further amended relief sought by the applicant was that such
decision be reviewed and set aside on the basis of its alleged irrationality. Unlike the
first part of the applicant’s amended relief, the relief sought in relation to the decision
not to reinstate him was not foreshadowed in his founding affidavit at all. Not only is
it trite that an applicant in motion proceedings is required to establish his or her case
in the founding affidavit, but in review proceedings, a litigant is required to comply
with the specific procedural requirements relating thereto. In the circumstances of
the applicant’s claim having been to compel the respondent s to take a decision in
regard to his reinstatement, it was not open to him to seek something fundamentally
at odds with such relief in reply.
[37] In light of the above, the application falls to be dismissed.
Costs
[38] The respondents asked that the applicant be ordered to pay its costs. Whilst it
is tempting to find that the application was not actuated in good faith, it is
nonetheless possible that it may have been no more than simply ill -conceived. As
this court does not ordinarily grant costs orders against individual litigants in such
circumstances, and the applicant is no longer employed, no order as to costs will be
made.
Order
1. The application is dismissed.
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2. There is no order as to costs.
K Allen-Yaman
Judge of the Labour Court of South Africa
Appearances
Applicant:
Mr Z Mbuyazi, instructed by Mbele & Ngcobo Attorneys Inc.
Respondents:
Mr N Winfred, instructed by the State Attorney, Kwazulu-Natal