Sneller Verbatim/HVR REPORTABLE
IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT PORT ELIZABETH
CASE NO: P112/02
In the matter between:
TIELMAN NIEUWOUDT BASSON Applicant
and
PROVINCIAL COMMISSIONER (EASTERN CAPE)
DEPARTMENT OF
CORRECTIONAL
SERVICES
Respondent
___________________________________________________________
J U D G M E N T
__________________________________________________________
NDLOVU AJ
Introduction
This review application was presented before me on 6 February 2003
for oral arguments by representatives of both parties. I delivered my judgment
on the following morning, being 7 February 2003, in terms of which the
application was dismissed and an appropriate costs order made. I reserved
my reasons for judgment, which now follow hereunder.
The applicant is an employee of the Department of Correctional
Services (the Department) and is currently serving under the provincial
command of the Provincial Commissioner of the Eastern Cape Province (the
respondent). He is stationed at the Kirkwood Management Area, outside Port
Elizabeth, where he is designated as Divisional Head: Agriculture. He holds a
B.Sc Honours degree in Agriculture.
In terms of the notice of motion, the applicant sought an order:
"1. reviewing and setting aside the decision of the respondent taken
on or about 27 July 2001 to finally transfer the applicant from the
Kirkwood Management Area to the Umtata Management Area.
2. directing the respondent to adhere to the official transfer policy of
the Department of Correctional Services, should the Department
decide to continue with the transfer of the applicant, in the event of
the above Honourable Court reviewing and setting aside the
decision referred to in paragraph 1 above."
The Parties’ Contentions
The applicant alleged that the respondent's decision to transfer him was both
substantively and procedurally unfair. He contended that the transfer was
substantively unfair in that, from the respondent's own conduct, it was unclear
whether or not the reason to transfer him was based on the Department’s
operational requirements or on equity. He claimed that it was procedurally
unfair in that the respondent, in implementing the transfer, did not follow the
guidelines as laid down in the respondent's own official transfer policy (the
Transfer Policy). He further alleged that the transfer was tantamount to a
demotion.
The respondent contended that the applicant’s transfer was necessitated by a
dire need of agricultural development and upliftment in the Umtata
Management Area and that the applicant was, in the light of his qualifications
and skills in the field of agriculture in the Province, the most suitable
candidate to initiate and undertake the proposed agricultural project in
Umtata. The project would enhance the Department’s capacity of its self
sufficiency in the agricultural food production, intended to cater for the
essential needs and obligations of the Department. For this reason, the
respondent submitted that the transfer was based on the respondent’s
operational requirements and was in the interests of the Department.
The Legal Position
This Court is empowered to entertain this review application, in terms of
section 158(1)(h) of the Labour Relations Act 66 of 1995 (the Act).
The Department is established under section 7(2) of the Public Service Act,
1994 (Proclamation No. 103 of 1994) (the Public Service Act) and is, in terms
of section 3(1) of the Correctional Services Act 111 of 1998, as amended (the
Correctional Services Act), part of the Public Service, established under
section 197(1) of the Constitution of the Republic of South Africa Act 108 of
1996, as amended (the Constitution). In terms of Section 7(3)(a) of the Public
Service Act, read with section 3(5) of the Correctional Services Act, the
Commissioner is designated as head of the Department.
A management area is defined in section 1 of the Correctional Services Act
as “an area determined by a Provincial Commissioner, which consists of one
or more prisons or offices and which is under the control of a correctional
official designated as an Area Manager.” In turn, the area manager is
defined, in the same section, as “a correctional official, appointed by the
Commissioner, in charge of all correctional officials who are on the
establishment of a management area or office or who have been attached
thereto for duty.”
The transfer of officials of the Department is a matter within the domain and
competence of the Commissioner, by virtue of section 3(5)(g) of the
Correctional Services Act. In terms of section 97(2) of the said Act the
Commissioner has the power to “delegate any of the powers vested in him or
her by this Act or any other Act to any correctional official or other person
employed by the Department ... . “ Hence, by virtue of this section, the
Commissioner promulgated and issued the Transfer Policy during the year
2000, in terms whereof all matters pertaining to transfers of officials below the
rank of Deputy Director, were decentralised and delegated to the various
provincial commissioners of the Department. (See paragraph 7.1.1 of the
Transfer Policy) ..
I propose to refer specifically to some of the provisions of the Transfer Policy
which, in my view, are more intimately pertinent to this application. Paragraph
3.1 of the Transfer Policy makes reference to regulation 2(3) of the
Correctional Services Regulations, which provides that:
"Whenever the interests of the Department require, a member shall be
liable to serve in any part of the Republic and he may be transferred
from one prison to another, or from a prison to an office, or from an
office to a prison, or from one office to another or from one branch of
the Department to another."
(The regulations were promulgated through Proclamation No. R1809
published in the Government Gazette No. 5151 of 27 September
1993).
The Transfer Policy further provides, inter alia, as follows:
"4.1 A transfer must be well considered in the public's interest and
ought to be the result of careful human resources and/or career
planning. Practices involving rotation of personnel are also
transfers.
“4.2 Transfers may not be used as a punitive measure."
“4.3 ...
"4.4 The transfer must take place in consultation with the officer as
well as his/her supervisor. In specialised occupational classes, the relevant
DC (presumably, the Deputy Commissioner) should also be consulted."
“4.5 "An employee who is being considered for a transfer may
be represented and assisted by a representative of his or her
union at every stage of the process."
“5. In considering a transfer, irrespective of the origin of the request, the
following guidelines must be taken into account before a final
decision is reached:
I. There must be a valid and sufficient reason to
transfer or not to grant a transfer to an employee. Reasons to be supplied in
writing to employee concerned.
(b) The interests of the Department and the broader
State interest. Such interest to be motivated.
(a) The interests of the individual employee whose
transfer is being considered, such as the personal circumstances of those
affected.
(b) The employee’s career development and utilisation.
(c) The availability of a suitable vacant post on the
financed establishment into which the employee may be transferred.
(d) The availability of funds.
(e) A reasonable notice from the date on which the
transfer is approved, to the date before the physical relocation of the officer. A
30working days’ notice is regarded as reasonable, depending on the
circumstances and merits of each case.
(f) There must be an induction/orientation programme
for the transferee at the new station.”
The transfers initiated by the Department are further governed specifically by
paragraph 6.2 of the Transfer Policy, which provides, inter alia, as follows:
"6.2.5 If the employee makes representations, the person responsible
for considering the transfer must consider the representations.
After the representations of the employee have been
considered, the employee concerned must be informed in
writing that the representations were considered, and the
outcome must be stated. If the representations were not
favourably considered, the reasons why the representations
were rejected must be set out in brief."
It would appear that the provisions of paragraph 6.2.5 of the Transfer Policy
accord with the provisions of the Constitution, which, in this regard, stipulate
that:
"33(1) Everyone has the right to administrative action that is lawful,
reasonable and procedurally fair.
(2) Everyone whose rights have been adversely affected by
administrative action has the right to be given written reasons.
(3) National legislation must be enacted to give effect to these rights , and
must
(a) provide for the review of administrative action by a court
or, where appropriate, an independent and impartial
tribunal;
(b) impose a duty on the state to give effect to the
rights in subsections (1) and (2); and
(c) promote an efficient administration.”
Pursuant to subsection (3) of section 33 of the Constitution, the
Legislature enacted the Promotion of Administrative Justice Act 3 of 2000, in
terms of which any administrative decision taken by an organ of state or any
person (natural or juristic), in the exercise of a public power or performing a
public function in terms of any legislation, is liable to judicial review, if such
decision is found, inter alia , to be arbitrary or capricious, taken in bad faith or
in a procedurally unfair manner, actuated by bias or reasonably suspected
bias, or other ulterior or improper motive, (see: Sections 1 and 6).
In Simela and Others v MEC for Education, Eastern Cape and Another [2001]
9 BLLR 1085 (LC), this Court (per Francis AJ, as he then was) held:
“In addition to fair administrative action, State employees are afforded a
Constitutional right to fair labour practices. Although the unfair transfer
of an employee is not catered for in the LRA, an employee is not
precluded from relying directly on the Constitution to enforce his or her
right not to be subjected to unfair labour practices.” (at 1099, para 56) .
“A decision to transfer an employee without prior consultation amounts
to an unfair labour practice. ...” (para 57) .
(See section 23(1) of the Constitution)).
In Matheyse v Acting Provincial Commissioner, Correctional Services and
Others [2001] 22 ILJ 1653 (LC), the applicant was employed by the
Department as an Area Manager for the Allandale Management Area at
Paarl, in the Western Cape Province. He was transferred to Malmesbury
against his will and he launched urgent application proceedings to this Court
against the transfer decision. The Court granted him the rule nisi ,
incorporating interim relief, ordering, inter alia, that, pending the return date,
the Department be interdicted and restrained from compelling the applicant to
assume duties at Malmesbury with effect from 1 February 2001. On the return
date the rule nisi was confirmed. The Department appealed against the
Court’s decision.
In the ensuing appeal, reported as Acting Provincial Commissioner,
Correctional Services and Others v Matheyse (1) [2002] 23 ILJ 2192 (LAC) ,
the Labour Appeal Court upheld the decision of this Court and dismissed the
appeal with costs, for the reasons alluded to hereunder.
Analysis and Evaluation of Evidence
It seems to me that the facts in Matheyse’s case are starkly
distinguishable from the facts in the present case. In Matheyse the LAC found
that, in transferring the respondent (the applicant in the Court a quo ), the
appellant (the Acting Provincial Commissioner) violated a written undertaking
issued by the Commissioner in a letter dated 12 December 2000, addressed
to the Public Servants Association (the PSA), in respect of all the
Department’s employees serving in the Western Cape, that transfers “shall
not be forced on them”. (at 2199, para 15) . On the same date of the
undertaking the Acting Provincial Commissioner of the Western Cape held a
meeting with his senior officials at which he reiterated the Commissioner’s
undertaking that “no persons would be transferred against their will”. (at 2220,
para 16) , The Labour Appeal Court, per Mogoeng JA, held :
“Any official statement from the commissioner, in respect of transfers in
particular, must be taken seriously because he is not only the chief
particular, must be taken seriously because he is not only the chief
accounting officer of the national department, but he also has a final
say in respect of the transfers. In this connection, it is also important to
bear in mind that his aforementioned undertaking was not just given on
his own initiative. It was provoked by a complaint by the PSA, a trade
union, that the transfers of its members in the Western Cape were
marred by irregularities. They wrote to him expecting some intervention
or assistance from his office. By virtue of the powers vested in him, and
expecting his word to be taken seriously the commissioner assured the
PSA, and by implication all the department’s employees in the Western
Cape, that no employee would be transferred against his/her will.” (at
2201, para18).
The learned Judge of Appeal proceeded in his judgment and concluded as
follows:
“(The Acting Provincial Commissioner) committed a gross irregularity
when he decided to transfer the respondent against his will, in total
disregard of the express undertaking given or promise made by the
commissioner and (the Acting Provincial Commissioner) himself that no
employee would be transferred against his/her will. Since the promise
in question has not yet been withdrawn, the respondent had a
legitimate expectation of not being transferred against his will, at the
time of this transfer. It is in the interests of good administration that the
appellants as the functionaries of the department should act fairly and
should honour the promise or undertaking they made or gave since it
does not compromise or conflict with their statutory duty to transfer
employees as and when the need arises. The undertaking, until
properly revoked or withdrawn, effectively bars the appellants from
acting contrary to its terms. The appeal, therefore, falls to be
dismissed.” (at 2205, para 24) .
The Matheyse’s decision is distinguished in the following respects:
(a) The question of the Commissioner’s undertaking, as obtained
in Matheyse’s case, was never raised in the present case. Therefore, it can
reasonably be assumed that no such undertaking applied in the Eastern
Cape.
(b) Instead, in the present case the transfer of the applicant has a
tacit approval of the Commissioner. In his representations dated 3 August
2001, the applicant forwarded a copy thereof to the Commissioner for his
information and attention. In his letter reference S16/5 over 12286109 dated
26 September 2001, the Commissioner responded, inter alia, as follows:
“I have now had the opportunity to attend to the matter
and can provide you with the following feedback:
“Firstly, I have to point out that the decision to transfer
employees within provincial borders is within the
delegated authority of the Provincial Commissioner. This
office has no intention and reason to intervene with the
delegated authority of the Provincial Commissioner. This
office understands that there is a desperate need for your
services in Umtata.
“The matter has therefore been referred back to the office
of the Provincial Commissioner of the Eastern Cape from
whom you can expect a further communication.”
It is apparent that the developments that culminated in the applicant’s
transfer originated from an advice which the respondent obtained from Mr G
Letlole, the acting deputy commissioner of a division known as the Faculties
Management of the Department.
The acting deputy commissioner, in his letter dated 20 August 2000, advised
the respondent as follows:
"1. My recent visit to your province has reference.
2. I have already forwarded my observation on the infrastructure
(buildings) in your province to your good office. I however wish to
bring to your attention the huge potential the Umtata Management
Area possess insofar as agriculture is concerned. I would advise
that you seriously consider transferring the necessary human and
other resources from within your province to exploit and tap such
great opportunity for the self sufficiency of your province.
3. I hope and trust this will enjoy your positive approval."
Pursuant to this advice, the respondent instructed his provincial control
officer, a Mr Mpolweni, to identify a suitable candidate for transfer to Umtata
Management Area “with a view to developing agriculture in that area” (see
paragraph 3.2 of the respondent’s answering affidavit) . Mr Mpolweni identified
the applicant as the most suitable official to initiate and undertake the
agricultural project in the Umtata Management Area. (See paragraph 3.3 of
the respondent’s answering affidavit). This then necessitated his transfer to
Umtata.
It was further alleged by the respondent that a meeting was arranged with
the applicant during September 2000 at which the proposed Umtata
agricultural project was discussed and an indication made to him that he was
being considered as a suitable candidate to initiate and undertake that
project. The respondent contended that the applicant showed not only his
willingness to be transferred to Umtata but he was quite ecstatic about the
idea and looked forward to the challenge.
However, the applicant vehemently denied that he ever showed interest, let
alone the excitement, about the transfer at any stage. I propose not to make a
credibility finding on this factual dispute, since the determination thereof will
not be necessary for the outcome of this case. On 9 March 2001 and
pursuant to the Faculties Management‘s advice, referred to above, the Area
Manager of Kirkwood served the applicant with a letter of transfer, which read
as follows:
“Re: Transfer to Umtata Management Area: Yourself
1. The Provincial Commissioner's letter S54/2 dated 2001.03.09
refers.
2. You are hereby informed that you have been identified as the most
suitable official that will be able to uplift, develop and improve the
standard of agriculture in the abovementioned Management Area.
3. The Department of Correctional Services relies on your skills,
knowledge and experience as far as Agricultural Practice is
concerned and as such bestows upon you the task of building up a
well trained highly disciplined and committed team that would put
your new Management Area in par with other farming Management
Areas.
4. Your transfer is on state cost, time and accommodation. Please
liaise with your new Area Manager in this regard.
5. The transfer is effective as from 2001.03.01.
6. Congratulation on your appointment."
It appears to me that the contents of this letter reflect the transfer having been
based on operational requirements of the Department. There is nothing
therein which suggests that it was based on equity.
In response to the transfer letter of 9 March 2001 the applicant submitted his
written representations dated 22 March 2001, which were based on the
following topics:
(a) No opportunity was accorded to the applicant to make
representations.
2. The transfer was not in the interests of the Department.
3. There were no challenges for the applicant in the Umtata Management
Area.
4. The transfer was tantamount to a demotion.
5. There was no consultation conducted with, inter alia, his supervisor, his
union representative, the Deputy Commissioner of Industries and
himself, prior to the transfer being implemented.
6. There was no vacant post for the applicant in the Umtata
Management Area.
7. The applicant’s personal circumstances were not taken into account,
which included the following:
(a) That he had two children who were attending an Afrikaans school
in Kirkwood and that there was no Afrikaans school in Umtata.
(b) That he had recently bought a house in Kirkwood and that reselling
it would cause him to incur undue financial loss of about
R100 000.00.
(c) That his wife had started a new business in Kirkwood, which
contributed additional income to the family household.
Indeed, it seems to me, most of the applicant's representations involved
matters which, in terms of the Transfer Policy, the respondent ought, indeed,
to have taken into account before the letter of transfer was served on the
applicant, in the first place.
On 22 March 2001 the respondent wrote a letter to the applicant whereby the
applicant's transfer of 9 March 2001 was withdrawn. In the same letter it was
indicated to the applicant that consultation meetings would be held with him
within the next seven days. It is common cause that on 29 March 2001,
presumably pursuant to this letter, a meeting was held between the applicant
and the respondent’s representatives. It was submitted to the Court, on
behalf of the respondent, that this meeting was not a fruitful one because the
applicant said he would not participate in the meeting before his demand was
met for a written response to his earlier representations. That was how the
meeting was aborted.
On the same day (29 March 2001) the respondent delivered a letter to the
applicant wherein he referred to the aborted meeting. In that letter the
applicant was advised that it was still the respondent’s "intention to utilise (the
applicant’s) services as Head of Agriculture: Umtata Management Area." The
respondent proceeded and requested the applicant to file within seven days
his response thereto. The sevenday period was to expire on 5 April 2001.
The applicant responded. In his further representations dated 3 April 2001
(albeit signed by him on 4 April 2001) he basically repeated his submissions
of 22 March 2001, save that he then made some references to certain
provisions of the Constitution.
It was noted that as at the time the applicant submitted his second
representations (dated 3 April 2001) the applicant had not yet received a
written response from the respondent as required in terms of the Transfer
Policy.
On 27 July 2001 the Area Manager, on behalf of the respondent, delivered to
the applicant the second letter of transfer which read as follows:
“Re: Transfer to Umtata Management area: Yourself
"1. With reference to the respondents‘s letter reference number S5/4/2
dated 2001/03/29 on the above matter, I have the pleasure to
inform you that a decision has been made as follows;
1.1 Your transfer to the above Management Area as a Divisional
Head Agriculture has been finally decided;
1.2 You are therefore expected to report to your new Area
Manager on or before 1 st August 2001;
1.3 Arrangements for your accommodation and transportation of
your personal belongings must be made with your new Area
Manager in advance.
“2. I wish you success in your new challenge in developing the
agriculture section in UMTATA."
In my view, paragraph 2 of this letter was yet another clear indication that the
motive behind the applicant's transfer was based on operational requirements
on the part of the Department, and not on equity.
The respondent's second letter of transfer was reacted to by the applicant per
his further representations dated 3 August 2001, the copies of which he
addressed to the Commissioner, the Director: Industries and the respondent.
In his representations the applicant complained, inter alia, of short notice in
that he had received the second letter of transfer only on 30 July 2001 which
called on him to report for duty at Umtata on 1 August 2001.
A response from the Office of the Commissioner was only forwarded to the
applicant on 26 September 2001, whereby the Commissioner appeared to
defer to the decision of the respondent. The Commissioner preferred not to
interfere in the respondent's delegated powers of transferring members of
personnel within the Province. The contents of the Commissioner’s letter are
cited elsewhere in this judgement.
There was a further lapse of time without the applicant’s representations of 3
August 2001 being responded to by the respondent, until 10 December 2001
when the Area Manager delivered another letter to the applicant advising him
that his transfer to Umtata had been postponed and that it was then to take
effect on 1 December 2001. The applicant continued to resist the transfer and
did not report for duty at Umtata as directed.
On 5 February 2002 this Court granted an interim order, by agreement
between the parties, in terms of which the respondent was interdicted and
restrained from refusing to allow the applicant to work in his post as Division
Head: Agriculture at the Kirkwood Prison, pending the finalisation of a review
to be launched in this Court. The applicant was further granted leave to
launch the review proceedings within 10 days. Pursuant to this interim relief,
the applicant instituted the present proceedings on 18 February 2002.
On 20 March 2002 (a month after the applicant instituted this application) the
respondent, for the first time, responded to most of the applicant's
grievances. Noticeably, however, was the omission to deal with the question
of schooling of the applicant's children. It was only when the respondent filed
his answering affidavit on 2 July 2002 that this aspect was responded to. In
other words, the respondent’s combined responses, as found in his letter of
20 March 2002 and his answering affidavit filed on 2 July 2002, appear to me
to have responded to virtually all of the applicant's grievances.
At this point in time the respondent's response to the applicant's complaints
can be summed up as follows:
[1]. That the applicant was not accorded opportunity to make
representations.
The letter dated 29 March 2001 (whereby the first transfer was
withdrawn) called upon the applicant to submit his representations, if
any, within seven days to the respondent’s stated intention to utilise his
services as Head of Agriculture for the Umtata Management Area. In
my view, the applicant was thereby accorded opportunity to make
representations. Indeed, he submitted his representations on 3 April
2001. (see also paragraph [5] below).
[2]. That the transfer was not in the interests of the Department .
In terms of the letter dated 20 August 2000 from the Department’s Faculties
Management it appears that the transfer of the applicant was considered in
the best interests of the Department. It is further observed that in respect of
both letters of transfer dated 9 March 2001 and 27 July 2001 the transfer of
the applicant was clearly based on the Department’s operational
requirements, and not on equity.
The respondent’s motive, in this regard, was also confirmed in paragraph 12
of his answering affidavit where he deposed, inter alia, as follows:
"12.1 It is my intention to expand the infrastructure and the agricultural
operation in Umtata. This will prove to be a massive and
challenging project and accordingly I require someone with the
greatest experience and expertise to head such a project. The
Kirkwood operation is almost entirely selfsufficient. This is due
almost entirely to the work of the applicant. It is my aim to
ensure that the Umtata operation functions at a level equivalent
to that of the Kirkwood operation. At this stage it has been
neglected and is in dire need of attention in order to expand it
and to lift its infrastructure to a level equal to that of the
Kirkwood operation.
“12.2 The fact that Umtata is now the ‘smallest prison farm ’ is the exact
reason why I require the transfer of the applicant to that area. The potential of
that area simply has not been tapped.” Again, the manner in which the
respondent described the applicant, in paragraph 3 of his letter dated 20
March 2002, simply showed the high regard and esteem in which he placed
the applicant and the accolades he bestowed upon him. The letter, inter alia ,
reads:
"3.2 The Umtata area is the largest area in the Province and certainly larger
than the area where Mr Basson presently works (Kirkwood). It
has a greater potential and is in dire need of agricultural
upliftment in the form of a selfsufficiency project. At present the
Umtata area purchases its supplies from the open market which
has proved to be extremely expensive given the infrastructure in
that area.
“3.3Mr Basson had (sic) proved himself to be an ideal candidate for
such a project. He arrived at Kirkwood and developed the
agricultural system in that area to an extent that the Department
was extremely impressed by him. He has, in other words,
proved himself to be an individual capable of performing the
work, which is required at Umtata. He is also the only Senior
Agricultural Officer in the Province and is therefore best qualified
formally to do the job.
“3.4. Accordingly, it is in the interests of the Department that Mr
Basson be transferred as soon as possible to Umtata."
Indeed, at some point the issue of equity was mentioned, but it did not appear
to me that the transfer was primarily actuated by that factor. For instance, in
an internal memorandum reference S2/1/4 dated 26 February 2001
addressed by the Area Manager to the PCO (presumably, the Provincial
Control Officer): Human Resources Management, the Area Manager made
recommendations for the reshuffling of certain staff from within the
Management Area. In terms of this memo five officials were to be affected,
including the applicant, if the recommendations were approved. Under the
applicant’s name the following was stated:
“The transfer of Mr T Basson (Head: Agriculture) and be replaced
by a member from disadvantaged groups to promote equity.”
Despite this memo I was not convinced, on a balance of probabilities,
that the applicant’s transfer to Umtata was associated with the
recommendation in the memo, for the following reasons:
1. The memo was dated 26 February 2001, more than six months
after the advice of the Faculties Management (dated 20 August 2000) on the
dire need for the initiation and undertaking of the agricultural project in
Umtata.
(b) Both letters of transfer dated 9 March 2001 and 27 July 2001
specifically indicated the reasons for the transfer, which was clearly for the
operational requirements of the Department, emanating from the Faculties
Management’s advice, referred to above.
(c) The internal memo of 26 February 2001 was responded to by the
PCO: Corporate Services, per the replying memo dated 2 March 2001,
whereby the idea of transferring the applicant “to promote equity” was
evidently rejected. In his reply the PCO stated:
“The transfer of Mr Basson somewhere else is not possible at
this stage due to the availability of posts at his level within the
province unless another consideration can be made in terms
of those places where there is a need of his skills within the
province.”
I also noted that no allegation or suggestion was made that the transfer was
inspired by malice or other ulterior motives on the part of the respondent.
Instead, Dr Erasmus appeared to concede that there was, indeed, no such
allegation or suggestion by the applicant.
[3] That the applicant would have no challenges in Umtata
In terms of the respondent’s explanatory statement of 20 March 2002
(paragraph 3.2 thereof), which was incorporated by reference in the
respondent’s answering affidavit (paragraph 4 thereof), the transfer proposes
to send the applicant to a place far much bigger in size and agricultural
potential than Kirkwood. This averment by the respondent was not disputed
by the applicant. Indeed, it does not appear to be denied that Umtata is, or
could be, smaller than Kirkwood in terms of the existing agricultural
infrastructure and development in both areas. But the proposed agricultural
restructuring of Umtata is intended precisely to put that situation right. The
respondent is obviously concerned by the fact that Umtata, being a much
bigger area in the aforesaid context than Kirkwood, is lagging far behind in
terms of agricultural infrastructure and development.
There seems to be no doubt, therefore, that the Umtata project would present
the applicant with a much bigger challenge than the one he might currently
have, or ever have had, in Kirkwood.
In paragraph 3.8 of his explanatory statement of 20 March 2002 the
respondent said:
“The Department remains hopeful that Mr Basson will see the move
as a challenge and an opportunity to prove himself. If Mr Basson is
able to perform similar work to that which he performed in
Kirkwood, it will be even more of an achievement and certainly
something, which the Department will take into account when
considering him for any further promotion.”
It would not be unreasonable of the applicant to regard the respondent’s
promise contained in this letter as an undertaking, which must be honoured.
(see Matheyse, supra, at 2205,para 24)
[4]. That the transfer was tantamount to a demotion .
A demotion is grammatically defined as a “reduction to a lower rank or class.”
(The New Shorter Oxford English Dictionary, 1993 edition, Vol. 1, at 631). I do
not agree with the contention that the applicant’s transfer constituted his
demotion. He was assured that his rank and designation would be retained
and, therefore, there would be no reduction in his remuneration or
emoluments. His terms and conditions of employment with the Department
would not change. Instead, he was to be accorded a further privilege of being
accommodated in a house with his family, free of charge. The house would be
rented by the Department from the public coffers. To me, this gesture was a
further expression of good faith on the part of the respondent in this whole
affair.
In any event, if the applicant felt that the transfer amounted to a demotion, he
had a legal remedy at his disposal in terms of the Act. He could, for instance,
declare a dispute and refer it to the relevant bargaining council, in terms of
section 191(1)(a)(i) read with section 35 and/or 36 of the Act, and thereby
allege an unfair labour practice against him by the respondent. Be that as it
may, I do not consider that the transfer constituted a demotion to the applicant
for the reasons alluded to already.
[5]. That there was no consultation held prior to the implementation of
the transfer.
In terms of paragraph 8.2 of the respondent’s answering affidavit, an oral
consultative meeting was held between the respondent and some of his
senior officials, on the one hand, and the applicant, duly represented by his
union official, Mr Piet van Aard of the Public Servants Association, on the
other.
The respondent alleged that the consultation with the applicant aforesaid
proceeded well. Further, that during the session the applicant even made
certain additional representations to him (the respondent), including a request
that the respondent employed the applicant's wife in Umtata.
The consultation took place some time prior to 27 July 2001. In other words, it
was before the applicant was served with the second letter of transfer.
The applicant did not file a replying affidavit, as he was entitled so to do in
terms of Rule 7(5), whereby he could, among other things, deny ever holding
such a consultative meeting with the respondent and his delegation. He
ought to have challenged the respondent’s allegation, in this regard,
especially that he is now denying that such a consultation ever took place.
I note that on 16 May 2002 the applicant filed a supplementary affidavit,
purporting to respond to the respondent’s statement of 20 March 2002. In
paragraph 2.8.4 thereof the applicant averred that the first consultative
meeting with him was held on 13 March 2001, at which he was informed of
his possible transfer. However, this averment was no answer to the specific
and somewhat detailed allegations in paragraph 8.2 of the respondent’s
answering affidavit.
In the light of this apparent deliberate failure, on the applicant’s part, to
challenge paragraph 8.2 aforesaid, I am disposed to infer that the allegation
contained in that paragraph reflects the true state of affairs on that point.
I am further inclined to hold that a pretransfer consultation cannot reasonably
be expected to receive the same level of scrutiny in a judicial review, as is
the case with a consultation envisaged in section 189 of the Act, which
precedes a dismissal based on operational requirements. In respect of a
retrenchment, I am of the view that strict scrutiny should be applied in
determining the propriety and regularity of the consultation, whereas in the
case of a transfer the judicial scrutiny may be relatively lenient and still pass
muster in the review process. The reason is clear. The incidence of total loss
of employment is an absolute economic tragedy to the concerned employee
and his/her family and is incomparable and incompatible to the relative
inconvenience of a transfer, where the employee concerned remains in
employment and retains all benefits and privileges concomitant thereto.
On 3 September 2001 the Director: Industries, Mr F Bell, who was apparently
the applicant’s supervisor, submitted a memorandum whereby he expressed
himself against the applicant’s transfer, on the basis that Umtata was “the
smallest prison farm” in the Province, compared to Kirkwood and that,
therefore, it would not be desirable that the applicant, being the most qualified
and skilled official in the Province, in the field of agriculture, should be
transferred there.
It was submitted on behalf of the respondent that Mr Bell was a relatively
junior official, in relation, for instance, to Mr G Letlole who came up with the
idea of the project in question. In any event, any recommendation or
suggestion made by the Director: Industries on the matter was still subject to
the approval of the respondent, who had the final say in all provincial
administrative matters, including transfers. In the present instance, Mr Bell’s
comments were considered by the respondent but rejected. The
respondents’s answering affidavit clearly demonstrates that Mr Bell’s
contribution was considered (see para 12.3 12.5 of the respondent’s
answering affidavit).
[6]. That there was no vacant post for the applicant in Umtata .
As stated already, it was the respondent’s case and, indeed, unchallenged by
the applicant, that the applicant’s transfer to Umtata was without change in
his rank (of Assistant Director) and designation (of Divisional Head:
Agriculture), as was the case in Kirkwood, which meant that there would be
no financial loss to be suffered by him.
It is within the Commissioner’s prerogative to create and fill posts within the
Department. Therefore, if a provincial commissioner (through his delegated
powers) transfers an official to a place where there is no official post yet, it is
up to the provincial commissioner to see how that situation is regularised, if at
all one elects to describe it as irregular. Whether or not there was, officially,
any vacant post in Umtata equivalent to the applicant’s rank at the time of the
transfer is, despite the Transfer Policy, a matter of no concern to the
applicant. Indeed, I see nothing to preclude the Department from creating the
post even after the applicant has assumed duty there. What matters here is
the fact that the applicant’s rank, designation, remuneration and status will not
be reduced.
The evidence of the respondent was also unchallenged that the position of
the applicant in Kirkwood would be taken up by Mr Anton du Toit, the
applicant former assistant, who was a white person. (see paragraph 16 of the
respondent’s answering affidavit) . In this regard, the respondent sought to
prove, and, indeed, succeded, that the transfer was not necessarily based on
equity or transformation, as claimed by applicant.
[7]. About the applicant's personal circumstances .
(a) The nonavailability of a suitable school for the applicant’s
children
The applicant alleged in his representations (both of 22 March 2001
and 3 April 2001) that his two children were attending an Afrikaans
school in Kirkwood, which was not available in Umtata. As I
pointed out earlier, this grievance was not responded to by the
respondent in his letter of 20 March 2002. However, this question
was adequately responded to in paragraph 13.1 of the
respondent’s answering affidavit. The respondent stated that,
according to his information, Umtata did, in fact, have an Afrikaans
school, known as "Die Umtata Ho ërskool".
It was incumbent on the applicant to gainsay any suggestion about an
Afrikaans school in Umtata, if he insisted that there was no such school in the
area.
Therefore, without any gainsaying evidence from the applicant, the
respondent’s allegation remains undisputed that Umtata does have
an Afrikaans school at which the applicant’s children can attend.
I must point out that, in my view, this aspect alone was so crucially
important that had the evidence shown that there was, indeed, no
suitable school in Umtata for the applicant’s children, that factor
would certainly have tipped the scale in the applicant’s favour,
under this particular subtopic. It might as well probably have
influenced the entire outcome of this matter. The issue was taken
up with Dr Erasmus, who had nothing further to submit on the
issue.
(b) The loss of the applicant's wife’s business in Kirkwood .
In his averment that his wife had started a business in Kirkwood in
2000 from which the family derived further income, the applicant,
unfortunately, chose not to furnish more details and particulars of
that business undertaking. For instance, he did not allege that the
type of business his wife was operating in Kirkwood was such that
it was impossible or not feasible for her to start the same business
in Umtata. In any event, it seems to me, that an employee’s
personal grievances of this nature are, by and large, not so
fundamentally important that they should invariably stand on the
way and prevent the Department from exercising its prerogative of
transferring its employees in circumstances where, but for such
grievance, the transfer would otherwise be in the interests of the
Department.
(a) The resale of the applicant's house and the possible incidental
financial loss thereto
According to the applicant he would lose up to R100 000.00 if he were to sell
his house. However, he also chose not to indicate how that estimate loss was
computed to reach the sum of R100 000.00. In any event, the respondent, in
his answering affidavit, made it clear that the accommodation of the applicant
and that of his family in Umtata was to be a problem not of the applicant but of
the Department. The Department was willing and intending to rent a house in
Umtata in which the applicant and his family would stay, free of charge. This
was yet another undertaking by the Department, which, I would consider, was
a condition favourable to the applicant and which, as I have stated,
manifested yet another bonafides on the part of the Department. Over and
above this concession, the respondent further pointed out and suggested that
whilst the applicant and his family were in Umtata the applicant could be
renting out his house in Kirkwood, as an alternative to reselling it.
In the light of the above, I am satisfied, accordingly, that the
applicant's representations have now received the respondent’s due
consideration, to the extent that as at the present time all of his
representations have been addressed, or responded to, in writing, as required
in terms of paragraph 6.2.5 of the Transfer Policy. I am satisfied that the
transfer process has now been undertaken in general compliance with the
provisions of the Transfer Policy.
The mere fact that the respondent's responses are not embodied in a
single document, but instead are found in two separate documents, does not,
in my view, change the position that the applicant’s representations have now
genuinely been responded to and in the prescribed manner. I do not consider
that the respondent’s initial fault, in not following the guidelines of the Transfer
Policy, rendered the whole process incurable.
Indeed, Dr Erasmus conceded that all of what the applicant complained about
in his representations have now been responded to by the respondent,
in his representations have now been responded to by the respondent,
although he hastened to add that some of these answers were found by the
applicant to be insufficient and inadequate. To this, I am not surprised. An
official who is resisting a departmental transfer would ordinarily always not be
satisfied with whatever explanation his or her employer gave as being the
reason for the transfer. That sort of attitude is not uncommon and it is
understandable. Indeed, an expression of satisfaction on the part of an
unwilling transferee would tend to compromise his/her point of resisting the
transfer. Similarly, the applicant’s stance here is to avoid, at all costs, this
transfer, however reasonable and justifiable it may objectively be proved to
be.
In his supplementary affidavit the applicant named four of his colleagues
whom he submitted were equally suitable for the Umtata project, thereby
suggesting that they could as well be considered for the Umtata transfer.
However, the position was made clear, that only one official was required to
take up this position and that such official must be the most senior and the
best qualified in agriculture in the Province. In the respondent’s opinion, the
applicant best fitted that requirement and, therefore, was the most suitable
candidate for the job. It was further noted that the applicant did not deny the
fact that he was the most qualified and experienced agriculturist in the
Province.
The courts are, generally, wary and reluctant to interfere with the executive or
other administrative decisions taken by executive organs of government or
other public functionaries, who are statutorily vested with executive or
administrative power to make such decisions, for the smooth and efficient
running of their administrations or otherwise in the public interest. Indeed, the
courts should not be perceived as having assumed the role of a higher
executive or administrative authority, to which all duly authorised executive or
administrative decisions must always be referred for ratification prior to their
implementation. Otherwise, the authority of the executive or other public
functionaries, conferred on it by the Law and/or the Constitution, would
virtually become meaningless and irrelevant, and be undermined in the public
eye. This would also cause undue disruptions in the State’s administrative
machinery.
These administrative decisions shall only fall within the purview of judicial
review and be set aside, where they are found to be patently arbitrary or
capricious, objectively irrational, or actuated by bias or malice, or by other
ulterior or improper motive.
In Pharmaceutical Manufacturers Association of SA and Others: in re:
Ex Parte Application of the President of the RSA and Others 2000 (3) BCLR
241 (CC), the Constitutional Court held that:
"... [w]hat the Constitution requires is that public power vested in
the executive and other functionaries be exercised in an objective
rational manner. ...”
“Rationality in this sense is a minimum threshold requirement
applicable to the exercise of all public power by members of the
executive and other functionaries. Action that fails to pass this
threshold is inconsistent with the requirements of our Constitution,
and therefore unlawful. The setting of this standard does not mean
that the courts can or should substitute their opinions as to what is
appropriate, for the opinions of those in whom the power has been
vested. As long as the purpose sought to be achieved by the
exercise of public power is within the authority of the functionary,
and as long as the functionary's decision, viewed objectively, is
rational, a court cannot interfere with the decision simply because it
disagrees with it, or considers that the power was exercised
inappropriately. A decision that is objectively irrational is likely to be
made only rarely but if this does occur, a court has the power to
intervene and set aside the irrational decision. " (at 273/4, para 90).
The objective rationality theory expressed in the Pharmaceutical
Manufacturer’s case was cited with approval by Zondo JP in Shoprite
Checkers (Pty) Ltd v Ramdaw NO and Others [2001] 22 ILJ 1603 (LAC),
where learned judge president stated, inter alia:
"... one must bear in mind ... that a decision that is objectively irrational
is likely to be made only rarely. Of course, I am saying this insofar as it
seems that there is much commonality between justifiability and
rationality. ...” (at 1631, para 82).
This principle, on administrative decisions, has long been recognised in our
law. In Shidiack v Union Government (Minister of the Interior) 1912 AD 642,
(cited in Pharmaceutical Manufacturer’s case, supra), Innes ACJ (as he then
was) stated:
“Now it is settled law that where a matter is left to the discretion or the
determination of a public officer, and where his discretion has been
bona fide exercised or his judgment bona fide expressed, the Court will
not interfere with the result. Not being a judicial functionary, no appeal
or review in the ordinary sense would lie; and if he has duly and
honestly applied himself to the question which has been left to his
discretion, it is impossible for a Court of Law either to make him change
his mind or to substitute its conclusion for his own... There are
circumstances in which interference would be possible and right. If for
instance such an officer had acted malafide or from ulterior or improper
motives, if he had not applied his mind to the matter or exercised his
discretion at all, or if he had disregarded the express provisions of a
statute in such cases the Court might grant relief. But it would be
unable to interfere with a due and honest exercise of discretion, even if
it considered the decision inequitable or wrong.” (at 6512).
It seems to me that the respondent's decision to transfer the applicant from
Kirkwood to Umtata was based on sound principles of state economic efficacy
and a desire towards selfsufficiency, which accord with the object of the
Correctional Services Act, section 3(2)(b), in particular. It is obviously the
Department’s sincere intention and earnest endeavour to boost and
strengthen its capacity, in terms of selfsufficiency and cost effectiveness, in
its agricultural food production. The food produced is, in the main, probably
destined for the consumption of the everincreasing prison population, in
respect whereof the State has the responsibility and the obligation to take
care of and maintain.
In conclusion, I find that the applicant's transfer was, indeed, in the best
interests of the Department. To my mind, it does not lie with this Court to
interfere with the respondent’s decision in this regard.
The transfer has been pending for nearly two years now. This delay is
certainly not without serious negative economic and fiscal implications on the
Department, in particular, and the State, in general, if viewed from the
perspective of the respondent’s apparent noble intentions and ambitions
aforementioned.
In his second prayer, the applicant sought an order, directing that, upon the
respondent’s transfer decision being reviewed and set aside and the
respondent still being desirous of transferring the applicant, the respondent
must comply with the relevant provisions of the Transfer Policy in such
transfer process. In my view, this would entail the whole transfer process
being started de novo. I cannot comprehend what purpose that exercise
would serve. To my mind, it would be next to useless, if not utterly futile.
Instead, the applicant’s second prayer tends to constitute, at least partly, a
concession on the part of the applicant that his transfer is, after all,
substantively fair, and that only its procedural fairness is placed in dispute.
It appears to me, therefore, that the respondent’s decision to transfer
the applicant to Umtata was rationally justifiable, in relation to the candidature
for the project, which was available to the respondent at the time he made the
transfer decision. It is my finding, accordingly, that the applicant's transfer
from Kirkwood to Umtata was both substantively and procedurally fair.
Concerning the question of costs, the general rule is that “costs follow the
event “ or “costs follow the result”, which, however, does not detract from the
fundamental notion that the Court retains its discretion. In this regard, the
Appellate Division held that ”the ordinary practice is, ... that costs follow the
event, but that (practice) is subject to the general rule of our law that costs
unless expressly otherwise enacted are in the discretion of the Judge.”
(Union Government (Minister of Railways and Harbours) v Heiberg 1919 AD
477, at 484) and further, “... that ethical considerations may enter the exercise
of that discretion” (Mahomed v Nagdee 1952 (1) SA 410 (A), at 420H)). (See
also: Jonker v Schultz 2002 (2) SA 360 (O), at 364CD )). The circumstances
of this case, I hold, justify a departure from the general rule and incline me to
exercise my discretion otherwise, on the basis of the following considerations.
I am satisfied that the applicant was fully justified to institute these
proceedings, in the light of the initial lack of cooperation on the part of the
respondent, in terms of responding to the applicant’s representations. As
stated earlier, the first ever response by the respondent was made on 20
March 2002, almost a year after the applicant's second representations of 3
April 2001. The respondent’s response came only after the applicant had
launched this review, which was filed on 18 February 2002. A doubt exists, in
the circumstances, whether the respondent would ever have responded to the
applicant’s representations, were it not for this litigation. It is precisely this
apparent indifference and ambivalence on the part of the respondent, which
has influenced the Court against awarding costs to him (the respondent) as
the successful party.
I have already said that the respondent’s explanation of 20 March 2002 did
not address all of the applicant's yearold complaints, including, mainly, the
issue of the schooling of his children. This issue was only covered in the
respondent’s answering affidavit, which was filed only on 2 July 2002. This
sort of conduct was untenable and smacked of arrogance and, indeed, a
degree of inefficiency and incompetency, on the part of the respondent’s
office. It is not, and should not be, expected of a government department to
create norms and standards for general compliance, which the very same
department flouts and undermines.
The transfer of an official under circumstances that involve a complete
geographical relocation from one place to another, where, as in the present
case, the official concerned has family responsibilities and commitments,
such as the responsibility of ensuring that his/her children received the
education of his/her choice, as a parent, is a matter which every government
department should treat with absolute decency, responsibility and respect,
towards the official concerned. The content and spirit of the Transfer Policy
appear to me to convey this important instruction to the delegated authority of
all provincial commissioners of the Department in transfer matters.
In the light of the above, I am persuaded that, concerning the period
commencing from the time this litigation was instituted, namely 18 February
2002, to the time the respondent filed his answering affidavit, namely 2 July
2002 (which was also the same date on which the applicant’s attorneys were
served with the said answering affidavit), the costs should be paid by the
respondent. However, concerning the period starting after 2 July 2002 to the
date of this judgment (that is, 7 February 2003), each party should pay its
own costs.
In consequence whereof, I made the following order, which I handed down on
6 February 2003:
“1. The application is dismissed.
“2. Costs are ordered as follows:
(a) for the period starting 18 February 2002 to 2 July 2002 the
respondent is ordered to pay the costs; and,
(b) for the period after 2 July 2002 to the date of this judgment (being 7
February 2003), each party is ordered to pay its own costs.”
_______________
SK NDLOVU
ACTING JUDGE OF THE LABOUR COURT
Appearances:
For the applicant: Dr D Erasmus (Attorney)
c/o Lexicon Attorneys
Corner of Westbourne and Clevedon Roads
PORT ELIZABETH
For the respondent: Advocate PN Kroon
Instructed by: The State Attorney
(Eastern Cape)
29 Western Road
PORT ELIZABETH
Date of Hearing: 6 February 2003
Date of Judgment: 7 February 2003
Reasons for
Judgment delivered: 27 February 2003