IN THE LABOUR COURT OF SOUTH AFRICA
(HELD AT DURBAN)
CASE NO: D42/05
In the matter between:
KWAZULUNATAL PROVINCIAL TREASURY
Applicant
and
THE GENERAL PUBLIC SERVICE BARGAINING
COUNCIL First Respondent
JANE KALLIDEEN N.O. Second Respondent
ENYINNA NKEMIABONTA Third Respondent
J U D G M E N T
G.O. VAN NIEKERK AJ
[1] Doctor NkemiAbonta (“Dr Abonta”) is a member of Parliament who was elected
as a candidate of the Democratic Alliance to a seat in the National Assembly in
the general election which took place on 14 April 2004. He was until
15 March 2004 employed in a senior position with the Applicant. His services
were terminated because of his candidacy for election to the National
Assembly.
[2] After Dr Abonta’s election and after he became a member of the National
Assembly, he declared a dispute regarding his dismissal. This dispute was
arbitrated in the General Public Sector Bargaining Council and the arbitrator
ruled as follows:
“• The dismissal was unfair;
• Applicant is reinstated from 15 March 2004 with full benefits less the
period when he received remuneration elsewhere;
• Remuneration to be for the period 15 March to … (sic);
• Applicant is given one month to tender his resignation from Parliament
and/or the department;
• Applicant to commence duty on 1 February 2005 or resign from the
department as he so wishes;
• No order as to costs.”
[2] The Applicant seeks to review the award on the grounds that as a member of
the National Assembly, Dr Abonta may not in terms of section 47 of the
Constitution, 1996 be employed in the service of the state. Applicant contends
that the arbitrator’s award is repugnant to the provisions of section 47 and that it
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was accordingly not competent for an order for reinstatement to be made.
[3] Firstly I must deal with the facts giving rise to the dispute. When the Applicant
became award of Dr Abonta’s candidacy he was placed on special leave with
remuneration until he received a certificate confirming that he had been placed
on the final list of candidates for election in terms of section 31(3) of the
Electoral Act, 1998. He was also told that as soon as he was informed that
such a certificate would be issued to him, he would be expected to resign from
his employment. This requirement was in accordance with Chapter 1, Part VII
G2.4 of the Public Service Regulations published on 5 January 2001.
[4] On 14 January 2004 the DirectorGeneral of the Applicant had published a
circular clarifying employees’ rights and obligations in regard to candidacy for
election to the National Assembly. Paragraph 2.2(a) of this circular states that
an employee who becomes a candidate for election must resign no later than
the date on which he or she is issued a certificate in terms of section 31(3) of
the Electoral Act. On 12 March 2004 the Minister for Public Service and
Administration, published a circular concerning the participation of public
service employees as candidates for election to the National Assembly. In
paragraph 2 of that circular it is clearly stated that an employee who seeks
election must resign from the public service with effect from the date that a
certificate in terms of section 31(3) of the Electoral Act is issued. Paragraph 4.1
of the circular provides for compulsory reinstatement in the event that an
employee who has resigned is not elected to the National Assembly or such a
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person is elected but does not accept such election.
[5] On 18 March 2004 Dr Abonta’s head of department wrote to him and pointed
out to him that the circular of 14 January 2004 requires an employee to resign
from the public service before such an employee becomes a candidate for
election. For reasons not quite clear to me the letter went on to state that with
effect from 15 March 2004, Dr Abonta was confirmed to be a candidate
standing for election and further erroneously stated that his candidature
disqualified him from continuing in the employ of the public service. He was
informed that his services with the department were terminated with effect from
15 March 2004. On 5 April 2004 the Chief Electoral Officer for the IEC issued a
certificate in favour of Dr Abonta in terms of section 31(3) of the Electoral Act.
Doctor NkemiAbonta was elected in the national election that took place on 14
April 2004 and he remains a member of Parliament. It is Dr Abonta’s case that
termination of his employment was premature and that it deprived him of the
election of either remaining in the service of the public service or accepting
election to the National Assembly.
[6] The relevant provisions of section 47 of the Constitution, 1996 read as follows:
“47. Membership (1) Every citizen who is qualified to vote for the National
Assembly is eligible to be a member of the Assembly, except –
(a) anyone who is appointed by, or is in the service of, the state and
receives remuneration for that appointment or service …
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(b) …
(c) …
(d) …
(e) …
(2) A person who is not eligible to be a member of the National Assembly in
terms of subsection (1)(a) or (b) may be a candidate for the Assembly,
subject to any limits or conditions established by national legislation.
(3) A person loses membership of the National Assembly if that person –
(a) ceases to be eligible; or
(b) …
(c) …”
[7] Section 47 does not, therefore, prohibit a person in the service of the State from
being a candidate for the National Assembly but such a person is not eligible to
become a member of the Assembly if he or she remains in the service of the
State. Such a person must, therefore, exercise an election. Either that person
accepts election to the National Assembly in which case he or she may not
remain in the service of the State or that person remains in service in which
case he or she is not eligible to be a member of the Assembly.
[8] Although it is true that Doctor NkemiAbonta’s services were terminated before
he could make the election to remain in the service of the State, he did,
however, accept election to the National Assembly.
[9] I am in agreement with Mr Pillemer, who represented the Applicant, that Doctor
NkemiAbonta’s membership of the National Assembly precludes him from
employment by the State and that it was not, therefore, competent for the
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Second Respondent, the Arbitrator, to reinstate Doctor NkemiAbonta. That is
not, however, the end of the matter.
[10] The termination of Doctor NkemiAbonta’s services was clearly premature. He
was entitled in terms of Section 47(2) of the Constitution to be a candidate for
the National Assembly and he had not yet been elected as a member of
Parliament. He had also not yet been issued with a certificate in terms of
section 31(3) of the Electoral Act when he was dismissed. It was only upon the
issuing of such a certificate on 5 April 2004 when the obligation to resign arose.
Doctor NkemiAbonta’s services were, however, terminable upon the event of
his election to the National Assembly. That occurred soon after the election on
14 April 2004. It was only on that date that it can be said that Doctor Nkemi
Abonta was no longer a candidate in terms of Section 47(2) but a member of
Parliament.
[11] Mr Pillemer also referred me to Section 17(5)(ii) of the Public Service Act, 1994
which provides that if an officer employed by the State assumes other
employment, he or she shall be deemed to have been discharged from the
service of the State. I do not consider these provisions to be of any assistance
because Doctor NkemiAbonta was not discharged for assuming other
employment but by reason of the fact that he was a candidate standing for
election. This much is clear from the letter of termination dated 18 March 2004.
[12] I am satisfied that the application should succeed insofar as reinstatement is
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concerned but I consider that the Arbitrator was correct in the finding that the
dismissal was unfair. It was certainly premature and should not have occurred
until NkemiAbonta’s election to the National Assembly. In paragraph 6 of the
referral of the dispute to the Bargaining Council, the relief that is sought is
reinstatement and “immediate payment of all monies due to me” . The Arbitrator
clearly intended awarding Doctor NkemiAbonta remuneration from
15 March 2004 but did not specify for what period such remuneration was
payable. There is no reason why that part of the award should be set aside
save to identify the period for which remuneration is payable. Because the
election occurred on 14 April 2004, I consider that the period applicable is
15 March to 15 April 2004.
[13] Although the Applicant is substantially successful in its application for review
and although Mr Pillemer argued that I should award the Applicant its costs, I do
not consider it is appropriate to make such an order in view of the fact that the
termination of Doctor NkemiAbonta’s employment was unfair.
[14] I accordingly make no order as to costs.
G O VAN NIEKERK AJ
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Appearances: For the Applicant Mr M Pillemer
Instructed By Venn Nemeth & Hart Attorneys
For the Third Respondent Mr Preggie Moodley
Instructed By Preggie Moodley & Company
Date of Judgment: 27 October 2005
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