Reportable: NO Circulate to Judges: NO Circulate to Magistrates: NO Circulate to ReQional Maaistrates: NO
IN THE NORTH WEST HIGH COURT, MAHIKENG
CASE NO: 970/2025
In the matter between:
GWENDOLINE NNYANA CLODIA MASENG
AND
DEPARTMENT OF PUBLIC WORKS
AND ROADS NORTH WEST
HEAD OF DEPARTMENT: DEPARTMENT OF
PUBLIC WORKS AND ROADS NORTH WEST
MEC: DEPARTMENT OF PUBLIC
WORKS AND ROADS NORTH WEST
DATE OF HEARING
DATE OF JUDGMENT
FOR THE APPELLANT
FORTHERESPONDENT
1
Appellant
First Respondent
Second Respondent
Third Respondent
23 January 2026
24 March 2026
Mr. W Scholtz
Adv. T.J Makgate
JUDGMENT
Delivered: This judgment was handed down electronically by circulation
to the parties' legal representatives via email. The date and
time for hand-down is deemed to be 12h00 on 24 March
2026.
ORDER
Resultantly, the following order is made:
(i) The applicant's transfer from her position as a District Director
for the Ngaka Modiri Molema District to the Provincial
Coordinating and Reporting Directorate at the Head Office of
the Department of Public Works and Roads: North West, is
reviewed and set aside.
(ii) The first and second respondents are ordered to reinstate the
applicant in the position as District Director for the Ngaka Modiri
Molema District, within ten (10) days from the date of this order.
(iii) The first respondent is ordered to pay the cost of this
application on a party-and-party basis on Scale B, to be taxed,
in terms of Rule 67 A of the Uniform Rules of Court.
JUDGMENT
2
Summary
Transfer of public servant in contravention of Section 14 of the Public
Service Act 103 of 1994 read with Clause 16 of the Recruitment and
Selection Policy of the department - transfer reviewed and set aside - Cost
on Scale B.
HENDRICKS JP
[1] The applicant is an employee of the North West Provincial
Government and occupy the position of District Director for Ngaka
Modiri Molema District, in the North West Province since 01
February 2021. On 02 July 2024 a meeting was held between the
Head of the Department (HOD) of Public Works and Roads: North
West, the applicant, and the Chief Director: Infrastructure,
Maintenance, Co-ordination and Implementation, Mr. Diko, who are
the applicants' supervisor. This meeting is the central point of the
present application, as a brief discussion regarding the possible
transfer of the applicant was held.
[2] On 4 August 2024 the applicant was notified of a managerial
meeting to be held at the HOD's office on 05 August 2024, to be
followed by a staff meeting thereafter. The purpose of these
meetings were to discuss transfers and placements of official and
acting arrangements. These meetings were indeed held and the
applicant was verbally informed of the decision that she be
transferred.
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[3] On 12 August 2024 the applicant received a letter issued by the
HOD already on 02 August 2024, three (3) days before the meeting
of 05 August 2024, informing her of the approval of her transfer. On
13 August 2024, the applicant was requested to sign the letter of
transfer and to return same, upon her acceptance of the transfer.
The applicant did not accept the transfer. Instead, she returned the
letter of transfer unsigned and in manuscript wrote the following on
it:
"In pursuance of the Jetter of transfer that I received on the 12th day
of August 2024, I wish to state as follows:
• In 2019, a substantive position of the Director Ngaka Modiri Molema
was advertised. I duly applied, was shortlisted, interviewed and
wrote a competency test.
• I was substantively appointed and started 1st February 2021 by
Executive Authority, the former Minister of Public Works &
Infrastructure, Me Patricia De Li/le.
• Since my appointment, I have been subjected to performance
management as guided by the SMS Handbook/PMDS process.
• On the 5th day of August 2024, I was called to a meeting by the
HOD, Mr Kgantsi and was informed that I was being transferred to
Programme 4: Community Based Programme. On the 12th day of
August 2024, I received a letter that indicates that the EA has
approved my transfer.
• With this letter, I wish to understand the circumstances in light of the
HOD's comments when he addressed the Ngaka Modiri Molema
officials."
[4] A certain Ms. More was appointed as Acting Director in the stead of
the applicant as announced at the meeting of 05 August 2024 and
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in terms of the letter of the HOD dated 02 August 2024. On 16
August 2024 the applicant lodged a formal grievance with regard to
her transfer. The grievance inter alia raised as issues the unfairness
of the unilateral transfer without consultation; unfair transfer without
having applied for it and without being given reasons for the transfer.
This grievance was met with silence.
[5] The applicant employed legal assistance and her attorneys
addressed a letter of demand to the respondents dated 09
September 2024. In relevant part, this letter of demand stated
unequivocal:
"4. As a minimum, our client's transfer was executed in the
absence of her consent and without any consultation, as
contemplated by Section 14(3)(b) and (4) of the Act.
Consequently, our client's transfer offends the constitutional
principle of legality.
5. Premised on the above, it is our instructions to demand that our
client be reinstated as the District Director for the Ngaka Modiri
Molema District within seven (7) calendar days hereof, faiHng
which our client will approach a competent Court for the
appropriate relief, which will include a prayer for a punitive order
as to costs. In this regard, we remind you of your statutory
obligations, as the Head of the Department, which includes your
obligation to ensure compliance with the applicable legislative
prescripts."
5
[6] Approximately three (3) hours after the above mentioned letter of
demand was transmitted, the applicant received a letter, authored
by Mr. Diko, dated 29 August 2024, titled "RESPONSE TO
GRIEVANCE LAID BY MS G. MASENG DIRECTOR - NGAKA
MODIRI MOLEMA DISTRICT". In this letter, Mr. Diko alleges that he
initiated the necessary procedures to facilitate the applicant's
transfer on account of a request that she made during the 02 July
2024 meeting.
[7] By way of a letter dated 16 September 2024, in response to the letter
by Mr. Diko's, the applicant's attorneys pointed out: the applicant's
reservation regarding the timing of and motivation behind Mr. Dike's
letter; that the so-called "Response to Grievance" relates to
"allegations", which by no means informed the grievance; and in
particular, the following, as per paragraph 3 of their letter:
"3. That said, the a/legation that our client has requested or
proposed to be transferred to the Community-Based
Programme is not only untrue but is not even supported by
your contention as to what motivated the alleged
request/proposal. Nonetheless, our client's transfer remains in
contraventoin of the applicable legislation, and as a result,
offends the principle of legality"
[8] On 20 September 2024, the applicant's attorneys received a
response from the HOD to their letters of 9 and 16 September 2024,
in terms of which he merely states:
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"You are kindly informed that the department is currently dealing with
the grievance lodged by your client and the issues raised are the same
as the ones you are raising.
Your office is therefore requested to allow the internal process to
unfold and your client will update you accordingly."
[9] In the interim, and in stark contrast to the above, the applicant
received confirmation that her grievance was regarded as "finalized'
(resolved). On the same day, the applicant confirmed that she was
dissatisfied with the outcome and insisted that the matter be
escalated to the Executive Authority (Member of the Executive
Council or MEC).
[1 O] On 24 October 2024, the applicant received a letter from the MEC,
dated 23 October 2024, in relation to her grievance. The relevant
part of the letter by the MEC reads as follows:
"Kindly take note that I received your grievance for my intervention as
you were aggrieved about unilateral transfer.
Please be advised that I discovered that the transfer was initiated at
your request. You submitted a complaint to the HOD against your
supervisor, Mr Diko, and subsequently sought a transfer to another
directorate as a relief, which has been executed. Based on this
information, I find your grievance to be unsubstantiated."
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[11 J In response, on 25 October 2024, the applicant's attorneys
addressed a letter to the MEC, the relevant part of which reads as
follows:
"4. However, in your abovementioned letter you make reference to
an alleged complaint which our client, according to your letter
Hsubmitted
... against ... Mr. Diko". Premised hereon, you contend that our
client sought to be transferred to another Directorate "as a relief
in relation to the alleged complaint.
5. Our client bears no knowledge as to this complaint and has,
therefore, instructed us to request you to furnish us with a copy
of the same."
[12) Section 14 (1) to (4) of the Public Service Act1 states:
1 103 of 1994
"14 Transfers within public service
(1) Subiect to subsections C2J. C31 and f4J. anvemplovee ofa
department ma v be transferred-
(aJ within the department, by its executive authority;
(b) to another department by the executive authorities of the
two relevant departments.
(2) Such transfer shall be made in such manner and on such
conditions as may be prescribed.
(3) An employee mavbe transferred under subsection en onlvif-
(aJ the employee requests the transfer or consents to the
transfer: or
(b) in the absence of such request or consent, after due
8
consideration of any representations by the employee, the
transfer is in the public interest.
(4) Before employees may be transferred in terms of subsection (3)(b)
as a result of a determination regarding an allocation, abolition or
transfer of a function, contemplated in section 3 (4) (b) or (c) or
3A (b), consultation shall take place in the applicable bargaining
council established in terms of the Labour Relations Act for the
public service as a whole or for a particular sector in the public
service."
This section cannot be read in isolation but must be read in
conjunction with Clause 16 of the departments' Recruitment and
Selection Policy, which reads thus:
"16. TRANSFERS
16. 1 A funded vacant post may be filled (before being advertised) ,
through the transfer of an employee to that vacant post on the
same level;
16.2 A transfer can either be employee initiated or employer
initiated. In both instances the request must be supported
and motivated for in writing by the employee/employer and
approval must be obtained from the Delegated authority. If it
is employer initiative, consent for the affected employee
should be sought or it should be proven that the transfer is at
the best interest of the Public Service (Ref. Sec 14. 1 of the
PSA)."
[13] From the respondents' answering affidavit, it is the stance of the
respondents that it was an employee-initiated transfer, which was
consensual. This response flies in the face of what the applicant
9
wrote in reply to the letter of approval of her transfer and the
grievance that she lodged. She refused acceptance of her transfer.
In terms of Clause 16 of the Recruitment and Selection Policy, a
transfer can either be employee-initiated or employer-initiated, but
in both instances the request must be supported and motivated for
in writing by either the employee or the employer. It is quite
apparent that the applicant as employee did not request a transfer
in writing. If that was indeed the case, it would have been easy for
the respondent to state as such but they do not. The answering
affidavit is silent on this score. Also with regard to the converse: if
the transfer was employer-initiated, it should have been supported
and motivated in writing. This is not the case. This in actual fact put
paid to the issue at hand as there was non-compliance with Clause
16 of the departments' policy.
[14) Non-compliance of an organ of State with its own policy was
considered in the case of National Education, Health and Allied
Workers Union (NEHAWU) and Another v National Home
Builders Registration Council (NHBRC) and Others2, and it was
found that such non-compliance violate the principles of good
governance and amounts to a breach of the constitutional
2 [2025 ) F BLLS 525 (LC).
10
imperative of Section 1953 of the Constitution4, which results in
unconstitutional conduct and which is also inconsistent with the
principle of legality. I echo the same sentiments.
(15] To reiterate, on the respondents' version, the transfer was at the
behest of the applicant. However, in terms of Clause 16 of the
department's policy, such a request must be supported and
motivated in writing, which is not the case. On the contrary, the
applicant did not accept her transfer from the onset. Not only did she
not sign the acceptance letter, but she also lodged a grievance to
demonstrate her resentment about her proposed transfer.
[16] According to the respondents, during the meeting of 02 July 2024,
the applicant verbally requested that she be transferred, which was
reduced into writing by the HOD through a submission to the MEC
for approval. However, the HOD only made the submission to the
MEC on 31 July 2024. The transfer was approved by the MEG on
3 "195. Basic values and principles governing public administration (1) Public administration must be governed by the democratic values and principles enshrined in the Constitution, includ ing the following principles:
(a) A high standard of professional ethics must be promoted and maintained. (b) Efficient, economic and effective use of resources must be promoted. (c) Public administration must be development-oriented.
(d) Services must be provided impartia lly, fairly, equitably and without bias. (e) People's needs must be responded to, and the public must be encouraged to participate in policymaking.
(f) Public administratio n must be accountable.
(g) Transparency must be fostered by providing the public with timely, accessible a nd accurate information.
(h) Good human-resource management and career-development practices, to maximise human potential, must be cultivated.
(i) Public administration must be broadly representative of the South African people, with employment and personnel management practices based on ability, objectiv ity, fairness. and the need to redress the imbalances of the past to achieve broad representation." 4 Act 108 of 1996.
11
01 August 2024, the very next day. This was not supported nor
motivated. There exists no documentary proof in this regard. The
transfer is therefore void ab initio and should be reviewed and set
aside.
[17] Insofar as costs are concerned, the applicant prays that an
appropriate cost order be made in her favour in the event that she
is successful. It is trite that costs should follow the event. Although
this is an employee-employer relationship, the applicant was
successful and costs should be awarded in her favour. I am of the
view that it would be just, fair and equitable to award costs on a
party-and-party basis on Scale B, to be taxed, in terms of Rule 67 A
of the Uniform Rules of Court. I am of the view that no case is made
out for the awarding of costs on a punitive scale as between attorney
and client.
Order
(18] Resultantly, the following order is made:
(i) The applicants transfer from her position as a District Director
for the Ngaka Modiri Molema District to the Provincial
Coordinating and Reporting Directorate at the Head Office of
the Department of Public Works and Roads: North West, is
reviewed and set aside.
(ii) The first and second respondents are ordered to reinstate the
applicant in the position as District Director for the Ngaka
12
Modiri Molema District, within ten (10) days from the date of
this order.
(iii) The first respondent is ordered to pay the cost of this
application on a party-and-party basis on Scale B, to be
taxed, in terms of Rule 67 A of the Uniform Rules of Court.
R D HENDRICKS
JUDGE PRESIDENT OF THE HIGH COURT,
NORTH WEST DIVISION, MAHIKENG
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