IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE HIGH COURT, BHISHO)
CASE NO: 223/2025
In the matter between:
KHAYALETHU TUNGATA Applicant
and
MEMBER OF EXECUTIVE COUNCIL
DEPARTMENT OF HEALTH, EC PROVINCE First Respondent
SUPERINTENDENT GENERAL FOR THE
DEPARTMENT OF HEALTH: EC PROVINCE Second Respondent
PREMIER OF THE EASTERN CAPE PROVINCE Third Respondent
JUDGMENT
___________________________________________________________________
MAKAULA J:
1. Introduction
[1] The applicant issued an application seeking the following order.
‘1. Directing the respondent to comply with the settlement agreement concluded between
the parties on 18 November 2022 and 17 May 2024, in terms of which the applicant was to
be placed in the position of Senior Manager: Fleet Management for the contract of one year
with the option to renew.
2. Declaring that the applicant is an employee of the Department of Health,
Eastern Cape.
3. Directing the respondents within 15 days of granting this order, to:
3.1 conclude a written contract of employment with the applicant, which
accurately reflects the terms and conditions of the applicant’s return to the
position of Senior Manager: Fleet Management, with effect from 2nd June
2024.
3.2 permit the applicant to commence and fully perform the duties
associated with the position of Senior Manager: Fleet Management, in
accordance with the terms agreed upon, without any further hindrance or
obstruction; and
3.3 remunerate the applicant by paying the salary and benefits to which
the applicant would have been entitled had the applicant returned to work on
2nd June 2024 up to and including the date of actual compliance with the
terms of the agreement by the respondents. (sic)
4. The respondents shall pay interest on the outstanding income payable to the
applicant at the legal rate.
5. The respondents to pay the costs of the application; and
6. Granting such further and/or alternative relief as deemed necessary.”
2. The Facts.
The applicant’s case.
[2] The applicant had been employed by the first respondent since 2007 as
Finance Manager, responsible for overseeing Fleet Management. His employment
was governed by a fixed-term contract subject to renewal. The contract was renewed
several times until its termination in March 2022.
[3] Upon termination, the applicant brought an urgent application to the Bisho
High Court, contending that in March 2021 his fixed -term employment contract was
converted to permanent employment. The respondents opposed the application, and
Bloem J dismissed it with costs. The applicant filed a Notice for Leave to Appeal
(LTA), which he later withdrew. The parties disagree on the reason for the
withdrawal. The applicant contends that the withdrawal resulted from Mr Modupi, the
respondents’ legal representative, approaching the applicant’s legal representatives
and proposing an out -of-court settlement. The applicant further contends that the
parties negotiated and reached an oral agreement.
[4] On 18 November 2022, the applicant’s attorney wrote to the respondents’
attorney, confirming and accepting the terms of the orally agreed contract. The
applicant withdrew the LTA on the basis that he had accepted the offer to renew the
contract.
[5] The relevant part of the letter dated 18 November 2022 reads as follows:
“During our telephone discussions you indicated that the Department of Health is
offering our client a new contract of 12 months and our client is requested to
withdraw the leave to appeal. We have discussed the issue with our client and we
hold instructions to inform you that the offer of a new contract of 12 months by the
Department of Health is accepted. Our client is available to sign a new contract on a
date and time which will be suitable to the Department of Health.’ (sic)
[6] The applicant’s attorney sent another email on 22 November 2022,
referencing numerous telephone conversations, particularly on 18 November 2022,
and reiterating that their client accepted the respondents’ offer of settlement. The
applicant undertook to file the notice withdrawing the LTA the next day.
applicant undertook to file the notice withdrawing the LTA the next day.
[7] On 23 November 2022, Mr. Modupi sent an email to the applicant’s attorney
stating the following:
“I have received your email, and I do confirm our discussion in the above case and I
have spoken with our clients particular, Mr. Nabe, and he says that he will come back
to you for arranging the signed of contract.” (sic)
[8] The applicant accepted the offer, leading to a new employment agreement
(the 2022 agreement). The applicant argues that the respondents authorised and
directed Mr. Modupi to enter into an agreement with him. As a result, he filed the LTA
on 7 December 2022.
[9] Upon realizing that the respondents were supine, the applicant wrote the letter
dated 9 December 2022. In it, the applicant reiterated the background stated above
and set forth the agreed terms of the new agreement as follows:
“3.1 (the applicant) should withdraw his leave to appeal against the judgment of Mr.
Justice Bloem.
3.2 The contract of employment which is perceived to have come to an end on 31st
March 2022 will be renewed.
3.3 Will be offered a new contract of employment for a period of 12 months
immediately, whilst the department will be embarking in a process of regularizing his
employment permanent employment.
3.4 New 12 months contract of employment will be in respect of the same position
and functions of finance management responsible for fleet management and in the
same terms and benefits.” (sic)
[10] The letter did not elicit a response from the respondents. The applicant made
numerous attempts to resume work. On 12 December 2022, he went to his place of
employment and could not find the second respondent in the office. He was told the
second respondent would contact him, but that never happened. The respondents’
officials did not honour subsequent appointments. He then exchanged WhatsApp
messages with the Head of the Department, the second respondent, and the third
respondent. In those messages, the th ird respondent urged the second respondent
to resolve the applicant’s matter.
[11] On 16 January 2023, the applicant received a letter of assumption of duty
from the Chief Financial Officer (CFO) of the second respondent stating inter alia:
‘This is to certify that Mr. Khayalethu Tungata – 5461 44031 has assumed the duties
and responsibilities as Senior Manager: Fleet Management, with effect from Monday,
and responsibilities as Senior Manager: Fleet Management, with effect from Monday,
16 January 2023.’ (sic).
[12] The applicant states that despite the letter of assumption of duty, he
encountered obstacles in performing his functions, including denial of access to his
office, lack of necessary equipment, and absence of written particulars of his
employment. The CFO advised him to remain at home while coordinating a meeting
with the Acting Director of Fleet Management, Mr. Mtongana, and until Human
Resources finalised the implementation of the negotiated settlement.
[13] Because the 2022 agreement led to no action, the applicant filed a case in the
Labour Court on 7 May 2024. He sought an order enforcing the agreement and for
specific performance, urging the respondents to draft and sign a written employment
contract in accordance with their agreement. He also requested payments under
section 32 of the Basic Conditions of Employment Act 75 of 1997, beginning in April
2022 and continuing until payment is made.
[14] Before the adjudication of that matter, another agreement (the 2023
agreement) was entered into between him and the respondents. The 2023
agreement was reached at the doorstep of the Labour Court. Adv. Siyo and Mr.
Sakhela represented the applicant, while Adv. Maseti, Mr. Bastile (Senior Law
Advisor of the first respondent), and Miss Weinand (of the State Attorney’s office)
represented the respondents. The parties sought to have the 2023 agreement made
an order of court. The Labour Court refused to endorse the terms of the draft order
sought on the ground that it lacked jurisdiction to hear the matter. The judgment
captures the draft order as follows:
“1. The respondents are directed to draw and a written contract of employment of a
fixed term for a period of one year which will be subject to renewal with the applicant
in relation to his employment as Senior Manager: Fleet Management, Department of
Health, Eastern Cape which incorporates the written particulars of his employment as
contemplated in section 29 of the Basic Conditions of Employment Act 75 of 1997
contemplated in section 29 of the Basic Conditions of Employment Act 75 of 1997
within 5 days of receipt of this order.
2. The respondents are directed to advertise the applicant's position of Senior
Manager, Fleet Management, Department of Health, Eastern Cape, for a permanent
appointment provided that the post is existing, funded, and available.
3. The respondents pay the costs of this application, jointly and severally, the one
paying the other to be absolved, and such costs are to include the costs of two
counsel where so employed.” (sic)
[15] The Labour Court dismissed the application and refused to grant it, but it
granted paragraph 3 of the draft order and ordered the respondents to pay the costs,
with one paying the other to be absolved.
[16] After his appearance at the Labour Court, the applicant’s attorneys forwarded
a signed settlement agreement to the respondents’ attorneys on 1 June 2024 for
signature. The applicant asserts that both agreements were always oral, tacit, or
acquiesced to by the respondents. The applicant further states that the 2023
agreement remained valid, binding, and enforceable.
[17] On 4 June 2024, the applicant contacted the Acting Head of the Department
to inform him of his intention to return to work the next day. The Acting Head told him
that the Legal Department was working to resolve the situation and would contact
him within 24 hours.
[18] On June 28, 2024, the Acting Head informed the applicant that the position he
was to be appointed to was no longer listed in the organogram. The Acting Head
advised the applicant to approach the Bargaining Chamber to obtain the necessary
legal instruments to legitimise the matter. The applicant contends that the two
agreements are undisputed and remain valid, binding, and enforceable. The
applicant further contends that the first and second respondents entered into and
executed the settlement agreement with full knowledge of their organisational
structures and operational capacities.
[19] The applicant submits that he complied with his obligations under the
agreements by making his services available when called upon to resume duty. He
declares that the respondents have been obstructive by failing to provide him with
the written employment contract required by the settlement agreements and by
hindering the performance of his duties and responsibilities, thereby breaching the
agreements. The applicant argues that the respondents' failure to comply with the
terms of the agreements is emotional ly, physically, and financially prejudicial to him.
terms of the agreements is emotional ly, physically, and financially prejudicial to him.
The applicant avers that the flimsy excuse that the position is no longer available
undermines the essence of the agreement and that the respondents acted in bad
faith.
The defendants’ case.
[20] The respondents raised three points in limine, namely that this court lacked
jurisdiction to hear the “so -named settlement agreements… which are of no force
and effect”; that the third defendant is mis -joined because he lacks a direct and
substantial interest in the matter; and that the issues are res judicata because they
are substantially the same as those decided by Bloem J. However, when the matter
was argued, the respondents advised that they no longer pursued the special pleas.
[21] The respondents deny the existence of both agreements. They contend that
the applicant’s reliance on the unsigned agreement is erroneous and misplaced. The
respondents argue that the applicant’s reliance on the letter dated 9 December 2022
is misplaced because it merely proposed settlement terms and is not a binding
agreement. Further, the letters and correspondence exchanged between the
applicant and the respondents are informal communications and not binding on
them.
[22] Regarding the 2022 Agreement, the respondents state that no court order
addresses it, as the applicant intimated. The only document that talks to settlement
is the applicant’s letter dated 9 December 2022, which refers to the out -of-court
settlement negotiated on 18 November 2022. The respondents further rely on a
WhatsApp message between the Premier and the Head of Department, in which the
latter states that they shall prevail upon the applicant’s attorney to ‘finalise the
settlement agreement’. That messa ge is not an agreement so argue, the
respondents. In short, the respondents dispute the existence of the 2022 Agreement.
[23] The respondents submit that the 2023 Agreement was negotiated before the
Labour Court's judgment. After the judgment was delivered, the parties did not
engage in further negotiations. In short, the understanding is that the negotiations
ended when the Labour Court ruled that it lacked jurisdiction to hear the application.
ended when the Labour Court ruled that it lacked jurisdiction to hear the application.
The respondents argue that the failure to appeal the judgment ended the lis between
the parties. Therefore, no settlement agreement was entered into because the
Labour Court did not grant the draft order sought by agreement.
[24] The respondents argue that they were unaware of the settlement agreement
negotiated by Mr. Modupi; therefore, they did not respond to the letter dated 18
November 2022. The argument goes further, stating that the applicant failed to file an
affidavit explaining the terms of the negotiations and the authority under which Mr.
Modupi was acting.
[25] The respondents stated that on 29 July 2024, the applicant referred a
dispute with the Public Health and Social Development Sectoral Bargaining Council
(PHSDSBC), alleging that the respondents failed to sign the settlement agreement
and to provide him with an employment contract. The applicant withdrew the hearing,
though it was scheduled for 11 August 2025.
3. Analysis.
[26] Generally speaking, a contract is an agreement entered into by two or more
people with the intention of creating legal obligations. A valid contract requires
certain elements. First, the parties must agree on all material aspects of the
agreement. Second, the parties must have the necessary capacity to contract.
Thirdly, if the contract requires formalities, the parties must meet them. Fourth, the
agreement must be lawful, that is, not prohibited by statute or common law. Fifth, the
agreement must be capable of performance when entered into. Lastly, the
agreement must have definite or determinable content, so that the obligations can be
ascertained and enforced. i1
[27] The applicant contends that the 2022 Agreement was made orally and later
recorded in writing by email on or about 18 November 2022. The email reiterates the
terms the parties agreed to, including that the applicant would withdraw the LTA, as
arranged, in exchange for signing the contract. This was followed by the letter dated
9 December 2022, which set forth the contract terms and the 12 -month term.
Accordingly, the applicant withdrew the LTA.
[28] The respondents do not dispute the WhatsApp messages exchanged
and merely note them in their answering affidavit. They also do not dispute the
and merely note them in their answering affidavit. They also do not dispute the
contents of the letter dated 16 January 2023, in which the CFO states that the
1 1.The Law of Contract in South Africa: Elizabeth De Stadler et al 4th Edition page 6. LAWSA; First
Reissue, Vol. 5 Part 1, par 157, page 211.
applicant assumed duty. Furthermore, they do not deny the applicant's
contention that he encountered numerous obstacles in attempting to resume
duty, including being denied access to his office and not being provided with
the necessary work tools. One issue is whether there was a meeting of the
minds between the parties regarding the settlement of the dispute. The
correspondence shows that both parties were eager to settle the applicant's
employment dispute and, as such, engaged in concerted negotiations,
culminating in at least three settlement agreements reached at the doors of
various courts. The first led to the withdrawal of the LTA, and Mr. Modupi's
letter of 9 December 2022, further supports their meeting of the minds by
confirming arrangements to sign the contract. The letter states that the parties
agreed to settle the employment dispute by entering into a contract, as the
applicant intimated. There is no dispute about this issue. The respondents'
argument that there was no agreement without a signature is incorrect. The
respondents have never pleaded that the contract had to be signed first.
Drawing up a contract and signing it were not requirements.2
[29] The respondents' contention that Mr. Modupi lacked authority to
represent them is unpersuasive, given that the respondents are organs of
state and therefore act only through their functionaries. This is further borne
out by the various interactions and court appearances, during which the
respondents were represented in court by their designated officials and by
instructed legal representatives. They even sought to make the draft order an
order of court, but for the views of Lalie J. It eludes me why the respondents
argue that their legal teams were not required to bind them in dealing with the
matter. This argument is opportunistic, as shown above.
[30] The respondents' argument that the agreement still had to be signed to
form a contract is misleading. The parties' conduct makes it clear that they
form a contract is misleading. The parties' conduct makes it clear that they
agreed to settle the matter by having the applicant return to work. The
2 McWilliams First Consolidated Holdings (Pty) Ltd 1982 (1) SA 1 (A).
negotiations by their officials, the correspondence (including the referenced
telephone calls) between the parties, and the withdrawal of the LTA
demonstrate a meeting of the minds. The contract had been consummated,
except for the reduction of the terms of the agreement. The legal basis of a
contract is either consensus, that is, an actual meeting of the minds of the
contracting parties, or the reasonable belief by one of the contracting parties
that there is consensus.3
[31] The fact that the parties had concluded the 2022 Agreement is further
supported by the CFO’s letter dated 16 January 2023, which confirmed that
the applicant had resumed his duties, as indeed he had. However, he stopped
attending work due to the lack of support mentioned above.
[32] The second leg of the agreement is pursuant to the settlement
agreement reached in the Labour Court. The draft order sets forth the terms of
that agreement. Had Lalie J not raised the issue of jurisdiction, the court would
have made the draft settlement an order, thereby binding the parties. Lalie J
did not address the merits of the dispute, and whatever she said about them
was certainly obiter dicta and not binding on the parties.
[33] The respondents argued, relying on Eke v Parsons 4, and other
Constitutional Court and High Court judgments, that an order of court is
incompetent if it is contrary to the Constitution, against Public Policy, governed
by legislation and unlawful, or unenforceable. This principle is trite. However, it
is inapplicable here because I am not dealing with an order of court that is
sought to be enforced. Furthermore, the respondents did not plead that the
contract is unenforceable on those grounds. The respondents are bound by
their pleadings, and the applicant was minded to address those pleadings.
The lis between the parties turns on a contract of employment and its
enforceability.
3 Contract: General Principles; Van Der Merwe et al 4th Edition page 17.
4 2016 (3) SA 37 (CC).
[34] Having regard to the formalities of a binding contract I find that they
have been met. The parties had the necessary capacity to contract. The
respondents were represented by their officials and legal representatives on
arriving at the agreement, as stated previously. The material aspects of the
contract are not in dispute. The initial agreement was terminated by effluxion
of time. Before me, the applicant seeks a fixed term contract of 12 months as
agreed to by the parties. I find that the formaliti es necessary have been
complied with. The legal requirement or formalities have been met in that the
agreement between the parties is capable of performance. The obligations of
the parties are clear, ascertainable and capable of enforcement.
4. Costs
[35] The respondents are liable for the costs incurred by the applicant.
There is no reason to depart from the traditional rule that costs should follow
the results. The issue is the scale. Both parties have agreed that the costs of
senior and junior counsel should be scale C and that of the junior Counsel to
be scale B. The conduct of the respondents towards the applicant is
unacceptable. For the respondents to renege on an agreement each time for
flimsy reasons needs to be condemned and this should be r eflected in the
scale of costs awarded. This is a case which reflects an abuse of the court
processes at the expense of the applicant. The matter calls for costs to be
awarded on scale C. I have no reason not to accede to that submission.
[36] Consequently I made the following order:
1. Directing the respondents to comply with the 2022 and 2024
settlement agreements, in terms of which the applicant is placed in
the position of the Senior Manager: Fleet Management or any
position equivalent thereto for a period of 12 months;
2. Directing the respondents within 30 days of the granting of this order,
to:
2.1 conclude a written contract of employment with the
applicant, which accurately reflects the terms and
conditions of the applicant’s return to the position of the
Senior Manager: Fleet Management, or an equivalent
position;
2.2 permits the applicant to commence and fully perform duties
associated with the position appointed to in accordance
with the terms agreed upon without hindrance, obstruction
or delay; and
2.3 remunerate the applicant by paying the salary and benefits
enjoyed by the Senior Manager: Fleet Management or by
an incumbent in a position equivalent thereto;
3. The respondents are ordered to pay the costs of this application in
accordance with scale C.
________________________
M MAKAULA
JUDGE OF THE HIGH COURT
Appearances
For the Applicant : Adv Salukazana & Ms Mpofu
Instructed by : SAKHELA INC.
For the 1st Respondent : Adv Pretorius
For the 2nd Respondent : Adv A.M. Maseti
Instructed by: : STATE ATTORNEYS
Date heard : 4 December 2025
Judgment delivered : 27 August 2026