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(TRANSKEI DIVISION) CASE NO. 890/2007

In the matter between :

THE MEC, DEPARTMENT OF

EDUCATION, EASTERN CAPE

PROVINCE FIRST APPLICANT

THE SUPERINTENDENT –

GENERAL, DEPARTMENT OF

EDUCATION, EASTERN CAPE SECOND APPLICANT

AND

DANIEL MLAMLI BODLANI RESPONDENT

IN RE :

DANIEL MLAMLI BODLANI APPLICANT

AND

THE MEC, DEPARTMENT OF

EDUCATION, EASTERN CAPE

PROVINCE FIRST RESPONDENT

THE SUPERINTENDENT –

GENERAL, DEPARTMENT OF

EDUCATION, EASTERN CAPE SECOND RESPONDENT

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JUDGMENT ON APPLICATION FOR LEAVE

TO APPEAL

___________________________________________________

PETSE ADJP:

[1] The respondent brought an application before this Court on notice of motion against the applicants on 29 June 2007 in which he sought the following relief :

1. ………………………………………………………… .

2. That a Rule Nisi be issued calling upon the respondents to show case, if any, before this Honourable Court on Thursday, 19^th July 2007 at 10h00 or so soon thereafter as the matter may be heard why the following order should not be made final :

2.1 That the decision by the respondents not to pay the applicant’s salary for the month of May and June 2007 be and is hereby declared unlawful, unconstitutional and be set aside;

2.2 That the respondents be and are hereby ordered and directed to pay the applicant’s salary for the month of May and June 2007 and continue to do so until the applicant reach his retirement age or resigns from the respondents’ employment.

2.3 That the applicant be and is hereby condoned for non-compliance with any legislation, which he ought to have complied it before instituting these proceedings.

2.4 That the respondents pays the costs of this application.

3. That the provisions of sub-paragraphs 2.1 to 2.4 of the Rule Nisi shall operate as an interim / mandamus pending the finalisation of this application.

4. That this Honourable Court grant to the applicant such further and/or alternative relief as it seems fit.

[2] Once the matter was ripe for hearing it came before Gcabashe AJ on 23 November 2007 who, at the conclusion of argument, reserved her judgment which she subsequently handed down on 5 December 2007. The learned Judge found in favour of the respondent and issued an order in the following terms :

1. That the decision taken by the respondents not to pay the applicant’s salary for the period May 2007 to date is hereby declared unlawful, unconstitutional and contrary to his rights to fair administrative action;

2. That the respondents be and are hereby ordered and directed to pay the applicants salary for the period May 2007 to date with immediate effect;

3. That pending the proper placement of the applicant alternatively the institution of an investigation into his failure to render services, further alternatively his discharge in terms of the law, the respondent is directed to reinstate the applicant’s benefits and remuneration package fully.

4. That the respondents pay the costs of this application on a party and party scale.

[3] The present applicants (respondents in the main application) filed an application for leave to appeal on 14 January 2008 against the whole of the judgment and order of Gabashe AJ.

[4] In due time a date was arranged in consultation with the learned Judge for the hearing of the application which by arrangement, was set down for hearing on 22 February 2008.

[5] Very much at the last moment and due to circumstances beyond her control Gcabashe AJ was unable to travel from Johannesburg to Mthatha to hear the application as previously arranged. I was then approached to give directions as to the further conduct of the matter. For reasons that are not relevant for present purposes it was not possible to hear the application until much later when the application ultimately served before me.

[6] The grounds of the proposed appeal are set out in the applicants’ notice of application for leave to appeal dated 14 January 2008. I do not propose to reproduce them in this judgment so as not to unduly overburden it.

[7] The requirements for leave to appeal have, in a long line of cases, been held to be existence of a reasonable prospect of success on appeal. (See : R v Baloi 1949 (1) SA 523 (A) at 524, R v Nxumalo 1939 AD 580 at 582, R v Ngubane & Others 1945 AD 185 at 187, Capital Building Society v De Jager and Others, De Jager and Another v Capital Building Society 1964 (1) SA 247 (A), Afrikaanse Pers Bpk v Olivier 1949 (2) SA 890 (O) at 892 – 893, S v Ackerman en ‘n Ander 1973 (1) SA 765 (A) and S v Sikosana 1980 (4) SA 559 (A) at 562.)

[8] Although some of the cases cited in the preceding paragraph were criminal cases it has been held that the test is the same and the same need for the test to be applied properly applies also in civil cases. (See : Botes & Another v Nedbank Limited 1983 (3) SA 27 (AD) at 28C).

[9] In giving consideration to the issues at hand I am enjoined by judicial authority to take due cognisance of the test which is of application in matters of this nature. Judicial authority requires of a Judge considering an application for leave to appeal to reflect dispassionately upon the decision sought to be appealed against and decide whether or not there is a reasonable prospect that the Appeal Court may come to a different conclusion. I digress to say that most fortunately for me in casu I am not faced with what is usually a somewhat difficult task of having to, in a manner of speaking, review ones own judgment.

[10] Although Mr Notshe SC, who together with Mr Msiwa appeared on behalf of the applicant, was on his feet for almost an hour arguing the application I shall attempt to summarise the upshot of his argument in the hope that in so doing I shall not do injustice to his submissions.

[11] As I understood Mr Notshe’s argument leave to appeal against the judgment of Gcabashe AJ is sought on two principal bases which I hasten to set out hereunder.

1. In the first place it was argued that when the judgment of Gcabashe AJ was delivered the learned Judge was not aware of the judgment of the Constitutional Court in Chirwa v Transnet Limited and Others 2008(3) BCLR 251 (CC) which, so the argument went, held that all employment related disputes fall within the exclusive competence of the Labour Court. Consequently it was strenuously argued that had the learned Judge been aware of the Chirwa judgment she would have been constrained, given the hierarchical structure of our Courts, to find that this Court did not have concurrent jurisdiction with the Labour Court and thus dismissed the application on that ground alone without further ado.

2. In the second place it was argued that if I were to find that the Chirwa decision is distinguishable on the facts from this case this would not be the end of the matter. In that event, so the argument went, I should nevertheless hold that there is a reasonable prospect of another Court coming to a different conclusion to that reached by Gcabashe AJ on the basis that the refusal by the applicants to pay respondent’s salary for May and June 2007 does not constitute administrative action and that being so this Court therefore did not have concurrent jurisdiction with the Labour Court and also on that account Gcabashe AJ should have dismissed the application.

[12] In support of these submissions Mr Notshe pinned his absolute faith in the Chirwa case, supra more especially the passages at paras [142] to [145] in the minority judgment of Ngcobo J. When I pointed out to Mr Notshe that this was a minority judgment which was not binding on this Court he was quick to seek refuge in para [73] of the majority judgment by Skeyiya J wherein the following is stated :

“My finding that the High Court does not have concurrent jurisdiction with the Labour Court in this matter makes it unnecessary that I should arrive at firm decision on the question of whether the dismissal of Ms Chirwa by Transnet constitutes administrative action. If, however, I had been called upon to answer that question, I would have come to the same conclusion as Ngcobo J: namely that the conduct of Transnet did not constitute administrative action under section 33 of the Constitution for the reasons that he advances in his judgment.”

[13] By seeking refuge in para [73] of the Chirwa judgment Mr Notshe soon ran into a further difficulty because he was constrained to concede, when this was pointed out to him by this Court, that the aforequoted dictum was in fact obiter.

[14] However, when this Court threw Mr Notshe a life line by suggesting to him that despite the fact that the dictum by Skweyiya J in para [73] in the Chirwa case, supra was obiter this Court should be slow to give it short shrift because, coming from the highest court in the land, it has strong persuasive force and for that reason deserves to be treated with utmost defference. Mr Notshe hastily adopted this point.

[15] With a view to putting the contentions advanced on behalf of the applicants in their proper context I deem it necessary at this juncture to sketch out the following brief historical background that precipitated the launching of the main application by the respondent on 29 June 2007.

[16] In its quest to put an end to the malpractice of its employees drawing their monthly salaries without rendering any service to the Department of Education of the Province of the Eastern Cape (“the Department”) the Department changed the system in terms of which salaries were paid to its employees which was hitherto by way of bank electronic transfer directly into each employee’s Bank Account to one in terms of which employees were required to collect their salary cheques from designated offices within the Province on production of, inter alia, written proof from Supervisors, confirming that the employee concerned had been to work for the month in respect of which remuneration was sought to be drawn.

[17] Given the widespread tendency by some employees to exploit administrative weaknesses within the Department by drawing monthly salaries without rendering any service whatsoever for which the employees concerned were employed this was of course a laudable innovation by the Department clearly aimed at weeding out what were euphemistically referred to as “ghost employees”.

[18] Although there has been some suggestion by the applicants, albeit obliquely, that the respondent had been placed at Engcobo following his appointment as Assistant Chief Education Specialist as long ago as 1997 there can be no serious dispute that there never was any formal written communication to the respondent advising him of this fact. Regard being had to the tenor of the correspondence exchanged between respondent and the applicants which correspondence came about as a result of respondent’s professed desire to seek clarity from the applicants as to his status for the respondent had from the outset, bemoaned the fact that the Department had not placed him any- where and at the same time making a passionate plea to be placed in Mthatha which was his place of first choice, one is constrained to accept on the probabilities that emerged from the affidavits filed of record that respondent was in a somewhat invidious position for it was well-nigh impossible for him to produce written confirmation from a Supervisor testifying to the fact that he had rendered service to the Department entitling him to draw a salary because he had none. So much for the historical background.

[19] Instead of considering respondent’s case on its peculiar circumstances the applicants persisted in adopting the stance that the pre-requisites entitling the respondent to draw a salary prescribed by them were cast in stone without any regard to the peculiar circumstances obtaining in relation to the respondent. By adopting this irrational stance the applicants acted, in my view, in an unreasonable and capricious manner, expecting the respondent to do the impossible when it should have been evident to them that respondent’s case did not fall in the same category as the rest of the employees who had been properly placed.

[20] From a reading of the papers and on the probabilities that are overwhelmingly in favour of the respondent it seems to me that the Departmental officials who were clearly entitled to have regard to the innovation introduced by the Department to weed out ghost employees nevertheless failed to apply their minds by adopting an over-rigid approach (viz : requiring the respondent to produce a document from his Superiors confirming that he had indeed rendered services to the Department) without due regard to the personal circumstances of the respondent. That the Departmental officials were bound to bring their mind to bear on the peculiar circumstances of each and every case, in my view, brooks of no argument to the contrary. (See in this regard : Richardson and Others v Administrator, Transvaal 1957 (1) SA 521 (TPD) at 530 B; Johannesburg Town Council v Norman Anstey & Co 1928 (AD) 335; Computer Investors Group Inc and Another v Minister of Finance 1979 (1) SA 879 (TPD) at 898 C-E; See also : Baxter : Administrative Law – 1984 Edition at pp 415 -19).

[21] I therefore conclude that in purporting to exercise a discretion that the Departmental official no doubt enjoyed they failed to apply their minds to the issue at hand, regard being had to respondent’s peculiar circumstances, and thereby in effect abdicated their discretion and/or responsibilities.

[22] The question that now arises for decision in this application therefore is, in my view, whether or not on either or both bases relied upon by the applicants I am persuaded that there is a reasonable prospect of the Appeal Court coming to a conclusion different to that reached by Gcabashe AJ. I hasten to deal with that question below and in so doing I propose to state my views on the matter as briefly as possible.

[23] It must have been apparent from the brief historical background sketched above that the nub of the respondent’s complaint against the applicants is that having adopted a new mode of payment of salaries to its employees (with which he had no qualms whatsoever) the Departmental officials, however, failed to apply their minds to his peculiar circumstances as foreshadowed above and that such as failure constituted administrative action that fell squarely within the purview of the Promotion of Administrative Justice Act 3 of 2000.

[24] I have now had the benefit of reflecting on the Chirwa judgment which has occasioned me some anxious consideration but could find nothing therein to support the proposition that all employment related disputes without exception whatsoever fall within the exclusive competence of the Labour Court as was urged upon this Court by Mr Notshe. On the contrary I consider that the dictum at para [72] of the Chirwa judgment, as I understand it, goes against the grain of the contention advanced on behalf of the applicants by Mr Notshe.

[25] I am fortified in this view by the dictum in para [60] of the Chirwa judgment in which the following is stated.

“It is apparent from the provisions of section 157(1) that it does not confer “exclusive jurisdiction upon the Labour Court generally in relation to matters concerning the relationship between employer and employee” It seems implicit from the provisions of this section that the jurisdiction of the High Court is not ousted simply because a dispute is one that falls within the overall sphere of employment relations. The jurisdiction of the High Court will only be ousted in respect of matters that, in the words of section 157(1) “are to be determined by the Labour Court.” This is evident from section 157(2), which contemplates concurrent jurisdiction in constitutional matters arising from employment and labour relations.”

[26] The majority judgment went on to characterise Chirwa’s complaint in para [61] as being : “that Mr

Smith failed to comply with the mandatory provisions of items 8 and 9 of Schedule 8 of the LRA” which Schedule deals with matters that are in terms of sec 157 (1) of the LRA reserved for determination exclusively by the Labour Court. On the basis of this classification the Constitutional Court held that Chirwa had “made it clear that her claim was based on a violation of the provisions of the LRA, including items 8 and 9 of Schedule 8 to the Act” hence it was therefore not open to her “to vindicate her rights” under the provisions of PAJA instead of the provisions of the LRA which was the fons origine of her claim as she sought to do when she elected to sue in the High Court.

[27] In the premises it is my judgment that the refusal by the applicants to pay respondent’s salary for May and June 2007 does in fact constitute administrative action on the peculiar facts of this case to which reference has been made above and consequently this feature of the respondent’s case distinguishes it from Chirwa’s case heavily relied upon by the applicants.

[28] It therefore follows in my view that the fact that the case of the applicants may well be fairly arguable does not translate into a case that enjoys a reasonable prospect of success on appeal.

[29] The final alternative catch-all argument by Mr Notshe that it did not make sense for the respondent to come to this Court seeking relief of the nature that he did without assailing the decision taken by the applicants which introduced a new mode of payment (which decision still remains intact) does not avail the applicants. On the view I take of the matter this argument entirely overlooks the gravaman of the respondent’s case which was that whilst the new mode of payment is of itself laudable it was nonetheless required of the Departmental officials to take cognisance of the special circumstances as were present, for example, in respondent’s case which they clearly failed to do.

[30] For the sake of completeness it bears mentioning that although not abandoned the grounds for the proposed appeal as fully set forth in the applicants’ notice of application for leave to appeal were not pressed in argument. It only remains for me therefore to state that I am not persuaded that such grounds have merit.

[31] On a consideration of all the factors relevant to applications of this nature and regard being had to the test that is of application I am inclined to the view that there is no reasonable prospect of success in the proposed appeal on any of the bases advanced on behalf of the applicants. This therefore means that the application falls to be dismissed.

[32] In the result the following order shall issue :

The application for leave to appeal is dismissed with costs.

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X. M. PETSE

JUDGE OF THE HIGH COURT

HEARD ON : 07 MARCH 2008

DELIVERED ON : 24 APRIL 2008

APPLICANTS’ COUNSEL : ADVOCATE S.V. NOTSHE SC

(with him ADVOCATE P.V. MSIWA)

INSTRUCTED BY : THE STATE ATTORNEY

EAST LONDON

RESPONDENT’S COUNSEL : ADVOCATE N.R. MTSHABE

INSTRUCTED BY : MESSRS CHRIS BODLANI,

ATTORNEYS

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