Acting National Commissioner for the Department of Correctional Service and others v Ndara

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Savage AJA
• Judgment Date: 21 June 2023
• Citation: 2023 JDR 2608 (LAC)
• Hearing Date: 09 May 2023
• Docket Number: CA14/2022
• Court: Labour Appeal Court

Savage AJA:

Introduction

[1]

This appeal, with the leave of the Labour Court, is against the judgment and orders of that Court (per Rabkin-Naicker J) in which the termination of the employment of the respondent, Mr Mzukisi Lubabalo Ndara, was found to be unlawful and of no force and effect; and the status quo ante restored for “due consultation [to] take place as to the early termination of the five-year employment contract between the parties”. In addition, the first and second appellants, the Acting National Commissioner of the Department of Correctional Services and the Deputy Minister of Justice and Correctional Services respectively, were ordered to reimburse the respondent R254 468,44 unlawfully deducted from his salary within ten days of receipt of the order, with the appellants held jointly and severally liable for the respondent’s costs. The respondent cross-appeals against the Labour Court’s decision to dismiss his application to amend his pleadings.

[2]

At the outset of the hearing of this appeal, the appellants sought its reinstatement since, due to the late filing of the appeal record, the appeal was deemed to have been withdrawn, with no extension having been granted by the

2023 JDR 2608 p3

Savage AJA

Judge President. [1] Having had regard to the limited delay, the reasons for it, as well as the absence of prejudice and the prospects of success in the matter, I am satisfied that the appeal should be reinstated and the late filing of the record condoned.

Background

[3]

On 11 March 2022, the first appellant, the Acting National Commissioner for the Department of Correctional Services, informed the respondent in writing that:

‘1.

You have been employed as Director Technical Specialist (level 13) in the office of the Deputy Minister of Justice and Correctional Services linked to the term of the contract of the Deputy Minister signed on 24 June 2019.

2.

Following your request for a transfer, I informed you in writing on 8 January 2022 that I am willing to accommodate you within the Department of Correctional Services as a Director (level 13) linked to the term of office of the Deputy Minister and invited you to apply for such transfer on your own time and cost in writing. You never applied and such transfer is therefore no longer an option.

3.

You further indicated your desire to leave your employment with the Deputy Minister. The Deputy Minister has similarly indicated that the working relationship between yourself and the Deputy Minister has broken down irretrievably.

4.

The Deputy Minister has therefore in terms of clause 3 of your employment contract decided to terminate your employment with one months’ notice. Your last day of service will therefore be on 30 April 2022.

2023 JDR 2608 p4

Savage AJA

5.

You are required to liaise with the DCS human resource office (head office) to finalise your termination. . .’

[4]

Following receipt of this letter, on or about 5 April 2022, the respondent instituted urgent proceedings in the Labour Court against the appellants. In an inelegantly drafted notice of motion and founding papers, which referenced the incorrect contract of employment, the respondent sought that an interim order be granted in respect of the relief sought in Parts A, B and C of the notice pending an unspecified return date.

[5]

In Part A, an interim order was sought “pending the final determination of these proceedings” inter alia that:

5.1

the Acting National Commissioner and the Deputy Minister be interdicted and restrained from putting into operation their purported decision to terminate the respondent’s employment with the Department of Correctional Services (the Department); and

5.2

directed to reinstate the respondent’s contract of employment immediately and allow him to continue performing his duties as if his contract of employment had never terminated.

[6]

In Part B, the respondent sought inter alia a declaration that:

6.1

the decision of the Acting Commissioner and Deputy Minister purportedly to terminate the respondent’s contract with effect from 30 April 2022 was unlawful, null and void ab initio with no force and effect for want of compliance with clause 3.3 of the contract of employment entered into on 25 June 2019 between the parties, read together with sections 14 and 17 of the Public Service Act, 1994 and section 23(1) of the Constitution, 1996, with an order setting aside such decision;

6.2

the respondent was employed as Director: Head of Office to the Deputy Minister at level 13 (Head of Office) with effect from 1 June 2019 until

2023 JDR 2608 p5

Savage AJA

2 October 2019 when he was appointed and/or transferred to the position of Special Advisor to the Deputy Minister at level 14 (Special Advisor) with effect from 1 July 2019 to date; alternatively that the appointment of the late Mr Khaya Somgqeza to the Head of Office position legally occupied by the respondent was invalid and unlawful with no force and effect “unless it is declared that on 2 October 2019 the Deputy Minister legally appointed the [respondent] as Special Advisor with effect from 1 July 2019 to date and appointed Mr Somgqeza into his position as Head of Office with effect from 1 July 2019 until his death on 24 September 2021”;

6.3

alternatively that the respondent remained legally appointed as Head of Office with effect from 1 July 2019 to date.

[7]

In Part C, the respondent sought an order declaring that the conduct of the Government and the Department in deducting R254 468.44 from his gross salary as Head of Office was unlawful and in contravention of section 34 of the Basic Conditions of Employment Act [2] (BCEA); alternatively that the deduction of R922 364,44 from the respondent’s gross salary as Special Advisor was unlawful and in contravention of section 34. An order was sought directing the Government and the Department to repay such amounts, with costs sought against the appellants.

[8]

The respondent case, as set out in his founding affidavit, was that he had been employed as Head of Office with effect from 1 June 2019 until 2 October 2019 when he was appointed as Special Advisor with effect from 1 July 2019 to date. The Head of Office contract was signed on 25 June 2019, operative from 1 June 2019, for a five-year term linked to the term of the Deputy Minister.

[9]

In the appellants’ answering affidavit, it was denied that the respondent was employed as Head of Office since that contract had been cancelled by mutual agreement. Instead, it was stated that the respondent was employed as Technical Specialist, having signed a contract to this effect on or about 5 August 2021, which

2023 JDR 2608 p6

Savage AJA

contract was backdated to 24 June 2019. In his replying affidavit, the respondent admitted as much. There was no dispute between the parties that at a meeting attended by the respondent on 28 June 2019, the restructuring of the Deputy Minister’s office was discussed. At this meeting, the respondent agreed that he would be appointed as Special Advisor, with a new employee, Mr Somgqeza, to be appointed into his position as Head of Office. On 1 July 2019, the respondent confirmed in writing the oral agreement that he would be appointed to the Special Advisor post.

[10]

However, on 22 July 2019, the respondent was informed that the sixth appellant, the Department of Public Service and Administration (DPSA), had not supported the deviation requested by the Deputy Minister, which would have permitted the appointment of the respondent as Special Advisor, on the basis that such a deviation could only be sought by a Minister with more than one portfolio and not by a Deputy Minister in terms of the applicable Ministerial Handbook. In spite of this, on 24 July 2019, Mr Somgqeza was appointed to the Head of Office post. During August 2019, the respondent’s job title on the payroll system was amended to reflect his appointment as Technical Specialist.

[11]

On 6 January 2020, the Chief of Staff of the fourth appellant, the Minister of Justice and Correctional Services (Minister), confirmed the DPSA’s view in relation to the deviation sought. On 5 May 2020, the respondent was informed that since the request to appoint him to the Special Advisor post had been declined, he was required to sign a contract of employment as Technical Specialist, which it was contended he had previously refused to do. On 8 August 2020, the Minister confirmed in writing that the appointment of the respondent to the Special Advisor post was not approved. In spite of this written indication, on 13 August 2020, the respondent stated that he was informed that the Minister had agreed telephonically to the creation of a level 14 post additional on the establishment to which the respondent should be appointed and then seconded to the Deputy Minister’s office. This was never actioned.

[12]

A contract in respect of the position of Director: Technical Specialist in the Deputy Minister’s office at level 13 (Technical Specialist) was thereafter provided to

2023 JDR 2608 p7

Savage AJA

the respondent. In his founding affidavit, the respondent denied that he had signed such a contract and that in any event, Mr Emanuel Khoza, the Department’s signatory to the contract, was not authorised to sign on behalf of the Department as he was no longer employed as Deputy Commissioner: Human Resource Management but as Area Commissioner at Kgosi Mampuru Correctional Centre. In the appellants’ answering affidavit, it was stated that on or about 5 August 2021, the respondent signed the Technical Specialist contract, backdated to 24 June 2019, which provided for a five-year contract linked to the term of the Deputy Minister. In reply, the respondent admitted for the first time that he had signed the Technical...