Maqungo v Government of the Republic of Transkei and Others

• Jurisdiction: South Africa
• Judge: Beck CJ, Goldin JA and Dumbutshena JA
• Judgment Date: 24 June 1993
• Docket Number: 789/92
• Court: Transkei Appellate Division
• Hearing Date: 24 June 1993
• Citation: 1995 (1) SA 412 (TkA)

Dumbutshena JA:

The appellant was for four years the Director-General in the Department of Justice. His rise to the topmost position in the civil service was succinctly documented in the judgment of Mall AJ. I can do no I better than reproduce the facts in that judgment. The learned Acting Judge said of the appellant:

'Applicant commenced employment as a clerk in the Department of Justice in the Government of Transkei in 1963. Whilst still a clerk he studied for and completed the Public Service Examination in 1971 and upon obtaining his Public Service Law Certificate he was promoted as an assistant J magistrate and later as an

Dumbutshena JA

A additional magistrate. In 1975 he was promoted to the position of magistrate and two years later he obtained a degree of B Juris and in due course was promoted to the rank of chief magistrate and shortly thereafter became a regional court magistrate which position he held until November 1985. He was away from the Department of Justice from November 1985 to February 1988 during which time he served as Director in the Department of B Transport. In the meanwhile he had been studying for the LLB degree which was conferred on him in 1987. On 1 March 1988 he was promoted to the office of Director-General in the Department of Justice. By virtue of that position he served as ex officio chairman of the Liquor Board and chairman of the Casino Board. He states that the Department of Justice is responsible for a proper and efficient day-to-day functioning of the regional and magistrate's courts and for the formulation of Magistrate's C Court's Rules as well as tariffs and fees. It is also responsible for the staffing of the Attorney's-General's office, the office of the Registrar and the office of the Master of the Supreme Court and in this regard it includes the appointment of suitable candidates for available positions, promotion and transfer of existing staff and the providing of office furniture and equipment. Further branches which fall under the Department of Justice is the office of the Government Attorney, the Deed's Office, D the Registrar of Companies and the office of the State Law Adviser. The Department of Justice also acts on an agency basis for other Government Departments, such as Interior, Finance, Welfare and Pensions, Manpower and Local Government and Land Tenial (sic). Among his other duties as Director-General of the Department of Justice is to obtain the approval of the Minister of Justice for the introduction of new legislation. E Applicant says that he had been instructed by the Minister of Justice to assist the State Legal Adviser in the drafting of legislation for the creation of a small claims court, a Close Corporations Act, the creation of taverns and the creation of a Law Commission. He said that draft legislation in that regard was in its final stages.'

He was Director-General in the Department of Justice when on 1 June 1992 F he received notice of transfer to the Department of Interior. At the same time the sixth respondent, Mgudlwa, was transferred to the Department of Justice. The appellant did not like his transfer. He did not waste time before he launched an application by notice of motion praying for, among others, the setting aside of his transfer to the Department of Interior. G

He said he was not consulted before he was transferred. As a result he did not draw the attention of the respondents to the following factors and circumstances. He gave the reasons why he should not have been transferred in para 23 of his founding affidavit:

'That the Department of Justice is one of the biggest State departments. H As I have indicated above, a number of officers and persons occupying very senior positions fall under the Department of Justice, for instance the office of the Attorney-General, the Registrar of the Supreme Court and regional magistrates. The department is responsible for judicial and administrative functions for all magisterial offices. The Department of I Interior on the other hand is a small and with all due respect a rather insignificant department compared with the Department of Justice. It merely consists of a head office situated in Umtata with a few officers stationed at the border posts and Umzimkulu and the Kei Bridge. I accordingly respectfully submit that I will be severely prejudiced if I am to be transferred to the Department of Interior. It will clearly amount to a lowering of status and would further cause me considerable frustration as I will not be doing the work for which I am qualified. I J further submit that in the eyes of my fellow

Dumbutshena JA

A employees the transfer will be perceived as a punitive measure. I would submit that this is the only reasonable inference to be drawn in the absence of any good and compelling reasons for the transfer.'

Mr Van Zyl, for the appellant, submitted that the appellant was prejudiced because he was transferred without being heard. He argued that s 12(3) of the Public Service Act 43 of 1978 (Tk) (the Act) requires that a civil B servant should be heard before he is transferred. Section 12(3) reads:

'In the filling of any post or the making of any appointment in the public service, due regard shall be had to the qualifications, relative merit, efficiency and suitability of the persons who are eligible for promotion, transfer or appointment.'

C Mr Van Zyl contended that in deciding whether or not the appellant should be transferred the third and fourth respondents had to consider:

(a)

the qualifications;

(b)

the relative merit;

(c)

the efficiency; and

(d)

the suitability

D of the appellant for the position of Director-General in the Department of Interior. This required that the appellant be heard before transfer.

It appears to me that the matters contained in s 12(3) of the Act are for the consideration of the third and fourth respondents and may...