Toto v The MEC for Health (Eastern Cape Province); - Mfene v The MEC for Health (Eastern Cape Province); - Mfene v The MEC for Health (Eastern Cape Province); - Madaka v The MEC for Health (Eastern Cape Province); - Ncukana v The MEC for Health (Eastern Cape Province); - Ntsulumbana v The MEC for Health (Eastern Cape Province); - Mlunguza v The MEC for Health (Eastern Cape Province)

• Jurisdiction: South Africa
• Judge: Ebrahim J
• Judgment Date: 16 August 2007
• Docket Number: 185/05, 248/05, 248/05, 250/05, 805/05, 806/05, 815/05
• Court: Transkei High Court
• Hearing Date: 16 August 2007
• Citation: 2007 JDR 0862 (Tk)

Ebrahim J:

Introduction

[1] This judgment is in respect of seven applications in which the relief sought by each applicant is substantially similar. To avoid unnecessary duplication a comprehensive argument was presented in respect of all the matters. The parties agreed that the facts for adjudication would be those set out in the application of Ms Tenjiswa Toto ('the applicant') and, if necessary, cognisance would be taken of relevant facts in the other matters. The Court would thus deliver a single judgment in respect of all the matters.

The relief

[2] The relief sought by the applicant is set out in the following terms:

1.

Declaring the refusal and/or failure and/or delay by the Department of Health, Eastern Cape Province, to consider the applicant for promotion and promote the applicant to higher rank since the applicant's appointment to the rank of Assistant Administrative Clerk on 5th April 1989 until to date unlawful, invalid, in breach of the conditions of employment in the employment contract between the applicant and the aforesaid department of Health and unconstitutional.

2.

Declaring the finding by the first Respondent made through its task team known as HROPT that the applicant had, during the implementation of the provisions of circular 10/8/8/4, been overpaid, unlawful and unconstitutional.

2.1

Interdicting and restraining the said Department of Health from implementing the aforesaid finding.

3.

Directing the first Respondent, through its Department of Health, Eastern Cape Province to consider and assess the applicant for promotion from the position of Assistance Administrative Officer to higher ranks with effect from November 1991 alternatively from June 1992 and if found not unsuitable for promotion the applicant to higher ranks retrospective to a date 21/2 years alternatively 3 years from the date of the last promotion.

2007 JDR 0862 p3

Ebrahim J

4.

The first Respondent to undertake the aforesaid task within 30 ordinary days from the date of service of the order sought herein.

5.

Directing the 2nd, 3rd and 5th Respondents to facilitate the said process of assessment and promotion of the applicant in the event that applicant is found not unsuitable for promotion and do so in terms of the applicant conditions of employment of employment contract between the applicant and the aforesaid department.

6.

In the event that the applicant, upon assessment is found unsuitable for promotion, the first Respondent should furnish the applicant with reasons for such finding within 30 ordinary days from the date of such finding is made.

7.

Directing the first alternatively 4th Respondent to pay the applicant all monies outstanding arising from the promotion of applicant in the event of applicant being promoted retrospective to the date 21/2 years or three years after the last promotion.

8.

Directing the first Respondent to pay interest on the said moneys at 15,5% per annum from the date the said monies fell due to date of payment.

9.

Directing the first Respondent to pay costs of this application.

Granting the applicant such further and/or alternative relief as to this Honourable Court seems appropriate.'

The factual background relating to Tenjiswa Toto

[3] On 5 April 1989 the applicant commenced employment as an assistant administrative clerk in the Department of Health of the erstwhile Transkei Administration. As a result the applicant, and the other applicants, became members of the public service, their conditions of service being governed by Public Service Act, 43 of 1978 (Transkei Public Service Act') of the former Transkei Administration.

2007 JDR 0862 p4

Ebrahim J

[4] In a letter dated 8 April 1994, the Director General of Health informed the applicant that the Minister of Health, acting on the recommendation of the Public Service Commission, had promoted her to the rank of assistant administrative officer with effect from 1 October 1993.

[5] In terms of the interim Constitution, Act 200 of 1993, the former Transkei, Botswana, Venda and Ciskei ('TBVC States') were re-incorporated into South Africa and a new Public Service Commission was established. The Public Service Act, 1994 ('Public Service Act') repealed the Transkei Public Service Act (and similar acts in the other TBVC states) and came into operation on 3 June 1994. It provided for uniform terms and conditions of employment for all public servants.

[6] Section 236(4) of the interim Constitution stipulated that the terms and conditions of employment of public servants of the TBVC states would 'continue to apply ... until amended by or under any law, including any law enacted in order to establish uniformity of the terms and conditions of employment in accordance with those generally prevailing prior to [27 April 1994]'

[7] Upon rationalisation of the public services all the applicants became public servants in the employ of the Department of Health ('the Department') under the Eastern Cape Provincial Government. The applicant retained the rank of assistant administrative officer.

[8] On 12 August 1994 the Public Service Commission issued Circular No. 10/8/8/4. It recommended, inter alia, the adoption of uniform Personnel

2007 JDR 0862 p5

Ebrahim J

Administrative Standards ('PAS') as uniform dispensations with effect from 10 June 1994 and 'the translation of serving personnel to the salary scales in uniform dispensations'. (The word 'translation' denoting 'transfer'). Guidelines were provided for the translation of personnel occupying promotional ranks.

[9] In June 1996, public servants were notified via Circular no. 1 of 1996 that the 'qualifying periods for promotion to a higher post and rank/legs of salary ranges are standardised (except where different periods of requirements were specifically indicated in the PAS's). The periods now ranged...