Brandaline v Minister of Defence and Military Veterans and Others (25801/2016) [2017] ZAGPPHC 322 (27 June 2017)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

CASE NO: 25801/2016

DATE: 27 JUNE 2017

In the matter between:

DR KHOELE KWENA BRANDALINE APPLICANT

and

MINISTER OF DEFENCE AND MILITARY VETERANS 1st RESPONDENT

CHIEF OF THE SOUTH AFRICAN NATIONAL

DEFENCE FORCE 2nd RESPONDENT

SURGEON GENERAL SOUTH AFRICAN MEDICAL

HEALTH SERVICES 3rd RESPONDENT

JUDGMENT

KOLLAPEN, J:

Background:

[1] This is an application in terms of Rule 53 of the Uniform Rules of Court in which the following relief is sought by the applicant as appears from the Notice of Motion:

"1. Reviewing, correcting and setting aside the decision and proceedings pursuant to which the Second and Third Respondents took the decision not to honour the Applicant's employment contract as from 29 October 2013, thus committing breach of contract.

2. Reviewing and setting aside the administrative decision by the Second Respondent, Human Resources Management not to honour the lawful contract as a result of demoting the Applicant from the military rank of Major to that of Captain without first observing the audi alteram partem rule.

3. Reviewing and setting aside the decision of the Second Respondent,

Human Resources Management of unilaterally changing the Applicant contract of employment without first observing the rule of law and I or natural justice (audi alteram partem rule) amd the law of contract and PAJA.

4. Reviewing and setting aside the decision of the Second Respondent,

Human Resources Management of unilaterally withdrawing Applicant from her funded post Unit: 055867 Division: 381431 Post name: 3488-040 Usage: 6260 without first observing the rule of law and or natural justice (audi alteram partem rule) and the law of contract.

5. Reviewing and setting aside the decision of the Second Respondent, Human Resources Management of disregarding and or not complying with his own instructions, orders and the law of contract.

6. Reviewing and setting aside the decision of the Second Respondent, Human Resources Management of not complying with the procedural requirements for Individual Grievance Regulations 2010.

7. Declaring that the action of the Respondents infringes my section 9 and 10 Constitutional rights.

8. Directing that the First to the Third Respondents pay the costs of this application on the attorney own client scale, the one to pay and the others to be absolved.

[2] All three Respondents oppose the application.

Parties:

[3] The applicant is an adult female Specialist Psychiatric Doctor, with the military rank of Captain employed by the Department of Defence (South African Medical Health Services (SAMHS) permanently resident in Mooikloof, Pretoria East.

[4] The first respondent is the Minister of Defence of the Republic of South Africa, cited herein in her capacity as the Cabinet Minister responsible for inter alia the administration of the Defence Act[1] with offices situated at ARMSCOR building corner Nossob and Rigel Avenue, Erasmuskloof, Pretoria.

[5] The second respondent is the Chief of the South African National Defence Force, who is cited in his capacity as such, with his office situated at ARMSCOR building corner Nossob and Rigel Avenue, Erasmuskloof, Pretoria.

[6] The third respondent is the Surgeon General of the South African Medical Health Services (SAMHS) who is cited in his capacity as such, with his office situated at Kasteel Park, Katzenellenbogen Building, corner Jochemus and Nassob steet, Erasmuskloof, Pretoria.

Facts:

[7] The facts in the matter are mostly undisputed.

[8] The applicant, who was at all material times was in the employ of the South African National Defence Force, obtained her MBCHB from Medunsa in 1999, her Master of Medicine in Psychiatry (Mmed Psychiatry) from the University of Pretoria in 2012 and registered with the HPCSA as in independent Specialist MP 0524786 from 31 January 2013. She enlisted into the SANDF as a Principal Medical Officer with the military rank of Captain on or about 1 April 2004.

[9] On or about 28 October 2013 the applicant received a Routine signal from the office of the third Respondent, containing the name

and particulars of the applicant as well as the post particulars as follows: "87002150PE CAPT KB KHOELE FROM 1MH TO 1MH LT COL POST DETAILS: 055867 - 381431 - 3488 - 040 - 6260 APPOINTMENT AS SPECIALIST WITH A MILITARY RANK OF MAJ".

[10] The signal further stated that the applicant is promoted to a military rank of Major with effect of 23 October 2013. On or about 30 October 2013 the applicant signed and handed to the Department of Defence the acceptance of offer of appointment. On or about 31 October 2013 a Signal message was sent for attention of MMI Smit and to Warrant Officers class 1 Wesi confirming the applicant had reported for duty and accepted the post at 1 Military Hospital on 30 October 2013.

[11] On or about 15 April 2014 the applicant received a letter from the office of the third respondent stating that there was an authority

given on letter CHR/CDHRSDP/DHRSS/104/1 dated 4 September 2013 that newly qualified Medical Specialists be places supernumerary. The HR management also received feedback from the Director of Human Resources Services System that he applicant did not comply with the qualifying criteria [2] of the post she was appointed in as Head of Clinical Unit (Medical).

[12] It therefore appears and this emerged from argument that while the applicant was notified and accepted an appointment as Head of the Clinical Unit Psychiatry during or about October 2013, the Respondents take the view that notwithstanding the signal and the letter of acceptance signed by the Applicant, she was not qualified to hold the post of Head of Clinical Unit and therefore the Respondents were entitled to correct the situation.

[13] In this regard it was argued that the placement of the Applicant as Head of the Clinical Unit was in conflict with the policy of the Respondent that provided that newly qualified medical specialists be placed supernumery and that any candidate who was appointed to fill the post of Head of Clinical Unit had to have 3 years' experience as a Medical Specialist .

[14] The Applicant qualified as a specialist in January 2013 and it is clear that by October

[15] It was also placed on record during the hearing of the matter that the Respondents (whatever the dispute that may have existed with regard to the earlier appointment of the Applicant as Head of Clinical Unit) have now appointed her to the post of Head of Clinical Unit Psychiatry.

[16] Whatever the policy position of the respondents was, once the Applicant had been appointed to the post of Head of Clinical Unit and accepted such an appointment, it was hardly open to the Respondents to unilaterally revoke the appointment which is precisely what they purported to do. The letter of the 15th of April 2014 under the hand of the third Respondent does precisely this. Firstly it confirms in paragraph 2 thereof that the applicant was placed in a Head of Clinical Unit post and then later in the letter alludes to the incorrect placement and the need to correct it.

[17] The fact that the original placement of the Applicant as Head of Clinical Unit was incorrect or in conflict with the policy of the third Respondent did not and could not have the effect of rendering the decision void from the outset. If the respondents were entitled to reverse the decision ( and there may well have had some basis to argue that were so entitled) they were nevertheless obliged in terms of the Promotion of Administrative Justice Act 3 of 2000 ('PAJA') to ensure a fair procedure was followed.

[18] This at the very least would have required of them to give the Applicant notice of the intended administrative action they wished to take and an opportunity to be heard on the matter. This did not happen and on this basis alone the purported attempt by the respondents to unilaterally reverse the decision to appoint the applicant as Head of Clinical Unit cannot be sustainable.

[19] Given that the subsequent appointment of the Applicant as Head of the Clinical Unit has in substance narrowed considerably the scope of the dispute between the parties, it emerged during argument that the only issue that continued to remain outstanding was whether, notwithstanding the appointment of the Applicant as Head of Unit, she performed the functions and duties of the Head of Unit.

[20] This issue was not canvassed adequately on the papers and Counsel for the parties were in agreement on the following:

a) That the Applicant would be entitled to be remunerated as Head of Clinical Unit for whatever period she held that post provided she performed the functions and duties associated with that post.

b) That the issue was not properly canvassed before the Court on the papers and that in any event there was a dispute of fact between the parties on the issue which was unlikely to be resolved on affidavits.

c) That it would be in the interests of justice and of the parties if this Court were able to deal with and dispose of the outstanding issue identified.

d) That the parties were willing to allow that issue to be referred to oral evidence for determination.

[21] Given the above, my view is that the outstanding issue that pertains to the remuneration claim of the Applicant is so inextricably linked to the review proceedings that it would be costly, time-consuming and impractical to suggest that that issue be the subject of a fresh action.

[22] The Court has a discretion to regulate the proceedings before it and it is my view that the interests of justice require that the Court remain seized with the matter and deal with the outstanding claim for remuneration by way of a referral to evidence.

Order:

[23] As a result, I make the following order:

1. The decision taken by the Respondents purporting to unilaterally reverse the appointment of the Applicant as Head of the Clinical Unit Psychiatry is hereby reviewed and set aside.

2. The matter is referred for the hearing of oral evidence at a time to be arranged with the Registrar on the question whether or not the applicant indeed performed the duties of Lieutenant Colonel for the period since appointment, being 29 October 2013 until her demotion to rank of Captain.

3. The evidence shall be that of any witness of the parties that either may elect to call subject to whatever is provided for in paragraph 4 hereof.

4. Neither party shall be entitled to call any witness unless:

a. It has served on the other party at least 14 days before the date appointed for the hearing, and at least 10 days before such date a statement wherein the evidence to be given by such person is set out.

b. The Court at the hearing permits such person to be called.

c. Any party may subpoena any person to give evidence at the hearing whether such person consented to furnish a statement or not.

5. The fact that a party is served with a statement in terms of paragraph a) hereof or has subpoenaed a witness shall not oblige such party to call the witnesses concerned.

6. Within 21 days of making this order each party shall make discovery of all documents relating to the issue referred to in paragraph 1.

7. The respondents are ordered jointly and severally, the one paying, the others to be absolved, to pay the costs of this application. The costs with regard to the issue to be determined by oral evidence will be dealt with by the court on conclusion of the determination of that issue.

________________________

KOLLAPEN, J

JUDGE OF THE

HIGH COURT OF SOUTH AFRICA,

[1] Act 42 of 2002 (as amended).

[2] CHR/ DHRSS/104/1/ P.