Choane v MEC for Health North West Province and Another (1739/2012) [2013] ZANWHC 59 (20 June 2013)

NORTH WEST HIGH COURT, MAFIKENG

CASE NO: 1739/2012

In the matter between:

ISHMAEL MORAKE CHOANE .........................................APPLICANT

and

MEC FOR HEALTH NORTH WEST .....................1ST RESPONDENT

HEAD OF DEPARTMENT OF HEALTH

NORTH WEST ...........................................................2ND RESPONDENT

J U D G M E N T

LEEUW JP:

[1] The applicant approached the Court seeking the following order in terms of the Notice of Motion:

“1. That the 1st respondent be compelled to provide his decision and the reasons thereto, in the application of applicant in terms of Section 17(3)(a)(i) of the Public Service Act 103 of 1994 as amended.

2. That the respondents pay the costs of the application.

3. Further and/or alternative relief.”

[2] The applicant was employed as a professional nurse at the Reivelo Community Care Centre, at Taung for a period of almost twenty (20) years. According to the applicant, he was charged with misconduct and found guilty and was demoted to a lower rank as sanction for the misconduct committed. He appealed against the conviction and sanction imposed. The payment of his salary was stopped on the 15th November 2011.

[3] The applicant alleges that he never received a letter informing him about the outcome of the appeal. On making enquiries, he discovered that his employment was terminated in accordance with Section 17(3)(a)(i) of the Public Service Act No. 103 of 1994 (The Public Service Act) which provides that:

“An employee, other than a member of the services or an educator or a member of the Intelligence Services, who absents himself or herself from his or her official duties without permission of his or her head of department, office or institution for a period exceeding one calendar month, shall be deemed to have been dismissed from the public service on account of misconduct with effect from the date immediately succeeding his or her last day of attendance at his or her place of duty.”

[4] He further discovered that a letter purportedly sent to him by post from the second respondent (the Department) dated 29 August 2011 and wherein he was amongst others, informed about the outcome of the appeal, was delivered to a wrong address. He however states that his attorneys Qwelane Theron & Van Niekerk, sent a written submission in terms of Section 17(3)(b) of the Public Service Act to the first respondent (the MEC) per registered letter on the 5th March 2012 requesting the MEC to reconsider his dismissal from employment. Section 17(3)(b) of the Public Service Act provides that:

“If an employee who is deemed to have been dismissed, reports for duty at any time after the expiry of the period referred to in paragraph (a), the relevant executive authority may, on good cause shown and notwithstanding anything to the contrary contained in any law, approve the reinstatement of that employee in the public service in his or her former or any other post or position, and in such a case the period of his or her absence from official duty shall be deemed to be absence on vacation leave without pay or leave on such other conditions as the said authority may determine.”

[5] The applicant alleges that he did not receive a response from the MEC to the letter of the 5th March 2012. It is for this reason that he approached this Court for an order compelling the MEC to take a decision on the representations made in the aforesaid letter. In his founding affidavit, the applicant states that he “wishes to obtain decision and reasons in terms of Section 5 of Promotion of Administrative Justice Act (PAJA) in respect (sic) an application to discharge the applicant in terms of Section 17(3)(a)(i) of the Public Service Act 103 of 1994 as amended.

[6] He goes further to state in paragraph 10 of the founding affidavit that:

“I submit that the application for reasons is older than 90 days set out in Section 5(2) of PAJA. I hereby apply to the Honourable Court to condone the late filing of the application for variation of time as set out in that PAJA. I submit that it is in the interest of justice the applicant be granted condonation in this matter in accordance with the provisions of Section 9(2) of PAJA. The applicant has not been negligent in his request for reasons and has not acted slovenly.”

[7] The Department, through Mr Andrew Kyereh, who is the Acting Head of the Department, states in his answering affidavit that on the 29th August 2011, three employees of the Department, namely Messrs Mokubung, Thoteng and Diphatse, went to the applicant’s home to deliver the letter referred to in [4] above. The applicant chased them out of his yard and prevented them from handing over the letter to him.

[8] He further states that a second attempt to inform the applicant about the outcome of the appeal was thwarted by the applicant on the 3rd October 2011 when Mr Thoteng, who is the Deputy Director for Administration of the Department together with the Facility Manager of the Department stationed at Reivilo, intended to hand over a letter dated 29 September 2011 to him, in which letter he was advised to report for duty and also to direct his attention to the provisions of Section 17(3)(a)(i) of the Public Service Act. The applicant refused to receive the letter and again chased them out of his premises. The applicant does not deny that he refused to accept delivery of the letters referred to above as well as the fact that he chased the officers of the Department out of his premises when they delivered the letters to him.

[9] I must here pause and remark that it is not necessary, for the purpose of this application, to deal with the contents of the letters and the affidavit attached to the letter to the MEC in view of the fact that the application before this Court is not whether or not the applicant should be reinstated to his previous employment in terms of Section 17(3)(b) of the Public Service Act, but rather an application to compel the MEC in terms of Section 5 of PAJA to take a decision on the application for reinstatement directed at the MEC per letter dated 5th March 2012.

[10] Section 5(1) of PAJA provides that:

“Any person whose rights have been materially and adversely affected by administrative action and who has not been given reasons for the action may, within 90 days after the date on which that person became aware of the action or might reasonably have been expected to have become aware of the action, request that the administrator concerned furnish written reasons for the action.”

Section 5(2) of PAJA provides that:

“The administrator to whom the request is made must, within 90 days after receiving the request, give that person adequate reasons in writing for the administrative action.”

[11] In Section 1 of PAJA, “administrative action” is defined as meaning amongst others, “any decision taken, or failure to take a decision, by:

(a) an organ of state, when –

(i) exercising a power in terms of the Constitution or a provincial constitution; or

(ii) exercising a public power or performing a public function in terms of any legislation; or

(b) a natural or juristic person, other than an organ of state, when exercising a public power of performing a public function in terms of an empowering provision,

which adversely affects the rights of any person and which has a direct, external legal effect, but does not include –

Section 6(2)(g) of PAJA provides that:

“(2) A Court or tribunal has the power to judicially review an administrative action if –

(g) the action concerned consists of a failure to take a decision;”

An “organ of state” is defined in Section 239 of the Constitution as meaning, amongst others:

(b) any functionary or institution –

(ii) exercising a public power of performing a public function in terms of any legislation, . . .”

[12] The applicant alleges in his founding affidavit that the letter dated 5 March 2012 was dispatched by registered post on the same date, which is confirmed by the registered slip filed on record. The present application was filed with the Registrar on the 27th November 2012. This was more than 90 days after the written request was made to the MEC. However it is essential for the applicant to establish that the MEC did receive the request as required by Section 5(2) of PAJA. It is not known as to whether or not the letter came to the knowledge of the respondent because there is nothing on record to suggest that the said registered mail was signed for or received by the respondents.

[13] Furthermore, Section 6(3)(a) of PAJA provides that:

“(3) If any person relies on the ground of review referred to in subsection (2)(g), he or she may in respect of a failure to take a decision, where –

(i) an administrator has a duty to take a decision;

there is no law that prescribes a period within which the administrator is required to take that decision; and

the administrator has failed to take that decision,

institute proceedings in a court or tribunal for judicial review of the failure to take the decision on the ground that there has been unreasonable delay in taking the decision.”

[14] There is nothing in the applicant’s to suggest that the applicant made any enquiries at the offices of the respondents regarding the progress of his application to the MEC. Further enquiry would have shed some light on whether or not the respondents had received the letter. Had it been established that the letter was indeed received by the respondents, failure to take a decision would have entitled the applicant to approach the Court for an order compelling the respondents to take a decision in that regard. Alternatively, had applicant established after enquiry, that the letter was not received by the MEC, he would have resubmitted his

application in terms of Section 17(3)(b) of the Public Service Act to the MEC for consideration, without having to adopt the costly

procedure of filing an application in this Court.

[15] Section 7(1) of PAJA provides that:

“(1) Any proceedings for judicial review in terms of Section 6(1) must be instituted without unreasonable delay and not later than 180 days after the date –

subject to subsection (2)(c), on which any proceedings instituted in terms of internal remedies as contemplated in subsection 2(a) have been concluded; or

where no such remedies exists, on which the person concerned was informed of the administrative action, became aware of the action and the reasons.

(a) Subject to paragraph (c), no court or tribunal shall review an administrative action in terms of this Act unless any internal remedy provided for in any other law has first been exhausted.

(b) Subject to paragraph (c), a court or tribunal must, if it is not satisfied that any internal remedy referred to in paragraph (a) has been exhausted, direct that the person concerned must first exhaust such remedy before instituting proceedings in a court or tribunal for judicial review in terms of this Act.

A court or tribunal may, in exceptional circumstances and on application by the person concerned, exempt such person from the obligation to exhaust any internal remedy if the court or tribunal deems it in the interest of justice.”

[16] The applicant approached the Court more than 180 days for a remedy in terms of Section 5 of PAJA. He has not exhausted internal remedies in accordance with Section 7(1)(b) of PAJA by first establishing whether the MEC has received the letter of the 5th March 2012. Consequently, he prematurely approached this Court.

[17] In deciding whether to seek remedy in terms of PAJA or mandamus, the following remark was made, by Nugent JA in MEC, Department of Welfare, Eastern Cape v Kate [2006] ZASCA 49; 2006 (4) SA 478 (SCA) at p.492 par. [30] and [31] in a matter that dealt with failure or delay by the Director-General to take a decision in social grant applications:

“[30] What does warrant serious consideration is whether the remedy of mandamus, which was available to Kate to avoid the delay occurring at all, was sufficient to protect her rights. Section 6 of the Act (PAJA)

properly construed, read together with the procedural guarantees in ss 33(1) and 237 of the Constitution, obliges the Director-General to consider and decide upon an application for a social grant, and to do so lawfully, procedurally fairly, and with due diligence and promptitude. It goes without saying that a public functionary who fails to fulfil an obligation that is imposed upon him or her by law is open to proceedings for a mandamus compelling him or her to do so. That remedy lies against the functionary upon whom the statute imposes the obligation, and not against the provincial government.

[31] The remedy of mandamus thus has the capacity to be effective where there is a breach or a threatened breach by a public official of a duty that is imposed upon him or her by a statute or by the Constitution and, in most cases, that ought to be sufficient without an additional remedy in damages.”

[18] In order for the applicant to succeed in an application for mandamus or mandatory interdict, he must establish a clear right, an injury actually committed or reasonably apprehended and absence of similar protection by any other ordinary remedy. Without first establishing whether or not the MEC has received the letter dated 5th March 2012, the applicant cannot claim a right to a decision or reasons to his application.

[19] The respondents raised preliminary points in relation to a reference by the applicant to Section 17(3)(a)(i) of the Public Service Act and incorrectly argued that the applicant is seeking an order in terms of that Section or in the alternative, that applicant ought to have sought an order for reinstatement in terms of Section 17(3)(b) of the Public Service Act. I have already alluded to the fact that the application for reinstatement is not before this court. I need not deal with other issues raised by counsel for the respondents as they are not of relevance to this application.

[22] I accordingly make the following order:

The application is dismissed with costs.

_____________

M M LEEUW

JUDGE PRESIDENT

NORTH WEST HIGH COURT

APPEARANCES:

DATE OF HEARING: 16 MAY 2013

DATE OF JUDGEMENT: 20 JUNE 2013

ADVOCATE FOR THE APPLICANT: ADV S MOTLOUNG

ADVOCATE FOR THE RESPONDENTS: ADV K MONGALE

ATTORNEYS FOR THE APPLICANT: VAN ROOYEN TLHAPI WESSELS INC

ATTORNEYS FOR RESPONDENTS: THE STATE ATTORNEY