Dingezweni v Member of the Executive Council, Department of Education, Eastern Cape Province and Another (536/2016) [2022] ZAECBHC 26 (27 September 2022)

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE LOCAL DIVISION, BISHO)

CASE NO: 536/2016

REPORTABLE: YES / NO

OF INTEREST TO OTHER JUDGES: YES/NO

REVISED.

In the matter between:

BETTY MAMOREMA DINGEZWENI

Plaintiff

and

THE MEMBER OF THE EXECUTIVE COUNCIL,

DEPARTMENT OF EDUCATION, EASTERN

CAPE PROVINCE

First Defendant

THE HEAD OF DEPARTMENT, DEPARTMENT

OF EDUCATION, EASTERN CAPE PROVINCE

Second Defendant

J U D G M E N T

DREYER AJ

[1] The Eastern Cape Department of Education (“the Department”) employed the plaintiff, Mrs Betty Dingezweni, on a fixed-term contract for the period 9 February 2015 to 31 December 2015, to teach life sciences at the Luvuyo Leruma High School in Queenstown, Eastern Cape. Mrs Dingezweni was appointed as a substitute educator as a substitute educator as the incumbent, a Mr Mana, was on incapacity sick leave as he had had a stroke and was diagnosed with dementia.

[2] Mrs Dingezweni was recommended to the post by the Luvuyo Lerumo High School selection panel, chaired by its principal Mr Tyilana.

[3] Mrs Dingezweni’s appointment was approved by three Department of Education Eastern Cape officials (the circuit manager, deputy director human relations management and the district director) The approval recorded that Mrs Dingezweni’s appointment was in addition to the establishment of the school.

[4] The term “establishment of a school” relates to the post-establishment of a school, a metric used by the Department of Education to determine the number of educators required at any particular public school.

[5] Mrs Dingezweni was informed of her appointment on 9 February 2015. She completed and signed her assumption of duty documentation.

Mrs Dingezweni commenced teaching that day.

[6] Mrs Dingezweni testified that Mr Tyilana gave her a letter in March 2015 from the Eastern Cape Department of Education, dated 19 March 2015 (“appointment letter”). The appointment letter recorded her employment at the Luvuyo Leruma High School for a fixed term period from 1 February 2015 to December 2015, the rate of her salary, and the option to be paid an allowance of 37% of her annual salary in lieu of benefits. The term contract was in accordance with the provisions of section 7(2)(b) of the Employment of Educators Act 1998. The allowance was payable as her term contract was longer than 6 months.

[7] Though Mrs Dingezweni taught life sciences in February, March and April 2015, the Department of Education did not pay her. Mrs Dingezweni approached the principal, Mr Tyilana, to enquire whether the school could advance her a loan until such time as the Department paid her salary. Mr Tyilana in turn, approached the School Government Body (“the SGB”). The SGB agreed to pay Mrs Dingezweni a R5 000 stipend per month. Mrs Dingezweni was required to repay SGB the stipend when the Department paid her salary.

[8] Mr Tyilana had a cheque drawn in favour of Mrs Dingezweni on the SGB’s bank account for the sum of R5 000 for the months of May, June, July, and August 2015. For the record keeping of the school, Mr Tyilana signed off on a cheque requisition form recording the payment of R5 000 to Mrs Dingezweni from the cost centre entitled “fund raising”. A document called a “pay slip” was issued in the name of Mrs Dingezweni. This document records a date and a signature. Mr Tyilana testified that the date when the cheque was provided to Mrs Dingezweni and the signature that the cheque was received by her. Mrs Dingezweni acknowledged receipt of the cheques. She recognised her signature on certain of the pay slips, but not on others.

[9] Mr Mana died in April 2015.

[10] On 20 August 2015, the Department of Education paid to Mrs Dingezweni the equivalent of three months’ basic salary. Mrs Dingezweni

testified that she repaid the SGB the R15 000 that had been advanced to her. This is not refuted by Mr Tyilana.

[11] Mrs Dingezweni testified that she did not receive payment of her allowance in lieu of benefits. She queried this shortfall with Mr Tyilana.

[12] Mrs Dingezweni testified that Mr Tyilana approached the Department of Education to obtain clarity regarding Mrs Dingezweni ‘s salary. On his return, Mr Tyilana informed Mrs Dingezweni that the Department had terminated her contact as Mr Mana had died. Mrs Dingezweni testified that Mr Tyilana suggested to her that she seeks advice as he had not encountered such an issue before.

[13] This is where the evidence of the parties diverges.

[14] Mr Tyilana refuted that Mrs Dingezweni was only informed of her termination of employment in August 2015. His evidence was that Mrs Dingezweni had been informed that her position was terminated in May 2015, when Mr Tyilana informed the Department of Mr Mana’s death. Mr Tyilana did not testify as to the exact date when the Department was so informed or when he informed Mrs Dingezweni that her contract had been terminated.

[15] Mrs Dingezweni testified that following Mr Tyilana ’s suggestion, she sought legal advice. On the strength of this advice, in September 2015 Mrs Dingezweni tendered her continued services to the school to teach life sciences for the balance of her fixed-term contract to the end of December 2015. Mrs Dingezweni testified that Mr Tyilana accepted her tender and told her that the SGB would continue paying her the R5 000 stipend, which would be repayable to the SGB when she was paid her salary by the Department.

[16] Mrs Dingezweni testified that she lodged a grievance with the Department of Education, recording that she had not been paid her full salary for the period February, March and April 2015 and had not been paid at all since May 2015. She handed the written grievance to Mr Tyilana, as a representative of the Department. Mr Tyilana acknowledges that he received the grievance on behalf of the Department. Mrs Dingezweni heard nothing further from the Department relating to this grievance. Her full salary for the period February to April 2015 was paid on 1 October 2015.

[17] Mr Tyilana ‘s evidence was that he informed Mrs Dingezweni of the SGB’s decision to appoint her as an educator in the life sciences post at a salary of R5 000 a month, for the balance of the year, which Mrs Dingezweni accepted. It is unclear when the SGB made this decision or when Mr Tyilana told Mrs Dingezweni of this decision. Mrs Dingezweni vociferously denied that she was employed by the SGB in an SGB post.

[18] Mrs Dingezweni testified that she received an amount of R2 500 per month from the SGB in September, October, November, and December 2015 in the same manner that she had received the R5 000 monthly stipend advanced to her by the SGB as a loan. Mrs Dingezweni denied that the signature which appeared on the documents headed “pay slip” was hers. Mr Tyilana testified that the document “pay slip” is proof that Mrs Dingezweni was employed by the SGB.

[19] There was no evidence that Mrs Dingezweni was paid R5 000 monthly as the “salary” for the SGB post.

[20] The nub of dispute is whether Mrs Dingezweni was employed by the Department in the period May to December 2015 or the SGB.

[21] Mrs Dingezweni ‘s claim is a pecuniary one for payment of the balance of her fixed-term contract, namely, from 1 May 2015 to 31 December 2015.

[22] The jurisdiction of the High Court to determine such monetary claims, arising from a fixed-term contract, was recognised in the matter of Fedlife Assurance Limited v Wolfaardt[1] where the Supreme Court held that the Labour Relations Act 1995[2] did not interfere with the common law right to pursue such a claim in the High Court.

[23] Section 157(2) of the Labour Relations Act recognises the duality of the Labour Court and the High Court to consider such monetary claims. The section reads:

(2) The Labour Court has concurrent jurisdiction with the High Court in respect of any alleged or threatened violation of any fundamental right entrenched in Chapter 2 of the Constitution of the Republic of South Africa, 1996, and arising from –

(a) employment and from labour relations;

(b) any dispute over the constitutionally of any executive or administrative act or conduct, or any threatened executive or administrative act or conduct, by the State in its capacity as an employer; and

(c) the application of any law for the administration of which the Minister is responsible.”

[24] Similarly, section 77(3) of the Basic Conditions of Employment Act 1998 recognises the duality in jurisdiction between the Labour Court and the High Court.

The Labour Court has concurrent jurisdiction with the civil courts to hear and determine any matter concerning a contract of employment.

irrespective of whether any basic condition of employment constitutes a term of that contract.”

[25] The Labour Appeal Court, in Buthelezi v The Municipal Demarcation Board,[3] held that a premature termination of a fixed-term contract, on the grounds of operational requirements, was substantively unfair as:

25.1 at common law, a party to a fixed-term contract has no right to terminate the contract in the absence of repudiation or a material

breach;

25.2 the principal that a fixed-term contract may not be unilaterally cancelled has not been altered by labour legislation.

[26] The Buthelezi decision was approved and followed by the Constitutional Court in The Association of Mineworkers and Construction Union v Royal Bafokeng Platinum Limited and Others.[4]

[27] I am bound by these decisions. If Mrs Dingezweni’s fixed term contract with the Department was terminated prematurely, it is liable to pay her the balance of the contract.

[28] The Department of Education pleads, that it was an implied term of the contract that Mrs Dingezweni was appointed as a substitute

against the post of Mr Mana and, consequently, on his death, Mrs Dingezweni’s employment came to an end.

[29] An implied term is one implied by law. In the locus classicus of Alfred McAlpine, the Appellate Division (as it then was) couched an implied term as one which

“…is used to describe the unexpressed provision of a contract which the law imports therein, generally as a matter of course, without

reference to the actual intention of the parties. The intention of the parties is not totally ignored. Such a term is not normally

implied if it is in conflict with the express provisions of the contract. Implied terms in context simply represent a legal duty

(giving rise to a correlative duty) imposed by law unless excluded by the parties.”[5]

[30] Mrs Dingezweni’s employment contract specified that she was appointed by virtue of section 7(2)(b) of the Employment of Educators Act. This section recognises that an educator can be employed for a fixed term either on a full time or part time basis, subject to the Labour Relations Act.

[1] [2002] 2 All SA 295 (A).

[2] Act 66 of 1995

[3] (2004) 25 ILJ 2317 (LAC)

[4] 2020 (4) BCLR 373 (CC) at [64]

[5] Alfred McAlpine & Sons (Pty) Ltd v Transvaal Provincial Administration 1974 (3) SA 506 (A) at 531E-H

[6] Section 10

[7] Section 15

[8] Section 11 to 14

[9] Section 11(1)

[10] Section 12

[11] Section 13

[12] Section 14

[13] Section 20(4) of the South African Schools Act 1996