Du Toit v Minister of Home Affairs and Another (7010/2008) [2008] ZAGPHC 300 (12 August 2008)

IN THE HIGH COURT OF SOUTH AFRICA

(TRANSVAAL PROVINCIAL DIVISION)

Date: 12/08/2008

Case No: 7010/2008

UNREPORTABLE

In the matter between:

FRANCOIS PHILIPUS DU TOIT APPLICANT

And

THE MINISTER OF HOME AFFAIRS FIRST RESPONDENT

DEPARTMENT OF HOME AFFAIRS SECOND RESPONDENT

JUDGMENT

WEBSTER J

1. The applicant approached this court on the basis of urgency for an order in the following terms:

i) That this matter be dealt with as one of urgency and that any non-compliance with the Rules of this Honourable Court be condoned in accordance with Rule 6(12) of the Uniform Rules of Court.

ii) That a rule nisi be issued calling upon the respondents to show cause on a date to be determined by the above Honourable Court why a final order shall not be made in the following terms:

a. Declaring that the applicant has been duly and lawfully appointed as Project Coordinator for the 2010 World Cup event in terms or a written contract of employment for a period of five years from 1 June 2006.

b. Directing the second respondent to allow the applicant to reoccupy his office and to resume his duties in terms of his contract of employment with immediate effect.

c. Interdicting the respondent" from appointing another person in the stead of the applicant during the currency of the applicant's employment with the Department of Home Affairs.

d. Ordering the respondent to pay the applicant's costs on attorney and client scale.

iii) That prayers band c above shall operate as an interim interdict with immediate effect pending the return date.

2. In the course of argument of Mr Van Graan for the respondents, Mr Hiemstra applied for an amendment of the order sought by the inclusion of the following alternative order, viz

"ALTERNATIVELY that the applicant's appointment has been validated through the respondent's failure to challenge the validity of the applicant's appointment and, the respondent's utilisation of the applicant's services after the discovery of the unlawfulness of the applicant's appointment".

3. BACKGROUND

The applicant retired as Provincial Co-ordinator of the National Intelligence Co-ordinating Committee of the National Intelligence Agency on 31 July, 2003.

4. During March, 2006, the applicant was offered by the then Director General of the Department of Home Affairs, the second respondent, one MJ Maqetuka ("Maqetuka"), a former colleague of the applicant, a position as the Project Co-ordinator for the FIFA 2010 SA World Cup Project.

5. On 31 May, 2006 and 1 June, 2006, respectively, Maqetuka and the applicant signed a written contract of employment. This is common

cause between the parties.

6. The following were inter alia, the terms and conditions of the - aforesaid agreement:

- The applicant was to serve the second respondent "... as a Project Co-ordinator for the 2010 World Cup event at such place as may, from time to time, be directed..."

- The applicant's "... all inclusive remuneration package of R558 306.00 per annum which includes service bonus ... in equal monthly installments (sic) … The employee shall receive all salary adjustments applicable to Public Servants"

- The applicant was to travel “… at the Employer's expense and … paid subsistence allowance in accordance with the Public Service Regulations and instructions... "

- The applicant was "… subject to the exigencies of the Public Service ... (and)... be granted leave of absence in accordance with the Public' Service Regulations and instructions relating to leave in force at the time"

- The applicant was to "... devote the whole of his time to the service of the Employer and ... undertake such duties as the Employer or any officer duly authorised thereto ... shall require of him and he shall comply withy the rules and orders governing the particular office, post or institution, at or in which such contractor may be stationed or employed"

- The applicant was forbidden from performing, or undertaking to perform remunerative work outside the Employer's service, whether within or outside official working hours without the express prior written consent of the second respondent.

- "Notwithstanding anything to the contrary in clause 1 hereof, ... (ie. the duration of the contract) either party to this agreement may terminate it at any time during the term thereof on giving three month's (sic) notice in writing to the other party. The Employer may, however, accept a shorter period of notice in an exceptional case, using its own discretion"

The agreement was for a period of five (5) years with effect from 1 June 2006.

7. The above agreement did not constitute the whole agreement between the parties and had to be read together with the performance agreement which was subsequently signed by the parties. According to the "Job Details" on the performance agreement the applicant's "Occupational classification" was "Public Servant". The applicant was allocated a "Persal number", his "Salary level" was "14" and his "Notch (Package)" was R591 510.00.

8. The applicant avers that he commenced duties. He was allocated an office, information technology and assigned a secretary. He was a representative of the Department at several internal and external FIFA 2010 World Cup forums, represented the first respondent on 25 May 2007 at the National Institute for Local Government and participated in various undertakings.

9. On 16 July, 2007, a meeting between the applicant and a "Negotiation team" comprising Mr Heunis, a private consultant, Mr Ronald Oppelt, the director of Employee services and Adv. Erasmus from the respondents' legal services met with the applicant. The applicant was informed "... that the Department regarded his contract as "voidable" because the Director-General who had conclused the contract with the applicant had lacked the necessary delegated authority to appoint him; that the pre-requisite procedures regarding the creation and grading of this post had not been followed; and that the recruitment, selection and appointment procedures had not been complied with. The applicant was further informed "... that the Department would pay him an amount equal to between three and six months' remuneration should he agree to the termination of the contract". He was further informed that he was expected to vacate his office by 31 July, 2007.

10. In a letter dated 17 July, 2007, the second respondent was offered a six months' remuneration package. This was later increased to eight months: both offers were rejected. Further correspondence was exchanged between the parties without any headway being made. In the interim the applicant performed his duties.

11. The applicant next heard from the second respondent when he received a letter from the current Director-General, dated 5 of 8 January 2006, (the date is smudged and illegible) - Annexure "FPD23". In the letter the applicant was informed that the written agreement signed by himself and the Director-General Maqetuka was null and void from the outset and without legal force and effect.

12. The reasons furnished were that the Director-General had 'not been authorised in law nor possessed the delegated power to enter into the written contract and in doing so had acted in breach not only of section 9(1) of the Pubic Service Act, 1994, but also in breach of a number of constitutional imperatives pertaining to Public Administration and Public Service', He was advised that he would be paid his salary for January 2008. He was requested to vacate his office "immediately". The applicant took issue with the respondents on these allegations but intimated that he would vacate his office under protest.

13. The respondents answer to the above averments is that the first respondent never approached or concurred with the applicant's appointment. On the contrary the first respondent, when requested to "concur" with the applicant's appointment pointedly noted, on 1 August 2006, "... I have not delegated the powers to approve appointments of Chief Director. THIS CONTRACT IS NULL AND VOID."

14. The respondents further aver that the applicant had, as early as 2 October, 2006, submitted in his monthly report that his "... formal letter of appointment confirming the appointment of DHA Project Manager for the FIFA 2010 World Cup" had not been approved. A further memorandum dated 11 November, 2006, motivating the first respondent to issue a letter of the applicants appointment was directed to the first respondent. It will be noted that this request (Annexure "FPD6") was put up by the applicant himself.

15. The applicant was clearly aware that he had not been officially appointed as project manager. This was of concern to him. This is evidenced by the repeated requests for "... finality on the appointment of the project manager ..." in his monthly reports. This appears in his reports dated 1 December, 2006, 1 February, 2007, 1 March, 2007, 1 April, 2007, and in memoranda by other officials of the second respondent addressed to the first respondent. It is clear that at no stage was the applicant's contract or appointment accepted by the first respondent.

16. Both counsel submitted detailed heads of argument. They have been extremely useful and I have made use of them freely and frequently. Where they recognize their submissions without due acknowledgment they must accept that no plagiarism has been intended. They have assisted me tremendously.

17. Mr Hiemstra submitted that the re-instatement of the applicant is clearly urgent as a late re-instatement would be an empty shell. He submitted that the project the applicant was tasked with has many facets. Preparations were not of a routine nature and there was a real probability that the applicant could encounter difficulties in re­instating himself if he were away from the focal point of operations. It was submitted that other persons may establish themselves as the contact persons within the Department of Home Affairs, on the credibility built up by the applicant. He submitted that the applicant's election to claim specific performance rather than to accept the repudiation of the contract by the respondent should be honoured.

18. APPOINTMENT OF APPLICANT

He submitted that (i) the applicant was appointed on a fixed term contract additional to the approved establishment of the second respondent. He submitted that in terms of the Delegations of Power a Director-General has the power to make such appointments; (ii) the respondent's contention that the applicant had been appointed as a Chief Director at level 14 and that the Director-General did not have the power to appoint persons at that level without the prior concurrence of the first respondent, was wrong. He submitted further that the fact that the applicant's salary was equal to or commensurate with that of a Chief Director did not necessarily place the applicant at the level of Chief Director. He submitted further, in the alternative, that even if the Director­ General had not been empowered to make the appointment that (i) the respondents were not permitted at this stage to rely on the alleged lack of authority; (ii) the alleged ultra vires had been clothed with legality through the respondent's delay in challenging the lawfulness thereof; (iii) the first respondent, by utilising the services of the applicant, receiving his reports and allowing him to continue in service, in the knowledge that the original appointment may, in her opinion, be tainted with illegality, had herself appointed the applicant. In the further alternative it was submitted that the respondents had created the impression that the Director-General had the power to appoint the applicant and was estopped from relying on a statutory illegality.

19. I have outlined the issues and the submissions made on behalf of the applicant, to highlight the applicant's case and to contextualize the view that I take in this matter. For the reasons that follow it is not necessary to outline the submissions made on the respondents' behalf. The points dealt with below render it superfluous to analyse and adjudicate on the submissions made on behalf of the parties.

20. The core-issue in dispute in this case is the dismissal of the applicant from his employment. Prayer 2.1 whilst couched in the form of a declarator arises from and is in direct consequence of the letter dated 5 or 8 January, 2008, ("the January letter"), advising the applicant that (i) his appointment is null and void from the outset; (ii) he should vacate his office "immediately"; and that he would be forbidden entry onto the respondents' premises in any capacity save as a member of the public. Two issues arise from this. I shall deal with them in chronological order rather than their implicit significance. The first relates to the question of urgency and the second relates to a jurisdictional one. I hasten to point out that the second one was not canvassed in the papers or in argument before me. Its significance is, however, far reaching. Had the first question have been decided in the applicant's favour I would have recalled counsel and requested them to argue the second one.

21. The issues raised in the January, 2008, letter were first raised categorically in the letter dated 16 July 2007. Even though the

respondents' expressed view was that the contract was "voidable" the applicant could have been under no illusion that the second respondent did not recognise his appointment and wanted him to leave, hence the severance packages offered to him. From then onwards the respondents offered the applicant severance terms. For his part the applicant persisted in a letter of appointment. The applicant himself appears to have regarded the respondents' refusal to issue such a letter as a material precondition to the validity of his appointment. This view may be challenged. What cannot be challenged, however, is the fact that the applicant was aware that the respondents, for whatever reason, were set on having him removed from the second respondent's employ. Despite this the applicant did nothing to protect his rights. On the contrary he waited until the 11th of February, 2008, to challenge the second respondent's decision to terminate his employment. Whatever urgency there may be, if it exists, has been self-induced.

22. I have further considered the reasons advanced by the applicant as constituting urgency. None are cogent. The only "harm" to the applicant, if any, is the loss of income. My understanding is further that the respondent was clearly not acceptable to the senior administrative officers. The reason for that may lie with the fact that the applicant was "employed" in a post that was "created" by Maqetuka who could not provide the applicant with a letter of appointment. It has been argued that the Director-General did have the power to appoint the applicant yet the requests for the letter of appointment were never directed to the Director-General Maqetuka or his successor: they were directed to the first respondent. This constitutes proof that the applicant was aware that his appointment was, at the very least suspect.

23. With regard to the loss of income by the applicant it has not been suggested that the applicant is indigent. It has not been suggested that if he institutes action for damages/loss of income that the Department will be unable to pay. There is therefore no suggestion of irreparable harm or harm that is unique to the applicant. After all every litigant who has suffered damages is obliged to wait his turn on the trial roll. He knew from July, 2007, that the respondents did not accept the validity of his employment yet he did nothing to enforce his legal rights. In my view this is not the type of case where a litigant should be accorded preference and haul the respondents to Court on an urgent basis. Urgency has accordingly not been established.

24. The jurisdictional point alluded to earlier in this judgment arose in Petronella Nellie Nelisiwe Chirwa v Transnet & Others, Case no. CCT78/06 [2007] ZACC 23. The majority of the Court upheld the contention that the High Court does not have concurrent jurisdiction with the Labour Court. As intimated above, this point was never raised nor argued. I accordingly refrain from relying on it especially because the issue of dismissal per se was not in issue.

25. I likewise refrain deliberately from commenting on whether the applicant was "... Iawfully appointed as Project Co-ordinator for the 2010 World Cup event in terms of a written contract of employment for a period of five (5) years from 1 June, 2006".

26. I turn to consider the question of costs. Both the applicant and respondents sought a costs order which would include the costs

consequent upon the use of two counsel. I agree with both sides that the issues were relatively complex, regard being had to the fact that the matter was brought on the basis of urgency.

27. The following order is granted:

1. The application is dismissed for lack of urgency.

2. The applicant is ordered to pay the costs of the application such costs to include the costs of two counsel.

G. WEBSTER

JUDGE IN THE HIGH COURT

Date of hearing: 26/02/2008

Counsel for the Applicant: Adv. J Hiemstra (SC)

Instructing Attorneys: Len Dekker & Associates

Counsel for the Respondents: Adv. ESJ Van Graan (SC); Adv. M Gwala

Instructing Attorneys: The State Attorney