Health & Others Services Personnel Trade Union of SA (HOSPERSA) and Others v MEC for Health, Kwazulu-Natal and Another (D103/08) [2010] ZALC 238 (5 February 2010)
The court found that, unlike the related case D102/08, the respondents had provided sufficient detail to establish that the post of District Engineer was a new post and not an upgraded version of an existing post. The procedures followed in creating the post were adequately explained, and the circumstances differed...
Source-derived case information.
- Citation
- [2010] ZALC 238
- Parties
- Applicant: Health & Other Services Personnel Trade Union of SA (HOSPERSA); Applicant: Gysbert Johannes Victor Audie; Applicant: Gysbert Johannes van Schalkwyk; Respondent: Member of the Executive Council for Health, Kwazulu-Natal; Respondent: Department of Health, Kwazulu-Natal
- Court
- Labour Court
- Jurisdiction
- South Africa
- Case Number
- D103/08
- Procedural Posture
- Review Application / Judgment
- Outcome
- Application dismissed with costs.
- Judges
- Conradie AJ
- Legal Topics
- Appointment to New Post, Public Service Employment, Costs Award
Source-derived case record
Summary, issues, holding and outcome
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Parties
Health & Other Services Personnel Trade Union of SA (HOSPERSA)
Applicant
Gysbert Johannes Victor Audie
Applicant
Gysbert Johannes van Schalkwyk
Applicant
Member of the Executive Council for Health, Kwazulu-Natal
Respondent
Department of Health, Kwazulu-Natal
Respondent
Procedural Posture
Review Application / Judgment
Legal Issues
- 1 Whether the post of District Engineer was a newly created post or an upgraded version of an existing post.
- 2 Whether the applicant was entitled to be appointed to the new post without following the prescribed procedures.
- 3 Whether the provisions of Chapter 1 part V paragraphs C 5 and C 6 applied to the appointment process.
Ratio Decidendi
The court found that, unlike the related case D102/08, the respondents had provided sufficient detail to establish that the post of District Engineer was a new post and not an upgraded version of an existing post. The procedures followed in creating the post were adequately explained, and the circumstances differed materially from those in the previous matter. Consequently, the applicant was not entitled to automatic appointment, and the provisions of Chapter 1 part V paragraphs C 5 and C 6 did not apply. The application was dismissed, and costs were awarded against the applicant.
Court Disposition
Application dismissed with costs.
Orders
- The application is dismissed with costs.
Full Case Text
Judgment text and source record
28 paragraphs
IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT DURBAN
NOT REPORTABLE
CASE NO: D103/08
!n the matter between:
HEALTH & OTHER SERVICES PERSONNEL
TRADE UNION OF SA ("HOSPERSA") ….......................................................................................First Applicant
GYSBERT JOHANNES VICTOR AUDIE ….................................................................................Second Applicant
GYSBERT JOHANNES VAN SCHALKWYK …...............................................................................Third Applicant
and
THE MEMBER OF THE EXECUTIVE COUNCIL
FOR HEALTH, KWAZULU-NATAL …..........................................................................................First Respondent
DEPARTMENT OF HEALTH, KWAZULU-NATAL ….............................................................Second Respondent
JUDGMENT
CONRADIE AJ
INTRODUCTION
1. This matter came before me together with Case No: D102/08. Both matters involve Hospersa, on behalf of its members on the one hand and the Member of the Executive Council for Health, Kwazulu-Natal and Department of Health, Kwazulu Natal on the other hand. The same counsel also appeared on behalf of the respective parties in both matters.
2. The parties agreed that the issues to be decided in the two matters were identical and as such any finding that I make in respect of Case No: D102/08 should be applied to this case as well. Based on the approach which I took in Case No: D102/08 I do not think that the two cases are identical to the extent that my decision should be the same in respect of both cases. The two cases should therefore be read together for purposes of my decision, to the extent that they are not inconsistent with each other.
3. In Case D102/08 I granted relief in favour of the Applicants although not exactly along the lines requested by them in their Notice of Motion. As stated in that judgment the reason why I came to the Applicants assistance in that matter was because it appeared to me that the position which the Second Applicant occupied was identical to the position which the Respondents regarded as newly created. There was also nothing on the papers which explained the circumstances which led to the decision to create the new post. I was thus left with no choice but to accept that the posts were identical, the only difference being that the "new" post was created at a higher level than the "old" post.
4. In this matter, however, the Respondents have given much detail on the papers as to the differences between the two posts, the reasons why the post of District Engineer was created and the procedures that were followed in creating the post. Based on the papers before me in this matter I am therefore satisfied that the post of District Engineer is a new post as opposed to an upgraded post. For that reason I see no basis on which the Applicant can simply be appointed into the post. It also means that the provisions of Chapter 1 part V paragraphs C 5 and C 6 do not apply.
5. As far as costs are concerned I can see no reason why the Applicant should not pay the Respondents costs.
6. In the circumstances I make the following Order:
6.1. The application is dismissed with costs.
Conradie A J
Date of hearing: 1 December 2009
Appearance for Applicants: P J Biomkamp instructed by Llewellyn Cain Attorneys
Appearance for Respondents: N G Winfred instructed by the State Attorney
Date of judgment: 5 February 2010