Masupha v MEC for Gauteng Provincial Treasury and Another (J987/21) [2021] ZALCJHB 300; [2022] 1 BLLR 80 (LC); (2022) 43 ILJ 873 (LC) (20 September 2021)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

case no: J 987/21

In the matter between:

MPINANE CLAURINE MASUPHA Applicant

and

THE MEC FOR GAUTENG PROVINCIAL TREASURY First Respondent

THE HEAD OF DEPARTMENT FOR THE

GAUTENG PROVINCIAL TREASURY Second Respondent

Heard: 09 September 2021.

Delivered: 20 September 2021 (Due to Covid19 lockdown, this judgment was handed down electronically by sending a copy through email and the date of delivery shall be deemed to be 20th September 2021).

Summary: Urgent application – applicant lodged a grievance in terms of section 35 of the Public Services Act (PSA), grieving about the failure to convert her appointment into a permanent one. Seeking an order to interdict the recruitment process pending the finalisation of a grievance lodged. Final relief in the absence of a clear right cannot be ordered by a Court in motion proceedings. In the alternative applicant seeks a rule nisi. No prima facie right established. Held: (1) The application is dismissed. Held: (2) There is no order as to costs.

JUDGMENT

MOSHOANA, J

Introduction

[1] In this urgent proceedings, Ms Mpinane Claurine Masupha (Masupha) seeks an order to interdict the respondents from interviewing candidates for the position of Director Performance Audit and from appointing any candidate until her internal grievance is resolved or the Public Services Commission (PSC) makes a recommendation in terms of section 35 (2) of the Public Service Act[1] (PSA). The application is duly opposed by the Member of the Executive Council for the Gauteng Provincial Treasury (MEC) and the Head of Department for the Gauteng Provincial Treasury (HOD).

Background facts

[2] During November 2015, Masupha was invited to an interview by the Gauteng Provincial Treasury (Treasury) for the position of Director:

Performance Audit. Masupha alleges that during the interview, one Ms Tshabalala, the former HOD of Treasury indicated to her that if she performs well during the five year fixed term employment she was to be appointed for, there will be no reason why her appointment will not be renewed beyond 31 December 2020. This allegation has not been confirmed by Tshabalala[2].

[3] Pursuant to the interview process, Masupha and Treasury concluded a fixed term contract of employment. Such a contract of employment was to endure for a period of five years. Whilst so employed, during the currency of her fixed term employment and on 28 February 2018, the Premier of Gauteng Honourable David Makhura (Premier), invited Senior Management Services (SMS) to a meeting. Masupha in her capacity as a SMS, attended such a meeting. In the said meeting, the Premier recorded that the Gauteng Provincial Government (Gauteng) had a tendency to appoint SMS employees on fixed term employment agreements notwithstanding that those positions were indicated to be permanent positions according to the DPSA structure. The Premier requested that all SMS positions barring the HOD positions be converted to permanent positions. The respondents alleged that the Premier is not a party to this application but denied the allegations on behalf of the Premier. However; two employees who attended the meeting confirmed Masupha’s

version.

[4] Subsequently, Masupha became aware that three of the SMS employees were converted to permanent positions. This is denied by the respondents and in respect of one of those SMS employees, the respondents testified that that said SMS employee applied for an advertised vacant post and was appointed after being interviewed for the post. In turn Masupha disputes this on the basis that no confirmatory affidavit was obtained from such SMS employee. On Masupha’s version, those positions were simply converted without following a recruitment process. Such fortified her expectation that her position shall similarly be converted as the Premier requested.

[5] On some documentations sourced by Masupha, her position is reflected as being a permanent position. Despite that, her position was not converted from a fixed term to permanent. This was concerning to her owing to the fact that the Premier had requested conversion and such request was given effect to in some instances. In her case, the wheels of justice were turning slowly or at a snail’s pace.

[6] That notwithstanding, on 29 June 2020, Treasury furnished her with a letter extending her fixed term contract for the period 1 January 2021 to 31 December 2021. Masupha assented to such an extension. She was not particularly concerned that the letter of extension stated that no expectation of further renewal was made to her. She proceeded to work under those conditions of extension.

[7] During June 2021, it became apparent to her that the MEC did not have any intention to extend her employment beyond 31 December 2021. From that time, her trade union NEHAWU started correspondence with Treasury regarding her position. Treasury indicated that her position will become permanent in 2022. This she found to be contradicting the Premier.

[8] On 13 July 2021, Masupha became aware that what she termed her position would be advertised. Indeed on 16 July 2021, the position was advertised. Since the closing date was indicated as 30 July 2021, Masupha applied for the advertised position. Aggrieved by the prevailing situation she sought and obtained legal advice. Masupha’s attorneys laid certain claims and demands in writing on her behalf. She demanded that Treasury must immediately halt the recruitment process. In response, Treasury cited the provisions of regulations 65 and 67 of the Public Service Regulations (Regulations). Accordingly, Treasury resisted the demand to halt the recruitment process.

[9] That notwithstanding, on 17 August 2021, Masupha lodged a formal grievance. The nature of her grievance was that she had a reasonable expectation to be appointed as a permanent employee in the position of Director: Performance Audit and Treasury did not appoint her. Masupha contends that by virtue of the provisions of section 35 of the PSA she has acquired a right to have her grievance investigated and if not investigated to her satisfaction the grievance must be referred to the PSC for recommendation. On 18 August 2021, Masupha sought an undertaking not to proceed with interviews and/or appointments to the position in question. Such an undertaking was not given. On or about 24 August 2021, Masupha launched the present application to be heard on 9 September 2021.

Evaluation

[10] In opposing the present application, the respondents raised several preliminary objections. Lack of urgency was one of them. Given the view this Court takes at the end, it is unnecessary to consider those preliminary objections. Hearing a matter as one of urgency involves an exercise of discretion. This Court was satisfied that the present application should be heard as one of urgency.

[11] An interdict is an extraordinary remedy which a Court grants at its discretion, which discretion must be exercised judiciously after

having regard to the well-grounded apprehension of irreparable harm and absence of adequate ordinary remedy[3]. In the main, Masupha seeks a final relief. For that reason, she had to demonstrate a clear right which right is threatened with harm that is irreparable. On her version, her clear right is located in section 35 of the PSA. The relevant provisions of section 35 reads as follows:

“35. Grievance of employees

(1) For the purposes of asserting the right to have a grievance concerning an official act or omission investigated and considered by the Commission-

(a) an employee may lodge that grievance with the relevant executive authority under the prescribed circumstances, on the prescribed conditions and in the prescribed manner;

(b) if that grievance is not resolved to the satisfaction of the employee, that executive authority shall submit the grievance to the Commission in the prescribed manner and within the prescribed period.

[12] The first observation to be made is that the right set out in section 35 is the right to have the grievance investigated and considered by the PSC. In order to succeed in an interdict, Masupha must show that her right to have her grievance investigated and considered by the PSC is threatened. The grammatical meaning of the word investigated is to make a detailed inquiry or systematic examination. To consider means to think carefully about something before making a decision.

[13] Masupha lodged a grievance on 17 August 2021. In terms of PSCBC resolution 14 of 2002 (Resolution), in particular clause F 8 thereof, Treasury had 30 days to deal with the grievance. In other words Treasury had 30 days to investigate the grievance. On 20 August 2021, Masupha was officially informed by the HOD that her grievance was under consideration and was pending resolution in accordance with the 30-day prescribed period. The 30 day period was to expire on 17 September 2021. Before the investigation can be undertaken to conclusion, Masupha approached this Court with the present application.

[14] It is apparent that Masupha labours under a wrong misapprehension that resolving the grievance to her satisfaction means that she shall be appointed to the position. The phrase “to the satisfaction of an employee” simply relates to the further escalation of the grievance. In other words, if an employee is satisfied with the resolution at the level of the executive authority, it is unnecessary to escalate it to the PSC. Therefore, Masupha does not acquire a right to have the grievance resolved in her favour. Clause F 6 of the Resolution provides that if the grievance is resolved to the satisfaction of the aggrieved employee the confirmation thereof will be reduced to writing by the designated employee. Clause A of the Resolution, defines resolve to mean to settle the grievance to the satisfaction of the aggrieved employee. Clause F 7 contemplates non-resolution. It is only after non-resolution that the MEC is obligated to forward or escalate the grievance to the PSC.

[15] This Court must hasten to point out that the recruitment process has nothing to do with the investigation and the consideration of the grievance. In terms of the Resolution, a grievance is defined to exclude an alleged unfair dismissal. In terms of section 186 (2) of the LRA, it is a dismissal if an employee employed in terms of a fixed term contract of employment reasonably expected the employer to retain the employee in employment on an indefinite basis but an employer offered to retain the employee on less favourable terms or did not offer to retain the employee. On 20 June 2020, Treasury did not offer to retain Masupha on an indefinite basis. Thus, Masupha has been dismissed within the meaning of section 186 (2). Therefore, her grievance is excluded by the Resolution.

[16] Although the MEC has not refused to investigate the grievance, on proper consideration of the Resolution, her grievance is not worthy of further consideration. Dr Ebershon appearing for Masupha correctly conceded that Masupha has been dismissed within the meaning of section 186 (2) of the LRA. However, he sought to ledge on the provisions of section 190 of the LRA. Of course his reading of the section is wrong. The section has to do with the date of the dismissal as opposed to the existence of the dismissal itself. Section 190 (2) (a) of the LRA provides that if an employer has offered to renew on less favourable terms, the date of the dismissal is the date on which the employer offered the less favourable terms. On Masupha’s own version, the favourable terms would have been to appoint her on an indefinite basis. Thus having not done so, on 20 June 2021, Masupha was dismissed within the meaning of the section.

[17] Having said all that, Masupha failed to demonstrate a reasonable apprehension of irreparable harm to the alleged clear right. On the available evidence, her right to investigation and consideration of the grievance is not under threat at all. As indicated above, such right is completely decoupled with the recruitment process. In conducting a recruitment process, Treasury is not acting unlawfully at all[4]. Thus, there is no legal basis to interdict the MEC and the HOD in this instance. Quintessentially, Masupha must fail in my view.

[18] Dr Ebershon placed heavy reliance on the judgment of my brother Van Niekerk J in Kapari and others v Office of the Chief Justice and another[5]. In the first instance I take a view that Kapari is distinguishable from the present application. In Kapari the grievance was at the level of the PSC. The grievance herein is still in its infancy having been lodged few days before this

application was launched. Nonetheless, Van Niekerk J took the following view in Kapari:

“[23] …Be that as it may, the fact remains that there is a live, legitimate grievance to be dealt with in terms of the applicable procedure. If the applicants are not granted interim relief, they will cease to be employees within the next 48 hours and the grievance will be rendered nugatory…In my view, the applicants have established that they are entitled to an interim order…”

[19] Dr Ebersohn urged this Court to adopt a similar approach in this matter. I am, with considerable regret, unable to do so. It does not seem that Van Niekerk J considered the definition of a grievance in the Resolution when he concluded that the parties before him had a legitimate grievance. Of importance, Van Niekerk J appreciated that the employees before him were faced with a dismissal. He said: “The only alternative available to the applicants is to accept a termination of their contracts, and claim unfair dismissal.” Van Niekerk J concluded that that was not a viable alternative because it will deprive them of employment in circumstances where they have been continuously employed for years.

[20] With respect, I take a divergent view. An employee who is dismissed within the meaning of section 186 (2) cannot claim an entitlement to employment, thus cannot be deprived. Equally, where a fixed term contract terminates by effluxion of time, there is no dismissal unless an employee can establish the requirements of section 186 (2) (b) of the LRA. However, such an employee has in terms of section 188 of the LRA a right to a dismissal that is fair. Be that as it may, unlike in this matter, it appears to be so that the dismissal of the applicants in Kapari had not taken effect and was to take effect within 48 hours. In this matter the dismissal, in my view, took effect on 20 June 2021, regard being had to the version of Masupha with regard to her expectations. In Kapari, Van Niekerk J took a view that the grievance to be appointed permanently is a legitimate grievance. In my judgment, when regard is had to the definition of a dismissal in terms of section 186 (2) (b) as well as the definition of a grievance in the Resolution, a grievance to be permanently appointed is not legitimate and worthy of investigation and or consideration.

[21] Although it can be said that a dismissal had not taken effect yet in Kapari, a dismissal in terms of section 186 (2) (b) was in the offing. That alone, in my view renders the grievance not a legitimate one,

particularly where the quest is that of being employed permanently.

[22] The relief granted by Van Niekerk J seem to have been granted on the basis that there is a legitimate grievance, the resolution of which would lead to the applicants, in there, remaining in the employ of the Office of the Chief Justice (OCJ). As indicated above, in this matter, I do not take a view that there is a legitimate grievance pending, which has the potential to have Masupha remaining in employment. This Court does appreciate that if Masupha may demonstrate that she has been dismissed unfairly, she may be reinstated in terms of section 193 of the LRA. An employee who has been unfairly dismissed is not guaranteed a remedy of reinstatement and or re-employment.

[23] Van Niekerk J took a view that a Court is empowered to grant an interim relief even if a party’s final remedy lies elsewhere. With regard to interim interdicts, in my view, this Court remains forever guided by the judgment of National Treasury and others v OUTA and others[6]. In Outa, the retired erudite Moseneke DCJ said the following:

“[50] Under the Setlogelo test, the prima facie right a claimant must establish is not merely the right to approach a court in order to review…it is a right to which if not protected by an interdict, irreparable harm will ensue.

[51] … therefore the harm that the applicants rely upon will not be caused by the past decisions they impugn in the review. There is a misalignment between the decisions they seek to review and the source of the harm they fear.”

[24] The Constitutional Court in Outa cited with approval Gool v Minister of Justice and another[7] where the following was said:

“The present is however not an ordinary application for an interdict. In the first place, we are in the present case concerned with an application for an interdict restraining the exercise of statutory powers. In the absence of any allegations of mala fides, the Court does not readily grant such an interdict.”

[25] In casu, I take a view that there is a misalignment between the right to have a grievance investigated and considered and the recruitment process, being the harm Masupha fears. A right to lodge a grievance is no different from a right to launch a review. In Outa, it was specifically held that the right to review the impugned decision did not require any preservation pendente lite. Regrettably, I take a similar view with regard to the right punted for in this matter.

[26] The irony that belies the alleged harm is that Masupha herself has applied for the position. Having applied for the advertised position, her and other candidates stand a chance of being appointed if an interview is aced. Should this Court interdict the recruitment process Masupha and the other candidates shall be adversely affected. This is a typical case of cutting one’s nose in order to spite the face. However, I take a view that as held in Gool and approved in Outa, the recruitment process is a statutory process. The regulations compel Treasury to follow a specified process. There is no allegations of mala fides in the process. Masupha like other candidates may be a beneficiary of this specified legal process. Unlike Van Niekerk J, I do not find any cause in law to interdict the recruitment process. To my mind there is a complete misalignment between the investigation and the consideration right and the recruitment process.

[27] The position of Director: Performance Audit does not have the name Masupha written all over it. Even if it is resolved that she was entitled to be permanently appointed, it may be so that she may be appointed to a different position or be re-employed.

[28] In summary, this Court takes a view that there is no legitimate grievance pending, as such, the right that Masupha seeks to protect

in this Court is incapable of yielding any desired results. Even if the grievance is legitimate, there is no evidence of interference

with it. This right is completely misaligned with the recruitment process that Masupha fears as a harm. Treasury is by law required to undertake the recruitment process and Masupha has not demonstrated any mala fides in the process. This Court is with considerable regret not going to follow Kapari. Therefore, this application like in the Edebery v NYDA[8] matter is bound to fail.

The issue of costs.

[29] The recent judgment of the Constitutional Court of Union for Police Security and Corrections Organisation v South African Custodial Management (Pty) Ltd and Others[9], in my view, makes it entirely impossible to make an order of costs in this Court. It is interesting to note that the Constitutional Court has acknowledged that section 162 of the LRA jettisoned the ordinary rule of litigation costs following the results in favour of “law and fairness”. However, the Constitutional Court prescribed that when making costs orders in labour matters, Courts are enjoined to apply the fairness standard in the LRA as a matter of constitutional and statutory obligation.

[30] The Court proceeded to decree that in labour context, the judicial exercise of a Court’s discretion requires this Court to do two things; namely (a) give reasons for firstly making an order and secondly account for the departure from the default position that costs should not be ordered; and (b) apply its mind to the dictates of only the fairness standard in section 162 of the LRA. Failure to do as decreed, this Court will be committing an error of law and a misdirection.

[31] Regard being had to the stringent decree spelled out above and in order to avoid an error of law and misdirection, it is appropriate to invoke the default position in this matter.

[32] In the results, the following order is made:

Order

1. The application is heard as one of urgency.

2. The application is dismissed.

3. There is no order as to costs.

G. N. Moshoana

Judge of the Labour Court of South Africa

Appearances:

For the Applicant: Dr G Ebersohn of Gerrie Ebersohn Attorneys Inc, Randburg.

For the Respondents: Advocate N Ali.

Instructed by: State Attorney, Johannesburg.

[1] No. 103 of 1994.

[2] Because the allegation is not confirmed by Tshabalala, the respondents take a view that such constitutes inadmissible hearsay

evidence and it must be struck off. I do not agree that the evidence constitutes hearsay. It is what Masupha was told by Tshabalala and not what she heard from a third party that Tshabalala said. Nonetheless nothing much turns on this.

[3] See: Resilient Prop (Pty) Ltd v Eskom Holdings Soc Ltd 2019 (2) SA (GJ).

[4] See: Edebery v NYDA (J1453/2020) [2021] ZALCJHB 1 (7 January 2021).

[5] (2020) 41 ILJ 2473 (LC).

[6] 2012 (11) BCLR 1148 (CC).

[7] 1955 (2) SA 682 (CPD).

[8] (J1453/2020) [2021] ZALCJHB 1 (7 January 2021).

[9] (CCT 192/20) [2021] ZACC 26 (7 September 2021).