Mbedzi v Director General, Department of International Relations and Cooperation and Others (55063/2020) [2021] ZAGPPHC 596 (14 September 2021)

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

(1) REPORTABLE: NO/YES

(2) OF INTEREST TO OTHER JUDGES: NO/YES

(3) REVISED. NO/YES

14_ SEPTEMBER 2021

Case Number: 55063/2020

In the matter between:

AZWIANEWI DAVID MBEDZI

Applicant

And

DIRECTOR GENERAL, DEPARTMENT OF INTERNATIONAL

RELATIONS AND COOPERATION

1st Respondent

MINISTER, DEPARTMENT OF INTERNATIONAL RELATIONS

AND COOPERATION

2nd Respondent

DEPARTMENT OF INTERNATIONAL RELATIONS AND

COOPERATION

3rd Respondent

JUDGMENT

MAKHOBA J

1. This is an opposed application in which the applicant seeks an order that the respondents must upgrade his position in the Department of International Relations and Cooperation (DIRCO) which upgrade will also entitle him to be paid the difference in cost of living

allowance hereafter referred to as “COLA’’, from 3 July 2014 to the end of the applicants foreign posting.

BACKGROUND

2. On the 1st September 2008 the applicant was interviewed and appointed as assistant director of foreign services. However, he was not placed in that position of assistant director foreign service. Instead he was appointed to a lower rank, to wit the rank of senior foreign services officer. Being placed to the lower rank of senior foreign service officer prejudiced him in terms of salary and employment benefits. More specifically his ranking in foreign mission postings was negatively affected.

3. The applicant lodged and perused the matter with DIRCO and the dispute culminated with the office of the public protector. On the 1st of July 2020 the public protector gave her findings in favour of the applicant and the third respondent accepted those findings.

4. Paragraph 7.2 of the response of the public protector in dealing with the case of applicant and his 7 fellow employees stated as follows: -

“Flouting of Public Service Regulations: A fair process for the identified officials should immediately be undertaken to place them in a position that they should have been had the prejudice not have happened.”

5. Third respondent agreed to pay the applicant salary of assistant director, foreign service backdated to the date and year he was successfully interviewed for the position, assistant director foreign service, i.e., 2008. Consequently, third respondent agreed that applicants’ designation as from the 1st September 2008 was that of an assistant director foreign service. Further, back pay was calculated retrospectively to 1st September 2008.

6. From the 3rd July 2014 to the 29th June 2016 the applicant was posted to the South African Embassy in Iran. From June 2016 until December 2020 the applicant was posted to the South African Embassy in Nigeria. His rank whilst posted to these two respective countries was second secretary, political and vice consul, political respectively.

7. It is common cause that if the applicant was posted with the rank of assistant director, foreign service his rank would have been first secretary /consul political in embassies and consul political in consulate.

THE MAIN DISPUTE BETWEEN THE PARTIES

8. The applicant provides that having been posted on a lower rank than that of an assistant director (which he was entitled to) his cost of living allowance (COLA) in both Iran and Nigeria was less in that he was given a lower rank.

9. Furthermore, the applicant is of the view that since his rank was backdated to 1st September 2008 therefore his “COLA” in both Iran and Nigeria should be backdated.

10. Whereas the respondents submit that the applicant willingly applied to be posted on the conditions set out in the advertisement, being to be posted to Iran on the conditions set out in the advertisement, being a post for third secretary political. Again in 2016 the applicant applied to be transferred to the South African consul-general in Nigeria and the rank was second secretary political.

11. The placement policy of DIRCO in paragraph 2.4.5 gives a detailed sketch of how the individuals are supposed to be posted.

“Determination of Second /Third Secretary/ Vice- Consul: Political Mission Designation (s)

· Foreign Service Officers (SR 7) going out on political shall be posted as Third Secretary /Vice Consul: Political.

· Senior Foreign Service Officers (SR 8) shall be posted as Second Secretary/Vice Consul: Political

First Secretary/Consul: Political

· Assistant Directors FS (SR 9/10) shall be posted as First Secretary/ Consul: Political.

Counsellor: Political

· Deputy Directors: FS (SR 11/12) shall be posted as Counsellor: Political.

Counsellor: Administration

· Deputy Directors: Administration (SR 11/12) shall be posted as Counsellor: Administration, subject to availability of posts. However, should Deputy Directors wish to apply for the First Secretary: Administration posts and be successful, they shall be posted as such for the duration of their tour of duty.

First Secretary Consul: Administration

· Assistant Directors: Administration (SR 9/10) shall be posted as First Secretary /Consul: Administration’’

12. The respondents submit that employees apply to be transferred and are consequently transferred to a foreign mission to a position where the grading at the foreign mission differs from the South African ranking that the employee hold.[1] The applicant is of the view that such transfer where the grading at the foreign mission differs from the employee’s South African ranking only applies to transfers relating to administration and not political positions. This was pointed out by counsel for the applicant referring to paragraph 2.4.5 of the placement policy.

13. The applicant abandoned prayer 2.

POINT IN LIMINE

14. The applicant raised as a point in limine that the answering affidavit of the respondents was not properly commissioned because the commissioner of oath did not indicate what position she holds which makes her an ex officio commissioner of oaths.

15. The respondents opposed this application and relied in the unreported case of Chetali Gupta and Kurt Robert Khoop N.O and Others[2] the full citation of this case is not given by counsel.

16. The commissioner of oaths filed an affidavit explaining the shortcomings in the answering affidavits. This court is of the view that there is no merit in the applicant’s point in limine.

THE LAW

17. On behalf of the respondents, counsel rely in the decision Burger v Central South African Railways[3]and submit that the applicant signed a contract with DIRCO which describes his posting as second secretary political and he is therefore bound by that commitment.

18. With the Nigeria transfer it is submitted by counsel for the respondents that the applicant signed the transfer letter on the 22nd May 2016 where in it is clearly stated that he is transferred as second secretary: political. The COLA payable to him is also set out in the letter.

19. In my view the first question to be asked is whether on the circumstances applicant’s placement in foreign mission ought to

have been upgraded from the position of second secretary/vice consul retrospectively to the position of the first secretary/consul

political.

20. Furthermore, it must be determined whether the difference in applicants’ COLA allowance between the lower position of a second secretary /vice consul: political and the upgraded position of first secretary /consul political ought to be back paid to the time he was first assigned to the missions.

21. It is common cause that the public protector has ruled that the applicant must be put in the position he should have been had the

prejudice not happened. This was confirmed by DIRCO by back dating the position and salary of the applicant.

22. The argument advanced by the respondents in refusing to adjust the applicant’s COLA allowance when he was posted outside the

country is not supported by any legislation or case law.

23. There are no cogent reasons put before me by counsel for the respondents why the applicant’s COLA allowance is not back dated from when he was posted to Iran and subsequently to Nigeria.

24. In any event the public protector’s remedial actions in regard to the applicant’s case has already been implemented by DIRCO and there is no logic in refusing to do the same in as far as the applicant’s COLA allowance is concerned. I am therefore of the view that the application must granted.

COSTS

25. In my view it was unnecessary for DIRCO to engage in protracted litigation with the applicant even when the public protector has

ruled that the applicant must be put in a position in which he would have been in had the prejudice not happened. Thus therefore the applicant is entitled to a punitive cost order.

ORDER

I, make the following order: -

1. Respondents must upgrade applicant’s position in the foreign mission office at Lagos Nigeria from vice consul to first secretary/consul political within 90 (ninety) days of this order.

2. Respondents must pay applicant the difference in cost of living allowance (COLA) within 90 (ninety)days of this order from the time it became applicable. Starting with the position first secretary/consul political from the 3rd July 2014 to the end of applicant’s foreign posting.

3. Respondents to pay applicants costs on attorney and client scale.

D MAKHOBA

JUDGE OF THE GAUTENG DIVISION PRETORIA

APPEARANCES:

For the appellant: Ms L Mbanjwa

Instructed by: L Mbanjwa Incorporated

For the respondents: Adv F. Storm

Instructed by: The State Attorney

Date heard: 11 August 2021

Date of Judgment: 14 September 2021

[1] Answering affidavit, paragraph 30

[2] Case number 84095/2018

[3] 1903 TS 571 at 578