Member of the Executive Council for Health, Eastern Cape Province v Hoza and Others (4909/2017) [2020] ZAECMHC 48 (29 September 2020)

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE LOCAL DIVISION, MTHATHA

CASE NO: 4909/2017

In the matter between:

MEMBER OF THE EXECUTIVE COUNCIL, DEPARTMENT

OF HEALTH, EASTERN CAPE PROVINCE

APPLICANT

and

NOKWANDA PEDITTA HOZA

1ST RESPONDENT

BONGIWE CLAIRE NONTENJA

2ND RESPONDENT

NOMHLE BEAUTY ROSE GOSO

3RD RESPONDENT

NTOMBOVUYO ASSENETH LUVALO MQULWA

4TH RESPONDENT

PATRICIA NTOMBOKWENZANI NGUBENTOMBI 5TH RESPONDENT

MAQINA BETUSILE NONTANDO XOLA

6TH RESPONDENT

SHEILA NOMAJOLA MCAMBA

7TH RESPONDENT

JUDGMENT

MTSHABE AJ:

[1] This an application for rescission of a default judgment granted by this court against the Applicant (Respondent in the main application) on 30 October 2018. The order was granted by Brooks J. Mr Notununu appeared for the Applicants in the main application. The Court Order reads as follows:

IT IS ORDERED THAT:

“(i) The non-payment of the Applicant’s salaries/remuneration for the months April, May, June and July 2014 be and is hereby declared wrongful and unlawful;

(ii) The Respondent be and is hereby ordered and directed to pay to the Applicants their salaries/remuneration for the months April, May, June and July 2014 plus interests at the legal rate from August 2014 to date of payment.

(iii) The Respondent pays the costs of this application.”

BACKGROUND

[2] The respondents are Applicants in the main application and the Applicant in this rescission application is the respondent in the main application.

[3] The Respondents brought an application against the Applicant seeking an order along the following terms:

3.1 That the non-payment of payment of the Applicant’s salaries for the months April, May, June and July 2014 be and is hereby declared to be wrongful and unconstitutional;

3.2 That the respondent be and is hereby ordered and directed to pay the Applicant’s salaries for the months of April, May, June and July 2014 plus interest at the legal rate from August 2014 to date of payment.

3.3 That the Respondent pays the costs of this application on an attorney and client scale.

[4] The Applicant’s case in the main application was that they were employed by the Respondent in terms of a “fixed employment contract agreement”. The initial contract was to operate from 1st April 2013 to 31st March 2014. The Applicants in the main application did render services in terms of its initial contract and they were accordingly

remunerated. I must also mention that the Applicants were professional Nurses who have retired. They were employed to render nursing services in various communities within the OR Tambo District Municipality.

[5] A proof that the Applicants did render services to the respondent is an iternaty to the founding affidavit in the main application, which reflects that from 10th March 2014 to 11th April 2014 they did render some services.

[6] They were not paid their salaries for April 2014.

[7] The contract of the Applicants in the main application was extended by a new fixed employment contract. This new contract was to commence from 1st April 2014 to 31st March 2015. It is common cause that the Respondents signed the contract and the employer (Department of health) did not signed the contract.

[8] The clause 1.2.3 of the contract reads as follows:

“The employment of the employee is subject to:

(i) The submission by the employee of original certificates of her academic and professional qualifications, service certificates and proof of SA Citizenship.

(ii) signing of Contract Agreement as well as the job description.

(iii) The employer will provide the employee with detailed checklist of activities to be done on a daily/weekly/monthly/ quarterly and yearly.”

[9] The main application was duly served upon the State Attorney in terms of Rule 4(9) of the Uniform Rules of court.

[10] Before the papers are served upon the State Attorney, the Applicant ought to have served them upon the executive authority of the department.

[11] Section 4(A) of the State Liability 20 of 1957 define the executive authority in relation to a provincial department, to mean the member of the executive council of a province who is accountable to the provincial legislature for that department.

[12] Section 2(2) of State Liability Act provides as follows:

“(1) In any action or other proceedings instituted by virtue of the provisions of section 1, the executive authority of the department concerned must be cited as nominal defendant or respondent.

(2) The plaintiff or applicant as the case may be, or his or her legal representative must, within seven days after summons or notice instituting proceedings and in which the executive authority of the department is cited as nominal defendant or respondent has been issued, serve a copy of that summons or notice on the State attorney”.

[13] Section 2(2a) of the amended State Liability Act reads as follows:

2 “The plaintiff or applicant, as the case may be, or his or her legal representative must –

(a) after any court process institutions proceedings and in which the executive authority of a department is cited as nominal defendant or respondent has been issued, serve a copy of that process on the head of the department concerned at the head office of the department;

(b) Within 5 days after the service of the process contemplated in paragraph (a), serve a copy of that process at the office of the State Attorney operating within the area of jurisdiction of the court from which the process was issued”.

3. Upon receipts of the process contemplated in sub-section (2), the State Attorney must –

(a) without undue delay, send a written request to the head of the department concerned to provide the State Attorney with written instructions regarding the proceedings; and

(b) within 10 days of receipt of the process, provide the head of department with legal advice on the merits of the matter.”

[14] I shall return to the above section later in this judgment.

[15] The Applicant in this rescission application alleges that the Notice of Set Down, setting the matter down on 30th October 2018 was not served upon them or the State Attorney. This is not correct. The notice of set down appears to have been served upon the Mthatha State Attorney’s office at Mthatha. There is a stamp affixed to Notice of set down indicating that it was served on 19 October 2018.

[16] I must mention that the Respondent in the main action filed Notice to oppose. The answering affidavit was never filed. The Applicants in the main application acted in terms of the rules of the court by setting the matter down on 30th October 2018. It is on this date that the court, per Brooks J granted the order which I have referred to above.

[17] The respondent in the main application did not comply with the court order after numerous letters were written to him. This compelled the Applicants to launch contempt of court proceedings. An order for contempt of court proceedings was granted by Griffiths J on 1st October 2019. It must be noted that the contempt of court order was granted almost a year after the matter was finalized by Brooks J. The order reads as follows:

“(1) The Respondent be and is hereby declared to be in contempt of Court Order by Honourable Justice Brooks J dated the 30th October 2018;

(2) The Respondent be and is hereby directed to comply with the Court

Order by Honourable Justice Brooks J dated 30th October 2018

within seven (7) days of this order;

(3) This order be served by Sheriff in terms of Rule 4(9) of the Uniform rules;

(4) The respondent pays costs of this application on an attorney and client scale.

[18] I must mention that on or about June 2019 the Respondent in the main application, after a numerous negotiation between the parties paid an amount of R255 491-88 to the Applicant’s attorneys.

[19] The money paid by the Respondent did not specify whether it was for a April, May, June and July 2014 together with interests as ordered in the

court order of Brooks J of 30th September 2018. Even in the founding affidavit there is no tabulation as to how the Applicant in the rescission application arrived at that amount of money.

[20] I must also mention that the respondent in the main application appointed Counsel to represent him in the matter. This was on or about 22 February 2018. In the founding affidavit the Applicant states that the Counsel prepared a memorandum to the Department of Health with the purpose of settling the matter.

RESCISSION APPLICATION

[21] The application is brought in terms of Rule 42(1) (a) of the Uniform rules of court which reads as follows:

“The court may, in addition to any other powers it may have, mero motu or upon the application by any party affected, rescind or vary-

(a) An order or judgment erroneously granted in the absence of any

party affected thereby.”

[22] The Applicant’s case is that the order granted on 30th October 2018 was granted in his absence. This is common cause, however, there is no explanation either in the founding or replying

affidavit he/she was not in Court on 30th October 2018, because it was service with the Notice of Set Down. Furthermore, the Applicant’s case is that the order should be rescinded purely on the basis that the respondents did not comply with the provisions of section 2(a) of the State Liability Act, as amended.

[23] The relies upon the respondents’-compliance with section 2(2)(a) of the amended State Liability Act, which I have quoted in paragraph 13 above.

[24] The Applicant contends that the papers were not served upon the head of the department before they could be served to the State Attorney in compliance with section 2(2)(a).

[25] It appears to be common cause that the papers were never served to the head of the department. The respondents could not produce any return of service that the papers were served upon the head of department. It is clear therefore that the respondents did not comply with section 2(2)(a) of the State Liability Act.

IS NON-COMPLIANCE WITH SECTION 2(2)(a) OF THE STATE LIABILITY ACT FATAL IN THESE PROCEEDINGS.

[26] I could not find any authority or case law that has been decided dealing with section 2(2)(a) of the State Liability Act. The legal representatives for both parties could not provide me with any authority where this section has been decided.

[27] Regard must be head to long established principle of statutory interpretation. At common law, there is a vast body of case law which deals with the distinction between statutory requirements that are pre-emptory or directory and, if pre-emptory, the consequences of non-compliance.

[28] The starting point in my view is the decision of Sutter v Scheepers 1932 AD 165 Wessels J.A laid down certain guidelines at 173 -174:

“A long series of cases both here and in England have evolved certain guiding principles. Without pretending to make an exhaustive list I would suggest the following tests, not as comprehensive but as useful guides. The word shall when used in a statute is rather to be construed as peremptory that as directory unless there are other circumstances which negative this construction. See also: Standard Bank Ltd v Estate Van Rhyn 1925 AD 266.

(i) If a provision is couched in a negative form it is to be regarded as preemptory rather than as directory mandate. To say that no power of attorney shall be accepted by Deeds Office unless it complies with certain conditions rather discloses an intention to make the conditions preemptory than directory: Though even such language is not conclusive.

(ii) If a provisions is couched in positive language and there is no sanction added in case the requisites are not carried out then the presumption is in favour of an intention to make the provision only directory thus in Cole v Greene (LJCP) vol. 13 at p 32) Tindall, CJ approving a decision of Lord Tenterden and dealing with same question as to when ‘shal’l is to be interpreted as preemptory and when as directory, say:

“It may be observed here as it was by Lord Tenterden …in the case of The King v Justices of Leicester that the words are in the affirmative only and that there are no negative words; nor are the words so stringent as in those of the Marriage Act 4 Geo. IV c. 76, s 16 whereby it was an acted ‘that the father’, if living, of any party under 21 years of age (such party not being a widower or widow), or if the father shall be dead, the guardian or guardians, etc, shall have authority to give consent to the marriage of such parties; and such consent is thereby required for the marriage of such parties so under age, unless there shall be no person authorized to give such consent: and yet in The King v Birmingham it was held that those words are directory only. Lord Tenterden in giving judgment says the language of this section is merely to require consent, it does not proceed to make the marriage void if solemnized without consent. So here, the Act says, the contract shall be signed by the commissioner, or three of them or by their clerk, it does not say it shall be void unless so signed.

(iii) If, when we considered the scope and objects of a provision, we find that its terms would, if strictly carried out, lead to injustice and even fraud, and if there is no explicit statement that the act is to be void if the conditions are not complied with, or if no sanction is added, then the presumption is rather in favour of the provision being directory.

(iv) The history of the legislation will also afford a clue in some cases”.

[29] The more recent authority focus not so much on whether a particular provision is peremptory or directory, on whether or not the failure to comply strictly with a peremptory provision is fatal. This was the approach adopted by the Appellant Division in Maharaj & others v Rampersad 1964(4) SA 638(A). The court having concluded that the provision under consideration was imperative went on to consider the absence of strict compliance therewith was fatal. The court formulated the appropriate test at 646 (C) in the following terms:

“The enquiry, I suggest, is not so much whether there has been, exact’, adequate or ‘substantial’ compliance with this injunction but rather whether there has been compliance therewith. This enquiry postulates an application of the injunction to the facts and a resultant comparison between what the position is and what, according to the requirements of the injunction it ought to be. It is quite conceivable that a court might hold that, even though the position as it is, is not identical with what it ought to be, the injunction has nevertheless been complied with. In deciding whether there has been a compliance with the injunction the object sought to be achieved by injunction and the question of whether this object has been achieved is of importance.”

See also: Shabalala v Klerksdorp Town Council and another 1969(1) SA 582(T) and Mathope & Others v Soweto Council 1983 (4) SA 287 (W)

[30] It is my opinion that non-compliance with section 2(2)(a) of the State Liability Act does not render the proceedings a nullity. Furthermore in this case the Applicant in the rescission application filed a Notice to Oppose. Appointed an Advocate to represent it in the negotiations of this matter was aware that the matter will be in court on 30th October 2018 as the Notice of Set down was served. The Applicant chose not to file the Notice to Oppose. Further, the main application

was in Court on 30 January 2018. The Respondent was represented by Mr Makalima. It was ordered to file answering affidavit within 21 days. It failed without any explanation.

[31[ I must mention that there could be cases distinguishable from this one, where there is no Notice to Oppose, where the Notice of set down was not served, where the Department never appeared in Court. Those cases then one can argue that section 2(2)a) of the State Liability Act is imperative. Even if the applicant was not served, it is my opinion that it was aware of the main application. How could the applicant appoint Counsel to prepare a memorandum if it was not aware of the papers?

[32] I conclude that this application cannot be rescinded, reliance by the Applicant being placed on non-compliance with section 2(2)(a) of the State Liability Act.

DID THE RESPONDENTS RENDER SERVICES FOR THE MONTH OF MAY, JUNE AND JULY 2014?

[33] I must mention that the contract relied upon by the respondents in this matter was not signed by the employer. As I have indicated above, the appointment of the respondents depended upon the contract of employment being signed by both parties. It is common cause that the employer never signed the contract.

[34] The respondents in this application did not inform the court that they never rendered services for the month of May, June and July. They did render services for part of April 2014. In the founding affidavit the order was granted, reliance being placed only on the contract I want to assume. And also on the itinerary which was attached to the founding affidavit.

[35] The first issue which I must deal with is whether a contract of employment was concluded or not between the Applicant and the respondents. In law the legal relationship between the parties may be gathered, inter alia, from a construction of the contract which they have or might have concluded.

(See: Smit v Workman’s Compensation Commissioner 1979(1) SA 51 (A) at 64(B)

See also: Liberty Life Assurance of Africa Ltd v Naiselo (1996) 17 ILJ 674(LAC) 683 D-E,

SA Broadcasting Cooperation v Mckenzie (1999) 20 ILJ 585 (LAC) at 591 E) regard must also be heard to the realities of the relationship and not what the parties have chosen to call the contract.

See: Dempesey v Home and Property (1995) (1)ILJ 378(LAC).

[36] At common law an employee in a contract of employment commits the breach thereof he reneges on his duty of placing his personal service at the disposal of the employer. The employer on the other hand breaches the contract of employment if he reneges on his undertaking to pay the salary which is agreed in consideration for services rendered.

[37] The Applicant’s contention, as evident from the averments in the founding affidavit deposed to by Mavuso is that contract of employment was not concluded or finalized because the employer never signed the contract. She further alleges in the founding affidavit the respondents did not furnish any proof that they did render services for April, May, June and July 2014.

[38] I therefore conclude that in the absence of the signature by the employer there was no employment contract between the Applicant and the respondents.

[39] Even I am wrong in my opinion that there was no contract of employment, the next question that needs to be answered is where the respondents were employees of the Applicant during the period in question.

[40] Section 213 of the Labour Relations Act defines an employee as –

“(a) any person, excluding independent contractor who works for another person or for the State and who receives, or is entitled to receive, any remunerations;

(a) Any other person who in any manner assist in carrying on or conducting business of an employer …”

[41] The Employment Equity Act No. 55 of 1998 and the Skills Development Act No. 97 of 1999 contain the same definition of “Employee”. It is my opinion that the respondents could only be regarded as employees when they have physically rendered services or commenced their duties for the periods I have mentioned or mentioned in the notice of Motion in the main application. During the argument Mr Notununu who appeared for the respondents conceded that the respondents never rendered any services for July and June 2014. An employee is a person who is controlled by the employer. If the respondents did not render services, it is my humble opinion that they were entitled to the order of 30 October 2018.

[42] I must add regard to peremptory provisions that it is the duty of a court to arrive at the real intention of the legislature by considering the object and scope of the relevant statute.

[43] Peremptory provisions merely because they are peremptory will not by implication be held require exact compliance where substantial compliance with them will achieve the object of the legislature. The modern approach manifests a tendency in line towards flexibility. It is my opinion, that the head of the department is aware of the proceedings in this case by the Applicant filed Notice to Oppose and appointed Counsel to negotiate and to prepare a memorandum. Non-compliance with section 2(20(a) of the State Liability Act has caused no prejudice to the Applicant.

[44] I am of the opinion that the respondents were not employees as envisaged in section 213 of the Labour Relations Act. Furthermore, it is my view to that a person is only an employee when such person actually works for another person. The employee must therefore have rendered a service to another which services are not that of an independent contractor. In addition to working for another the employee must also receive or be entitled to receive remuneration. The remuneration must correspondingly mean remuneration for work done or tendered to be done. In the circumstances, where an offer of employment is made to another and offer is accepted, a contract of employment may come into existence, but the parties to that contract do not enjoy the protection of the Labour Relations Act until such time as the offeree actual commences a performance or at least tenders performance in terms of the contract.

[45] In view of the fact that the respondents did not render services, I conclude that the court on 30th October 2018 was not aware of this fact before granting the order.

[46] As the application is brought in terms of Rule 42(1)(a), good cause need not, be established when the application for rescission is made or is brought in terms of the rule. See: Topal v LS Group Management Services (Pty) Ltd 1988(1) SA 639(W) at 650 D-J.

[47] I have already indicated that the order that was granted on 30th October 2018, at the time, it was granted there existed a fact which the Judge was unaware, which would have precluded the court from granting the judgment, namely, in the main that the respondents did not render any services for the period in question.

[48] I conclude that the order granted on 30th October 2018 should be rescinded and set aside.

MUST THE RESPONDENTS PAY THE MONEY IN THE SUM OF R255 491-88, WHICH WAS PAID TO THEIR ATTORNEYS?

[49] In the Notice of Motion for the rescission application paragraph 2 states the following:

49.1 “That the Respondents are ordered and directed to refund to the Applicants the amount of R225 491-88 paid to them pursuant to the said order within 30 days from the date of this order.”

[50] I am of the opinion that if the respondents were not entitled to the money, the proper route to be followed by the Applicant was to issue summons based on unjustified enrichment or any other cause of action. The money cannot be claimed in application proceedings.

[51] Accordingly, prayer 2 of the Notice of Motion cannot be granted.

[52] I must also mention that the replying affidavit in this matter was filed very late. The Applicant did filed application for condonation though it was also captured in the replying affidavit.

[53] I therefore condone the non-compliance with the rule and the late filing of the replying affidavit.

[54] Having regard to all the factors and authorities I have referred to above,

I make the following order:

(a) The order granted by the above Honourable Court on 30th October 2018 is hereby rescinded and set aside;

(b) The Applicant is ordered and directed to pay the costs of the rescission application include the costs of condonation for the late filing of the replying affidavit.

____________________________

N.R. MTSHABE

ACTING JUDGE OF THE EASTERN CAPE LOCAL DIVISION, MTHATHA

DATE HEARD: 3RD SEPTEMBER 2020

DATE DELIVERED: 29 SEPTEMBER 2020

APPEARANCES:

FOR THE APPLICANT: ADV. Z.Z. MATEBESE SC WITH

ADV. A. GXOGXA

INSTRUCTED BY: THE

STATE ATTORNEY

MTHATHA

FOR THE RESPONDENTS: MR N.M. NOTUNUNU

INSTRUCTED BY: MPUMELELO

NOTUNTU & ASSOCIATES