Mxoli v Member of the Executive Council, Department of Education, Eastern Province and Another (451/2016) [2017] ZAECBHC 5 (28 July 2017)

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION, BHISHO)

CASE NO: 451/2016

In the matter between: THANDIWE ROSEMARY MXOLI Applicant and THE MEMBER OF THE EXECUTIVE COUNCIL, DEPARTMENT OF EDUCATION, EASTERN PROVINCE 1st Respondent THE HEAD OF THE DEPARTMENT, DEPARTMENT OF EDUCATION, EASTERN CAPE PROVINCE 2nd Respondent

JUDGMENT

MAGEZA AJ

[1] Applicant in this matter seeks reinstatement as an educator in terms of Section 14(2) of the Employment of Educators Act 76 of 1998 (‘the EEA’) and places reliance on an order of this Court granted under Case 517B/07 on 18 June 2013. The said section reads as follows:

“14(2) If an educator who is deemed to have been discharged under paragraph (a) or (b) of subsection (1) at any time reports for duty, the employer may, on good cause shown and notwithstanding anything to the contrary contained in this act, approve the reinstatement of the educator in the educator’s former post or in any other post on such conditions relating to the period of the educator’s absence from duty or otherwise as the employer may determine”

The Order of Court dated 18 June 2013

[2] The chronology set out in applicant’s heads follows on an order granted by the honourable Smith J dated 18 June 2013 under an earlier Case Number 571B/07. The order came about as a result of review proceedings under the said case number in which relief based on Section 14(1)(a) of the Employers Educators Act 76 of 1998 (the Act) was sought by applicant against the respondents. This earlier review application was strongly opposed by the respondents and the Order of Smith J came about by agreement between the parties.

[3] The present application was served on the respondents on 28 August 2016 and the answering affidavit was filed on 18 October 2016. Thereafter applicant’s reply was served and filed on 27 October 2016. In applicant’s heads as well as in argument before me, it was averred that following the order dated 18 June 2013 requiring her to make the relevant submissions to the second respondents, the order was complied with on 24 June 2014. This assertion is set out in a letter dated 20 July 2015 written by her attorneys for the attention of the second respondent. This letter reads in part:

“We wrote to you on 24th June 2014 requesting compliance with the court order granted by the High Court Bhisho on 18 June 2013 in Case 571B/07. According to the order, you were obliged to consider our client’s reinstatement as an educator in terms of Section 14 of the Employment of Educators Act. Our client in turn was required to make submissions which we did on her behalf in our letter of 24th June 2014 and in so doing, referred you specifically to a copy of the Replying Affidavit deposed to by our client which set out the circumstances which our client requested you to consider with a view to procuring her reinstatement.”

[4] The founding and replying affidavits set out in the most vivid and agonising detail, the experience applicant has gone through commencing from when she was first declared as an educator in excess on the staff establishment of the Thembalabantu High School in Port Elizabeth as per letter dated 20 April 1999. Following this letter, she states that she applied for a new post in a new school. She chose this school from a departmental list handed to her detailing posts available at various schools including one named Vulindlela High School, said to be in Port St Johns.

[5] This is where she was placed and on arriving there, she discovered that the school was situated in Dangwana location, a rural area many kilometres from the town of Port St Johns. She termed the area and terrain inhospitable and she had to walk for more than half an hour to and from school daily over punishing terrain. She had moved there with her family including a young 10 year old minor son. There are many more details of the difficulties she placed on record in the founding affidavit.

[6] Despite these difficulties, she remained there for two years in a state of severe depression and (in 2003) decided to return to her old Port Elizabeth school, Thembalabantu High School where she remained for a year.

[7] Applicant commenced a process which included the lodging of a dispute in terms of the applicable Departmental rules. No hearing was availed to her and she was informed her transfer application had been unsuccessful. She filed further applications for interdepartmental transfer supported by medical reports from doctors including Dr NC Mamase and one Dr Peter Crafford (a registered Psychiatrist), all of whom alluded to her psychological ill-health and distress. She was certified by Dr Crafford as ailing:

‘…from a major depressive disorder with psychosis. She is severely ill and in urgent need of psychiatric treatment, ie hospitalisation for 2 to 3 weeks, and thereafter monthly or fortnightly follow up. She is unlikely to return to work before 2007 as she has been ill since 19/03/2004 when she was last seen by myself professionally.’

[8] The founding affidavit read with the reply paint a further sorry tale of numerous and multiple visits to many officials of the respondent. The attempts at finding resolution included in part the following:

8.1 Approaching her principal in Port Elizabeth who refused to accept her sick leave certificates pursuant to the diagnosis. She sent these to Port St Johns where they were also returned to her. She discussed the matter with the Port Elizabeth, Regional Education Development Officer who could not help.

8.2 The District Director Port Elizabeth (also named) refused to intervene and referred her to his second in charge, an official who told her the department had lost her file. The District Director Port St Johns (also named) refused to get involved.

8.3 She made several visits to the Port Elizabeth Education Department offices to locate her employee forms and the department advised her they were lost.

[9] In August 2006, her salary was not paid, this despite reporting this to her Union which promised to look into the matter no progress was made. Dr Crafford provided a further diagnosis and her condition was described as:

“This 48 year old High School teacher urgently needs psychiatric treatment. She is having suicidal thoughts and has auditory hallucinations and should be hospitalised. Your urgent and kind attention to reinstating her salary and her medical aid would be much valued. In due course it is likely that she should respond to treatment and be able to be rehabilitated back to work.”

[10] In summary this is the detailed background in her papers forming the basis of the application brought by applicant under the old case number referred to as 571B/2007.

[11] From a cursory perusal of the respondent’s answer in the present application deposed to by Abraham Soyisile Nuku on behalf of both respondents, at paragraph 4 the following submission is made:

“It is not possible for the department to consider the applicant’s reinstatement in terms of Section 14(2) of the Employment of Educators Act, 76 of 1998 (“the EEA) as the applicant has not reported for work. Once the applicant reports to work at Vulindlela Junior Secondary School, where she was appointed, the provisions of Section 14(2) of the Employment of Educators Act will apply. Currently there is no basis upon which such provisions could be applied as the applicant has not attended work…”

(my emphasis)

[12] The matter finally served before me. Applicant states in her heads, the submissions were again submitted to the respondents on 26 August 2016 and she makes the averment that between June 2014 and August 2016, no response was received from the respondents. She thereafter secured the order of this Court dated 18 June 2013 directing the respondents to consider her re-instatement in terms of Section 14(2) of the Act. She says she had to comply with the order and made written submissions to the second respondent and complied with this on 24 June 2014.

Argument before me:

[13] Applicant set the matter down for hearing on 23 March 2017 before me and on perusing the file, it became evident that the matter had served before Van Zyl DJP on the 18 November 2016 and, after the matter had been argued in open Court, an order was made by Van Zyl DJP. The order entailed that the matter be postponed sine die, the respondents being ordered to pay the costs of the application.

[14] When the matter served before me, I heard argument and in view of the different interpretations placed on the order of Smith J by the respective parties, I thereafter requested the parties in writing to comment on the following:

(i) The manner in which they respectively deem the representations are to be made and/or submitted;

(ii) In view of the founding, answering and replying affidavits filed in the matter, whether it is not possible to identify the paragraphs that could ensure compliance with the order of Smith J;

(iii) The parties were invited to identify the specific paragraphs constituting details of their respective representations in compliance in compliance of the order;

(iv) To make submissions in writing within 5 (five) days of the request for comments in order that the matter may be finalised.

[15] These were provided by both the parties and the polarised stance evident from the responses is still evident and their views demonstrate a large chasm between applicant and respondents. In essence applicant’s submissions compiled by Counsel for the applicant are that:

15.1 Section 14(2) of the Employment of Educators Act, 1998 does not prescribe a format for making of submissions and simply requires ‘good cause to be shown.’

15.2 It is evident from the order of the honourable Judge Smith that had there been a specific format the court had contemplated, he would have specified a format but instead reference therein is made to ‘written submissions’.

15.3 Applicant submits that the content of the replying affidavit under previous Case No. 571B/07 in which the reasons for applicant’s absence are set out sufficiently constitute ‘written reasons’ as “the document itself pre-dates the order of Smith J”.

15.4 That the replying affidavit was made under oath and:

“there is simply no logic therein that ‘written reasons’ in the form of an un-commissioned letter or memorandum or whatever other form, should rather be accepted”.

15.5 Applicant elaborates: “The crux of the matter is that from those submissions, it must be possible to adduce ‘good cause’ and proof (that) of compliance with the requirements of Section 14(2) namely that the Applicant reported for duty.”

[16] The respondent’s submissions are that a statement for purposes of Section 14(2) of the Act consists of:

16.1 “... a unique written statement or version of the discharged employee. There can be no uniform format because submissions of employees will depend on the unique circumstances of the employee concerned and the particular circumstances which culminated in the deemed discharge.”

16.2 What is of utmost importance is that a discharged employee on account of abscondment seeking reinstatement must show good cause and further indicate that he/she was not in wilful default.

16.3 If the employee admits the abscondment, it becomes prudent for him or her to show remorse and motivate as to why she should be considered for reinstatement.

16.4 Respondent then cites numerous examples of such submissions from a variety of cases including, inter alia, Jethro v MEC for Education, Western Cape (C292/2015) (2016) ZALCCT 15 (22 April 2016) at paragraph 12).

The Legal Position:

Sections 14(1) and (2) of the Educators Act 76 of 1998:

[17] For a start, it is accepted that where an employee absents themselves from work without permission for a period exceeding 14 consecutive days, they are deemed to have been discharged from the employment of the department. Section 14(1)(a) of the Act, (and in other similarly worded statutes containing deeming provisions in legislation governing employees in the public service), has been interpreted and our Courts have conclusively accepted that such a deeming provision brings the employment contract between the employer and employee to an end by operation of law. This, the Courts have said, is not to be equated with a dismissal. See: NKOPO v Public Health & Welfare Bargaining Council & Others (2002) 23 ILJ 520 (LC); Public Servants Association of SA & Another v Premier of Gauteng & Others (1999) 20 ILJ 2106 (LC); YANTA v Minister of Education & Culture KwaZulu Natal & Another 1992 (3) SA 54 (NPD)

[18] The deeming provision takes effect after the requisite period of time has elapsed if the employee’s absence is without permission. It does not depend upon the exercise of a discretion nor does it require a decision by the employer. It is thus not reviewable administrative action. See Minister van Onderwys en Kultuur v Louw 1995(4) SA 383 (A) Van Heerden AJA at 388.

[19] Section 14(2) on the other hand provides the employer with the opportunity to ameliorate and to reconsider the potentially harsh effects of section 14(1)(a) on the employee and requires the employee to specifically address the absence which led to the discharge by the employer.

[20] In Pheniti v Minister of Education and Others [2005] 6 BLLR 614 (O), applicant challenged the Constitutionality of section 14(1)(a) of the Act. The court held that the words “unless the employer directs otherwise” allows the employer a discretion and for that reason the court concluded, the section does not flagrantly disregard the right of the employee to fair labour practices and to justifiable administrative action and could not be said to be unconstitutional. That discretion simply enables the employer either to elect to abide by the deeming provision which will have the effect of bringing the employment contract to an end by operation of law or to elect to follow some other cause of action by directing otherwise. If the employer does not exercise the discretion to “direct otherwise” the employee is protected by section 14(2). In applying its mind to the representations made by the employee in terms of section 14(2), the employer must naturally act fairly, reasonably and justifiably.”

[21] Section 14(2) recognises that employees affected by the deeming provision should, in specific circumstances, be entitled to a hearing and an opportunity to explain their absence. Several practitioners and legal commentators have made ample contributions in this area of jurisprudence and in a similarly published commentary the employment law practitioners-

Frans F Erasmus LLB (UFS) and Geraldine Kinghorn LLB (Unisa) expand as follows:

“(i) The State, as employer, is immunised against unfair dismissal claims in the realm of deemed dismissal. This is ensured by way of s 14(1) of the Employment of Educators Act 76 of 1998 (the Act) and s 17(3)(a) of the Public Service Act 103 of 1994 (PSA).

(ii) On 1 April 2008 the PSA was amended and the subsections of s 17 changed. Section 17(3)(a) of the PSA states that an employee is considered deemed dismissed if he or she absents himself from official duties without permission of the head of the department for more than a calendar month from his place of work. Section 14(1) of the Act states similar provisions except that the period is 14 consecutive days. If these three requirements (conditions precedent) are present, then the contract of employment has by operation of law (ex lege) been terminated. In Phenithi v Minister of Education and Others 2008 (1) SA 420 (SCA), the court held that the Act mentioned (the Employment of Educators Act), creates a mechanism to infer desertion. The letter of dismissal is merely a notification of that result.

(iii) The employer needs to ensure beforehand that the abovementioned conditions precedent are met before issuing a deemed dismissal letter. This implies that the employer needs to gather facts surrounding the absence before considering whether the three requirements were met or not.

(iv) In PSA obo Van Der Walt v Minister Public Enterprise and Another [2010] 1 BLLR 78 (LC) and in terms of s 17(3)(b) of the PSA or s 14(2) of the Act, the onus shifts to the employee to show good cause for reinstatement as stated in MEC: Department of Education Gauteng v Msweli 2012 JDR 1476 (LC).

(v) Written representations in the form of an application for reinstatement, needs to be drafted showing good cause for the absence. It must be shown that the absence was not wilful and that the employee always intended to return as stated in Grootboom v NPA and Another [2010] 9 BLLR 949 (LC) at 56. Annex an original document as proof of the absence. The application for reinstatement must be submitted to the head of department. Regular written follow-ups should be conducted as to its progress. Retain a properly served copy of the application for the union’s record.

(vi) In De Villiers v Head of Department: Education, Western Cape Province 2010 31 ILJ 1377 (LC) the test for reinstatement was stated by Van Niekerk J as follows: ‘… unless the employer, having regard to the full conspectus of relevant facts and circumstances, is satisfied that a continued employment relationship has been rendered intolerable by the employee’s conduct, the employer should as a general rule approve the reinstatement of the employee …’. “

(viii) In the event that the employer decides not to reinstate in terms of the application for reinstatement; the employee may refer the matter to the bargaining council and thereafter on review to the Labour Court. This track was laid down in the PSA obo Van Der Walt case.”

[22] The aforementioned authors offer more useful opinions on the manner in which the decision of the employer in an application in terms of section 14(2) ought to be considered. In the PSA obo Smit v Mphaphuli NO and Others (LC) (unreported case no C742/11, 16-4-2014) the court referred to Weder v Member of the Executive Council for the Department of Health, Western Cape [2013] 1 BLLR 94 (LC) at 35, wherein it was stated:

‘… it is difficult to assess whether a decision could have been reasonable and rational when the decision maker offers no reasons for the decision …’

The court also stated that:

‘The same must hold true of the MEC’s decision. Without him having given any reasons for his decision, it cannot be said to be reasonable. How can it be ascertained if it was reasonable, if he gave no reasons?’ The court further stated: ‘And, as Cora Hoexter notes, ‘the giving of reasons is commonly regarded as one of the more fundamental requirements of administrative justice and an important component of procedural fairness.’

[23] Finally, In De Villiers v Head of Department: Education, Western Cape Province 2010 31 ILJ 1377 (LC) and Mogola and Another v Head of the Department: The Department of Education NO [2012] 6 BLLR 584 (LC) cases, it was stated that the conduct of the state as employer will generally not constitute administrative action. Departure from this rule is justified in specific cases under specific conditions. In the Mogola matter the court held that the decision by a member of executive council (MEC) (not to reinstate) constitutes administrative action, which is reviewable under the Promotion of Administrative Justice Act 3 of 2000 (PAJA) or s 158(1)(h) of the LRA. The legislature could not have intended to deprive employees of a remedy if the discretion afforded to the MEC is improperly exercised. Even if the Labour Court cannot apply PAJA, it has jurisdiction to review administration relating to employment in terms of s 158(1)(h) of the LRA. The court stated that had the MEC applied his mind he would have realised that the conditions precedent for the invocation of the act were not present.

[24] I have a great deal of sympathy for the applicant in these proceedings and it is evident that her life has been detrimentally affected by the deemed desertion of her posting in Port St Johns and the reverting back to her erstwhile school in Port Elizabeth. One can only imagine the impact of this on her children and family especially assuming she was the breadwinner. These are areas in which sector trade unions could and should be focusing in providing awareness to, and improving the better understanding of the employment conditions of employees. From a perusal of the authorities and reported decisions, it is plain to see that numerous employees are caught unaware by the implications posited by Section 14(1) and (2) of the Educators Act, 1998 and only become aware thereof having already been deemed to have absconded and their employment having terminated as a matter of law. In today’s learning environment, teaching has become the most stressful vocation for educators and the physical and psychological pressures to which they are put by learners, society and hapless parents is affecting educator’s physical and mental well-being.

[25] Under these circumstances it is natural that the procedure set out in Section 42 of the Act has to be treated as an opportunity for the applicant to present anew, factors that the employer should take into account as grounds that the respondent can and should consider to enable it to reconsider the lapse of employment brought about as a matter of law in accordance with the deemed abandonment of office/employment.

[26] In this specific case, and this by no means this is generally the case, the applicant moved to the Thembalabantu High School in 2003. Her disastrous Dangwana Location, Port St Johns placement occurred so long ago that it is completely unrealistic to expect applicant to revert to the said school before considering the representations in terms of Section14(2) of the Act. Moreover, the section provides the employer ample discretion and the wording permits the employer to consider ‘reporting for duty’ at the school Thembalabantu High School to which she had in fact reported. The section also provides-

‘… the employer may, on good cause shown and notwithstanding anything to the contrary contained in this act, approve the reinstatement of the educator in the educator’s former post or in any other post on such conditions …” (own emphasis).

[27] The Section 42 decision making is administrative in nature and is reviewable. This means that properly submitted reasons for reconsideration can lead to a right of review depending on the ground(s) asserted for such a review.

[28] To my mind, harsh and inequitable as this route is for the applicant, short of representations made in an appropriate written format, this court is not at liberty to compel the respondents to consider the matter based purely on the replying affidavits. I also do not follow the logic of the applicant’s submission that the order of Smith J was made with the reply having been filed. If that Court had anticipated that the reply contains the necessary submissions the respondents needed to content themselves with, the learned Judge would have pointed out that those contents in the founding and reply were sufficient to enable the respondent to consider as submissions.

[29] In the result, applicant is ordered to comply with the order of the honourable Smith J and to submit its representations, in the manner set out in this judgment, in line with Section 41(2) of the Employment of Educators Act 76 of 1998 (the Act).

[30] There is no order as to costs.

Date of the hearing: 23 March 2017

Date of the judgment: 28 July 2017

For Applicant: Advocate D. Mostert Attorneys HUTTON & COOK INC. 75 Alexander Road KING WILLIAM’S TOWN Tel: (043) 642 3410 Ref: (GC WEBB/LC) For Respondent: Advocate M. Mayekiso Attorneys: THE STATE ATTORNEY C/O Shared Legal Services Office of the Premier KING WILLIAM’S TOWN Ref: 539/16-P10 Tel: (043) 706 5100 Email: noyako@justice .gov.za