Peter v Member of the Executive Council Department of Education Eastern Cape Province and Others (P 276/12) [2015] ZALCPE 16 (5 March 2015)
The court held that the applicant had not complied with the mandatory requirements of the Department's transfer policy, specifically by failing to submit a completed application form as required by circular 19 of 2007. The incomplete form did not provide the necessary information for the Department to properly...
Source-derived case information.
- Citation
- [2015] ZALCPE 16
- Parties
- Applicant: Nomandlovu Edna Peter; Respondent: Member of the Executive Council Department of Education Eastern Cape Province; Respondent: Head of Department Eastern Cape Province; Respondent: Minister of Basic Education; Respondent: Director-General Department of Basic Education
- Court
- Labour Court Port Elizabeth
- Jurisdiction
- South Africa
- Case Number
- P 276/12
- Procedural Posture
- Review Application / Judgment
- Outcome
- Application dismissed.
- Judges
- Lallie
- Legal Topics
- Employment of Educators Act, Transfer Policy, Procedural Compliance, Administrative Action
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nomandlovu Edna Peter
Applicant
Member of the Executive Council Department of Education Eastern Cape Province
Respondent
Head of Department Eastern Cape Province
Respondent
Minister of Basic Education
Respondent
Director-General Department of Basic Education
Respondent
Procedural Posture
Review Application / Judgment
Legal Issues
- 1 Whether the applicant is entitled to compel the Department to consider her transfer application despite submitting an incomplete application form.
- 2 Whether compliance with the Department's transfer policy is a prerequisite for consideration of a transfer application.
Ratio Decidendi
The court held that the applicant had not complied with the mandatory requirements of the Department's transfer policy, specifically by failing to submit a completed application form as required by circular 19 of 2007. The incomplete form did not provide the necessary information for the Department to properly consider the transfer request. The court found that the Department is entitled to enforce its transfer policy and cannot be compelled to consider an application that does not meet its procedural requirements. Therefore, the application was dismissed.
Court Disposition
Application dismissed.
Orders
- The application is dismissed.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF SOUTH AFRICA
IN THE LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
Case No: P 276/12
DATE: 05 MARCH 2015
Not Reportable
In the matter between:
NOMANDLOVU EDNA PETER............................................................................................Applicant
And
THE MEMBER OF THE EXECUTIVE COUNCIL
DEPARTMENT OF EDUCATION
EASTERN CAPE PROVINCE...................................................................................First Respondent
THE HEAD OF DEPARTMENT
EASTERN CAPE PROVINCE...............................................................................Second Respondent
THE MINISTER OF BASIC EDUCATION............................................................Third Respondent
THE DIRECTOR-GENERAL
DEPARTMENT OF BASIC EDUCATION...........................................................Fourth Respondent
Heard: 26 February 2014
Delivered: 5 March 2015
Summary: The applicant cannot seek this court to compel the Department to determine her application for a transfer when she has not submitted a completed application form in terms of the transfer policy.
LALLIE J
[1] The applicant is employed by the Department of Education of the Eastern Cape Province (“the Department”) as an educator, attached to the post establishment of Lilithalethu Junior Secondary School (“Lilithalethu”) in Idutywa. She has, for some time requested the second respondent, to consider her transfer in terms of section 8 of the Employment of Educator’s Act of 1998 (“the EEA”). Her request is based on her need to work in Port Elizabeth, closer to her family. In this application she seeks an order directing the respondents to consider her application from Lilithalethu to another post and thereafter to advise her through her attorneys of the outcome of her application. The application is opposed by the respondents on the grounds that the applicant has not submitted an application for transfer in accordance with the required procedure as set out in circular 19 of 2007 which provides for the procedure to transfer permanent serving employees (“the circular”). The circular requires an employee who wishes to be transferred to complete an application form for transfer.
[2] It is common cause that the applicant’s headmaster told her in 2010 to complete the transfer application form. The applicant conceded that she submitted an incomplete application form on or about 11 August 2011. I have perused the applicant’s transfer application form. It is incomplete and does not comply with the circular. The applicant indicated in the form that she seeks an inter district/ inter provincial transfer. The form required her to complete and submit the whole of sections A and C for the inter district transfer and the whole of sections A and D for the inter provincial one. The way the directions for the completion of the transfer application form are couched is telling. It requires specific information for a specific application. I have perused the application form and it supports the respondent’s version. The applicant has given no valid reasons for her failure to complete the application form properly. The correspondence between the applicant and the Department did not sanitize her omission to complete the form properly. The form forms part of the transfer policy which the Department has to enforce as part of its obligation to manage its many employees properly. The information the applicant did not provide would have placed the Department in a position to determine her transfer application properly. The correct completion of the application form is a prerequisite for the consideration of the application for transfer. This court cannot compel the Department to consider the applicant’s application for transfer when she has not completed and submitted her application correctly and in terms of the transfer policy.
[3] In the premises, the following order is made:
3.1 The application is dismissed.
Lallie J
Judge of the Labour Court of South Africa
APPEARANCES
For the Applicant: Advocate Grobler
Instructed by: Michael Randell Attorneys
For the respondent: Advocate Gauss
Instructed by: The State Attorney