South African Medical Association obo Ntumba v MEC, Department of Health, Eastern Cape and Another (PR 66/2022) [2024] ZALCPE 12; (2024) 45 ILJ 1659 (LC) (12 April 2024)

IN THE LABOUR COURT OF SOUTH AFRICA, GQEBERHA

Not Reportable

Case no: PR 66/2022

SOUTH AFRICAN MEDICAL ASSOCIATION obo

GEORGES BANTU NTUMBA

Applicant

and

MEC, DEPARTMENT OF HEALTH, EASTERN CAPE

First Respondent

HOD, DEPARTMENT OF HEALTH, EASTERN CAPE

Second Respondent

Heard: 24 October 2023

Delivered: This judgment was handed down electronically by circulation to the parties' legal representatives by email and publication on the Labour Court’s website. The date and time for the hand-down is deemed to be on 12 April 2024.

JUDGMENT

TLHOTLHALEMAJE, J.

Introduction:

[1] SAMA representing its member, Dr Georges Banga-Bantu Ntumba (Dr Ntumba) approached the Court to seek an order directing the second respondent (MEC), to unblock his persal[1] number, and further directing the MEC and Head of Department of the Department of Health to consider and provide the outcome of the appeal of the decision to dismiss him from its employ.

[2] This matter was initially enrolled for a hearing on 24 October 2023. Following a hearing of the matter, the parties had agreed that judgment should be held in abeyance whilst they engaged in settlement discussions. It was further agreed that should the discussions fail, the parties will approach the Court in that regard and for the judgment to be prepared.

[3] The Court was however perturbed when it was made aware of a complaint lodged by the applicants with the Acting Judge President of this Court on 12 February 2024 about the delays in the delivery of the

judgment. This is in circumstances where both parties had not as per the agreement on 24 October 2023, jointly approached the Court to inform it of the outcome of the settlement discussions. The circumstances leading to the complaint about the delays in the delivery of the judgment are indeed unfortunate.

Background:

[4] The facts of this case are largely common cause save where indicated. Dr Ntumba was employed by the Department of Health on 1 March 2018 and was placed at the Taylor Bequest Hospital in Matatiele. On 9 March 2020, he was served with a notice to attend a disciplinary enquiry to answer to charges of misconduct related to negligence

including inter alia, the handling and diagnosis of patients, breach of overtime policies and providing fraudulent medical certificates to the Department. Dr Ntumba had pleaded guilty to four charges even though he was found guilty on three of them. He was then dismissed by the Department on 2 March 2021.

[5] Dr Ntumba then lodged an appeal on 2 March 2021. On 15 March 2021, and before the appeal hearing could be convened, he handed in his letter of resignation from his post with immediate effect. The respondents responded on 18 March 2021 and advised him that given his tender of the resignation, the reason for the dismissal would be recorded as misconduct on persal. Effectively, the respondents accepted the resignation and accordingly recorded it as a dismissal for misconduct.

[6] It appears that upon his dismissal Dr Ntumba had applied for another post in the Gauteng Health Department and was successful. His appointment could not however be processed as his persal number was blocked on the national system. This is the standard practice in the public service where an employee was dismissed in one department and sought any other position in the public service.

[7] Dr Ntumba then referred an alleged unfair dismissal dispute to the Public Health and Social Development Sectorial Bargaining Council (PHSDSBC) in July 2021. The PHSDSBC issued a ruling on 19 November 2021 to the effect that the referral was premature in the light of the pending appeal, and thus declined jurisdiction.

[8] It is contended on behalf of Dr Ntumba that despite several correspondence to the respondents through his attorneys inclusive of as at 18 May 2022, the appeal hearing was not convened. It was contended that as a result, he cannot be appointed by the Gauteng Health Department as his persal number remains blocked by the respondents.

The pleadings and submissions:

[9] It needs to be stated that it is not clear from the applicants’ pleadings what the legal basis upon which this Court’s jurisdiction is engaged, or which provisions under the Labour Relations Act[2] are relied upon for the relief sought. All that was stated in the founding affidavit without more, was that the Court enjoyed jurisdiction on the grounds that the respondents’ registered office was situated within the territorial jurisdiction of the Court. What the applicants seek however as correctly pointed out on behalf of the respondents, is in effect a mandamus.

[10] The respondents’ answering affidavit was filed and served out of time and condonation was sought in that regard. The State Attorney’s Ms Hanli Glanvill deposed to an affidavit in which she proffered an acceptable and reasonable explanation for the 20 days delays in filing an answering affidavit. Based on the clearly not so excessive delay, the submissions made in regards to the respondents’ prospects of success, the prejudice that would be suffered should condonation not be granted, and further taking into account the overall interests of justice, I am satisfied that good cause was shown necessitating that condonation be granted.

[11] In opposing the relief sought, the respondents contend that despite Dr Ntumba’s resignation, the appeals committee considered his appeal in July 2022 and upheld his dismissal. It was however pointed out that in the light of the resignation, the outcome of the appeal was moot as it would not revive the employment relationship.

[12] To the extent that Dr Ntumba sought to compel the respondents to unblock his persal in order to enable him to take a new position in the Gauteng Department, the respondents contended that the relief sought was incompetent in that the Department of National Treasury and the Department of Public Service and Administration (DPSA) were responsible for the blocking/unblocking of persal numbers. It was further submitted that where an employee in the public service was found guilty of misconduct and subsequently

dismissed, the reasons thereof were recorded on the persal system and subsequently rendered inactive. This meant that an ex-employee would be barred from subsequent appointments within the

public service for a designated period, until that period lapsed.

[13] It was further submitted on behalf of the respondents that where an ex-employee sought to be employed whilst the persal was blocked, it was for the new department to take the necessary steps with and through the National Department of Treasury and the DPSA, to have it unblocked and render it active. In the light of the above, it was submitted that the application should have been instituted against the National Treasury and the DPSA, and there was thus a mis-joinder or non-joinder.

[14] In the replying affidavit, the applicants contend that the resignation letter was submitted after the appeal was lodged, and that the respondents had a duty to prosecute it. They further contend that the resignation letter and the respondents’ response thereto had no legal effect in the light of the provisions of section 16B(6) of the Public Service Act[3]. It was further submitted that since Dr Ntumba was already dismissed and had lodged an appeal, he was in essence discharged from his duties under a contract of employment and he could therefore not have resigned. It was denied that the outcome of the appeal of July 2022 was received as alleged by the respondents, and that no documentation was disclosed in regards to the outcome of that appeal. It was pointed out that the respondents had conceded that such an outcome was not communicated to the applicants.

Evaluation:

[15] For the purposes of determining this dispute, and notwithstanding the concerns raised in relation of the legal basis of this Court’s jurisdiction, the Court will proceed to determine two principal issues in contention in this matter.

(i) The effect of the dismissal and subsequent resignation:

[16] The enquiry in this regard is the effect of the resignation in view of the fact that the disciplinary process had ended with a dismissal, and that an appeal was lodged in that regard. The legal principles applicable in circumstances where an employee resigns in the face of impending disciplinary proceedings, and an employer’s rights in that regard were set out by the Labour Appeal Court (LAC) in Standard Bank of South Africa Limited v Nombulelo Cynthia Chiloane[4]. Thus, where an employer and employee had agreed on the period of termination of the employment contract, lawful termination may only take place where the period agreed to in the contract is complied with. In such circumstances, the resignation of that employee with immediate effect does not automatically terminate the employment relationship.

[17] The LAC further added that the employment relationship can only terminate at the election of the employer, who may either insist on the notice period or choose to waive it. Should the employer choose to enforce the notice period, disciplinary measures may still proceed during the period of the notice. If there is no written contract of employment, the employer may elect to follow the notice periods as promulgated in the Basic Conditions of Employment Act[5], and hence still proceed with disciplinary action during such period. Thus, the act of communicating a resignation is not a breach or a repudiation of the contract, but an exercise of a right conferred by the contract. Effectively, a resignation that is not in compliance with contractual notice requirements does not validly terminate the contract of employment unilaterally.

[18] The question that arises in this case against the above legal principles is whether the fact that the dismissal took effect before the resignation makes this case distinguishable from Standard Bank. This was so in that the respondents’ contention was that the resignation was accepted as a dismissal for misconduct, and

once this was the case, the convening or outcome of the appeal process was rendered moot. It had also been submitted that in any

event, the appeal process was finalised in July 2021, something which the applicants disputed as there was no documentary evidence in that regard.

[19] As a starting point, it needs to be said that reliance by the applicant on the provisions of section 16(B)(6) of the Public Service Act is misplaced for the simple reason that it refers to a notice of a disciplinary hearing having been issued. The facts of this case however indicate that the respondents had passed that stage, as a dismissal had taken place after the hearing was held. The only issue outstanding was the appeal outcome, which is a matter which falls under section 16(B)(2)(a). This section deals with the lodging of internal appeals, and when a sanction flowing from a hearing may take the effect.

[20] The principles set out in Kynoch Fertilizers Limited v Webster[6] appear to be on point in relation to the facts in casu. That matter came before the then LAC under the provisions of the now repealed section 17(21A)(a) of the Labour Relations Act of 1956[7]. The employee in that case following a disciplinary enquiry was found guilty of dishonesty and dismissed. Subsequent thereto, the employee had immediately handed in his resignation letter which the employer had accepted. The employee approached the then Industrial Court with a claim of unfair dismissal and the matter ended at the then LAC. The LAC found that the resignation by the employee, and its acceptance by the employer, amounted to a settlement, and that the employee had made an informed choice between litigation and securing an unblemished reference. Thus having made this choice, the employee was not entitled to seek relief, whether in the form of reinstatement or compensation.

[21] Whether the findings in Standard Bank are at irreconcilable with those in Kynoch is debatable as the facts in these two cases are clearly distinguishable, and further since the relief sought in the latter case was different. In the former, the facts were that the disciplinary proceedings had not taken place whilst in the latter and as in this case, the disciplinary process had run its course, but for the fact that the appeal process was not completed.

[22] The Court in this case was not referred to any other decision that makes the one in Kynoch bad in law or inapplicable, even if contractual principles or the provisions of the BCEA applies to resignations. Kynoch therefore on its facts as distinguishable from those in Standard Bank remains binding on the doctrine of stare decisis.

[23] Accordingly, and based on the facts of this case, Dr Ntumba upon being dismissed, had through his subsequent resignation, which the respondents had accepted by recording the resignation as a dismissal for misconduct, made an informed choice to abandon the appeal. His lodging of an appeal even prior to his resignation made that appeal moot as there was a resignation and its acceptance. By that acceptance, the respondents had waived their contractual rights in respect of enforcing the contractual notice period.

[24] It follows that the applicants could not have relied on the provisions of section 16B(2)(a) for the proposition that an appeal authority had not confirmed the sanction pronounced by the chairperson of a disciplinary hearing in that as a result of the resignation which the respondents had accepted by waiving contractual rights to resignation notice, and the consequences thereof as recorded by the respondents, any appeal was rendered moot. The Court in these circumstances can but not resist taking judicial notice of Dr Ntumba’s stratagem, which was to move to the Gauteng Health Department as if he had merely resigned from the former employer rather than being dismissed. Clearly he did not anticipate that the consequences of his resignation as recorded as a dismissal for misconduct by the respondents would affect his persal. It follows that there is no basis for an order to be made compelling the respondents to convene an appeal hearing when on the facts, he had abandoned that appeal by resigning before the appeal was convened, and when he was advised of the consequences of that resignation.

(ii) Can the respondents be compelled to unblock the persal number?:

[25] Regulation 61 of the Public Service Regulations[8] prescribe that any employee who, effective from 1 August 2016 or thereafter, is dismissed due to misconduct, may not be re-appointed

in the public service for periods specified, depending on the nature of misconduct. In this case, this would have meant that Dr Ntumba would have been barred for one year from being employed in the public service as he was dismissed for conduct related to the performance of his official duties. Dr Ntumba was dismissed on 2 March 2021. The prohibition period applicable to him has obviously long lapsed as at the hearing of this matter. There is no legal basis therefore that it can be said that he remains unemployable in the public service.

[26] The applicants contended that as at 22 June 2022 Dr Ntumba’s persal remained blocked as verified with Gauteng Treasury, and that despite attempts to get the respondents’ assistance or that of the Gauteng Health Department, the blockage remained.

[27] The respondents have consistently maintained that only the Department of National Treasury and the DPSA are responsible for unblocking the persal number. It is common knowledge that National Treasury implemented the persal system, and is responsible for the expenditure related to its maintenance, training and support. It is also the business owner for the payroll function within persal. The DPSA on the other hand is the department responsible for HR policies within various departments and is the business owners for the personnel administration function (excluding payroll) within persal.

[28] The applicants had disputed that National Treasury acted independently in recording information regarding the blocking of persal, and that in this case it is the respondents that ought to facilitate the process of unblocking it. The respondents might be tasked with the recording of the information on the persal system, but as already indicated, it is the new department that seeks to employ an employee from another department that must facilitate

its unblocking. It is in this regard that it is concluded that there is merit in the respondents’ contentions that even if the information was recorded by them, the task is for the Gauteng Health Department to take steps to unblock Dr Ntumba’s persal. The applicants have not stated if Gauteng Department has taken any steps in this regard other than to mention that the latter could not finalise Dr Ntumba’s appointment. Equally so, the applicants have not indicated the legal basis upon which it is said that the respondents are empowered to unblock the persal.

[29] It is not therefore sufficient for the applicants to simply allege that Gauteng Health Department was approached to unblock the persal and was unsuccessful, when it is not known what it is that it had done, and that therefore the task falls on the respondents. As correctly pointed out on behalf of the respondents in reference to Limpopo Legal Solutions and Another v Eskom Holdings Limited[9] and the relief of a mandamus, the respondents cannot be compelled to do something they are not obliged to do under any enabling statute. In the absence of demonstrating how the respondents are legally obliged to unblock Dr Ntumba’s persal, the claim and relief sought against them in this regard is legally unsustainable.

[30] In the end however, this application was superfluous to the extent that the period of prohibition of Dr Ntumba’s appointment in the public service has long lapsed since his dismissal. This is so based on the provisions of Regulation 61 of the Public Service Regulations read with the provisions of section 17(4)(a) of the Public Service Act. To the extent that Gauteng Health Department seeks to employ him, the respondents had correctly pointed

it is for that department to facilitate the unblocking of the persal.

[31] Against the above conclusions, it follows that the relief sought against the respondents that they must unblock Dr Ntumba’s persal is not only not competent, but also that it cannot be granted because of either non-joinder or misjoinder.

[32] Further having had regard to the requirements of law and fairness to the extent that the respondents sought a costs order, it is my view that on the facts and circumstances of this case, each party must be burdened with its costs.

[33] Accordingly, the following order is made;

Order:

1. The late filing of the respondents’ answering affidavit is condoned

2. The applicants’ application is dismissed.

3. Each party is to pay its own costs.

Edwin Tlhotlhalemaje

Judge of the Labour Court of South Africa

APPEARANCES:

For the Applicants: Ms S. Masitenyane, of Madiba Motsai Masitenyane & Githiri Attorneys For the First and Second Respondents: Adv. M. Thys, instructed by the State Attorney, Gqeberha.

[1] An integrated Human Resource, Personnel & Salary System and defined in Section 1(h) of PUBLIC FINANCE MANAGEMENT ACT, 1999 (ACT NO 1 OF 1999): TREASURY REGULATIONS ON GOVERNMENT PAYROLL DEDUCTIONS as; ‘Persal means the personnel salary system of government in the national and provincial sphere and includes reference to Persol’

[1] An integrated Human Resource, Personnel & Salary System and defined in Section 1(h) of PUBLIC FINANCE MANAGEMENT ACT, 1999 (ACT NO 1 OF 1999): TREASURY REGULATIONS ON GOVERNMENT PAYROLL DEDUCTIONS as;

‘Persal means the personnel salary system of government in the national and provincial sphere and includes reference to Persol’

[2] Act 66 of 1995, as amended.

[3] ‘16B. Discipline 1. Subject to subsection (2), when a chairperson of a disciplinary hearing pronounces a sanction in respect of an employee found guilty of misconduct, the following persons shall give effect to the sanction: a. In the case of a head of department, the relevant executive authority; and b. in the case of any other employee, the relevant head of department. 2. Where an employee may lodge an internal appeal provided for in a collective agreement or in a determination in terms of section 3 (5), a sanction referred to in subsection (1) may only be given effect to- a. if an internal appeal is lodged, after the appeal authority has confirmed the sanction pronounced by the chairperson of a disciplinary hearing; or b. if no internal appeal is lodged, after the expiry of the period within which the appeal must have been lodged. 3. The Minister shall by regulation make provision for- a. a power for chairpersons of disciplinary hearings to summon employees and other persons as witnesses, to cause an oath or affirmation to be administered to them, to examine them, and to call for the production of books, documents and other objects; and b. travel, subsistence and other costs and other fees for witnesses at disciplinary hearings. 4. If an employee of a department (in this subsection referred to as 'the new department'), is alleged to have committed misconduct in a department by whom he or she was employed previously (in paragraph (b) referred to as 'the former department'), the head of the new department- a. may institute or continue disciplinary steps against that employee; and b. shall institute or continue such steps if so requested- i. by the former executive authority if the relevant employee is a head of department; or ii. by the head of the former department, in the case of any other employee. 5. In order to give effect to subsection (4), the two relevant departments shall co-operate, which may include exchanging documents and furnishing such written and oral evidence as may be necessary. 6. If notice of a disciplinary hearing was given to an employee, the relevant executive authority shall not agree to a period of notice of resignation which is shorter than the prescribed period of notice of resignation applicable to that employee.’

[3] ‘16B. Discipline

1. Subject to subsection (2), when a chairperson of a disciplinary hearing pronounces a sanction in respect of an employee found guilty of misconduct, the following persons shall give effect to the sanction:

a. In the case of a head of department, the relevant executive authority; and

b. in the case of any other employee, the relevant head of department.

2. Where an employee may lodge an internal appeal provided for in a collective agreement or in a determination in terms of section 3 (5), a sanction referred to in subsection (1) may only be given effect to-

a. if an internal appeal is lodged, after the appeal authority has confirmed the sanction pronounced by the chairperson of a disciplinary hearing; or

b. if no internal appeal is lodged, after the expiry of the period within which the appeal must have been lodged.

3. The Minister shall by regulation make provision for-

a. a power for chairpersons of disciplinary hearings to summon employees and other persons as witnesses, to cause an oath or affirmation to be administered to them, to examine them, and to call for the production of books, documents and other objects; and

b. travel, subsistence and other costs and other fees for witnesses at disciplinary hearings.

4. If an employee of a department (in this subsection referred to as 'the new department'), is alleged to have committed misconduct in a department by whom he or she was employed previously (in paragraph (b) referred to as 'the former department'), the head of the new department-

a. may institute or continue disciplinary steps against that employee; and

b. shall institute or continue such steps if so requested-

i. by the former executive authority if the relevant employee is a head of department; or

ii. by the head of the former department, in the case of any other employee.

5. In order to give effect to subsection (4), the two relevant departments shall co-operate, which may include exchanging documents and furnishing such written and oral evidence as may be necessary.

6. If notice of a disciplinary hearing was given to an employee, the relevant executive authority shall not agree to a period of notice of resignation which is shorter than the prescribed period of notice of resignation applicable to that employee.’

[4] [2020] ZALAC 58; [2021] 4 BLLR 400 (LAC); (2021) 42 ILJ 863 (LAC) at paras 14 – 22. See also Mthimkhulu v Standard Bank of South Africa [2020] ZALCJHB 201; [2021] 1 BLLR 86 (LC); (2021) 42 ILJ 158 (LC).

[5] Act 75 of 1997.

[6] [1998] 1 BLLR 27 (LAC).

[7] Act 28 of 1956.

[8] GNR.877 of 29 July 2016: Public Service Regulations, 20161 (Government Gazette No. 40167).

[9] [2017] ZALMPPHC 1 (17 February 2017) at para 27.