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IN THE REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURTOF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

 

(1)      REPORTABLE: NO

(2)      OF INTEREST TO OTHER JUDGES: NO

(3)      REVISED.

 

CASE NO: 83544/14

10/9/2019

 

SCHOON GOOWILL MAHUMANI                                                       APPLICANT

 

AND

THE MEC OF THE DEPARTMENT OF ECONOMIC

DEVELOPMENT, ENVORNMENT AND TOURISM,

LIMPOPO                                                                                                 FIRST RESPONDENT

JUDGMENT

KHUMALO J

[1]       The Applicant, Mr Schoon Godwill Mahumani (Mahumani), an erstwhile employee of the Respondent, is seeking reimbursement of certain expenses he allegedly incurred whilst he was still in the employ of the Respondent. The expenses are formulated as follows in the order that he is praying for:

1.            Payment of the sum of R377, 309 94 in respect of secondment from Bohlabelo and Mopani district from 2005 until the actual placement/resettlement takes place;

2.            Payment in the sum of R900.00 in respect of housing allowance per month from 2007 until the actual placement /resettled takes place;

3.            That the Respondent be ordered to determine and calculate the mount due to the Applicant Payment in respect of annual vacation leave from 4 June 2002 to 13 December 2005 and payment thereof (R123,388.00)

4.            That the Respondent be ordered to determine and calculate the amount due to the Applicant Payment in the sum of R25 000.00once off in respect of resettlement costs at Mopani and payment thereof.

5.            Payment in respect of Danger Allowance in the amount of R319.00 per month from December 2009 to date;

6.            That the Respondent be ordered to determine and calculate the amount due to the Applicant in respect of performance management system assessment or the period 4 June 2002 to date and payment of the amount so determined;

7.            That the Respondent be ordered to determine and calculate the amount due to the Applicant in respect of 1%, and 1.5% pay progression from 2002 to date and payment of the amount;

8.            Costs of the Application.

 

[2]       The Respondent is the Member of the Executive Council of the Department of Economic Development, Environment and Tourism in Limpopo, cited in his official capacity as the person in control of the Department, and Nemahumani's employer .

[3]        The 54 year old Mahumani has been in the employ of the Respondent, since 1986. He started as an administration clerk progressing to an Admnistrative Officer in the Department of the Chief Minister of Economic Affairs, in the former Gaza-nkulu homeland. In 1987, he was transferred to Nature Conservation in the same Department.

 

Background facts

[4]          In 1994, with the integration of the Homelands, the Department of Economic Development Environment and Tourism, Limpopo came into being and took over all the rights and obligations of the former Department of the Chief Minister of Economic Affairs that comprised of all the employees including the Applicant.

[5]          Since his employment Mahumani has progressed in terms of the annual general salary adjustments and promotions. From 1992 to 1995 he was employed as the Head of Law Enforcement at Ritavi District in the Tzaneen area and also served as the Head of Letaba Ranch Game Reserve. In 1996 he was the Head of Environmental Education at Manyeleti Game Reserve and in 1999 the Acting Manager of the Letaba Ranch Game Reserve.

[6]          During 1999 he was promoted to Chief Nature Conservation Officer and during 2011 transferred to Environmental Officer Production Grade C, Level 8, which was his current rank at time of institution of this action and later dismissal.

[7]          In 2000 he was appointed Manager of Andover Game Reserve until 2002 when he was with full and immediate effect placed under precautionary suspension. The Disciplinary Proceedings were never finalised until 2005 when his suspension was uplifted. He was informed to report to the CEO of Bohlabelo District, in the Province of Limpopo where he served until 24 May 2006. The Bohlabelo District was on 23 May 2006 transferred to Mpumalanga under a different administration.

[8]          The Applicant was on 24 May 2006 informed in writing that the Acting Head of his Department had approved his secondment to Mopani District Office with immediate effect pursuant to his letter regarding accommodation problems he was experiencing at Bohlabela District. He was then instructed to report to the Acting CEO at Mopani District who will Inform him of his new responsibilities until further notice. He alleges to have then requested the Department to pay him staying and travelling allowances, because he was not staying at his home which was in the Giyani area.

[9]          On 26 October 2006 he was acquitted of all criminal charges in the Phalaborwa Regional Court that were brought against him. Subsequent to his acquittal, his attorneys requested a meeting with his employer to map the way forward. The attorneys highlighted that Mahumani missed out on promotions and evaluations and demanded that Respondent compensate him for the financial status he found himself. They alleged that Mahumani was severely prejudiced and suffered damages both financially in rank/grade promotion.

[10]       Following one of Mahumani's attorneys' formal demands on 7 March 2007, the Department responded on the same date informing the attorneys that it has decided to compensate Mahumani for the actual resettlement, travelling and secondment allowances he was entitled to, with effect from the time his employer uplifted his legal precautionary suspension with fullpay, that is, from 13 December 2005 to date of conclusion of his pending disciplinary hearing. The actual expenditure still to be determined. The employer disputed all the other claims.

[11) Mahumani had in turn also welcomed the decision however not accepted the time frame of the acknowledgement by the employer. Exchanges followed but there was no finalisation on the payment of the claimed monies, even the ones that the Respondent had admitted to.

[12]       When the matter came before me Mahumani had narrowed the claims to only the two expenses which the Respondent's letter alluded to having agreed to compensate him, which is resettlement and secondment costs. The rest of the claims were abandoned. I will therefore not proceed to indicate the parties' sentiments onall the other expenses that were raised by the Applicant but confine myself to the arguments that relate to the two still remaining.

 

Respondent's response

[13]       The Respondent in its response denies that Applicant's move to the two Districts Mopani and Bohlabela was a secondment and allege that it was instead a transfer. It argues that a Secondment can only be done as it is provided for in the Public Service Act 103 of 1994 (the Act} as amended and regulated in terms of s 15 (3) thereof, read together with the National Policy on Secondment of the South African Public Service Employees that the Cabinet approved on 11 June 2008 ("the Secondment Policy"), further read with the Public Service Regulation 2001 Chapter 1, Part Vll B 4.3. It submits that Mahumani's alleged secondment which was in fact a transfer to Mopani District Office was in conformity with item 7.2 (a) of PSCBC Resolution No 01 of 2003: Disciplinary Code and Procedure for the Public Service (the Code).

[14]       The Respondent pointed out that the provisions of s 15 (3) of the Act are clear that secondment of employees in the public service involves a movement of an employee of one department to another department, government or institution or body. Secondment therefore does not include movement of an employee of a department to another division or station of the same department. A department cannot second its own employee to itself, for a movement within the same department.

[15]      According to the employer Mahumani was relocated from Andover Game Reserve to Bohlabela District office of the Respondent and later to Mopani District Office in Mpumalanga which is a district office of the employer. He was never seconded and does not qualify for benefits associated with secondment.

[16]       Furthermore, notwithstanding its letter referring to Mahumani's transfer or relocation as secondment, the move did not constitute a secondment in accordance with the relevant prescripts of the applicable law. The letter 's reference to Mahumani's relocation as secondment does not change the true nature of the move, that it was rather a transfer.

[17]       The Impression erroneously created or given by its officials (The Head, Economic Development, Environment and Tourism) that Mahumani is entitled to a secondment allowance does not make Mahumani so entitled, cause the provisions of the Public Service Act are clear that any wrongly granted benefit must be recovered. Had the Applicant received any payment in the form of secondment allowance, he would have been liable to pay it back.

[18]      Mahumani is using the Respondent's erroneous reference to his transfer as a secondment to derive an undue benefit which should not to be allowed. Mahumani was nevertheless during his stay in Bohlabela accommodated in a hotel at the employer's cost. His home is in Mopani District, therefore the measures relating to secondment for his stay there do not apply to him.

[19]      The Respondent is agreed that Mahumani might be entitled to a once off payment of resettlement costs.

[20]       In essence the only dispute that remains is regarding the secondment allowance that Mahumani was adamant was owed to him.

Issues in dispute

[21]       The facts that have to be established are;

[21.1]   Whether or not Muhamani's placement on 13 December 2005 from Andover Game Reserve to Bohlabela District office of the Respondent and later on to Mopani District Office in Mpumalanga was a secondment as in terms of the law.

[21.2]  Whether there was a binding agreement between the parties to pay Muhamani the costs resultant thereby? flowing from the correspondence.

 

Legal framework

[22]      In the Public Service Secondment is regulated in terms of s 15 of the Public Service Act 103 of 1994 as amended, ("the Act'') read together with the National Policy on Secondment of the South African Public Service Employees approved by the Cabinet on 11 June 2008 ("the Secondment Policy''), further read together with the Public Service Regulations 2001, Chapter 1, Part VII 84.3.

[23]       The Secondment Policy defines Secondment as follows:

'Secondment' means an employee is, with his or her consent, placed at the disposal of another Government, an institution established by another law than that governing the employee's employment or any other body or person for a particular service or for a stated period; which placement may either be in RSA or abroad.

 

[24]       Paragraph 1 of Part A of the Secondment Policy provides as follows:

''The purpose of this policy is to provide mandates and processes according to which a Public Service employee can be seconded to another government, ( Part C refers) an institution established by another law, than that governing the employees' employment or any other body or person (Parts A and B refer)."

[25]      Paragraph 3 of the Secondment Policy in so far as it relates to public servants employed under the Act provides as follows:

 

"Legal basis and mandate for implementation

The provisions and guidelines in this policy are derived from or underpinned by the following legislative provisions:

3.1          Section 15 (3) of the Public Service Act., 1994 and other similar provisions that apply to employees employed in terms of the Defence Act, 2002, the Employment of Educators Act, 1998, the Intelligence Services Act, 1994, the Correctional Service Act, 1998, and the South African Police Services Act, 1995

 

[26]     Section 15 (3) of the Public Service Act referred to by both parties reads:

"(a) The Executive Authority of a department may second an employee of the Department to another Department, any other organ of state, another government or any other body-

(i)      for a particular service or period not exceeding the prescribed period (if any); and

(ii)         on the prescribed conditions (if any) and such other conditions as agreed upon between the executive authority and the relevant functionary of the body concerned.

 

(b)          The secondment of an employee of a department may occur only if

(i)            the employee requests, or consents to, the secondment; or

(ii)           in the absence of such request or consent, after due consideration of any representations by the employee, and the secondment is in the public interest.

(c)          While on secondment an employee remains subject to this Act and any other laws applicable to employees in the public service, except to the extent otherwise agreed upon, as provided in the paragraph (a) (ii)."

 

[27]      The contention was fixed on the interpretation of the provisions of s 15 (3) . Respondent argued that it was not meant for inter departmental deployment or transfers of employees. Whilst it was argued on behalf of Mahumani that the section's reference to any other or another body includes also interdepartmental transfers.

[28]      Section 5 (3) (a) refers to the secondment of an employee by an executive authority of his Department to another Department, any other organ of state, another government or any other body- whilst the Public Policy refers to a Public Service employee that can be seconded to another government, an institution established by another law, than that governing the employees' employment or any other body or person.

[29]      In the interpretation of statutes the words used ought to be given their ordinary grammatical meaning having due regard to their context. If the words in s 5 (3) are to be interpreted given their ordinary meaning, clearly the provisions denote an employee from an institution governed by one law to be seconded to an institution governed by another law, other than that of the employee's employment. The key word being "another'' which in contextual term means something different, alternative, new, additional.

[30]       The Policy itself also attributes a meaning that articulates an arrangement between the role players (speaks of consent) and of a placement at the disposal of "another" Government, institution established by "another" law, other than that governing the employee's employment or any other body or person for a particular service or for stated period.

[31]       From the simple ordinary reading of these regulatory legislation one gets an understanding of involvement of a separate Department or government, body or institution outside the employee's original employment as depicted by the word "another." Expectantly there would be agreements entered into indicating the period of secondment and the expected duties to be carried out and the line of reporting during the secondment. This is born by the provisions of Regulation 62 of the Public Service Regulations that provide as follows:

Secondments.- (1) A secondment in terms of section 15 (2) or (3) of the Act may only take place if-

(a)      The employee or person being seconded has the necessary competency;

(b)      The period of secondment does not exceed 12 calendar months; unless due to operational reasons determined otherwise by the Minister; and

(c)       An agreement has been concluded between the receiving and seconding department, organ of state, other government or any other body.

[32]      Secondment in employment terms means an employee secondee is by agreement or consent with his/her employer, put at the disposal of another organisation (host employer) to work for a fixed/determined period exclusively for the host employer. The employee secondee remains under the legal obligation of the original employer.

[33]      Mahumani's Counsel Ms Mphahlele in support of her contrary argument has referred to the matter of South African Democratic Teachers Union and Another v Education labour Relations Council and 2 Others case no 2575/09. Mr Raphahlelo argued that the matter did not deal with the issue of the meaning of secondment; the contention in casu, but the term secondment used loosely as presented in the papers. Mr Raphahlelo instead relied on the Constitutional Court decision of Mbatha v University of Zululand 2014 (2) BCLR 123 (CC) where the court in explaining secondment held at (98) that:

"As we have seen the provisions of section 15 (3) (a) of the PSA, a secondment covers the situation where A, an employer, allows B, its employee, to perform duties attached to a certain position in C, another entity, at the latter's request and for the latter's benefit. Indeed, B can even occupy a specific position at C and yet remain an employee of A and not C. In terms of section 15 (2) of the PSA, B could be seconded to C who would employ B for a specified period while B also remains an employee of A. So, for all intents and purposes the matter can be approached on the basis that, when the Applicant says that, beyond 31 December 2005 and as at June 2008, although he was the CEO of ISS, he remained an employee of Unizul, he means that he was still on secondment to ISS as an employee of Unizul as had been the case between September 2002 and 31 December 2005."

 

[34]      There is merit in Respondent's Counselis argument. Indeed in the SADTU matter, secondment per se was not an issue and therefore the issue regarding the application and interpretation of section 15 (3) cannot be ascertained/ determined by reference to the decision. Unlike the Mbatha decision which deals directly with the type of arrangement that is concluded in the secondment employment of a public servant. Although an employee remains employed by the original employer but his services are put at the disposal of the host/recipient employer for a specific period and with the consent of the employee.

[35]       The apparent jurisdictional requirements are therefore:

(i)      request or consent of an employee or through his/her representation;

(ii)     the employee's services put at the disposal of another/different employer; entity or institution governed by other laws other than that of the employees;

(ii)     agreement between the host employer and the original employer on the services to be rendered;

(iii)    specified period of secondment, if public servant, not to exceed (12) twelve months.

[36]       In the matter of Mokhubalo Ndaba v Department of Communications case no: JS 925/2010 decided on 11 May 2012 at the Labour Court of South Africa, Johannesburg by Rabkin Naicker J, the Applicant, Ndaba, signed two agreements with the Respondent, the Dept of Communications within a month of each other, the first one in May 2010, and the second one in June 2010. Ndaba's contract was terminated on August 2010. He then claimed a certain amount of money based on the June agreement's premature termination. The second agreement purported to be a secondment in terms of s 15 (3) of the PSA. Since 17 May 2010 Ndaba has been working as the Acting Deputy Director General Governance and Administration of the Respondent, remunerated at the Senior Management Service level, having resigned from his former position at the Office of the Pension Fund Adjudicator. During his employment with the Respondent, he took over the Department's Chief Operating Officer's job and was informed later that his job has been terminated for operational reasons and paid off his annual salary. The Respondent contended that the second agreement of employment was void and of no force or effect. Ndaba had signed both agreements with Mamodupi Mehtala who was his previous boss at the Pension Fund Adjudicator and then at the Respondent. The agreements purported to be secondment agreements. The first one headed "Consent of employee to be seconded and agreement to return to the South African Public Service on expiry of the secondment. The Respondent alleged that the alleged secondment agreements were not in compliance with the applicable legislation beings 15(3) and (4) of the PSA. Clause 1 of the agreement reads:

 

The employee:

"herewith consents to his or her secondment to the Department of Communications herein referred to as the Recipient Organisation on the conditions and terms in terms of the undertaking below"

 

[37]       The issue raised was also on the interpretation of s 15 of the PSA. The first agreement was drafted to cater for the secondment of Ndaba in terms of s 15 (3) of the PSA, out of the public service to a recipient organisation (since such an employee remains subject to the laws applicable to the employees in the public service while so placed at such disposal). It is the contract that the Director General as the delegee executive authority may enter into in order to second an employee of the Respondent to a body such as the PFA with the first contract providing in clause 10 that :

10          "obligation to continue services after the expiry of the secondment

 

[38]      The second agreement extends the secondment to 16 May 2012 and refers to Ndaba as an employee of the office of the Pension Fund Adjudicator even though dated a month and a half after he resigned from that office. There was a material amendment of the second agreement that purported to put an obligation on the Respondent to continue services after the expiry of the secondment. The agreement purports to allow for Ndaba to be received into any government department after the expiry of his contract, and to protect him from premature cancellation of the two year contract by the Respondent. However Ndaba was not a member of the Public Service before he joined the Respondent. Firstly as indicated he had resigned from PFA prior to the conclusion of the agreement. So the agreement was disguised or simulated as a secondment. He was also prior to that not a member of the Public Service anyway as the terms and conditions of employees of the PFA are determined by the Adjudicator with the concurrence of the Financial Services Board in terms of the Pension Funds 24 of1956 Act.

[39]      Ndaba was not employed anywhere when he concluded his contract with the Respondent. He said his intention was to negotiate for a longer contract period by purportedly entering into a contract of secondment, which made sense as he had resigned from his employment on the day he concluded his first contract with the Respondent.

[40]      It is common cause that Mahumani remained in the employ of the Respondent all this time, specifically on 13 December 2005 when he was placed or transferred from Respondent 's Andover Game Reserve to its Bohlabela District office and later to its Mopani District Office in Mpumalanga which are all governed by the same public servant laws, and under the authority of the Executive. His move was certainly not a secondment in terms of the law.

[41]      A Department cannot be the original employer and the host or recipient employer at the same time, which is what is supposed to happen if we follow the logic of the Applicant. The jurisdictional requirements for secondment have not been met.

[42]      The remaining question is, , notwithstanding there being no secondment, factually and legally, whether or not the Respondent bound by its Head of Department's acceptance of Mahumani's demand for secondment allowance. In the Ndaba the court had to deal with the motive and purpose which differs from intention. It thereat referred to Nienaber's statement in Hippo Quarries (TVL) (Pty) ltd v Eardley [1991] ZASCA 174; 1992 (1) SA 867 (A) at 8770 -F that:

"If the purpose of the parties is unlawful, immoral or against public policy, the transactions will be ineffectual even if the intention to cede is genuine. That is the principle of law. Conversely if their intention to cede is not genuine because the real purpose of the parties is something other than cession, their ostensible transaction will likewise be ineffectual. That is because the law disregards simulation. But whereas where the purpose is legitimate and the intention is genuine, such intention, all other things being equal, will be implemented."

 

[43]      The Respondent has alleged that the official had obviously committed an error as also indicated that no expenses of that nature were incurred by Mahumani. As there was neither a secondment in Mahumani's employment nor any expenses of that nature incurred. The Respondent accommodated Mahumani at a hotel during his deployment at the Bohlabelo District and his home is located In the Mopani District. He therefore had no costs to incur. Mahumani has not refuted these allegations, failing to file a reply. The intended move was therefore a transfer as compared to a secondment.

[44]      The Head of Department (HOD), in his letter Annexure "SGM 11'" dated 7 March 2007, that has caused all the controversy, has in clarification of Mr Mahumani's job status stated that Mahumani was seconded or transferred to the Mopani District Office in conformity with item 7.2 (a) of PSCBC Resolution No. 01 of 2003: Disciplinary Code and Procedure for the Public Service (the Code). The Item reads:

7.2         Precautionary suspension

a.          The employer may suspend an employee on full pay or transfer the employee if

i.           the employee is alleged to have committed a serious offence; and

ii.         the employer believes that the presence of an employee at the workplace might jeopardise any investigation into the alleged mis­ conduct, or endanger the well being or safety of any person or state property.

 

b.         A suspension of this kind is a precautionary measure that does not constitute a judgement, and must be on full pay.

 

[45]       The Respondent had decided to uplift the suspension and pending finalisation of Disciplinary Enquiry transfer Mahumani to its district office in Mopani, as a precautionary measure in conformity with item 7.2 (a). It is obvious that reference in that letter to being seconded is misplaced, a transfer which is also mentioned in the letter and in item 7.2. being intended. The submission by Mr Raphahlelo that an error was committed by the HOD has merit. As in Ndaba even though the HOD might have accepted to pay for the non- existent secondment, it would have been morally wrong as there was no secondment and that is not what was intended by the parties. In line with Nienaber's statement in Hippo Quarries that 'Conversely if their intention to cede is not genuine because the real purpose of the parties is something other than cession, their ostensible transaction will likewise be ineffectual.' There was binding agreement between the parties.

[46]       In respect of settlement costs, the Respondent does not dispute its liability to proven settlement expenses incurred from the time of the upliftment of his suspension with full pay that is December 2005 to date of conclusion of the disciplinary. That was indeed also indicated in the Respondent's letter SGMll. The Respondent has however indicated that it is for Mahumani to submit a legitimate claim (with documentary proof) of the expenses incurred as a result of the settlement, proving his entitlement for compensation for such expenses.

[47]      On the other hand what Mahumani was seeking was confusing that the Respondent be ordered to determine and calculate the amount due to him. Payment in the sum of R25 000.00 once off in respect of resettlement costs at Mopani and payment thereof. The two are not being stated in the alternative. During argument Mahumani's counsel then submitted that what heis actually seeking is not the once off payment but for the Respondent to calculate the amount due to him, notwithstanding that he would indeed be in a better position to determine what costs he incurred that were related to his settlement /relocation to Mopani.

 

to calculate the amount due to him, notwithstanding that he would indeed be in a better position to determine what costs he incurred that were related to his settlement /relocation to Mopani.

[48]      The Respondent had validly sought that the order that is granted to Mahumani should be subject to him furnishing the Respondent with proof of the costs incurred which he states as proof of entitlement to the costs.

[49]      For the determination of costs I have taken into consideration that: Mahumani abandoned all his claims except the two, that is for secondment and settlement allowances, which is two out of the initial (7) seven claims in its Notice of Motion. He was not successful on the secondment claim. He, on the issue of settlement costs failed to detail what exactly were the settlement costs or expenses he incurred and the extent thereof. Seeing that the Respondent had agreed and indicated to Mahumani that it is in principle not disputing the costs but requires documentary proof, his failure toproduce thedocumentation and resorting to instituting legal proceedings was unreasonable. He had also not timeously filed heads of argument and failed to set the matter down for hearing. The matter was set down by the Respondent . So the overall manner in which Mahumani dealt with the matter does not justify a cost order in his favour but against him .

[50]      Mahumani's counsel also alleged that on reading the filed Respondent 's Answering Affidavit they realised that the two issues were conceded and therefore decided to proceed only with the two. The Respondent's Answering Affidavit was filed on 2 September 2015. Since then the Applicant has not done anything to finalise the matter.

[51]       The Applicant, having abandoned prayers 2, 3, 5, 6 and 7 of its Application, I make the following order that:

1.          The Applicant's Application for an order in terms of Prayer 1 is dismissed.

2.         The Applicant's Application for an order in terms of prayer 4 is granted. The Respondent is to pay the Applicant's proven settlement costs that Applicant incurred with effect from the date Applicant's suspension was uplifted to date of the conclusion of the Disciplinary Enquiry.

3.         The Applicant is to pay 50% of Respondent's taxed costs.

 

 

 

N V KHUMALO J

JUDGE OF THE HIGH COURT

GAUTENG DIVISION, PRETORIA

 

 

 

On behalf of Appellants:                               L MBANJWA INCORPORATED

Instructed by:                                                 TEL: 012 752 3177

                                                                        REF: L MBANJWA/B36

                                                                        TEL: 012 322 4660

 

On behalf of Respondent:                             ADV RAPHAHLELO

Instructed by:                                                THE STATE ATIORNEYS OFFICE

REF: A HONG0/00191/15/236

TEL: 012 3091514

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