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IN THE HIGH COURT OF SOUTH AFRICA

BISHO

CASE NO. 974/06

In the matter between:

NONTUTUZELO SISILANA Applicant

(and the further Applicants listed in Annexure “A”

and

THE MEMBER OF THE EXECUTIVE COUNCIL Respondent

THE DEPARTMENT OF HEALTH,

EASTERN CAPE PROVINCE

JUDGMENT

SANGONI J:

1. The applicant is Nontutuzelo Sisilana, an adult female employee of the Department of Health in the province of the Eastern Cape (“the department”), attached to Cofimvaba Hospital (“the hospital”) at Cofimvaba. She has instituted these proceedings in her personal capacity as well as on behalf of forty three other applicants (“further applicants”), also in the employ of the department at the aforestated hospital. Whenever I refer to ‘the applicants’ in this judgment, the term will be inclusive of both the applicant and further applicants.

2. The respondent is cited in her capacity as the political head of the department. A point in limine raised by the respondent is that the application is fatally flawed due to the non-joinder of the Head of the Department, who is the accounting officer and the person with whom the authority to grant second or third notches rests, in terms of the relevant prescripts¹. The Head of the Department is however, required to act on advice of a co-ordinating body (“the Committee”).

3. Following agreements reached in the then Central Chamber of the Public Service Bargaining Council (CPSBC), particularly Agreement 2/96, the Department of the Public Service and Administration issued Circular No 1 of 1996 dated 20 June 1996. By means of that circular a new salary grading system was introduced, it to take effect from July 1996. Its effect was that the normal automatic salary progression, based on annual salary increments on a salary scale, was abolished. The government departments and provincial administrations became responsible to grant deserving individual employees second or third notches of their salary ranges. This would be dependant on an individual’s personal profile, based on experience, skills and other appropriate attributes, markedly higher than the norm set for the relevant posts. The profile would be established over some time, referred to as the assessment period, which would normally be a period of a year. The broad criterion in assessing the profile would be a profile that is “markedly higher than the norm set for the posts they occupy” ². The common denominators would be skills, knowledge, experience, training, qualifications and performance.

4. The subject-matter of the current dispute between the parties is the alleged failure by the Eastern Cape Department of Health to process the second and third notch increments, as the case may be, for the individual applicants. The kind of order sought by the applicants is in the following terms:

“1. Declaring that the administrative action of the Department of Health, Eastern Cape Province, in:

1. Failing to consider and/or process the second or third notch increments in respect of the Applicant and the further Applicants hereinbefore referred to, for varying periods ranging as per annexure “A”, from 1996 to 2001;

2. Failing to respond to the reasonable request of the Applicant and the further Applicants aforementioned to deal with the matter, as aforesaid more specifically in reference to the Applicants’ attorneys’ letter of 17 March 2006, constitutes administrative action which is unlawful, unreasonable and procedurally unfair under the provisions of Section 33 of the Constitution of the Republic of South Africa, 1996, and as such, a violation of the constitutional rights of the Applicant and the further Applicants referred to above.

2. Declaring that the failure of the Department of Health, Eastern Cape Province to process the notch increments in respect of the Applicant and the further Applicants referred to above, whilst processing and approving other employees’ notch increments, constitutes a violation of the rights of the Applicant and the further Applicants referred to above, as envisaged in Section 9 of the Constitution of the Republic of South Africa, 1996 which provides that the Applicants are entitled to equality and not to be unfairly discriminated against.

2. Directing that the Department of Health, Eastern Cape Province process the notch increments of the Applicant and further Applicants referred to above, in respect of the relevant periods referred to in annexure “A”, and ranging from 1996 to 2001.”

5. In sub-paragraph 1.2 above the applicants seek a declarator, that the ‘administrative action’ in failing to address their claims is unlawful, unreasonable and procedurally unfair under the provisions of section 33 of the Constitution of South Africa. This appears to be a repetition of what is contained in sub-paragraph 1.1 and does not merit any separate attention.

6. To be entitled to one of the notches the employee would have to complete a prescribed form wherein the employee furnishes information that serves to show distinguished services he/she rendered. This would be submitted to the supervisor who would assess the application in terms of the prescribed scoring system. The application would then be forwarded to the Committee, from there to the Head of Department for final evaluation and decision. The applicant would then be advised of the outcome of the application. The decision to grant one or the other notch would depend on whether the budgetary limits of the particular department allowed.

7. I should first dispose of the in limine point taken. Much as the subject-matter of the dispute between the parties concerns the second and/or third notches, the real basis for the cause of action is “failing to consider and/or process the second or third notch increments” in respect of the applicants. That is distinct from alleging impropriety on the part of the Head of Department, a person holding the power to approve the allocation of a notch. To reinforce this view, the applicant states in her founding affidavit that she became entitled to advancement to second notch status which she believes was approved by the department but had not been implemented due to shortage of funds. This suggests that approval was obtained. She further supports her contention by saying: “the Eastern Cape Government has failed in its constitutional duties and obligations, and violated my constitutional rights as also the rights of the further Applicants, and also to rectify the position and direct the Respondent to take appropriate steps to process my (and the further Applicants) notch increments to which we are entitled.” This second allegation appears to contradict the earlier one. Inspite of these allegations no relief is sought against the Eastern Cape Government per se. The role of the Head of Department has also not been attacked. In my view the Head of the Department has not been shown to have an interest in the matter. On that basis I reject the argument that a case for non-joinder has been established.

8. It is common cause that the granting of the second or third notches is subject to the availability of funds as the allocation of the relevant notches is to be funded from the budgets of the particular department or provincial administration that grants or allocates the notches. In terms of the relevant enabling documents³ the awarding of the second and third notches was meant to be a once-off exercise to an individual public servant who qualifies. Under the authority of the Eastern Cape Director General, the Human Resource Operational Project Team (HROPT) issued Circular 26 of 1997 on 3 October 1997. It dealt with the provisioning of a questionnaire to be utilised for the assessment of personnel for purposes of granting the second and third notches. This is an interesting development when viewed against the backdrop of the respondent’s averments in defence. That is, despite the embargo from 1996, steps were still being taken to ensure the availability of the relevant questionnaire to be utilised for the assessments.

9. The respondent alleges that before the rationalisation of the public service there was illegal looting of the funds belonging to the State through unlawful promotions and notch allocations prior to 1994. That had a negative effect on the availability of funds for the allocation of the relevant notches. As a result an embargo was placed by the Province on all rank promotions and notch allocation processes between 1 July 1996 and 1 July 2001. It is however not spelt out how precisely the said embargo took effect but there is no evidence to gainsay that there was. Whether that was proper is irrelevant, given the nature of the relief sought. The respondent’s explanation is that nobody was entitled to an allocation of a second or third notch within the Eastern Cape Department of Health at the time the embargo on notch allocation was in place. By means of Circular 72 of 2002, issued by the department on 12 September 2002, the embargo was lifted but only for the 2001/2002 assessment period. The respondent further avers that the applicants were successfully assessed during the 2001/2002 assessment period and that the applicant and forty out of the forty three further applicants received notch allowances. It is implicit in that statement that the rest did not satisfy the criteria. The payment for the notches was acknowledged by Ms Collett, counsel for the applicants. She, however, submitted what was sought by the applicants related to a period prior to 2001. In my view what was paid represented the period from 1996 as the allocation could only be done once. If there is any loss incurred as a result of the late processing or payment, the determination thereof does not fall within the ambit of this case.

10. In her heads of argument, Ms Collett, representing the applicants, makes the following points:

1. The respondent has failed in his constitutional obligations to rectify the notch increments to which they are entitled.

2. The applicants did not appear on a list on 1^st July 2005 of persons for notch increase. (This has not been canvassed in the founding papers.)

3. The respondent, having admitted approving rank promotions for other persons but provides no cogent reason why the applicants were not rank promoted.

4. The applicants should have been considered for notch increase for the period 1996 – 2001.

11. What emerges from what is set out above is that the applicants seem to have confused rank promotions with the awarding of second and third notches of salary levels based on personal profiles. They also seem to make no distinction between the grant of second and third notches and other notch allocations. This is borne out by the fact that in the replying affidavit the applicant avers that in terms of the relevant prescripts, the department was not entitled to make selective recommendations when it comes to notch increases. One of the provisions referred to by the applicant, surprisingly, starts off by stating “performance and affordability should be the main determining factors in determining the number of personnel to be placed on the second notch of the salary range.”⁴ The performance element dispels the notion that every applicant would be entitled to recommendation.

12. It is perhaps notches of a different kind that the applicants confuse with second and third notches. Another system of awarding salary notches applied when an individual employee was being appointed or promoted. A salary notch higher than the minimum of the salary range would be awarded depending on a job’s weight upon evaluation and that would be informed by the difficulty to recruit or retain a person with the necessary competencies for the post. That kind of notch would not be dependant on profile. That is obviously not what the applicants intend claiming in this matter.

13. The applicant also states in her replying affidavit – “I reiterate that such conduct of not awarding second and third notch increments for the period, 1 July 1996 to 1 July 2001, is unilateral, arbitrary and unlawful.” The validity of Agreement 2/96 went up to 31 March 1999, that is, at the end of 1998/99 financial year. It introduced measures dealing with the utilisation of the second and third notches of the salary ranges of the new grading system as from the 1996/97 financial year. It would be open for such measures to operate any time as from 1996. There is thus no specific connection between the period 1 July 1996 to 1 July 2001, as stated by the applicants, and the allocation of the notches.

14. The implementation of rank/leg promotions is a separate issue. I reiterate that no relief relating to rank promotions is sought in the notice of motion. Even in the letter of demand from applicants’ attorneys, no demand is made regarding rank promotions.

15. The central issue in casu is whether the applicants were entitled to be assessed and whether they were assessed for the granting of the second or third notches; whether their applications for the grant were approved and if so, whether they received payment accordingly. The respondent submits they were assessed and remunerated albeit only upon the assessment for the 2001/2002 assessment period.

16. The applicant alleges that for the period 1996 to 2001 she became entitled to advancement to second notch status, she believed the department approved that advancement but it was not implemented on account of alleged shortage of funds. The further applicants allegedly suffered the same fate. The other point made is that some other people were given the notch increases, rendering the treatment of the applicants uneven and unequal to that of those who were paid.

17. The respondent’s case is that one hundred and five (105) of the hundred and fifty employees at Cofimvaba Hospital in 1996/1997 were recommended by the Committee for either a second or a third notch allocation but at the time an embargo had been placed on all rank promotion and notch allocation processes between the periods 1 July 1996 and 1 July 2001. The embargo on notch allocations was lifted per Circular No 72 of 2002, issued by the department on 12 September 2002, but only for the 2001/2002 assessment period. The respondent submits that the applicants were assessed during the 2001/2002 assessment period and that notch allowances were paid to the applicant and forty out of forty three further applicants. What emerges is that the allocation of the second and third notches that could have been done as from 1996, but for the embargo, was only carried out under the authority of the Circular No 72 of 2002. The applicant and forty of the forty three further applicants were remunerated. The system that had been placed on the embargo had now been revived.

18. In summary the respondent’s version is to the effect that indeed the civil servants who rendered distinguishable service would benefit from the allocation of the second or third notches. The allocation would depend on the outcome of work performance. An embargo was however placed on this procedure before it took off in the Eastern Cape Province. The department became aware that some civil servants had already been paid during the time of the embargo. Its position is that they were paid in error. The money paid out as a result of the notch allocations before and during the embargo, is to be recovered. The applicants were not therefore being discriminated against as they allege.

19. The applicants who received notch allocations are only those approved by the Head of Department in terms of the applicable criteria. To call for the processing of the second and third notches is to seek to have the assessment done again. It is not as if there were allocations to operate for the period 1996 to 2001 and others for 2001 to 2002.

20. To order the respondent to process the second or third notch increments would therefore amount to ordering duplication in view of the fact that the applications for the allocation of the relevant notches have already been approved by the Head of Department and the successful applicants remunerated. The action taken is thus misconceived.

In the result the application is dismissed with costs.

C T SANGONI

JUDGE OF THE HIGH COURT

Counsel for the Applicant : Adv S A Collett

Attorneys for the Applicant : Messrs Hutton & Cook

Sutton Square

Queens Road

King William’s Town

Counsel for the Respondent : Adv O H Crisp

Attorneys for the Respondent : State Attorney

32 Alexandra Road

King William’s Town

Date heard : 21 August 2007

Date Judgment delivered : 18 October 2007

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