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IN THE NORTH GAUTENG HIGH COURT, PRETORIA

(REPUBLIC OF SOUTH AFRICA)

Case Number: 15290/2013

DATE: 25 NOVEMBER 2013

NOT REPORTABLE

NOT OF INTEREST TO OTHER JUDGES

In the matter between:

THABO EZEKIEL KGWEDI …..................................APPLICANT

And

MINISTER OF DEFENCE..................................RESPONDENT

JUDGMENT

MOLEFE. J:

[1] This is an application wherein the applicant seeks the following relief:

“1.1 that the decision taken by the Board of Inquiry on the 11 December 2009 and chaired by Captain Ntuii (B01012009) to dismiss the applicant from the employment on the 11 December 2009 for being absent from work without leave be reviewed and set aside;

1.2 that the respondent be ordered to reinstate the applicant retrospectively from 11 December 2009;

1.3 that the respondent be ordered to pay the applicant the salary he lost from 11 December 2011 until the date of reinstatement;

1.4 that the applicant be ordered to pay the applicant the difference in salary increments, bonuses and other financial benefits for the period from 11 December (sic) until the date of reinstatement;

1.5 that the respondent be ordered to pay the applicant his arrear salary and other financial benefits into the applicant's bank account within 30 days of this order, failing which the applicable interest shall accrue;

1.6 that the respondent be ordered to pay the costs if it opposes this application;

1.7 that further or alternative relief is granted to the applicant as the Honourable Court deem just:”

[2] The application is opposed by the respondent, who apart from doing so on the merits, has also raised the following special defences that;

a) the applicant unreasonably delayed in launching these proceedings; and that

b) the decision sought to be reviewed and set aside, does not constitute an administrative action and therefore is not capable of being reviewed.

Factual background

[3] The applicant was employed by the respondent as a Private and stationed at the Joint Support Base in Wonderboom, Pretoria, from 1989.

[4] In July 2009 and August 2009, the applicant was absent from work without leave and returned to work on 1 September 2009, with no explanation. As a result, the applicant was arraigned to appear before the Military Judge on 22 September 2009 to answer to the allegations in terms of section 14 (A) of the Military Code. Immediately after he was served with an indictment to appear before the Military Court, the applicant resigned on 2 September 2009, but his resignation was not accepted as there was a pending case against him,

[5] On 22 September 2009 the matter was postponed to 19 October 2009. On 19 October 2009 the applicant failed to appear before the Military Court and did not report for work on that date. On 27 October 2009 a letter was sent to the applicant advising him that he should report for work on 17 November 2009, failing which his salary will be stopped. On the 17 November 2009, the applicant failed to report for work. On 18 November 2009, another letter was sent to the applicant urging him to report for work on 20 November 2009, failing which he will be discharged. The applicant failed to report for work on 20 November.

[6] On 26 November 2009, the applicant was advised by a letter that due to his failure to report for work for a period of thirty (30) days, he had been discharged in terms of section 59(3) of the Defence Act1. (“the Act”).

[7] On 24 November 2009 a Board of Inquiry was convened to investigate the circumstances which led to the applicant’s discharge and to advise the respondent of any financial implications arising from the discharge. On 11 December 2009, the board made recommendations on how to prevent a repetition of a similar conduct and corrective measures to be taken to avoid similar incidents.

[8] Applicant’s Counsel2 submitted that the applicant, whilst within the Military service contracted a mental illness. He referred the court to section 56(4) (a) of the Act which reads as follows:

“A member of the Defence Force, who through no misconduct on his or her part, sustains a wound or injury or contracts an illness while on military service or undergoing training is, under such condition and for such period as may be prescribed, entitled to be provided with medical, dental and psychological or other necessary treatment for such wound, injury or illness, notwithstanding that the duration of such treatment may extend beyond that member’s service contract”.

[9] Applicant’s Counsel submitted that the above-mentioned section protects members of the Defence Force whom without fault on their part contract illness, and entitles such members proper health care even if that extends beyond their contract of service. The applicant was admitted at a mental institution on the 14 December 2009 and was released from the mental institution on 26 March 2010. He was seen as an outpatient in April 20103. Counsel argued that it would be impractical to expect the applicant to have reported himself as mentally ill as his faculty of thinking was obstructed and devoid of any rationality, hence he was absent without leave and never reported for duty until after discharge from the institution.

[10] It was applicant’s counsel argument that the applicant has not absented himself from work, but was restrained mentally and therefore devoid of fault or intention that would warrant a charge of misconduct, and that dispenses the relevance of section 59 (3).

[11] Section 59 (3) of the Act provides that:

“A member of the Regular force who absents himself or herself from official duty without the permission of his or her commanding officer for a period exceeding 30 days must be regarded as having been dismissed if he or she is an officer, or discharged if he or she is of another rank, on account of his misconduct with effect from the day immediately following his or her last day of attendance at his or her place of duty or the last day of his official leave, but the Chief of the Defence force may on good cause shown, authorise the reinstatement on such member on such conditions as he or she may determine”.

Applicant’s counsel submitted that after the discharge of the applicant, the applicant personally submitted a representation on 22 July 2010 to the respondent and another representation by his attorneys of record on 25 August 2010 for the Chief of Defence to authorise his reinstatement in accordance with section 59 (3), but the Chief of Defence has to date failed to respond to the applicant’s representations and failed to take a decision to reinstate the applicant to the defence force. Counsel challenges the fairness of the failure by the Chief of Defence and contends that this is an administrative failure and should be reviewed by the court as the Chief of Defence has not regarded the illness as a legitimate reason.

[12] Applicant’s counsel further argued that the Board of Inquiry proceeded on an administrative discharge in full knowledge of the possible mental condition of the applicant but felt empowered by virtue of section 59 (3) to confirm a discharge, thereby dismissing the applicant.

[13] The respondent's counsel’s 4 first ground of opposition of the application is that the applicant unreasonably delayed in launching the proceedings before the court. Counsel relied on section 7(1) of PAJA which provides that:

“7(1) any proceedings for judicial review in terms of section 6(1) must be

instituted without unreasonable delay and not later than 180 days after the date -

a )

b) On which a person concerned was informed of the administrative action, became aware of the action and reasons for it or might reasonably been expected to have become aware of the action and the reasons. ”

[14] Section 9(1) of PAJA provides however that the 180 day period may be extended for a fixed period, by agreement between the parties or failing such agreement, by Court or tribunal on application by the person or the administrator concerned.

Section 9(2) of PAJA provides that such an application may be granted where the interest of justice so require.

[15] Respondent’s counsel referred the court to Ggwetna v Transkei Development Corporation Ltd and Others 5 wherein the rationale behind rule 7(1) was explained as follows:

“It is important for the efficient functioning of public bodies, that a challenge to the validity of their decisions by proceedings for judicial review should be initiated without undue delay. The rationale for this longstanding rule is twofold: first, the failure to bring a review within reasonable time may cause prejudice to the Respondent. Secondly, and in my view more importantly, there is a public interest element in the finality of the administrative decisions and exercise of administrative functions.”

Counsel also relied on the cases of Wolgroeiers Afslaers (Edms) Bpk v Munispaliteit van Kaapstad 6 and Associated institutions Pension Fund and Others v Van Zvi and Others7.

[16] Counsel for the respondent ascribed to the test applied in the Opposition to Urban Tolling Alliance v The South African National Roads Agency Limited

case8 wherein the court stated as follows in relation to the delay rule:

“At common law application of the undue delay rule required a two stage enquiry. First, whether there was unreasonable delay and second, if so, whether the delay should in all the circumstances be condoned”.

[17] The respondent’s counsel submitted the other ground of opposing the application is that the discharge of the applicant in terms of section 59(3) of the Act occurs by reason of law and does not constitute an administrative action. Counsel relied in the matter of Minister van Onderwys en Kultuur en Andere v Louw 1995 (4) SA 838 (A) at 388 G-H, where the court stated that:

“the deeming provision [of section 72(1)] comes into operation if a person in the position of the respondent,

I) without the consent of the Head of Education,

ii) is absent from service for more than 30 consecutive days. Whether these requirements have been satisfied is objectively determinable. Should a person allege, for example, that he had the necessary consent and that allegation is disputed, the factual dispute is justiciable by a court of law. There is then no question of review of an administrative decision. Indeed the coming into operation of the deeming provision is not dependent upon any decision. There is thus no room for reliance on the audi rule which, in its classic formulation, is applicable when an administrative and discretionary decision may detrimentally affect the rights, privileges or liberty of a person”.

[18] Counsel for the respondent further submitted that even if the court is inclined to find that there was a decision susceptible to a review, the applicant has not made out any case for the relief sought. At the time of the applicant’s admission at the mental institution, he had already been discharged.

[19] I would like to deal first with the question of whether there has been an unreasonable delay by the applicant in launching the application before the court and whether the delay can be condoned. The applicant in his papers admitted that he became aware of the administrative discharge in March 2009 when he reported for duty after his discharge from the mental institution. The administrative letter of dismissal is dated 19 November 2009. The application before the court was only launched by the applicant on 12 February 2013, more than three (3) years after he became aware of the discharge. The application was brought way outside the 180 day period as prescribed by section 7(1) of PAJA (supra).

[20] Section 9(1) of PAJA provides for the extension of the 180 days either by agreement between the parties or by a Court or tribunal on application by the person concerned.

In casu there is no evidence that the parties agreed to an extension of the 180 days. The applicant also failed to make an application for condonation to this court for the extension of 180 days period as prescribed by PAJA.

[21] Furthermore, the applicant has failed to tender any explanation for his inaction from his discharge in March 2010 (on his own version) until 12 February 2013, save to attribute it to his mental state. The applicant however, had a legal representative who save to send a letter to the Chief of Defence in July 2010, failed to request the extension until February 2013 when the application was launched. The applicant’s mental state only prevailed until March 2010 and at no stage after March 2010, did the applicant suffer from any mental illness. It is my view therefore that the application was unreasonably delayed and the mental state of the applicant does not constitute a reasonable explanation for a delay of more than three (3) years.

[22] The second issue before the court is whether the decision to discharge the applicant constitutes an administrative action and/or decision to be reviewed.

The applicant seeks to have the decision by the Board of Inquiry to discharge him with effect from 11 December 2009 for being absent from work without leave, to be reviewed and set aside.

The applicant was in effect discharged on 19 November 2009 in terms of section 59(3) of the Act. In terms of this section, a member of the Regular force who absents himself from duty without permission for a period exceeding 30 days is regarded as having been discharged from the day immediately following his last day of attendance.

The applicant in casu absented himself from his official duty for a period exceeding 30 days, without the permission of the respondent. Consequently, the provisions of section 59(3) of the Act came into operation and he was automatically discharged.

[23] The decision in the Minister van Onderwys en Kultuur en Andere v Louw (supra) dealt with the provisions of section 14(1) (a) of the Employment of Educators Act 76 of 1998, which is similar to section 59(3) of the Act. I agree with the respondent’s counsel that the principle laid down therein is applicable to the present case. There is no question of review of an administrative decision in the case before me.

[24] In MEC, Public Works, Northern Province v CCMA & Others [2003] 10 BLLR 1027 (LC), the Labour Court in dealing with section 17(5) of the Public Service Act of 1994 stated that:

“[9] In the Louw case (supra) the Appellate Division held that the coming into operation of directly comparable deeming provisions is not dependent upon any decision; if the requirements of the provision are met, the termination of employment happens by operation of law. It held, further that whether the requirements of the provisions have been satisfied is objectively determinable”.

In my view, the section 17(5) of the Public Service Act is similar to section 59(3) of the Act. Similarly in casu, there was no decision taken to discharge the applicant. The requirement of the provisions of section 59(3) of the Act were met and the applicant’s discharge happened by operation of law; therefore there is no decision or administrative act to be reviewed.

[25] In terms of the second leg of section 59(3), the Chief of Defence may on good cause shown authorise the reinstatement of a member on such conditions as he\she may determine. Applicant’s counsel argued that despite the fact that the applicant and applicant’s legal representative made written representations, to the Chief of Defence in July and August 2010, he failed to reinstate the applicant. I disagree with counsel’s argument; the Chief of Defence may after having considered the representations and on good cause shown, authorise the reinstatement of the applicant. It is not automatic that because applicant has made representations, he will be reinstated. Furthermore, the applicant may only approach this court after the Chief of Defence had received his representations and refused to authorise the reinstatement. The court may then, review the Chief of Defence’s decision. There is no evidence that the Chief of Defence made a decision in this case.

[26] The applicant’s counsel’s submission that the Board of Inquiry took a decision to discharge the applicant is in my view, incorrect. The Board of Inquiry is appointed in terms of section 103 of the Act which reads as follows;

“[1] when a member of the Defence Force has been absent without leave for more than 30 days and is still absent, a board of inquiry must be convened by the commanding officer of the absent member to inquire into such absence.

[2] If a routine inspection reveals any deficiency in the kit, arms and equipment or any public property issued to the person contemplated in subsection (1), the board of inquiry also inquire into such deficiency.

[3] If the board of inquiry finds that such member has been absent for more than 30 days and is still so absent, it must record such finding, including the date of the commencement of the absence without leave, and also its finding on any deficiencies of the kit, arms and equipment and any public property issued to him or her and the estimated value thereof ”

On 24 November 2009, the Board of Inquiry was convened, not to discharge the applicant, but to inquire into his absence and to record the findings on his absence and deficiencies if any of the public property issued to him. At the time of the inquiry, the applicant was still absent without leave and the board of inquiry had no knowledge of his mental illness. It should further be noted that on 24 November 2009 the applicant was not in a mental institution.

[27] It is my view that the applicant has failed to make out any case for the relief sought on the merits. The applicant contends that he suffered from a mental illness and was admitted to a mental institution on 14 December 2009 and discharged in March 2010. At the time of his admission at the mental institution, he had already been discharged in terms of section 59(3) of the Act. It is also interesting to note that no explanation is tendered by the applicant as to his whereabouts from 19 October 2009 when he failed to return to work until 14 December 2009 when he was admitted to the mental institution. The applicant started being absent from work on 19 October 2009, which was the day he was supposed to appear before a Military Court to answer to previous allegations of absences from duty without explanation. The reliance by the applicant on his mental condition is in my view misplaced.

[28] On the issue of costs, the respondent’s counsel took cognisance of the fact that the applicant has been unemployed since November 2009 and submitted that the issue of costs be left to the court’s discretion. The award of costs is a matter wholly within the discretion of the court, but this is a judicial discretion and must be exercised on grounds upon which a reasonable person could have come to the conclusion arrived at9. The law contemplates that the court should take into consideration the circumstances of each case and any other circumstance which may have a bearing upon the question of costs and then make such order as to costs as would be fair and just between the parties. I have considered the applicant’s circumstances and am of the view that it is fair and just that each party should pay its costs.

[29] The applicant has not made out a case for the relief he seeks.

Accordingly I make the following order:

1) The application is dismissed.

2) Each party to pay its own costs.

D.S. MOLEFE

JUDGE OF THE HIGH COURT

APPEARANCES:

Counsel on behalf of Applicant Adv. R. Lekala

Instructed by : Martin Sambo INC

Counsel on behalf of Respondent : Adv. D. Motsweni

Instructed by : State Attorneys

Date Heard : 07 November 2013

Date Delivered 25 November 2013

1 Act 42 of 2002

2 Adv. R. Lekala

= Founding affidavit page 30

4 Adv. V D Mtsweni

⁵               2006 (2) SA 603 (SCA) at paras 22-23

6 1978 (1) SA 13 (A)

7 2005 (2) SA 302 (SCA)

⁸               [2013] ZASCA 148 (9 October 2013)

9  Leuben Products (Pvt) Ltd v Alexander Films (SA) (Pty) Ltd 1957 (4) SA 225 (SR) at 227 B-C

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