CASE LAW UPDATE

Facts: The appellants are medical practitioners from the Democratic Republic of Congo (DRC), appointed to serve as medical officers at the Isilimela District Hospital. The court a quo dismissed their urgent application for a declarator to the effect that their contracts were of a permanent nature, and the review and setting aside of the decision to terminate the contracts in question. The court a quo referred to section 10 of the Public Service Act 103 of 1994 (PSA), pointing out that it precludes the permanent appointment of a person to any post in a government department unless he or she is a South African citizen or a permanent resident. Both the PSA policy and the health recruitment policy permit the employment of foreign health professionals for a fixed term of no more than three years, subject to the conditions stipulated.

Appeal: The court a quo stated that the single question to be answered was whether the condition of South African citizenship or permanent residency status had been satisfied. The court held that it had not. The district manager had failed, moreover, to apply her mind to the provisions of section 10 of the PSA, and the PSA policy, when concluding the contracts with the appellants. The appeal pertains to the employment contracts concluded by the appellants and the Department of Health, Eastern Cape.

Discussion: Regarding the lawfulness of the employment contracts and mindful of the centrality of the principle to South Africa’s constitutional order, the approach taken in the context of the authorities mentioned by the appellants should not be permitted to undermine the basic tenet that an organ of State is constrained by the principle that it may exercise no power and perform no function beyond that conferred upon it by law. If an organ of State’s power to appoint foreign health professionals was derived from and circumscribed by section 10(1) of the PSA, as is the case here, then any act beyond the empowering provisions in question, such as the decision to conclude permanent employment contracts, gives rise to an illegality. This cannot be ignored or wished away. The conclusion of the contracts was unlawful. It cannot be said that they should not be rendered null and void. Whether there is, however, a basis upon which the respondents can successfully apply for the review and setting aside of the decision to appoint the appellants depends on whether they can overcome the hurdle presented by the delay incurred.

Findings: The Department’s conclusion of permanent employment contracts with the appellants amounted to blatant non-compliance with section 10(1) of the PSA. Where the decision was taken in direct contravention of a clear prohibition, then it was indisputably and clearly inconsistent with the constitutional principle of legality. It falls to be declared invalid. Having declared that the district manager’s decision was invalid, the issue that arises is whether to set it aside, as sought by the respondents. In terms of just and equitable relief, the setting aside of the district manager’s decision will have an adverse impact upon the appellants, as well as their dependents, more so because of their refugee status. In contrast, the conduct of the Department’s officials in unilaterally altering the contracts was plainly wrong and wholly inexcusable. There are, in the exercise of the court’s broad discretion, ways in which to mitigate against at least some of the negative consequences of setting aside the decision. For example, the declaration of invalidity can be suspended to allow the appellants an opportunity to re-arrange their personal circumstances to the extent that this might be feasible. Rights that have accrued to the appellants in terms of the impugned contracts can be protected and preserved.

Order: The appeal is dismissed, save for the insertion of sub-paragraphs in paragraph 3 of the order of the court a quo. The declarations made are suspended until 31 December 2025 and the appellants shall retain the right to all salary payments and other benefits that have accrued because of the issuing of the letters of appointment, provided that this shall fall away upon the date indicated.

LAING J (ZONO AJ and WATT AJ concurring)

Facts: The applicant, Mr O’Hara, is currently employed as Parliament’s Chief Financial Officer and as of October 2024 is on precautionary suspension with full pay. The second respondent, Mr Visagie, has been appointed by Parliament as the chairperson of the disciplinary hearing between Parliament and the applicant. The applicant was due to appear before the disciplinary hearing, but it did not commence because on the day the applicant brought an application for the recusal of the second respondent. The basis of the recusal application was essentially confined to the single issue that the second respondent is conflicted or biased because he has acted for Parliament in the past as its attorney and presided over other disciplinary hearings between Parliament and its employees. The second respondent dismissed the recusal application.

Application: The applicant seeks on an urgent basis to have the decision of the second respondent not to recuse himself as chairperson of the disciplinary hearing reviewed and set aside. He seeks that Parliament be directed, if it wishes to reinstate disciplinary proceedings against him, to do so under the chairpersonship of an external chairperson who has not had any professional relationship with Parliament. The applicant seeks an urgent review of the ruling made by the chairperson in medias res the disciplinary hearing.

Discussion: In terms of section 158(1)(h) of the Labour Relations Act 66 of 1995 the Labour Court may review any decision taken or any act performed by the State in its capacity as employer. However, this court will determine review applications in medias res and exercise judicial oversight of disciplinary hearings only where it is just and equitable to do so, the threshold essentially being the applicant will suffer a grave injustice if the court does not intervene in medias res the hearing and the applicant will suffer irrevocable harm. The recusal application that served before the second respondent was premised on the fact that in the period 2015 to present, the second respondent had acted for Parliament in six disciplinary matters and in two as a presiding officer. The applicant contended for a senior manager of Parliament to preside over his case or an external chairperson with no prior professional relationship with Parliament.

Findings: The second respondent is a senior attorney, specialising in labour law, a director of a reputable law firm, has acted as a judge of the Labour Court, and is obliged to justify whatever rulings and award he makes. There is further not one (substantiated) averment that in previous disciplinary hearings he acted in an unethical and biased manner owing to his professional relationship with Parliament. On these facts, a reasonable and informed person could not have reasonably thought that the risk of an unfair hearing and determination was high and that the second respondent will jettison his professional status as an officer of this court to favour Parliament. The outcome of the disciplinary proceedings, which may go favourably for the applicant, may be subject to judicial scrutiny if necessary. Essentially, the applicant’s recusal point, unless clearly abandoned during the hearing, remains good for a challenge in subsequent proceedings. The applicant has not shown that he will suffer grave injustice if this court does not intervene in medias res the disciplinary hearing and grant the relief sought in the notice of motion.

Order: The application is dismissed.

WHITCHER J

Facts: Mr Botha owned units 77 and 78 in Willem Court. Mr Botha entered into an agreement with the body corporate for the purchase of the right of exclusive use of parking bays 19 and 20. Mr Botha sold unit 78 to Mr Westbrook, together with the right of exclusive use of parking bay 20. However, according to the deed of transfer, only the unit was sold and transferred. The parking bay was not mentioned nor was there any notarial deed that sought to transfer ownership. At the time the right of exclusive use was sold to Mr Westbrook, the exclusive use areas had not been delineated in Willem Court and the right to the exclusive use had not been registered in Mr Botha’s name. The body corporate ceded the right of exclusive use of the parking bays to Mr Botha. Mr Westbrook sold unit 78 together with the right of exclusive use of the parking bay to the appellant. Mr Westbrook signed a power of attorney for the transfer of unit 78 to the appellant, however, the parking bay was not mentioned in the power of attorney. Subsequently, when the unit was transferred to the appellant, the right of exclusive use of parking bay 20 was not ceded to him.

Appeal: The court a quo found that the appellant had failed to prove that he had acquired the right of exclusive use and that the parking bay was erroneously ceded to the respondent. This appeal is against that judgment. The issues for determination are, firstly, whether the court a quo erred in finding that the appellant had failed to discharge the onus resting upon him, and secondly, whether the court a quo erred in its interpretation of the law relating to the acquisition of the right of exclusive use areas in terms of the Sectional Titles Act 95 of 1986 (STA).

Discussion: To discharge the onus resting upon him, the appellant had to satisfy the court, firstly, that when Mr Westbrook sold parking bay 20 to him, Mr Westbrook had title to the parking bay. Secondly, the appellant had to satisfy the court that he had acquired the right of exclusive use of the parking bay when it was ceded to the respondent, and thirdly, that an error occurred in the conveyancing attorneys’ offices and Registrar of Deeds that resulted in the parking bay not having been registered in his name. At the time when unit 77 was transferred from Mr Botha to Mr Westbrook, the body corporate had not yet ceded the right of exclusive use of parking bay 20 to Mr Botha. At the time when Mr Westbrook sold the parking bay to the appellant, Mr Westbrook did not have title to it. It is open to the appellant, if he has proof that he acquired the right from Mr Westbrook and is prejudiced by the cession of the right to the respondent, to recover the purchase price paid from the seller and levies paid to the body corporate. However, the appellant’s claim against the respondent, a bona fide purchaser, is not sustainable.

Findings: The right of exclusive use of the parking bay was never transferred to Mr Westbrook nor transferred from him to the appellant by registration of a notarial deed of cession. In 1997, the STA was amended by the Sectional Titles Amendment Act 44 of 1997, which inserted section 27A. After the amendment to section 27 and the insertion of section 27A , the right of exclusive use areas could be acquired by an alternative means to the registration of a notarial deed of cession. The problem with this contention is that the appellant does not allege that he acquired the right of exclusive use of the parking bay by means of the rules of the body corporate. Accordingly, the appellant had never acquired ownership of the exclusive use of parking bay 20 within the legal framework of section 27 of STA as amended. Therefore, the appellant’s contention that the court a quo made an error of law in its interpretation of the acquisition of the right of exclusive use areas under section 27 of the STA should fail.

Order: The appeal is dismissed with costs on scale A.

MATHENJWA J (POYO DLWATI JP and BRAMDHEW AJ concurring)

* See also Rauch v Registrar of Deeds, Cape Town [2022] ZAWCHC 61.

Facts: In 2005, the plaintiff (Ms Mokalapa) was a passenger in a vehicle when it was involved in an accident with another vehicle. The plaintiff claims that, as a result of the accident, she sustained serious injuries. It is common cause that a firm of attorneys (Ramushu, Mashile Twala Inc) accepted instructions to represent her in her claim against the RAF and duly instituted a claim against the RAF for damages in the amount of R517,076. At all material times, the plaintiff was represented by Mr Ramushu in pursuing her claim against the RAF. It was common cause that the RAF claim was under-settled. It is alleged that Ramushu wrongfully and/or negligently advised or made the plaintiff accept an offer of settlement of R218,775.90.

Claim: The plaintiff seeks an order for damages from the defendant (law firm) arising from an alleged breach of duty. It was contended that the amounts for general damages and loss of income were inadequate. It was alleged that Ramushu failed to thoroughly investigate and prepare the plaintiff’s claim for past and future loss of income by inter alia appointing an occupational therapist and industrial psychologist.

Discussion: It is common cause that the entire settlement amount was depleted in less than a year. When asked what she used the money for, she testified that she used it to visit private doctors to manage her medical problems. However, she was mostly unemployed (and therefore, in any event, eligible to attend a State hospital) and had been furnished with an undertaking from the RAF. Ramushu testified that the plaintiff was very excited when she heard how much money she would receive and that she was eager to accept the settlement offer. Ramushu testified that she told him that she “did not want to die before eating my money”. It was not disputed that Ramushu dispatched a letter to the plaintiff informing her that she needed to be assessed by an occupational therapist and an industrial psychologist. The matter was removed from the roll twice with a view of obtaining further expert reports. Ramushu had also enquired from the RAF’s attorney whether the RAF intended to enlist the services of an occupational therapist and an industrial psychologist. He testified that he informed her that she had to be assessed because a court may refuse to award her compensation only on the strength of the orthopedic surgeon’s report.

Findings: When the evidence of Ramushu and the evidence of the plaintiff are compared with one another, there are simply no grounds upon which it can ever be found that the plaintiff’s version is true and that of Ramushu is false. The plaintiff was therefore advised by Ramushu to undergo further medical assessment as that may have resulted in a better settlement. She refused and insisted that the claim be settled because she wanted to “eat her money” before she died. The court is further persuaded that she also knew that the RAF offer amounted to an under-settlement of her claim but that she had elected to accept the amount as she was not willing to wait any longer for her money. Lastly and crucially, Ramushu did not advise her or make her sign the settlement offer. Furthermore, given the fact that the plaintiff accepted the settlement offer in October 2011, and given the fact that she knew that the offer amounted to an under settlement, and given the fact that summons was only issued in 2015, the claim has therefore prescribed.

Order: The claim is dismissed with costs inclusive of the costs of senior counsel on Scale C.

BASSON J