1 IN THE HIGH COURT OF SOUTH AFRICA (EASTERN CAPE DIVISION, BHISHO) CASE NO: 451/2016 In the matter between: THANDIWE ROSEMARY MXOLI Applicant and THE MEMBER OF THE EXECUTIVE COUNCIL, DEPARTMENT OF EDUCATION, EASTERN PROVINCE 1st Respondent THE HEAD OF THE DEPARTMENT, DEPARTMENT OF EDUCATION, EASTERN CAPE PROVINCE 2nd Respondent ________________________________________________________________ JUDGMENT ________________________________________________________________ MAGEZA AJ [1] Applicant in this matter seeks reinstatement as an educator in terms of Section 14(2) of the Employment of Educators Act 76 of 1998 (‘the EEA’) and places 2 reliance on an order of this Court granted under Case 517B/07 on 18 June 2013. The said section reads as follows: “14(2) If an educator who is deemed to have been discharged under paragraph (a) or (b) of subsection (1) at any time reports for duty, the employer may, on good cause shown and notwithstanding anything to the contrary contained in this act, approve the reinstatement of the educator in the educator’s former post or in any other post on such conditions relating to the period of the educator’s absence from duty or otherwise as the employer may determine” The Order of Court dated 18 June 2013 [2] The chronology set out in applicant’s heads follows on an order granted by the honourable Smith J dated 18 June 2013 under an earlier Case Number 571B/07. The order came about as a result of review proceedings under the said case number in which relief based on Section 14(1)(a) of the Employers Educators Act 76 of 1998 (the Act) was sought by applicant against the respondents. This earlier review application was strongly opposed by the respondents and the Order of Smith J came about by agreement between the parties. [3] The present application was served on the respondents on 28 August 2016 and the answering affidavit was filed on 18 October 2016. Thereafter applicant’s reply was served and filed on 27 October 2016. In applicant’s heads as well as in 3 argument before me, it was averred that following the order dated 18 June 2013 requiring her to make the relevant submissions to the second respondents, the order was complied with on 24 June 2014. This assertion is set out in a letter dated 20 July 2015 written by her attorneys for the attention of the second respondent. This letter reads in part: “We wrote to you on 24th June 2014 requesting compliance with the court order granted by the High Court Bhisho on 18 June 2013 in Case 571B/07. According to the order, you were obliged to consider our client’s reinstatement as an educator in terms of Section 14 of the Employment of Educators Act. Our client in turn was required to make submissions which we did on her behalf in our letter of 24th June 2014 and in so doing, referred you specifically to a copy of the Replying Affidavit deposed to by our client which set out the circumstances which our client requested you to consider with a view to procuring her reinstatement.” [4] The founding and replying affidavits set out in the most vivid and agonising detail, the experience applicant has gone through commencing from when she was first declared as an educator in excess on the staff establishment of the Thembalabantu High School in Port Elizabeth as per letter dated 20 April 1999. Following this letter, she states that she applied for a new post in a new school. She chose this school from a departmental list handed to her detailing posts available at various schools including one named Vulindlela High School, said to be in Port St Johns. 4 [5] This is where she was placed and on arriving there, she discovered that the school was situated in Dangwana location, a rural area many kilometres from the town of Port St Johns. She termed the area and terrain inhospitable and she had to walk for more than half an hour to and from school daily over punishing terrain. She had moved there with her family including a young 10 year old minor son. There are many more details of the difficulties she placed on record in the founding affidavit. [6] Despite these difficulties, she remained there for two years in a state of severe depression and (in 2003) decided to return to her old Port Elizabeth school, Thembalabantu High School where she remained for a year. [7] Applicant commenced a process which included the lodging of a dispute in terms of the applicable Departmental rules. No hearing was availed to her and she was informed her transfer application had been unsuccessful. She filed further applications for interdepartmental transfer supported by medical reports from doctors including Dr NC Mamase and one Dr Peter Crafford (a registered Psychiatrist), all of whom alluded to her psychological ill-health and distress. She was certified by Dr Crafford as ailing: ‘…from a major depressive disorder with psychosis. She is severely ill and in urgent need of psychiatric treatment, ie hospitalisation for 2 to 3 weeks, and thereafter monthly or fortnightly follow up. She is unlikely to return to work 5 before 2007 as she has been ill since 19/03/2004 when she was last seen by myself professionally.’ [8] The founding affidavit read with the reply paint a further sorry tale of numerous and multiple visits to many officials of the respondent. The attempts at finding resolution included in part the following: 8.1 Approaching her principal in Port Elizabeth who refused to accept her sick leave certificates pursuant to the diagnosis. She sent these to Port St Johns where they were also returned to her. She discussed the matter with the Port Elizabeth, Regional Education Development Officer who could not help. 8.2 The District Director Port Elizabeth (also named) refused to intervene and referred her to his second in charge, an official who told her the department had lost her file. The District Director Port St Johns (also named) refused to get involved. 8.3 She made several visits to the Port Elizabeth Education Department offices to locate her employee forms and the department advised her they were lost. [9] In August 2006, her salary was not paid, this despite reporting this to her Union which promised to look into the matter no progress was made. Dr Crafford 6 provided a further diagnosis and her condition was described as: “This 48 year old High School teacher urgently needs psychiatric treatment. She is having suicidal thoughts and has auditory hallucinations and should be hospitalised. Your urgent and kind attention to reinstating her salary and her medical aid would be much valued. In due course it is likely that she should respond to treatment and be able to be rehabilitated back to work.” [10] In summary this is the detailed background in her papers forming the basis of the application brought by applicant under the old case number referred to as 571B/2007. [11] From a cursory perusal of the respondent’s answer in the present application deposed to by Abraham Soyisile Nuku on behalf of both respondents, at paragraph 4 the following submission is made: “It is not possible for the department to consider the applicant’s reinstatement in terms of Section 14(2) of the Employment of Educators Act, 76 of 1998 (“the EEA) as the applicant has not reported for work. Once the applicant reports to work at Vulindlela Junior Secondary School, where she was appointed, the provisions of Section 14(2) of the Employment of Educators 7 Act will apply. Currently there is no basis upon which such provisions could be applied as the applicant has not attended work…” (my emphasis) [12] The matter finally served before me. Applicant states in her heads, the submissions were again submitted to the respondents on 26 August 2016 and she makes the averment that between June 2014 and August 2016, no response was received from the respondents. She thereafter secured the order of this Court dated 18 June 2013 directing the respondents to consider her re-instatement in terms of Section 14(2) of the Act. She says she had to comply with the order and made written submissions to the second respondent and complied with this on 24 June 2014. Argument before me: [13] Applicant set the matter down for hearing on 23 March 2017 before me and on perusing the file, it became evident that the matter had served before Van Zyl DJP on the 18 November 2016 and, after the matter had been argued in open Court, an order was made by Van Zyl DJP. The order entailed that the matter be postponed sine die, the respondents being ordered to pay the costs of the application. [14] When the matter served before me, I heard argument and in view of the different interpretations placed on the order of Smith J by the respective parties, I thereafter requested the parties in writing to comment on the following: 8 (i) The manner in which they respectively deem the representations are to be made and/or submitted; (ii) In view of the founding, answering and replying affidavits filed in the matter, whether it is not possible to identify the paragraphs that could ensure compliance with the order of Smith J; (iii) The parties were invited to identify the specific paragraphs constituting details of their respective representations in compliance in compliance of the order; (iv) To make submissions in writing within 5 (five) days of the request for comments in order that the matter may be finalised. [15] These were provided by both the parties and the polarised stance evident from the responses is still evident and their views demonstrate a large chasm between applicant and respondents.