CoA dismisses ex-gov't employee's seven-year late return-to-office
Mompati Tlhankane | Tuesday April 18, 2023 13:55
Tshwaane was employed as a supplies officer in the Ministry of Basic Education and Skills Development and stationed at one of the schools and his employment contract was terminated by his desertion from work. When he received a letter that the permanent secretary from his ministry was accepting the repudiation of his contract in February 2016, Tshwaane failed to appeal the decision of his employer. He turned up five years later with an ill-conceived claim for an order that he was a public officer of good standing and directing the government to notify him within 30 days of the grant of a court order, of a station within the government establishment at which he should report for duty.
Before appealing the case, Tshwaane’s matter was dismissed by the lower court because he had failed to disclose a cause of action and he had failed to comply with the requirements of order 20 rule five as read with order 24 rule two of the High Court Rules.
Tshwaane in his declaration, however, pleaded that upon collection of his letter in February 2016, he was notified by his supervisor not to report for duty until further notice. He said the letter sent mixed signals of accepting the repudiation on the one hand while the other hand demanding an explanation of why the repudiation should not be accepted. Tshwaane said he tendered the requested explanation through the school head on or about March 2016.
He added that by the time of filing his declaration, he never got a response advising him of whether or not his explanation was found to be satisfactory or whether the alleged repudiation was accepted. Tshwaane pointed out that the government’s lack of communication was enough to conclude that he was still a government employee in good standing and entitled to report for duty.
He argued that his preclusion from work since 2016 was unfounded, unlawful, and a breach of the employment contract. In the grounds of the appeal, Tshwaane contended that the High Court had erred in holding that he had failed to disclose a cause of action and misdirected itself in awarding costs on an attorney and client scale. In dismissing Tshwaane’s case, the CoA agreed that the latter’s grounds of appeal are sound and that the High Court had erred both on the question of disclosure of a cause of action and the scale of costs awarded.
But the CoA made it clear in the judgment that the main hitch is that this was an ill-conceived action on the part of Tshwaane. “The appellant’s action was misconceived and no cause of action had been made out. We expressed our concern at the futility of remitting to the High Court what we considered a meritless case not worth the resources of the court at the expense of deserving disputes,” read the CoA judgment delivered by Justice Isaac Lesetedi on Friday.
Furthermore, Lesetedi declared that Tshwaane was opportunistically merely seeking to use a less-than-perfect opportunity to build a misconceived cause of action. “He also does this after a lapse of an unconscionable five-year period in which there was no employee/employer relationship. He was no longer an employee as his employment had been terminated and his declaration misses the factual and legal foundation of a valid claim,” Lesetedi emphasised.
The CoA also indicated that Tshwaane in his pleadings does not aver that during his five-year period, he enjoyed any of the rights of an employee nor asserted those rights. Justice Lesetedi said the High Court should have brought both parties’ attention to that fundamental flaw and dismissed it on such basis. “Even if this court upholds the grounds of appeal, they being clearly meritorious, remitting this matter to the High Court will merely escalate costs and bind the courts’ time and resources in a clearly unmeritorious litigation,” further read the judgment.
The appeal was dismissed with no order as to costs.