Phindile Mbanjwa v Minister of the National Department of Public Works and Others

The applicant, Phindile Mbanjwa, was appointed in August 2014 as Head of the Gauteng Department of Economic Development under a fixed-term contract in terms of the Public Service Act (PSA). In 2017, she applied for a permanent senior position at the National Department of Public Works (DPW) and was recommended. Due to concerns raised by the Department of Public Service and Administration, a horizontal transfer under the PSA was proposed instead of appointment. Provisional correspondence suggested a possible transfer subject to approvals. Although the MEC indicated a release date and the Premier later purported to approve the transfer, a newly appointed Minister of Public Works withdrew from the process, citing changed requirements. No transfer was ultimately implemented, and no agreement was concluded between the Premier and the President. The applicant claimed that a valid transfer had occurred and that its repudiation entitled her to substantial contractual damages.

The applicant’s claim was dismissed, and she was ordered to pay the costs of the proceedings.

The case clarifies the limits of the Labour Court’s jurisdiction under section 77(3) of the BCEA and underscores that jurisdiction is determined from the pleadings. It also provides important guidance on transfers of senior public servants under the Public Service Act, distinguishing between sections 12 and 14 and confirming that heads of department require presidential involvement for lawful transfers.