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

The applicant was appointed as Head of Economic Development in the Gauteng Department of Economic Development on a fixed-term contract expiring on 30 June 2019. In August 2017, the Department of Public Works (DPW) advertised a permanent position of Executive Officer: PMTE. After the applicant was recommended for appointment, the DPSA raised concerns about the process. Advocate Sam Vukela, acting Director-General, suggested a horizontal transfer within section 12 of the Public Service Act. On 24 November 2017, DPW made a conditional offer subject to consent from the Premier and MEC of the provincial department. The MEC indicated the applicant would be released on 31 March 2018. Following a cabinet reshuffle and appointment of a new Minister, the DPW advised that the horizontal transfer would not proceed due to reviewed capacity requirements. The applicant instituted proceedings claiming there was a valid transfer, that the Minister's review constituted repudiation of her employment contract, and claimed damages of R46,188,600.

• Whether the Labour Court had jurisdiction under section 77(3) of the Basic Conditions of Employment Act to hear the matter
• Whether a valid transfer of the applicant from the provincial department to the national department occurred under the Public Service Act
• Whether the applicant's claim concerned a contract of employment
• Whether section 12 or section 14 of the Public Service Act applied to the transfer
• Whether the applicant properly pleaded her case in accordance with the requirements for contract-based claims
• Whether the procedural agreements regarding evidence affected the admissibility of evidence
• Whether the applicant proved the existence of a contract of employment with DPW and its breach
• Whether damages were properly quantified

1. The applicant's claim is dismissed. 2. The applicant to pay the first respondent's costs.

1. Section 77(3) of the BCEA confers jurisdiction on the Labour Court only where the matter concerns a contract of employment, which must be determined with reference to the pleadings. 2. A transfer of a head of a provincial department to a national department under section 12(3)(c) of the Public Service Act must be initiated by the President in consultation with the Premier; section 14 does not apply to heads of departments. 3. Where a transfer is not effected in accordance with the statutory requirements of the PSA, it is unlawful under the principle of legality and does not create a contract of employment. 4. A conditional offer that is subject to conditions precedent (such as consent from the Premier) does not constitute a firm offer capable of acceptance until those conditions are met. 5. A party claiming breach of contract must plead and prove the existence of the contract and its material terms in accordance with the rules of pleading. 6. Where damages are claimed and are capable of exact mathematical computation, sufficient evidence must be produced to substantiate the exact amount.

The Court made observations about procedural matters arising from COVID-19 directives, noting that while parties may agree to proceed on affidavits, this does not convert trial proceedings into motion proceedings. The Court suggested that where parties wish to proceed without oral evidence, they should follow the procedure for a stated case as outlined in Arends v SALBC. The Court also commented that the prayer for alternative relief does not enlarge the relief that may be granted beyond what is consistent with the case made out in the pleadings. Regarding hearsay evidence, the Court noted that where a party agrees to the admission of affidavit evidence without specifying the witnesses, that party foregoes the right to cross-examination and accepts the risk of who those witnesses will be. The Court expressed the view that the question of whether the compromise to effect a horizontal transfer was legally competent was not one it needed to answer in this judgment.

This judgment is significant for clarifying the jurisdiction of the Labour Court under section 77(3) of the BCEA, emphasizing that jurisdiction must be determined with reference to the pleadings and that the matter must genuinely concern a contract of employment. The case establishes important principles regarding transfers in the public service, particularly distinguishing between the transfer regimes for heads of departments (section 12 of the PSA) and other employees (section 14 of the PSA). It affirms that transfers of heads of provincial departments to national departments require presidential involvement and that failure to comply with statutory requirements renders such transfers unlawful and unenforceable under the principle of legality. The judgment also addresses important procedural issues regarding choice of process (motion proceedings versus trial proceedings with oral evidence), the use of affidavits as evidence, and the requirements for properly pleading and proving damages claims.