REPORTABLE

CASE NO: SA 68/2018

IN THE SUPREME COURT OF NAMIBIA

In the matter between:

Coram:                      MAINGA JA, SMUTS JA and HOFF JA

Heard:                       23 June 2020

Delivered:                 1 July 2020

SMUTS JA (MAINGA JA and HOFF JA concurring):

[1]        The issue to be determined in this appeal is whether the appellant’s cause of action against the Namibian Police expired under s 39 of the Police Act, 19 of 1990 (the Act). That provision requires that any civil proceedings against the State in respect of anything done under the Act must be instituted within 12 months after the cause of action arose, with prior notice of the proceedings to be given not less than one month before its institution.

Factual background

[2]        On 3 March 2016, notice was given to the appellant that he had been discharged from the Namibian Police Force under s 9 of the Act by virtue of having absented himself from his duties for a continuous period exceeding 30 days without leave.

[3]        At the time the appellant had the rank of deputy-commissioner and was stationed at Otjiwarongo. He had been in the Force (and its constitutional predecessor) since 1981. He had been transferred to Otjiwarongo with effect from the beginning of 2015.

[4]        Section 9 of the Act provides:

‘A member who absents himself or herself from his or her official duties without the permission of the Inspector-General for a continuous period exceeding thirty days, shall be deemed to have been discharged from the Force on account of misconduct with effect from the date immediately following upon the last day on which he or she was present at his or her place of duty: Provided that if any member absents himself or herself from his or her official duties without such permission and accepts other employment, he or she shall be deemed to have been so discharged even if he or she has not yet so absented himself or herself for a month: Provided further that if a member deemed to have been so discharged, again reports for duty, the Inspector-General may, notwithstanding anything to the contrary contained in any law, reinstate him or her in his or her former post or appoint him or her to any other post or appointment in the Force on such conditions as the Inspector-General may deem fit, and in that event the period of his or her absence from his or her official duties shall be deemed to have been absence on vacation leave without pay, or leave on such other conditions as the Inspector-General may determine.’

[5]        The Inspector-General’s notice to the appellant stated that his leave had ended on 15 January 2016 and that he had failed to report for duties from 18 January 2016 to the date of the notice. The appellant’s attention was drawn to the provisions of s 9 and he was invited to address a letter to the Inspector-General (I-G) should he have any valid reasons for his absence for consideration as to whether he should be reinstated or not. It was pointed out to the appellant that his discharge had occurred by operation of law under s 9.

[6]        Shortly after receipt of this notice, the appellant addressed the I-G on 7 March 2016, denying that he was absent from his ‘duty station’ and asserting that he was present at his ‘duty station’ during that period and that he disputed the ‘decision’ (to discharge him). He also argued that s 9 only applies ‘after reasonable attempts are made to establish contact with such a member, and such a member cannot be traced for 30 days and nobody knows where he or she was or when the member avoids any contact with his or her duty station and subsequently not reporting to his duty station’.

[7]        The appellant’s letter of 7 March 2016 was followed by one from his legal insurers, Legal Shield, on his behalf on 16 March 2016. It was headed ‘appeal against termination of employment’. The grounds of ‘appeal’ were that the appellant’s discharge was both substantively and procedurally unfair as if the Labour Act, 11 of 2007 had application. The letter also denied that the appellant had ‘absconded’. The ‘appeal’ sought the appellant’s reinstatement.

[8]        The I-G responded on 4 April 2016, reiterating that the appellant had absented himself from his duties for the period in question and that he was thus deemed to have been discharged. He stated that the jurisdictional facts presupposed by s 9 were present, namely the appellant absenting himself from official duties continuously for a period exceeding 30 days without leave to do so. The I-G pointed out that the deeming provision applied by operation of law once the jurisdictional facts were present. It was also pointed out that other members of the force who saw him did not indicate that he was on or attending to official duties. The appellant was however further informed (through his insurer):

‘In conclusion we still record that your client’s services were not terminated as you seem to suggest and we still aver that your client was deemed discharged by operation of law in terms of section 9 of the Police Act, as earlier alluded to. Thus, in view of the foregoing, the discharge of your client remains valid and should you still not be satisfied you may appeal the matter to the Minister of Safety and Security as I find no reasons upon which your client can be reinstated as was already communicated to him by letter dated 11^th March 2016.’

[9]        The appellant thereafter directed an ‘appeal’ to the Minister dated 22 April 2016, seeking his reinstatement to the force. He again denied that he was absent from his ‘duty station’ during the period in question.

[10]      The Minister on 5 December 2016 dismissed the appellant’s ‘appeal’, and did so purportedly under s 8(2) of the Act.

[11]      Section 8 however concerns discharge or reduction in rank of members on account of being incapable of performing duties. Like s 7, which concerns discharge on account of ill-health, both s 7 and s 8 have built-in appeal remedies expressly provided for in s 7(2) and s 8(2) respectively. Section 8 provides:

‘(1)       A member may be discharged from the Force or reduced in rank by the Inspector-General if, after enquiry by a board of enquiry in the prescribed manner as to his or her fitness to remain in the Force or to retain his or her rank, the Inspector-General is of the opinion that he or she is incapable of performing his or her duties efficiently: Provided that if a member is still serving his or her probation period in terms of section 4 such a prior enquiry shall not be required, but such member shall be afforded an opportunity to be heard prior to any discharge.

(2)        A member who has been discharged from the Force or reduced in rank by the Inspector-General in terms of subsection (1), may in the prescribed manner appeal to the Minister against the decision of the Inspector-General, and the Minister may set aside or confirm such decision.’

[12]      Section 7(2) provides for an appeal in similar terms against a decision to discharge on grounds of ill-health.

Proceedings in the High Court

[13]      The appellant thereafter launched an application to the High Court on 5 December 2017, seeking a declaratory order to the effect that the appellant’s discharge of 3 March 2016 was unlawful, invalid and of no effect and seeking the appellant’s reinstatement and ancillary relief. The application thus challenged the legality of the notice of 3 March 2016. The application was preceded by a notice in terms of s 39 to the Minister and I-G on 5 September 2017.

[14]      In his founding affidavit, the appellant asserted that he reported for duty during the period in question and argued that he was not absent without leave and should be reinstated on this ground alone and that the I-G’s notice of 3 March 2016 was invalid for this reason. He also argued that there should have been an enquiry and that he should have had the opportunity to address evidence of his absence. He further contended that the respondent had failed to prove the jurisdictional facts posited by s 9 and that the I-G had no power to issue the notice. He also asserted that the Minister had failed to apply his mind to relevant considerations and bemoaned the lack of an investigation of the two conflicting versions concerning his absence.

[15]      The respondents opposed the application on the merits and also raised a preliminary point of non-compliance with s 39 of the Act, which requires the institution of proceedings within 12 months of a cause of action arising. The respondents submitted that the appellant’s cause of action arose on 3 March 2016 or at the latest on 4 April 2016 and that he had not instituted the proceedings within 12 months of those dates as required by s 39. They argued that the application should be dismissed on that ground alone.

[16]      On the merits, the respondents denied that the appellant was not absent from his duties. Affidavits from the two staff officers who were required to report to him were to the effect that the appellant was absent from his official duties for the entire period and never performed any official duties at all during that time. In fact, both subordinates stated that the appellant had informed them that he had a grievance with his superiors and indicated to them that he would not attend to and perform his official duties as a consequence. It was also pointed out on behalf of the respondents that none of the statements by force members seeing the appellant at or near the Regional Police Headquarters were to the effect that he was performing his official duties. It was also pointed out that in his letters of 7 and 16 March 2016 challenging the discharge, the appellant had not tendered to perform his official duties. There was also an affidavit by the appellant’s regional commander to the effect that the appellant stated to him that he was ‘not reporting for duty’ and that the appellant did not perform ‘any official functions/duties’.

[17]      The appellant’s replying affidavit was brief. He stated that he offered to perform his official duties and denied his absence. He however did not deal with the statement attributed to him by his subordinate, Chief Inspector Marais that he (the appellant) had told him that he declined to perform his duties. Nor did he properly deal with his other subordinate’s, (Chief Inspector Andreas) statement attributed to him to similar effect. He however denied his Commander’s statement about the appellant not intending to report for duty.

The approach of the High Court

[18]      The Deputy Judge President found that the appellant’s cause of action arose on 3 March 2016 when he received his notice of discharge or at best for him on 4 April 2016 when the I-G conveyed to him that he would not be reinstated. The High Court held that the appellant was required by s 39 to institute proceedings within 12 months from either of those dates but only did so more than 12 months later on 5 December 2017. This meant, according to the High Court, that the appellant’s claim had become prescribed.

[19]      The High Court rejected the appellant’s contention that he was obliged to exhaust his internal remedies in the form of an appeal to the Minister, having  received the outcome of that ‘appeal’ on 5 December 2016. It was contended - as is also argued in this court – that 5 December 2017 was within 12 months of 5 December 2016 and that the appellant was entitled to and obliged to exhaust statutory remedies before approaching court and that the matter had not prescribed under s 39. The appellant had in his replying affidavit asserted that his appeal was not in terms of s 8(2) of the Act but under s 3A(1)(b) of the Act. This was not however asserted in the founding affidavit.

[20]      Section 3A(1)(b) is to the following effect:

‘3A. (1) Notwithstanding anything contained in this Act or any other law, the Minister may, in writing –

(a)    . . . .

(b)    set aside or vary any decision or action taken by the Inspector-General or any member to whom any power or function may have been delegated or assigned.’

[21]      The Deputy Judge President found that s 3A(1)(b) did not apply to the facts. The court found that the I-G had not taken a decision to discharge the appellant and that his discharge was by operation of the law and that there were no internal remedy of appeal open to the appellant. The court held that his cause of action had arisen on 3 March 2016 or 4 April 2016 and that more than 12 months had lapsed since those dates before the application was brought.

[22]      The court accordingly upheld the preliminary point and dismissed the application. The appellant noted an appeal to this court.

Submissions on appeal

[23]      Mr J A N Strydom, who appeared for the appellant, in his written argument asserted that the present proceedings should not be strictly construed as civil proceedings as contemplated by s 39 because they relate to an employment relationship which ‘stands on a different footing than matter involving legal actions pursued by third parties against the Namibian Police’. Only the latter proceedings (claims by third parties) would, according to counsel, be what are contemplated by the legislature as constituting civil proceedings. No authority was cited for this proposition. He further argued that labour matters involving the Force include internal remedies in contrast with the position of third parties’ claims and that the law expected a person to exhaust all internal remedies before pursuing proceedings in a different forum such as the Labour Court. In support of this contention, counsel cited the judgment of the court below, discussing the importance of exhausting remedies and a judgment of the South African Constitutional Court cited by the court below.[1] 

[24]      Counsel for the appellant proceeded to argue that s 3A(1)(b) provided the appellant with an internal remedy and that the court below should have found that ‘the appellant’s recourse to a court only arose at a time when the Minister took the decision to refuse’ the request for reinstatement on 5 December 2016.

[25]      Counsel contended that the preliminary point should have been dismissed and that the matter should be referred back to the High Court for determination on the merits.

Sections 9, 3A(1)(b) and 39 within the statutory scheme

[26]      In order to determine whether the appellant’s cause of action for the purpose of s 39 only arose after the Minister had taken his decision on the ‘appeal’ made to him by the appellant, the pertinent provisions are to be considered and construed within the statutory context by reading them in the light of the Act construed as a whole[2] and particularly whether the appellant was required to invoke s 3A(1)(b) before his cause of action arose. The pertinent provisions are s 9, s 3A(1)(b) and    s 39.

[27]      Section 9 is located in the first chapter of the Act relating to the organisation of the force. Chapter I of the Act, commences with a definitions section, followed by s 2 of the Act which establishes the Force and then s 3 which deals with its command structure. Section 4 concerns the appointment, promotion, discharge or demotion of members and s 5 covers the granting of commission. Section 6 deals with the resignation of officers. Then follows s 7 dealing with the discharge of members on account of ill health and then s 8 concerns discharge or reduction in rank of members on account of inefficiency. Section 9 deals with the discharge of members on account of long absence without leave.

[28]      Chapter II of the Act thereafter follows and concerns the functions of the Force and powers and duties of members. In Chapter III, discipline is dealt with, setting out disciplinary procedures and suspensions.

[29]      Section 9 does not form part of the scheme involving discipline. Nor do the types of discharge authorised by s 7 and s 8. This is because these provisions are not of a disciplinary nature or intended to be. They concern the discharge of members on account of ill health, incapacity and long absence without leave in s 7, 8 and 9 respectively. Sections 7 and 8 contemplate a decision on the part of the I-G to discharge on grounds of ill health and incapacity respectively and, as is pointed out, each contains its own internal remedy in the form of an appeal to the Minister in s 7(2) and s 8(2). Section 9 relates to a discharge as a consequence of a long absence from official duties.

[30]      Section 9 has certain similarities with s 24(5)(a) and (b) of the Public Service Act.[3] The latter section provides:

‘(a)       Any staff member who, without permission of the permanent secretary of the office, ministry or agency in which he or she is employed –

(i)         absents himself or herself from his or her office or official duties for any period exceeding 30 days; or

(ii)        absents himself or herself from his or her office or official duties and assumes duty in any other employment, shall be deemed to have been discharged from the Public Service on account of misconduct with effect from the date immediately succeeding his or her last day of attendance at his or her place of employment.

(b)       The Prime Minister may, on the recommendation of the Commission, and notwithstanding anything to the contrary contained in any law, reinstate any staff member so deemed to have been discharged in the Public Service in the post or employment previously held by him or her, or in any other post or employment on such conditions as may be approved by the Prime Minister on the recommendation of the Commission, but with a salary or scale of salary or grade not higher than the salary or scale of salary or grade previously applicable to him or her, and in such a case the period of his or her absence from his or her office or official duties shall be deemed to have been absence on vacation leave without pay or leave on such other conditions as may be approved by the Prime Minister on the recommendation of the Commission.’

[31]      In a careful examination of this provision, Strydom JP, sitting then as President of the Labour Court, with his customary clarity, described it thus:[4]

‘. . . the words “absents himself” clearly imports an element of volition on the part of the absentee. The deeming clause terminating the employment comes to the rescue of the employer who was placed in an invidious position of not knowing why and how long such absence would continue, to again fill the position so that the work can be done. In my opinion, the termination is final unless and until the provisions of ss (b) are invoked and a discretion is exercised by the Prime Minister on the recommendation of the Commission.

Whether in the circumstances the Prime Minister is called upon to exercise his discretion depends, in my opinion, on whether that is required by the discharged employee. As was pointed out by Mr Smuts, the initial discharge in terms of ss(a) did not occur through the exercise of any discretion by any official but occurred through the operation of law.’[5]

[32]      As was held in Njathi, no hearing is contemplated or necessary before the coming into operation of the deeming provision set out in s 24(5)(a).[6]

[33]      This fundamental approach, in my view, applies with equal Force to the provisions of s 9 of the Act. Once a member absents himself or herself from his or her official duties without leave for a continuous period exceeding 30 days, the deeming provision kicks in and that member is deemed discharged. That consequence follows by operation of law and not as a consequence of the exercise of any discretion on the part of the I-G. The second proviso authorises the I-G to reinstate such a discharged member on such conditions as deemed fit by the I-G. This proviso can only apply if that discharged member ‘again reports for duty’.

[34]      The I-G would then have a discretion to reinstate such a discharged member who again reports for duty.

[35]      Unlike s 7 and s 8, there is no provision for an appeal in s 9. This is because, unlike those provisions, the discharge is not the consequence of a decision to discharge by the I-G, but occurs by operation of law. Section 9 thus does not contemplate an internal remedy relating to the discharge. A discharge under s 9 is by operation of law following an extended continuous absence without leave and does not arise by decision of the I-G. As already stated, the two other forms of discharge in chapter I (in s 7 and s 8 respectively) entail a decision and each section also provides for an appeal to the Minister against that decision. If an applicant were to seek to review decisions to discharge under s 7 or s 8 in the High Court, that court may well require that the internal remedy in the form of the specifically contemplated appeal be exhausted prior to doing so.

[36]      Courts in Namibia are not required to strictly enforce exhaustion of internal remedies in the same way as is required by statute in South Africa, as reflected in the (South African) Constitutional Court case of Koyabe[7] relied upon by the appellant. The statements relied upon in Koyabe have their basis in the requirement of exhausting internal remedies brought about by s 7 of the South African Promotion of Administrative Justice Act, 3 of 2000 (PAJA). This provision essentially requires the exhaustion of internal remedies save in exceptional circumstances as a prerequisite for the review of administrative action under that country’s constitution. As was emphatically stated in Nichol & another v Registrar of Pension Funds & others[8], approved in Koyabe,[9] s 7 of PAJA in this respect ‘considerably reformed the common law’.[10] Under the common law, which still applies in Namibia, the mere existence of an internal remedy would not by itself, be sufficient to defer access to judicial review until that remedy were to be exhausted.[11] As has frequently been cautioned by this court, statements made by courts in other jurisdictions within the context of their own different legislative or constitutional framework have limited application to a different legal regime in Namibia.

[37]      The court below in this context correctly referred to a judgment of this court in Namibian Competition Commission & another v Walmart Stores Incorporated[12] for a lucid reinstatement of the common law principle in this regard:

’[45]     Ordinarily, the question whether an applicant will be required to exhaust internal remedies before approaching a court for relief, turns on the interpretation of the relevant statute (or contract, though that does not arise in this case). At times, a statute may expressly provide that an internal remedy must be exhausted before approaching a court. More commonly, though, the statute does not expressly insist that an applicant exhaust the internal remedy it provides before approaching a court. The question is whether the statute implicitly requires exhaustion of the internal remedy. The mere fact that a statute has provided an internal remedy is not generally sufficient to establish that it intended to insist that the internal remedy be exhausted before a court is approached for relief. More is required.

[46]    In National Union of Namibian Workers v Naholo, Tötemeyer AJ identified two considerations relevant to the determination of whether internal remedies should be exhausted. The first is the wording of the relevant statutory provision; and the second is whether the internal remedy would be sufficient to afford practical relief in the circumstances. In Naholo’s case, Mr Naholo, the Acting General Secretary of the National Union of Namibian Workers, had been dismissed by the Union. A clause of the Union’s constitution provided that Mr Naholo would have the right to appeal to the next national congress of the Union. Tötemeyer AJ observed that national congresses only occurred every four years and that if Mr Naholo had to wait years to prosecute an appeal, he would be “virtually remediless”. This consideration persuaded the Court that the internal remedy provided by the Union’s constitution would not provide effective relief and therefore did not need to be exhausted before Mr Naholo approached the Court. 

[47]    The requirement that the internal remedy provide effective redress is one that has been acknowledged by South African courts as well. Determining whether an internal remedy provides effective redress requires a careful examination of the remedy provided in the statute in the light of the relief sought in the litigation.’ (Emphasis supplied).

[38]      Even though the I-G’s letter of 4 April 2016 makes reference to an ‘appeal’ to the Minister, this is not correct as s 9 does not contemplate or authorise such an appeal. The I-G may have considered there could be an appeal because of the appeals envisaged by s 7 and s 8. When the Minister considered the ‘appeal’ directed to him, he dealt with it as if it were an appeal under s 8. This it was not. But nothing further need be said about that as the Minister’s decision on the ‘appeal’ is not taken on review on the basis that he misconstrued his powers or on any other basis. It had no effect in law and the misconstrual of his powers by him is irrelevant to these proceedings.

[39]      Instead the appellant argues that this ‘appeal’ to the Minister was required to exhaust his internal remedies under the Act before his cause of action arose upon the finalisation of that remedy and that the appellant had in fact invoked the remedy embodied in s 3A of the Act in addressing that ‘appeal’.

[40]      The difficulty with this approach is that s 3A(1)(a)(b) does not contemplate an appeal but rather a form of review. Furthermore, the ‘appeal’ addressed to the Minister makes no mention of this provision. It does not purport to invoke it. Nor is it referred to in the appellant’s founding affidavit and is only latched onto in reply after the point is expressly taken by the respondents that a s 8 appeal would not apply to s 9. Even though the attempt to invoke s 3A(1)(b) may have been an afterthought, raised as it was for the first time in the replying affidavit, it is in any event flawed for a further fundamental reason, as was correctly held by the Deputy Judge President. The appellant’s discharge came about by operation of law and was not the consequence of any decision to discharge by the I-G (which the appellant sought to appeal against).

[41]      Because the discharge occurs by operation of law, there is no decision which results in the appellant’s discharge which can be appealed against. The internal remedy afforded to a member discharged under s 9 would be to seek reinstatement from the I-G when again reporting for duty. If the I-G decides not to reinstate that member, s 9 does not itself provide for a further internal remedy like an appeal, expressly provided for in s 7 and s 8. The Act provides for no appeal from a decision not to reinstate.

[42]      Section 3A(1) authorises the Minister to set aside or vary any decision or action taken by the I-G or a member duly delegated by the I-G. A decision by the    I-G not to reinstate the appellant would appear to fall within the ambit of this broadly worded review power vested in the Minister by s 3(A)(1)(b). This section is a general power to review any decision taken by the I-G and is not specifically with reference to s 9. Nor does s 9 specifically refer to s 3A(1)(b) as providing a remedy. Nor does s 9 require that s 3A(1)(b) be invoked before seeking to review a decision not to reinstate. The language employed in both s 3A(1) and s 9 would not in my view by implication preclude a party from applying to the High Court to review the I-G’s decision not to reinstate under s 9 until a ministerial review under s 3A(1) is complete.

[43]      The only decision taken by the I-G was not to reinstate the appellant. But this decision was not in essence the one challenged in the ‘appeal’. In order to do so, the appellant would need to establish that he again reported for duty as a matter of fact which is by no means established by his letter of 7 March 2016 or that directed on his behalf by his legal insurers on 16 March 2016 or by his conduct. This is also expressly disputed by the respondents, supported by affidavits from those reporting to the appellant and his Regional Commander to whom he reported.

[44]      It is also clear to me that s 9 furthermore does not embody or include an internal remedy of the kind to be exhausted before any legal proceedings can be launched as a consequence of its invocation. It is also clear that the appellant’s ‘appeal’ is in any event misconceived as it attacks the ‘decision’ to discharge the appellant - even if brought under s 3A - which would in any event not have availed the appellant.

[45]      As the Deputy Judge President correctly held, the appellant’s cause of action for the purpose of s 39 arose on 3 March 2016 or at best for the appellant on 4 April 2016 if the failure to reinstate the appellant were to be challenged which is not the basis of the appellant’s challenge, as pleaded. But more importantly for present purposes, the appellant’s recourse did not arise only on 5 December 2016 as is contended on appeal on his behalf. His cause of action to attack the decision not to reinstate him arose on the date of that decision. It would not arise after an unsuccessful internal review of it under s 3A(1).

[46]      Section 39 (1) provides:

‘Any civil proceedings against the State or any person in respect of anything done in pursuance of this Act shall be instituted within 12 months after the cause of action arose, and notice in writing of any such proceedings and of the cause thereof shall be given to the defendant not less than 1 month before it is instituted: Provided that the Minister may at any time waive compliance with the provisions of this subsection.’

[47]      It follows that the institution of proceedings on 5 December 2017 was not within the 12 month period of the cause of action as required by s 39 of the Act. That provision is peremptory in requiring that the institution of proceedings within 12 months of the cause of action arising. This is quite apart from the fact that 5 December 2017 is in any event not within 12 months of 5 December 2016 upon the civilian method of calculating periods of time,[13] as was correctly conceded by Mr Strydom. He initially referred to s 4 of the Interpretation of Laws Proclamation, 37 of 1920 which refers to the calculation of days when days are prescribed for the doing of any act. Although that provision is to similar effect, it would not apply as the period in question is 12 months. The ordinary civil rule (computatio civils) as laid down in Joubert v Enslin[14] would thus apply in accordance with Roman Dutch common law.[15] In order to be within 12 months, the proceedings would need to have been instituted by 4 December 2017 as the 12 month period from 5 December 2016 would end on 4 December 2017. 5 December 2017 would thus no longer be within the 12 month period contemplated by s 39.

[48]      The correctness of this court’s decision in Majiedt[16] as to the constitutionality of s 39 has not been challenged or even been raised by the appellant in this appeal. I refrain from expressing any view on that issue as it is not necessary for the purpose of this judgment to consider that issue, given what is stated below on the merits.

[49]      The Minister was surprisingly at no stage approached to waive compliance with s 39 as he is authorised to do under s 39(1).

[50]      It follows that the High Court did not err in holding that appellant’s claim has expired by virtue of s 39 of the Act, given the binding effect of Majiedt upon it.

[51]      Even if the claim were not to have expired under s 39 in its current formulation, it is in any event clear to me that the appellant did not establish any entitlement to the relief sought in the notice of motion. The appellant chose to proceed by way of motion proceedings even though he would have been aware that there would be a dispute of fact concerning his absence from his duties. Even after the answering affidavits made it clear that there was a glaring dispute of fact on this score, no application was made for a referral to evidence. This was confirmed by Mr Ncube who also appeared for the respondents in the court below. Furthermore, certain of the statements attributed to the appellant about refusing to do his official duties, were not put in issue in reply. Even after the appellant was expressly challenged in the answering affidavits to show that he performed any official duties during the period in question, the appellant failed to list any official duty whatever performed by him during that period. Nor did he establish that he again reported for duty as is required by s 9 when objecting to the letter apprising him of his discharge. A failure to do so would mean that he could in any event not qualify for the exercise of a discretion in favour of his reinstatement.

[52]      On the contrary, the appellant considered that his duties were removed from him. This he stated repeatedly in contemporaneous correspondence referred to by him. The appellant further viewed s 9 to apply when a member had absconded (‘cannot be traced for 30 days or nobody knows where he/she was or when the member avoids any contact with his/her duty station and subsequently not reporting to his duty station’).

[53]      Hoff , J (as he then was) in Gouws gave a similar argument (advanced in respect of s 24(5)(a) of the Public Service Act) short shrift, rejecting the notion that s 24(5) only applied where an employee absconded or disappeared or where an employer had no idea of an employee’s whereabouts. I respectfully agree with that approach and find that it applies with equal force to s 9.

[54]      Unlike s 24(5)(a), s 9 merely requires a member absenting himself or herself ‘from his or her official duties’ without reference to his or her office or workplace.

[55]      In view of the established approach to disputed facts in motion proceedings, the appellant fell far short of establishing any basis to his challenge to the applicability of s 9 to his position. In short, the appellant’s application was without merit. Even if it had not expired under s 39 in its present formulation, it would in any event have been dismissed on this basis or on the merits applying the approach to disputed facts in motion proceedings.[17]

[56]      It accordingly follows that the appeal must fail. An award for costs follows that outcome.

Order

[57]      The following order is made:

The appeal is dismissed with costs.

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SMUTS JA

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MAINGA JA

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HOFF JA