Administrator, Natal, and Another v Sibiya and Another

• Jurisdiction: South Africa
• Judge: Hoexter JA, E M Grosskopf JA, Nestadt JA, Goldstone JA and Harms AJA
• Judgment Date: 20 August 1992
• Hearing Date: 25 May 1992
• Court: Appellate Division

E Hoexter JA:

The two respondents were employed by the Natal Provincial Administration ('the NPA'). Their employment was governed by the Public Service Act 111 of 1984 ('the Act') and the Public Service Staff Code ('the Code') promulgated under the Act. Each respondent was an employee F employed temporarily in a full-time capacity, his contract of service being terminable on notice of one month.

The respondents were members of a large work-force engaged upon the building of hostels at Glebe in the Durban area ('the project'). The project was funded by the National Housing Fund. Due to a shortage of money, and upon instructions from the central government, the project was abandoned in 1990. As a result 29 members of the work-force, including the G respondents, became redundant and the NPA decided that they should be retrenched. The respondents were given the requisite one month's notice and their employment ended on 31 December 1990. Neither respondent was given a hearing at any stage by the appellants.

In the Durban and Coast Local Division the respondents obtained a rule H nisi calling upon the appellants to show cause why their dismissals should not be declared invalid. On the return day the application was resisted by the appellants. The matter came before Didcott J. The sole issue argued before him, which counsel agreed was decisive of the case, was whether the NPA could lawfully dismiss the respondents without having observed the audi alteram partem rule by giving them a hearing and an opportunity to I make representations with regard to their dismissals. In due course Didcott J delivered a judgment in which the rule nisi was confirmed with costs, including the costs of two counsel. The judgment of the Court a quo has been reported, sv Sibiya and Another v Administrator, Natal, and Another 1991 (2) SA 591 (D). With leave of the Court below the appellants J appeal to this Court against the whole of the judgment of Didcott J.

Hoexter JA

A At the time of the application the circumstances of each of the respondents were as follows. The first respondent, aged 54 years, occupied the position of 'foreman general', and he had been employed by the NPA for 10 years, during which period he had received regular salary increases. His gross monthly salary at the time of the termination of his employment B was R1 077,25. He was a married man and his wife and eight children were dependent upon him. The first respondent was a member of the Temporary Employees Pension Fund; the second respondent was not. The second respondent, who had been in the employment of the NPA since March 1989, was 21 years old and unmarried. His monthly salary was R530. Both respondents were members of the Natal Provincial Administration Staff C Association ('NPASA').

The second appellant is the Director-General of the NPA ('the D-G'). On 5 December 1990 NPASA wrote a letter to the D-G in connection with the termination of the employment of a number of its members who had lost their employment at Glebe. NPASA voiced concern thereat and requested an urgent meeting with the D-G's office 'to discuss the matter'. Mr J A D Creeke ('Creeke') is a Deputy Director (Personnel Management) in the NPA. By letter dated 6 December 1990 Creeke responded to NPASA's request for a meeting. While recording his appreciation of the concern shown by NPASA, Creeke intimated that the proposed meeting would serve no purpose. Creeke's letter stated, inter alia:

'Before the decision was taken to serve notice of termination of E services, the Community Services Branch made all reasonable attempts to absorb the employees concerned in other posts. Their dismissals were not considered lightly - quite the contrary. However, if alternative employment is not available and if funds are exhausted, one cannot reasonably argue that the Administration has been unfair.'

F A Durban firm of attorneys, Yunus Mahomed & Associates ('M & A'), acting on behalf of NPASA, wrote a letter to the D-G on 12 December 1990. This letter expressed concern at 'the manner in which the matter has been handled by your Administration', including the fact that the decision to effect retrenchment had been taken without consultation with either the G employees concerned or NPASA. In this connection the following was said:

'In failing to take this essential step your Administration missed a valuable opportunity to inform itself of what was fair and reasonable in the circumstances.'

M & A's letter further invited answers by the NPA to seven different questions, the last of which was couched thus:

'(vii)

Was the decision-maker aware of the provisions relating to the H treatment of personnel in case...