Administrator, Transvaal, and Others v Zenzile and Others

• Jurisdiction: South Africa
• Judge: Hoexter JA, Botha JA, E M Grosskopf JA, Milne JA and Nienaber AJA
• Judgment Date: 27 September 1990
• Citation: 1991 (1) SA 21 (A)
• Hearing Date: 01 March 1990
• Court: Appellate Division

Hoexter JA:

In this appeal the four appellants are respectively the Administrator of the Transvaal, the Provincial Secretary of the Transvaal Provincial Administration, the Director of Hospital Services and the Superintendent of the Natalspruit Hospital. The three respondents were in the employ of the Transvaal Provincial H Administration ('the Administration'). They were employed as workers at the Natalspruit Hospital ('the hospital'). During 1987 the respondents were dismissed in circumstances which will be mentioned later. Following upon their dismissal the respondents on notice of motion in the Witwatersrand Local Division sought and obtained against the appellants orders (1) setting aside the decision to dismiss them; (2) declaring I that the respondents remain in the employ of the Administration; (3) directing the appellants to recognise and to give effect to the terms of employment of the respondents; (4) directing the appellants to pay the costs of the application. The application, which was opposed, was heard by Coetzee J. With leave of the Court below the appellants appeal to J this Court.

Hoexter JA

A The respondents are three women. The first respondent is a divorcee. The second and third respondents are widows. The first respondent became an employee of the Administration in April 1972, while the employment of the second and third respondents dates from March 1980 and December 1981 respectively. The first and second respondents were employed as B cleaners. The third respondent worked first as a cleaner and thereafter as a ward aid.

When the respondents began working at the hospital the employment of hospital employees was governed by the provisions of the Hospital Ordinance 14 of 1958 (T). However, with effect from 1 August 1986, and in terms of the Provincial Government Act 69 of 1986, read with s 14 of C the Public Service Act 111 of 1984 ('the Act'), the respondents were transferred to the public service. Thereafter the status of the respondents within the public service was that of persons employed temporarily in a full-time capacity within the meaning of s 7(1)(c) of the Act.

In terms of s 36 of the Act a code called the Public Service Staff D Code ('the Code') has been compiled. Its provisions are binding upon any public service officer or employee. In terms of s 1 of the Act 'officer' means a person who has been permanently appointed and 'employee' means a person contemplated in s 7(1)(c). Although the Code deals chiefly with officers in the public service, it also contains provisions governing E the termination of employment of employees. According to clause 5 of the Code the employment of an employee may be terminated either

'(1)

on notice, the minimum notice period being the period for which an employee is paid unless his service contract otherwise provides;

(2)

summarily, if the employee has been guilty of misconduct or if his F services are unsatisfactory'.

The respondents were paid monthly, but the service contracts signed by them when they became employees of the Administration were terminable by 24 hours' notice on either side.

The respondents were members of the Temporary Employees Pension Fund G ('the pension fund') established in terms of the Temporary Employees Pension Fund Act 75 of 1979. Membership of the pension fund is dependent on continued employment. A member who is discharged for certain specific reasons mentioned in the pension fund regulations (eg ill-health not occasioned by the member's fault or abolition of the member's post) becomes entitled to the payment of certain benefits from the pension H fund. The amount payable depends upon the length of the member's pensionable service. A member with less than 10 years' service is paid a gratuity. A member having at least 10 years' service receives an annuity. On the other hand, a member who has not attained pensionable age and who resigns or is discharged from employment either on account I of misconduct or for a reason not specified in the regulations is paid an amount which is less than the aforesaid gratuity or annuity.

The founding affidavit to the notice of motion was made by the first respondent. The remaining respondents filed supporting affidavits. On behalf of the appellants there were filed a number of opposing affidavits, including those of Dr N P Kernes, the acting superintendent J of the

Hoexter JA

A hospital, Mr J H van Gass, the deputy director of personnel management in the hospital services, and Mr J W Olivier, an administrative director in hospital services.

On 18 and 19 August 1987 there took place at the hospital a work-stoppage by a large group of employees. As a result thereof some 130 employees were dismissed. As to the events leading up to and B surrounding the dismissals, the affidavits filed reflected several disputes of fact between the rival versions of the respondents on the one hand and the appellants on the other. Inasmuch as the respondents sought final relief the learned Judge in the Court a quo had regard to the averments made on behalf of the appellants together with such facts as were common cause.

C What precipitated the work-stoppage and the dismissals consequent thereon was the dismissal, nearly a month before, of a Mrs Ntombela. Mrs Ntombela had been a ward aid at the hospital and the hospital authorities regarded her as a turbulent trouble-maker. Following upon a hearing (at which Mrs Ntombela was present) of certain complaints against her, Mrs Ntombela was dismissed on 22 July 1987. Her dismissal D aroused dissatisfaction on the part of other workers at the hospital and they unsuccessfully demanded that Mrs Ntombela be reinstated. Matters came to a head on 18 August 1987. The work-stoppage began very early on the morning of that day. At 11:15 Mr Van Gass instructed Dr Kernes to deliver an ultimatum to the workers involved in the work-stoppage. Shortly after noon Dr Kernes delivered the ultimatum orally to the E assembled non-workers. He ordered them to return to work by 13:00 failing which, so he told them, they would face certain consequences. The ultimatum was thereafter reduced to writing in the form of a notice, and copies thereof were made. At 14:00 the notice was read out to the assembled workers and an attempt was made to hand out copies. The F workers concerned refused to take the copies. The notice read as follows:

'NATALSPRUIT HOSPITAL

Notice to all parties involved in work stoppage at Natalspruit Hospital on the 18/08/1987.

Kindly note that despite being requested to return to work you have ignored this and are consequently both disrupting an essential service G and endangering the patients' well-being as well as being in breach of your conditions of employment.

Should you fail to return to work within 30 minutes after receiving this notification the following steps will be considered by the Office of the Provincial Secretary in conjunction with the Director of Hospital Services.

1.

Daily worker (temporary) - immediate dismissal.

2.

H 2. Permanent staff

(a)

On probation - regarded as dismissed.

(b)

Not on probation - immediate suspension pending charges of misconduct.

Any grievances that you feel need to be discussed can be done so immediately and on an ongoing basis with your representatives once you I have returned to work.

Signed: pp Director of Hospital Services Deputy Superintendent.'

The workers concerned disregarded the ultimatum. They left the hospital grounds at 15:30. At 16:30 Mr Van Gass arrived at the hospital and letters of dismissal were drafted and approved. On the morning of 19 August the workers concerned again failed to work. From attendance-registers and clock-cards a list of the workers who had J failed to work on the afternoon

Hoexter JA

A of 18 August and the morning of 19 August was drawn up. Mr Van Gass arrived at the hospital at 11:20 on 19 August and he thereupon signed a letter of dismissal in respect of each of the workers on the list. At 14:20 the letter of dismissal and the names on the list were read to the assembled workers. They were given 30 minutes to collect their letters B from an official. Nobody collected the letter. The names of the first two respondents appeared on the list. On 20 August 1987 a copy of the letter of dismissal and/or suspension was sent by registered post to each affected employee at such employee's last known address. The letter sent to the first and second respondents read as follows:

'The TP Administration has been informed that you have failed to C perform your normal duties. This action mentioned above constitutes a breach of your conditions of service. You will appreciate that the services rendered by Natalspruit Hospital are of an essential nature. Consequently the Administration cannot allow any act that is prejudicial to the hospital and the efficiency of its administration. As you have failed to resume your duties as instructed by the superintendent or furnished acceptable reasons for your failure to do so, your services D must be regarded as terminated with effect from 20 August 1987.'

From the affidavits filed on behalf of the appellants it appears that the first and second respondents were summarily dismissed for misconduct in terms of the Code in view of their refusal to work. The position was correctly summarised thus by Coetzee J in the course of his judgment: E

'Their contracts of service were liable to be terminated on either 24 hours' notice or summary dismissal in the event of misconduct. It is not disputed that the first and second applicants were not given the requisite notice. Mr Van Gass, who took the decision to dismiss the first and second appellants, does not purport to have given them notice in terms of their service contracts; he contends that he accepted the "repudiation" thereof by the first and second applicants.' F

The third...