Administrator, Transvaal, and Others v Zenzile and Others

• Jurisdiction: South Africa
• Citation: 1991 (1) SA 21 (A)

Administrator, Transvaal, and Others v Zenzile and Others
1991 (1) SA 21 (A)

1991 (1) SA p21

Citation	1991 (1) SA 21 (A)
Court	Appellate Division
Judge	Hoexter JA, Botha JA, E M Grosskopf JA, Milne JA and Nienaber AJA
Heard	March 1, 1990
Judgment	September 27, 1990

Flynote : Sleutelwoorde B

Employment law — Unlawful dismissal — Applicability of audi alteram partem principle — Hospital workers temporarily employed in full-time capacity (as defined in s 7(1)(c) of Public Service Act 111 of 1984) C summarily dismissed after participation in work stoppage — Such workers defined as 'employees' in Public Service Code compiled in terms of s 36 of Act — In terms of Code read with employees' service contracts, employees could summarily be dismissed for misconduct or unsatisfactory service, or on 24 hours' notice — Employees not given hearing prior to D their summary dismissal — Local Division declaring dismissal unlawful — On appeal by employer, employer arguing that contractual relationship with employees simply one of master and servant governed exclusively by common law — Participation in work stoppage amounting to unlawful repudiation of contract, entitling employer summarily to dismiss them — E Alternatively, employer arguing that Legislature intended to exclude operation of audi alteram partem principle and to deprive temporary employees of right to prior hearing before summary dismissal — Court on appeal holding that power exercised by employer of a disciplinary or F punitive nature — Employer a public authority whose decision to dismiss involved exercise of public power — Element of public service injected by statute necessarily entailing that employees entitled to benefit of application of principles of natural justice before summary dismissal for misconduct — Contract of service governed partly by statutory provisions not a 'pure' or 'ordinary' contract of service — Employee G employed under such contract not 'ordinary' servant — Rights and obligations of parties not arising out of 'purely contractual relations' — Existence of contractual relationship not altering essential nature of enquiry, being (1) whether public official empowered to give decision affecting existing rights of an individual and, if so, (2) whether right H of individual to be heard before decision taken excluded either expressly or by implication — Exercise by public official of statutory power to dismiss not depriving that power of its intrinsic jural character simply because corresponding right to dismiss existing at common law or provided for in contract — Fact that indisputable right to dismiss accruing to employer by law of contract not meaning, for I purposes of administrative law, that requirements of natural justice not applicable in relation to exercise of right — Where, as in this instance, right to dismiss was disciplinary, requirements of natural justice clamant — Tenor of Public Service Act as a whole not indicating J exclusion of audi alteram partem principle by implication

1991 (1) SA p22

— A Audi alteram partem principle applicable to facts of case — Appeal accordingly dismissed.

Headnote : Kopnota

The appellants were, 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, who had been employed at the B Natalspruit Hospital as cleaners and ward aids since 1972, 1980 and 1981 respectively, had been summarily dismissed from their employment after they had participated in a work stoppage. Their status had been that of persons temporarily employed in a full-time capacity within the meaning of s 7(1)(c) of the Public Service Act 111 of 1984. They were defined in clause 1 of the Public Service Staff Code (compiled in terms of s 36 of the Act) as 'employees', as opposed to 'officers', who were persons C permanently appointed. Clause 5 of the Code provided that the employment of an employee could be terminated either on notice or summarily, in the latter case 'if the employee (had) been guilty of misconduct or if his services (had been) unsatisfactory'. The respondents had been paid monthly but, in terms of their service contracts, such contracts could be terminated on 24 hours' notice on either side. The respondents were members of the Temporary Employees Pension Fund. It was common cause D that none of the respondents had been accorded a hearing prior to her dismissal.

The respondents had sought and obtained against the appellants an order in a Local Division, inter alia, (1) setting aside the decision to dismiss them; (2) declaring that they remained in the employ of the Administration; and (3) directing the appellants to recognise and give effect to the respondents' terms of employment. On appeal, it was argued for the appellants that the facts of the case were such as to place the matter entirely beyond the reach of administrative law: the contractual E relationship between the Administration and the respondents was simply one of master and servant governed exclusively by the common law of contract; and the respondents' participation in the work-stoppage had amounted to unlawful repudiation of their contractual obligation to work, or at any rate to a fundamental breach of that obligation, which entitled their employer summarily to dismiss them. In the alternative, it was argued that, in any case, upon a proper construction of the F Public Service Act it was evident that the Legislature had intended to exclude the operation of the audi alteram partem principle and to deprive temporary workers of the right to a prior hearing before their summary dismissal.

Held, that in the instant case, being concerned as it was with the summary dismissal of employees on the grounds of alleged misconduct, the power exercised by the employer against the employees was one of a disciplinary or punitive nature.

Held, further, as to the respondents' argument that the matter fell G beyond the purview of administrative law, that the case was concerned not with mere employment under a contract of service between two private individuals, but with a form of employment which invested the employee with a particular status which the law would protect: the employer and decision-maker in this instance was a public authority whose decision to dismiss involved the exercise of a public power.

Held, further, that the element of public service injected by statute H necessarily entailed that the respondents had been entitled to the benefit of the application of the principles of natural justice before they could summarily be dismissed for misconduct.

Held, further, that, in the context of the instant case, the elementary rule of the law of contract, which provided that a breach which justified rescission did not automatically determine the contract, I should not be overlooked: the Administration's election summarily to dismiss the respondents could lawfully have been exercised only if the respondents had been guilty of misconduct or had rendered unsatisfactory service, and that election entailed a legal duty to enquire into matters of fact and law.

Held, further, that when a statute empowered a public body to give a decision prejudicially affecting an individual in his liberty or property or existing rights, the latter had a right to be heard before the decision was taken, unless the statute expressly or by implication J indicated the contrary.

1991 (1) SA p23

A Held, further, that in the instant case the decision summarily to dismiss had affected the respondents prejudicially in their rights.

Held, further, that, ex hypothesi, a contract of service which was governed in part by statutory provisions could not properly be described as a 'pure' or 'ordinary' contract of master and servant; that an officer or employee under such contract could not appropriately be called an 'ordinary' servant; and that the rights and obligations of the parties could not legitimately be said to have arisen out of 'purely B contractual relations'.

Held, further, that it was logically unsound and wrong in principle to postulate that the audi alteram partem principle had no application to 'purely contractual relations': the existence of a contractual relationship could not alter the essential nature of the inquiry which, with reference to any particular provision of a statute, was always (1) whether a public official had been empowered to give a decision affecting the existing rights of an individual and, if so, (2) whether C the right of the individual to be heard before the decision was taken had been excluded either expressly or impliedly.

Held, further, that the exercise by public officials of the statutory power to dismiss the respondents had not deprived that power of its intrinsic jural character simply because a corresponding right to dismiss existed at common law or that provision for it might have been made in a contract.

D Held, further, that the common law or contractual right to dismiss gained an added dimension and was invested with special significance by its express enactment in a statute, and that that consequence laid the foundation for the classic formulation of the audi alteram partem principle.

Held, further, that the fact that by the law of contract an indisputable right to dismiss might have accrued to an employer to dismiss his employee did not, for the purposes of administrative law, mean that the requirements of natural justice could have no application in relation to E the actual exercise of the right; and where, as in this instance, the exercise of the right to dismiss was disciplinary, that the requirements of natural justice were clamant.

Held, further, that, while the Act made detailed provision for the bringing of disciplinary...