Bula v Minister of Education

• Jurisdiction: South Africa
• Judge: Davies AJ
• Judgment Date: 05 December 1991
• Citation: 1992 (4) SA 716 (TK)
• Hearing Date: 28 November 1991
• Court: Transkei High Court

Davies AJ:

The applicant is the rector of the Lumko College of Education at Lady Frere. This is a government institution which falls under the G control of the respondent, as Minister of Education. In August 1990 he was notified by the Department of Education that he was charged with misconduct in terms of s 24(c), (d) and (o) of the Education Act 26 of 1983 ('the Act'). Nothing further occurred until February 1991, when applicant was informed that a further charge of misconduct in terms of s H 24(c) had been added. In June 1991 applicant was informed that the enquiry envisaged by s 26 of the Act would be held on 16 June. On that date the enquiry was postponed to 16 August, when it was further postponed to September, then to 28 October, then to 2 December 1991. In the meantime, on 23 August, applicant received a letter, signed on behalf of the Director-General, Education, informing him I

'that the Department has, in terms of s 26(4) and (6) of Transkei Education Act, 1983 (Act 26 of 1983) as amended, approved that you be suspended from Government service with effect from 26 August 1991 pending outcome of your misconduct cases.

Also note that your emoluments during the period of suspension shall J also be suspended.'

Davies AJ

A This elicited a reply from the applicant dated 30 September 1991, in which applicant states, inter alia:

'I shall feel that I should obediently appeal that I be suspended with full pay so as to pay all my accounts and support my family. I kindly refer to the attached copy as one of the causes of my financial problems.'

B Having received no reply to this letter, applicant consulted a firm of attorneys, and on 17 October they wrote a further letter to the Director-General. That letter is in the following terms:

'Suspension: M W Bula

We act on behalf of the abovenamed who is the principal of Lumko College C of Education. He has been placed under suspension with effect from 26 August, 1991, with emoluments also suspended.

Our client advises that notwithstanding the pending departmental enquiry there has never been any need for his suspension and in fact had not been suspended for many months after the enquiry had arisen.

Our instructions are to seek an urgent Court relief if the suspension is D not lifted. The question of the suspension of the emoluments makes the position unbearable for our client for reasons that are obvious. We note that your department has not even furnished grounds for the suspension. Our client has not even been given an opportunity to make representations regarding the intended suspension.

Kindly note that should the suspension not be lifted and this office be so advised by 12 noon on Monday the 21st instance, we have no option but E to bring an urgent application in terms of our client's instructions.

Yours faithfully	cc Minister of Education
Sangoni Incorporated	Umtata
	cc The Government Attorney
	Umtata'

F In response to this letter, so applicant avers, he was 'telephonically informed by the Minister that the suspension would not be lifted'.

Thereafter, on 13 November, applicant applied as a matter of urgency to this Court for a rule nisi calling upon respondent to show cause on 12 G December why the decision to suspend him from his duties should not be set aside, why applicant should not forthwith be reinstated as rector, why 'the decision of the respondent in terms whereof applicant was not to receive his emoluments' should not also be set aside. Applicant also sought an interim mandatory interdict obliging respondent to pay applicant all emoluments which would have been due to him had he not been suspended.

H In his founding affidavit the applicant:

(1) denies he has been guilty of any misconduct;

(2) asserts that he was not afforded the opportunity of making representations to the respondent either in regard to the decision to suspend him or in regard to the decision so to suspend him without remuneration before those decisions were taken, and contends that I respondent was obliged, on an application of the audi alteram partem principle, to afford him such opportunity;

(3) avers, in para 7.12, that:

'In August 1991 the Department of Education arranged a workshop on the inspection of schools and requested the teachers of various circuits to elect five delegates for the workshop which was to take place from 21 to J 23 August 1991.

Davies AJ

A The teachers in the Lady Frere district elected me as leader of their delegates to the workshop. At the workshop a number of resolutions were taken and I was requested as the leader of the delegation to bring these resolutions to the attention of the offices of the Department and inspectors who were present at the workshop. The resolutions were critical of certain aspects of the Department. On Monday 26 August 1991 I received a telephone call from the circuit office where I was given the letter of B suspension by the circuit inspector. I have no doubt that the decision to suspend me was taken as a result of irrelevant information which was forwarded from the workshop to the Department and which had nothing to do with the charges of misconduct. There are at present great differences in the political views held by members of staff of the Department of Education. I have no doubt that the information which was placed before the person who made the decision to suspend me was politically inspired C and totally irrelevant.'

Respondent was given notice of the proposed application and gave notice of opposition. On 20 November both parties were represented by counsel when the matter came before my Brother Hancke J, who then issued an order in the following terms:

'It is ordered

1.

That leave be and is hereby granted to the applicant to bring this application as a matter of urgency in terms of the provisions of Rule 6(12) of the Rules of Court and that his failure to strictly comply with the provisions of Rule 6(5) of the Rules of Court be and is E hereby condoned.

2.

That a rule nisi do hereby issue calling upon the respondent to show cause on Thursday 28 November 1991 at 10:00 or as soon thereafter as counsel may be heard why an order in the following terms should not be granted:

2.1

F That the decision to suspend the applicant from his duties as rector of the Lumko College of Education be and is hereby set aside and that the applicant forthwith be reinstated in the said post with full rights and privileges, including emoluments.

2.2

That the decision of the first respondent in terms whereof the applicant was not to receive his emoluments is set aside.

2.3

G That the respondent be and is hereby ordered to forthwith pay to the applicant all emoluments to which he has been entitled in the said post and which have not been paid to him between the date of his suspension from office and the date of his reinstatement in terms of this order.

2.4

H That the respondent pay the cost of this application.

3.

That the respondent is hereby ordered to forthwith pay the applicant all emoluments to which he is entitled in the said post from the date of his suspension to the date of finalisation of this application.'

On 27 November respondent filed an answering affidavit averred to by Mr Malandlela, the Chief Director, Administration, who states that he had I been 'duly authorised by respondent to depose to this affidavit'. Accompanying the affidavit is a notice informing applicant that in the event of the matter not being disposed of on 28 November application would be made for an order:

'That the interim relief granted to the applicant in terms of para 3 of J the rule nisi . . . be and is hereby set aside.'

Davies AJ

A The matter came before me on 28 November. Mr Van Zyl appeared for applicant and Mr Penzhorn SC, with Mr Matyumza, appeared for respondent. Since the respondent's answering affidavit had only been filed and served on applicant's attorneys the previous day, it had obviously not been possible for applicant to file a replying affidavit, and in the light of B the many allegations made in the answering affidavit it seems clear that a replying affidavit will be necessary. Counsel informed me that it had been agreed, in the circumstances, that the rule would be extended to 5 March 1992, when it would be argued, and that only respondent's application for the setting aside of the interim mandatory interdict would be argued before me.

C The procedure to be followed when an official of the Department of Education (as is applicant) is accused of misconduct is set out in s 26 of the Act. The section contains 31 subsections. Those subsections relevant to the present enquiry are as follows:

'(4) The Minister or, if authorised thereto by the Minister either D generally or in a particular case, the Director-General or any other officer in the department, may suspend from duty any person accused of misconduct as defined in s 24 whether or not such person has been charged with misconduct.

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