Bula v Minister of Education

• Jurisdiction: South Africa

Bula v Minister of Education
1992 (4) SA 716 (TK)

1992 (4) SA p716

Citation	1992 (4) SA 716 (TK)
Court	Transkei General Division
Judge	Davies AJ
Heard	November 28, 1991
Judgment	December 5, 1991

Flynote : Sleutelwoorde B

School and schoolboard — Teachers' training college — Members of staff — Suspension of — Suspension in terms of s 26 of Education Act 26 of 1983 (Tk) — Audi alteram partem rule — Doctrine of legitimate expectation — Not excluded by provisions of Act — Suspension of C applicant, rector of college of education, without pay pending disciplinary hearing — Applicant informed of disciplinary steps being taken against him but allowed to stay on in his post for one year before suspension — Applicant led to believe that allegations against him were not regarded as serious enough to warrant suspension, particularly without D remuneration, and to reasonably expect that he would not be suspended without being given opportunity of being heard — Applicant having right to be heard before decision to suspend taken.

Headnote : Kopnota

The applicant, the rector of a college of education which fell under the control of the respondent, was notified in August 1990 by the Department E of Education that he was charged with misconduct in terms of s 24 of the Education Act 26 of 1983 (Tk). In June 1991 the applicant was informed that the enquiry envisaged by s 26 of the Act would be held on 16 June. The enquiry was however postponed till 2 December 1991. In the meantime the applicant received a letter from the Director-General, Education, informing him that in terms of s 26(4) and (6) of the Act the Department had approved his suspension from service pending the outcome of the misconduct enquiry and that his emoluments were to be suspended during F that period as well. The applicant addressed a letter to the Director-General, requesting to be suspended on full pay in order to support his family and also referring to his financial problems. After a further exchange of correspondence between the applicant's attorneys and the education authorities, which did not result in applicant's suspension being lifted, the applicant applied for and obtained a rule nisi calling on respondent to show cause why the decision to suspend him from his G duties, as well as the decision to suspend his emoluments, should not be set aside and why he should not be reinstated as rector. The applicant also sought an interim mandatory interdict ordering the respondent to pay all emoluments which would have been due to him had he not been suspended. The applicant based his claim for relief on the fact that he had not been afforded the opportunity of making representations in regard to the decision to suspend him or to suspend his emoluments and that the respondent was obliged, on an application of the audi alteram partem H principle, to afford him such an opportunity. The respondent filed an answering affidavit which was accompanied by a notice informing applicant that in the event of the matter not being disposed of on 28 November 1991, being the return day of the rule nisi, application would be made for an order setting aside the interim relief granted to the applicant in respect I of the payment of his emoluments. On the return day it was agreed that the rule would be further extended to 5 March 1992 and that only respondent's application for the setting aside of the interim mandatory interdict would be argued in the instant case.

The Court held that in view of the fact that it had to assess the strength of the applicant's case on an incomplete set of affidavits, the applicant not having had the opportunity to file a replying affidavit, that its approach would be to consider whether, on the allegations contained in the founding affidavit, a prima facie case had been made out by applicant for the interim interdict and then to consider whether there were allegations J in the answering affidavit which could not be denied by applicant and

1992 (4) SA p717

A which would destroy such prima facie case. As to the failure by the respondent to afford the applicant the opportunity to be heard, the respondent had contended that the audi alteram partem doctrine, or for that matter the legitimate expectation doctrine, was not applicable in the circumstances of the case. The Court held that the provisions of the Education Act did not exclude applicant's right to be heard and that the facts of the matter therefore came into play. A decision to suspend, particularly without emoluments, was serious - this was clearly appreciated by the State as was apparent from a public service circular B dating from 1982 in which it was stated that suspension from duty without emoluments for a period exceeding three months was an extraordinary exercise which should be avoided. The Court held further that the fact that suspension was on the face of things a temporary measure, would not result in the application of the audi alteram partem doctrine, as extended by the reasonable expectation doctrine, constituting an undue judicial interference in the administration by respondent of his department. C Furthermore, in the instant case the accusations of misconduct were first made in August 1990, and added to in February 1991, and the applicant was permitted to remain in his post until the end of August 1991 - this would have tended to lead applicant to believe that the allegations against him were not regarded as serious enough to warrant his suspension, particularly without remuneration, and to assume, ie reasonably expect, that he would not be suspended without further ado but only after being given an opportunity of being heard by the Minister. The Court accordingly D held that the applicant had made out a prima facie case that he had a right to have the decision to suspend set aside on the ground that he was not given an opportunity of being heard before the decision was taken and that there was nothing in respondent's answering affidavit which destroyed that prima facie case. The Court accordingly dismissed the respondent's application for the setting aside of the interim interdict and extended the rule nisi. E

Case Information

Return day of a rule nisi and argument in regard to the setting aside of an interim interdict. The facts appear from the reasons for judgment.

D van Zyl for the applicant.

G H Penzhorn SC (with him M M Matyumza) for the respondent.

F Cur adv vult.

Postea (5 December 1991).

Judgment

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.'

1992 (4) SA p718

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...