Dlisani v Minister of Correctional Services and Anothermathwetha v Minister of Safety and Security and Another

• Jurisdiction: South Africa

Dlisani v Minister of Correctional Services and Anothermathwetha v Minister of Safety and Security and Another
1999 (1) SA 1020 (TkH)

1999 (1) SA p1020

Citation	1999 (1) SA 1020 (TkH)
Case No	259/95 & 913/95
Court	Transkei High Court
Judge	Madlanga J
Heard	May 28, 1998
Judgment	May 28, 1998
Counsel	WH Trengove (with him VI Maleka) for the applicants; CG Marnewick (with him P Barrat) for the respondents in the first application; S Alekma (with him P Barat) for the respondents in the second application

Flynote : Sleutelwoorde B

Administrative law — Decisions of functionary — When audi alteram partem rule applicable thereto — Legislation C providing for reduction of retirement age, subject to Minister's discretion to retain employee in public interest — Where no recognised exception excluding applicability of rule, Court will not readily accept reduction of right to hearing on considerations of convenience.

Administrative law — Administrative action — Duty to act — Consequences brought about by operation of law — D Amendments to Prisons Act 5 of 1990 (Tk) and Police Act 16 of 1979 (Tk) reducing retirement age to 55 — Acts providing further that retiree could be retained if in discretion of Minister such retention in public interest — Relevant Minister obliged to make decision — Not up to employee about to retire to prompt Minister to act — Duty E to act on Minister — Fairness dictating that employee be heard on issue — Until Minister applying mind to issue, employee unable to be compulsorily retired by operation of law — Employee not holding position indefinitely until Minister acts — Retention of employee beyond age of retirement only to continue for one year.

Estoppel — By representation — Employees retired by operation of law in terms of amendments to Prisons Act 5 F of 1990 (Tk) and Police Act 16 of 1979 (Tk) — Employees applying to have retirement declared invalid — Respondents arguing employees estopped from challenging their retirement — Whether acceptance of retirement benefits by employees leading respondents to believe that they accepted retirement and whether G respondents acting to their detriment on basis of employees' conduct — Person relying on estoppel to show reasonable reliance on representation — In circumstances, acceptance of retirement benefits not regarded as representation — Even if acceptance were representation, reliance thereon not reasonable.

Headnote : Kopnota

The applicants had brought applications for orders setting aside their respective purported retirements, which H had resulted from certain amendments to the Prisons Act 5 of 1990 (Tk) and the Police Act 16 of 1979 (Tk) by Decree 5 of 1990 (Tk) reducing the retirement age for members of the prisons service and the police force from the age of 60 to the age of 55. The appellants contended that the relevant provisions of the I respective Acts provided that a retirement could not validly come about without the relevant Minister first having applied his mind to the question of whether it was in the public interest to retain the services of the employee beyond the age of retirement. It was further contended that the Minister had to comply with the audi alteram partem rule in his consideration of the question of whether to retain the employee as he would be exercising a discretion. The respondents argued that the retirement of the applicants had come about as J

1999 (1) SA p1021

a result of the operation of law and not due to any exercise of discretion by any Minister. It was further A submitted that it was in any event absurd and impractical to expect the Minister to consciously decide in the case of every employee due for retirement whether such employee should be retained. The respondents also argued that, as the applicants had accepted the retirement benefits and had thus led the respondents to believe that they were accepting their retirement, the respondents having acted to their detriment on the basis B of the appellants' conduct, the appellants were estopped from challenging their retirement at this stage.

Held, that in both situations the relevant Ministers did not exercise any discretion. The relevant Minister was, however, obliged to make a decision on whether the retention of the employee was in the public interest once the retirement of the employee was imminent and it was not up to the employee about to retire to prompt the C Minister to act. This would give every employee the opportunity to make representations prior to the making of the decision whilst the age of retirement was imminent. The duty to act therefore rested on the Minister and, as the employee had an interest in the matter, fairness dictated that such employee be heard on the issue. (At 1024C, 1025D and 1025E—G.) D

Held, further, that until the Minister had applied his mind to the question and come to a decision that the public interest did not require that the services of the employee be retained, such employee could not be compulsorily retired, even though she or he might be of retirement age. The employee could, however, not continue to hold her or his position indefinitely until such time as the Minister had acted as the retention of the employee beyond the age of retirement could only continue for a period of one year, except in exceptional E circumstances. (At 1027I/J—1028A and 1028B/C.)

Held, further, that, where there was not already a recognised exception excluding the applicability of the audi alteram partem rule, the Court should not readily accept the reduction of the right to a hearing on considerations of convenience to the bureaucracy. There was no express or implied exclusion of the audi F rule in the sections concerned. (At 1028I—1029A and 1029B.)

Held, further, that as the respective Acts prohibited the commencement of civil proceedings after the expiration of six months from the date on which the cause of action arose, it had to be determined whether the substantial delay in bringing the applications in casu was unreasonable in the circumstances. However, upon taking the historical background of the evolution of the relevant Acts and the setting of precedents on G comparable points into consideration, it could be seen that the bringing of the applications had not been delayed unreasonably. In any event, even if there had been an unreasonable delay, the facts of the matter were such that the Court would have had no difficulty in exercising its discretion in the applicants' favour by dismissing any objections raised by the respondents. (At 1029H, 1033C/D—D and 1034B—B/C.) H

Held, further, that a person relying on estoppel had to show that the reliance on a representation had ben reasonable. In casu, the government had not only reduced the age of retirement but had also attempted to make it impossible for retirees to challenge their early retirement in Court by including an ouster clause in the relevant legislation. In these circumstances, the acceptance of the retirement benefits could not be regarded I as a representation and, even in the event that it could, reliance thereon by the government would certainly be unreasonable. (At 1034D/E—F/G.)

Held, accordingly, that the retirement of the applicants was invalid. The applicants were entitled to receive such emoluments and other benefits that would have flowed from their employment contracts, but for their invalid J

1999 (1) SA p1022

retirement, for a period of one year. In computing the amount payable, any emoluments and benefits already A received by the applicants had to be set off against the payments to which the applicants were entitled. (At 1034G/H—J.)

Cases Considered

Annotations

Reported cases B

Administrator, Transvaal, and Others v Traub and Others 1989 (4) SA 731 (A): dicta at 748G—H and 764F—H applied

Bekazaku Properties (Pty) Ltd v Pam Golding Properties (Pty) Ltd 1996 (2) SA 537 (C): considered

Blue Grass Estates (Pty) Ltd en Andere v Minister van Landbou en Andere 1992 (4) SA 406 (A): C referred to

Cekeshe and Others v Premier, Eastern Cape, and Others 1998 (4) SA 935 (Tk): considered

Hintsho and Another v Minister of Public Service and Administration and Others 1996 (2) SA 828 (Tk): referred to

John Bell & Co Ltd v Esselen 1954 (1) SA 147 (A): referred to D

Julius v Lord Bishop of Oxford (1880) 5 App Cas 214: dictum at 225 applied

Estate Mehta v Acting Master, High Court 1958 (4) SA 252 (FC): referred to

Mhlebi and Others v Minister of Education and Others 1998 (3) SA 999 (Tk): referred to

Minister of Education, Transkei v Mgole 1994 (1) SA 612 (TkA): considered

Pretoria City Council v Madimola 1966 (3) SA 250 (A): compared

R v Schaube-Kuffler 1969 (2) SA 40 (RA): referred to E

R v Williams 1914 CPD 277: dictum at 281 applied

S v Gandu 1981 (1) SA 997 (Tk): dictum at 998F criticised

Setsokosane Busdiens (Edms) Bpk v Voorsitter, Nasionale Vervoerkommissie, en 'n Ander 1986 (2) SA 57 (A): dictum at 86F applied

South African Roads Board v Johannesburg City Council 1991 (4) SA 1 (A): considered F

Wolgroeiers Afslaers (Edms) Bpk v Munisipaliteit van Kaapstad 1978 (1) SA 13 (A): dictum at 39C applied

Zantsi v Chairman, Council of State, Ciskei and Others 1995 (2) SA 534 (Ck): referred to.

Statutes Considered

Statutes

Decree 5 of 1990 (Tk) G

The Police Act 16 of 1979 (Tk)

The Prisons Act 6 of 1974 (Tk).

Case Information

Applications for an order setting aside purported retirements in terms of the provisions of the Police Act 16 of 1979 (Tk) and the Prisons Act 6 of 1974 (Tk). The facts appear from the reasons for judgment. H

W H Trengove SC (with him I V Maleka) for the applicants.

C G Marnewick SC (with him P Barrat) for the respondents in the first application.

S Alkema SC (with him P Barrat) for the respondents in the second application. I

Judgment

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