Foster v Chairman, Commission for Administration, and Another

• Jurisdiction: South Africa
• Citation: 1991 (4) SA 403 (C)

Foster v Chairman, Commission for Administration, and Another
1991 (4) SA 403 (C)

1991 (4) SA p403

Citation	1991 (4) SA 403 (C)
Court	Cape Provincial Division
Judge	Van Den Heever J and Brand AJ
Heard	May 10, 1991
Judgment	June 24, 1991

Flynote : Sleutelwoorde

Public officer — Promotion of — Evaluation of and merit assessments — Application of audi alteram partem rule — Applicant's performance rated as 'not completely satisfactory' and 'not at all a candidate for E promotion', whereas he had received special promotion in past and six months earlier had been described as 'above average' — Decision of evaluation committee prejudicially affected applicant and he was accordingly entitled to hearing before it came to a decision — In any event, on application of legitimate expectation doctrine applicant F entitled to hearing — Presence on committee of person against whom applicant had made serious allegations sufficient to constitute reasonable grounds for apprehending that he would not get unbiased evaluation — Committee's evaluation set aside.

Public officer — Promotion of — Evaluation and merit assessments — G Delegation by head of department of powers in ss 2(a) and 3(i) of the Public Service Staff Code compiled pursuant to provisions of s 36 of Public Service Act 111 of 1984 — Blanket authority to delegate in terms of reg A5.1 of Regulations promulgated under s 35 of the Act not applicable to powers under Code.

Headnote : Kopnota

H The applicant was a public servant employed by the Department of Finance in the Inland Revenue Division where he occupied the post of Deputy Head of the Special Investigations Division at Cape Town. The applicant's employment was governed by the provisions of the Public Service Act 111 of 1984 and the Public Service Staff Code promulgated pursuant to the provisions of s 36 of the Act. As a chartered accountant, the applicant qualified for a professional allowance of R14 100 per annum if his performance was assessed by an evaluation committee to be 'satisfactory' I or R20 100 per annum if his performance was assessed to be 'above average'. Such evaluation was done annually. The applicant had been employed by the Department of Finance since 1984 and had advanced rapidly, having received preferential promotion and having been promoted out of turn. In June 1989 his professional allowance was increased to R20 100, his performance having been assessed to be 'above average'. In August 1989 the applicant discussed his next evaluation with his J immediate superior, one H, who made no mention of any

1991 (4) SA p404

A adverse factors. A few days later the applicant had an altercation with H concerning applicant's allegations that corruption and tax evasion within the department were not being investigated. The applicant was called to a meeting in Pretoria with H's superiors, HH, A and V. At the end of this meeting the applicant was informed that his conduct would be placed before the evaluation committee and that he was being relieved of authority over the staff who reported to him. In November the applicant met with interviewers from the evaluation committee and two days later B the committee, consisting of 22 people including HH, A, V and one C, against whom the applicant had levelled serious charges, met and assessed the applicant as 'not at all a candidate for promotion' and a merit assessment of 'not completely satisfactory' on the grounds of 'poor interpersonal relations'. It was common cause that applicant thereby lost his professional allowance and that the rating of 'not at C all a candidate for promotion' effectively meant an end to any further progress. The applicant applied to a Provincial Division for an order for the setting aside of the two assessments on the ground that the audi alteram partem principle and the rule against delegation of powers had not been complied with and that the committee was biased against him. The respondent contended inter alia that the audi alteram partem principle did not apply to the proceedings of an evaluation committee as it was not a disciplinary tribunal, that the rule was excluded by implication and that it would be impossible in practice to give all employees a hearing.

D Held, that the question whether the rule applied or not was not determined by whether the body concerned was a disciplinary tribunal: the committee was empowered to give a decision which prejudicially affected the applicant (in that it gave rise to the automatic forfeiture of his allowance and that it affected his professional reputation).

Held, further, that, even if on the classic formulation of the audi alteram partem rule the rule was not applicable, in the circumstances where the applicant's career had some six months earlier been described E as 'above average', he had the legitimate expectation of being heard on the allegations against him before his promotional prospects were effectively taken away from him.

Held, further, that on an examination of the relevant provisions of the Staff Code it could not be said that the audi alteram partem principle was excluded by implication.

Held, further, that the argument that it was not practically possible to grant a hearing in every case and that therefore the applicant was not entitled to a hearing was not acceptable in the present case where there F had been ample opportunity to grant the applicant a hearing.

Held, further, as regards the applicant's allegation of bias on the part of HH, A and V, that this could be regarded as nothing more than 'departmental bias' and was not decisive.

Held, further, however, that, as regards C, against whom the applicant had recently made a complaint of a serious nature, the applicant was G entitled to assume that he would not be evaluated impartially by him.

Held, further, that the evaluation committee had been improperly constituted and the assessment by the head of the department was invalidly made as they were made by the Chief Director: Administration of the Department and not by the head of department as provided for by ss 2(a) and 3(i) of the Code: the respondents' argument that there was a blanket authority to delegate in reg A5.1 had to be rejected as the authority was confined to powers contained in those regulations and did H not extend to powers emanating from the Code.

Held, accordingly, that the application had to succeed and the two assessments set aside.

Case Information

Application for the setting aside of a decision of an evaluation committee established under the Public Service Act 111 of 1984. The I facts appear from the reasons for judgment.

P B Hodes SC (with him R Nugent) for the applicant.

W G Burger SC (with him S A Jordaan) for the second respondent.

Cur adv vult.

J Postea (June 24).

1991 (4) SA p405

Judgment

Brand AJ:

A Applicant is employed in the Inland Revenue Division of the Department of Finance. His rank is that of a Deputy Director and he occupies the post of Deputy Head of the Special Investigations Division, Cape Town.

It is common cause between the parties that applicant's employment is B governed by the Public Service Act 111 of 1984 ('the Act') and the Public Service Staff Code which was compiled pursuant to the provisions of s 36 of the Act. What is of particular relevance in this matter is part IV of chap BX of the Staff Code, to which part I refer hereinafter for the sake of convenience as 'the Code'. The Code deals with the evaluation of, inter alia, officers in the upper structure of the public service, in which category the post occupied by applicant falls. The C first purpose of such evaluation is to accord a 'promotability rating' to these officers which forms the basis upon which their suitability for promotion to higher posts is determined as and when these posts fall vacant. After evaluation, the officer is assigned a promotability rating in one of five categories, namely: D

(a)

'not at all a candidate for promotion';

(b)

'not yet ready for promotion';

(c)

'promotable in turn';

(d)

'promotable out of turn';

(e)

'preferentially promotable'.

E Thesecond purpose of the evaluation is to assign a 'merit assessment' to the particular officer, which is aimed at assessing the officer's performance in the post he occupies. The Code provides for a 'merit assessment', also in five categories, namely:

(a)

'poor';

(b)

'not completely satisfactory';

(c)

'satisfactory' F ;

(d)

'exceptionally good';

(e)

'excellent'.

The evaluation is done by an evaluation committee which is constituted by the head of the department concerned. In order for such evaluation to G become effective, it must be accepted by the head of the department. The head of the department is not obliged to accept the evaluation of the committee. He has the power to substitute his own evaluation for that of the committee.

In terms of the Code, the evaluation is done once a year and remains H effective for a period of 12 months. It is, however, specifically stated by applicant (and not denied by respondents) that a rating of 'not at all a candidate for promotion' means effectively an end to any further progress for an officer so evaluated.

By virtue of a departmental directive issued on 24 November 1988, a I registered chartered accountant, such as applicant, who occupies the post which is occupied by applicant, qualifies with effect from 1 August 1988 to be paid a non-pensionable professional allowance over and above his normal remuneration and benefits. The amount of the qualifications for such allowance are as follows:

(a)

R14 100 per annum if the officer's performance is assessed to be J 'satisfactory';

1991 (4) SA p406

Brand AJ

(b)

R20 100 per annum A if his performance is assessed to be 'above average'.

The allowance is a discretionary one...