Gemi v Minister of Justice, Transkei

• Jurisdiction: South Africa
• Judge: Pickering AJ
• Judgment Date: 17 December 1992
• Hearing Date: 03 December 1992
• Court: Transkei High Court

Gemi v Minister of Justice, Transkei
1993 (2) SA 276 (TK)

1993 (2) SA p276

Citation	1993 (2) SA 276 (TK)
Court	Transkei General Division
Judge	Pickering AJ
Heard	December 3, 1992
Judgment	December 17, 1992

Flynote : Sleutelwoorde

Administrative law — Decisions of functionary — When audi alteram partem principle applicable thereto — Legitimate expectation doctrine — Duty to act fairly — Public officials not relieved of duty to afford persons C affected by their decisions a hearing except to extent that departure from rules of natural justice expressly or impliedly sanctioned by relevant enabling legislation — In absence thereof departure from rules of natural justice only justified in circumstances where necessary to promote some value or end of significance equal to or greater than natural justice — D No basis for conclusion that legitimate expectation can only arise from express promise given by public authority or from existence of regular practice which claimant can reasonably expect to continue — Audi alteram partem rule accordingly applicable to decision in terms of s 14(1) of Public Service Act 43 of 1978 (Tk) to transfer civil servant from one station to another.

E Public service — Transfer within public service — Transfer from one station to another — Audi alteram partem principle — Whether applicable — Legitimate expectation doctrine — Views and personal circumstances of civil servant relevant and must be taken into consideration by decision-maker — Ought to be heard before decision to transfer taken — F That civil servant not promised that he would not be transferred and no established practice of granting servants hearings before transfers having no bearing on reasonableness of his expectation that he will be accorded a hearing before decision adverse to his interests taken — Public Service Act 43 of 1978 (Tk), s 14(1). G

Headnote : Kopnota

Officials entrusted with public power are not relieved of their duty to afford persons affected by their decisions a hearing prior to their coming to such decisions except to the extent that a departure from the rules of natural justice is expressly or impliedly sanctioned by the relevant enabling legislation. In the absence of such statutory authorisation a departure from the rules of natural justice can only be justified in circumstances where it is necessary to promote some value or end of H significance equal to or greater than natural justice. Since fairness is always a limiting factor, the adoption of the above approach will not give rise to an unprincipled and limitless extension of the doctrine of legitimate expectation.

Decisions to the effect that a legitimate or reasonable expectation can only arise from an express promise given by a public authority or from the existence of a regular practice which the claimant can reasonably expect I to continue are clearly wrong. Accordingly the fact that a civil servant was not promised that he would not be transferred does not lead to the conclusion that he is not entitled to be heard before he is transferred: the absence of such an assurance has no bearing on the reasonableness of his expectation that he would be accorded a hearing before a decision adverse to his interests was taken. The contention that there is no established practice of granting officials hearings before transfers takes the matter no further: the views and personal circumstances of the civil J servant in such a case are relevant and must be taken into consideration.

1993 (2) SA p277

A Hlongwa v Minister of Justice, KwaZulu 1993 (2) SA 269 (D) ((1992) 13 ILJ 338 (D)) approved and applied.

Ngema v Minister of Justice, KwaZulu, and Another; Chule v Minister of Justice, KwaZulu, and Another 1992 (4) SA 349 (N) criticised and not followed.

The applicant in the instant case was employed at the office of the Attorney-General, Umtata, as an assistant administrative clerk and was liable in terms of his conditions of employment and s 14(1) of the Public Service Act 43 of 1978 (Tk) to be transferred to any office or department B in the Transkei. At some stage his relations with his superiors, especially one R, the Deputy Attorney-General and the person entrusted with the daily running of the office of the Attorney-General, became very strained. It was inter alia averred that he was guilty of dereliction of his duties and absenteeism. Eventually the applicant applied for a transfer to Butterworth, which was nearer to his home, allegedly to enable him to assist sick or ailing family members. It however became apparent C that the applicant was involved in the running of a night school in his home town (which involvement was admitted by the applicant and was in contravention of his conditions of employment and s 26 of the Public Service Act). The Attorney-General alleged that applicant's application for a transfer was motivated by his desire to further his business activities rather than by considerations of alleged ill-health on the part of members of his family. Consequently, it was decided to transfer the D applicant not to Butterworth, but to Mount Frere, 100 km in the opposite direction to his home town. The applicant's subsequent objection to his transfer was unsuccessful, and the decision in this regard led the applicant successfully to launch an application in the General Division for a rule nisi calling upon the respondent to show cause why an order declaring the applicant's transfer from Umtata to Mount Frere invalid and restraining the respondent from giving effect to such transfer should not E be made. On the return day of the rule nisi it was submitted on behalf of the applicant that the decision to transfer him to Mount Frere was unfairly taken in violation of the principles of natural justice and particularly the audi alteram partem rule, it being alleged that the economic loss the applicant would suffer as a result of his relocation and of accommodation in Mount Frere constituted an infringement of his property rights. The Court held that the applicant had not laid a factual basis for a finding that he would suffer an economic loss in consequence of the transfer, and had therefore not demonstrated that an existing right F had been impaired. On the remaining issue, namely whether the case fell within the ambit of legitimate expectation, the Court, applying the above principles,

Held, that the applicant had been adversely affected by the decision to transfer him to a town which was 100 km further away from his home than his present station at Umtata; that this town had been chosen specifically to ensure that the applicant would be less tempted to devote his time and G energy to the night school; and that implicit in the decision had been a rejection of the applicant's averments concerning the alleged ill-health of his family members.

Held, further, that on neither of these issues, which concerned the existence or not of a factual situation, had the applicant been afforded a hearing before the decision to transfer him had been taken, and that, whatever conclusions might or might not have been reached by the respondent, they could only properly be reached after the respondent had heard the applicant's side of the story. Rule nisi confirmed. H

Case Information

Return day of a rule nisi. The facts appear from the reasons for judgment.

J M N Poswa (with him M R Madlanga) for the applicant.

I S Alkema SC (with him G J J Beukes) for the respondent.

Cur adv vult.

J Postea (December 17).

1993 (2) SA p278

Judgment

Pickering, AJ.:

A On 15 May 1992 applicant applied for and was granted a rule nisi calling upon the respondent to show cause why an order in the following terms should not be made:

'4.1

That the transfer of applicant by respondent from the Attorney-General's office, Umtata to the magistrate's office, Mount Frere, be declared invalid and be set aside. B

4.2

That respondent and/or any of its subordinates be restrained and interdicted from giving effect to the transfer mentioned above.

4.3

That respondent pay the costs of this application.'

It was further agreed between the parties and made an order of Court that, C pending the outcome of the application, the applicant would report for duty at the magistrate's office, Umtata.

It is unfortunately necessary to set out in some detail the long and troubled history to this matter.

Apart from a prior period of employment with the Transkeian Government D which is not relevant to this matter, the applicant has been in the employ of the Transkeian Government for nine years since December 1983. After having been initially appointed as an assistant administrative clerk in the Department of Education he was subsequently transferred, at his own request, to the office of the Attorney-General, Umtata, with effect from 3 March 1986. He is presently still so employed at that office as an E assistant administrative clerk. In terms of his conditions of employment applicant was bound, inter alia, not to accept remunerative work outside the Transkeian Government Service without permission. He was also liable, in terms thereof, to be transferred to any office or department in Transkei. He was further bound by the provisions of s 14(1) of the Public Service Act 43 of 1978, which provides: F

'Subject to the provisions of this Act, every officer and employee shall, whenever the public interest so requires, be liable to be transferred from the post or appointment held by him to any other post or appointment in the same or any other department, whether or not such post or appointment is in another division, or is of a lower grade and whether G or not such post or appointment is within or outside Transkei . . . .'

It is common cause between the parties that for a number of years the applicant performed his duties as an assistant...