Government of the Republic of Bophuthatswana v Moletsane

• Jurisdiction: South Africa
• Judge: Stewart CJ, Kotzé AJA, Galgut AJA
• Judgment Date: 14 September 1991
• Hearing Date: 04 September 1991
• Court: Bophuthatswana Appellate Division

Galgut AJA:

The respondent was the plaintiff in the action in the Court a quo. The appellant was the defendant. I will refer to the parties as H plaintiff and defendant. Plaintiff entered the public service of the Republic of South Africa in 1966. He was transferred to the service of the defendant in July 1974. On 12 April 1988 the State President dismissed him from the service with effect from 30 April 1988. The dismissal was confirmed in a letter dated 29 April 1988. The relevant portion of the letter reads: I

'I confirm that I have, in terms of s 3 of the Security Clearance Act 40 of 1985, terminated your service with effect from 30 April 1988.

Yours faithfully,

L Mangope

State President.'

J The relevant portion of s 3 of the said Act provides:

Galgut AJA

A 'Notwithstanding the provisions of any other law, the President may, if he is on reasonable grounds satisfied that a person appointed in any capacity or office referred to in s 2(1)(a), endangers or constitutes a threat to the public safety or national security or the maintenance of law and order -

(a)

in the case where such a person is an officer, or where the general powers of appointment and dismissal or of dismissal vests with the State, summarily terminate the service or appointment of such person.' B

It is common cause that the plaintiff was a person of the category referred to in the above section.

In his particulars of claim, plaintiff alleged that the President acted on defendant's behalf in dismissing the plaintiff and that the dismissal was unlawful in that C

'the State President had no reasonable grounds for believing that the plaintiff constituted a threat to the public safety or national security or the maintenance of law and order'.

Plaintiff then claimed that he had suffered damages due to loss of D income until his retirement age and loss of already accumulated leave. As will appear later, there is no need to discuss these claims. There was a further claim detailed in para 9 of the particulars of claim. It reads:

'(a)

Throughout the period of his employment described in para 3 hereof the plaintiff made contributions towards the provision of his pension at the rate of 8% of his salary and his employer made an equal contribution. E

(b)

At the termination of his employment, the plaintiff was entitled to receive the total amount of his own and his employer's contribution towards the said pension.

(c)

The plaintiff has received his own contribution and is entitled to F receive the employer's contribution which amounts to the sum of R46 237,23.'

The said para 3 refers to plaintiff's periods of employment in the Republic of South Africa and in Bophuthatswana.

The defendant pleaded to para 9 as follows:

'It is admitted that plaintiff received R46 237,23, being his own G contribution towards the pension fund.

It is denied that plaintiff is, under the circumstances, entitled to receive his employer's contribution.'

At the pre-trial conference defendant's counsel asked: 'Does the plaintiff rely on the provisions of any statute, regulation or code in H respect of the claim for the payment of the employer's contribution to the pension fund?' The reply given reads: 'This will be advised later.'

The learned trial Judge in his judgment held that the dismissal was unlawful and awarded plaintiff:

(a)

R46 237, being the employer's contribution to the pension fund;

(b)

R16 988, being the accumulated leave pay; and

(c)

I R87 617 for loss of earnings.

There were also appropriate orders as to costs and interest.

Defendant's appeal is before us on two grounds only, viz:

(A)

'That the trial Judge erred in finding that the dismissal of the plaintiff was "unlawful" and should have dismissed all plaintiff's J claims.'

Galgut AJA

(B)

A 'That if this Court should confirm that the dismissal was unlawful, the trial Judge erred in awarding plaintiff the employer's contribution, R46 237, to the pension fund.'

It follows that, if this Court finds that the dismissal was unlawful, there is no appeal against the awards made in (b) and (c) above.

I turn now to the facts preceding the dismissal of plaintiff. At the B relevant time, Mr M J Gopane was the 'Departmental Head for the Department of Justice' and plaintiff was the Deputy Director in that Department. They occupied offices in the same corridor. It will be remembered that there was the attempted coup d'etat on 10 February 1988. Mr Gopane testified that in the early morning he heard about the coup on the radio; that the C broadcast informed public servants not go to work; that he left home at about 8 am; that he was away for a short while; that on his return to his home plaintiff and Reverend Kgoleng came into his house from a house across the road; that they had been waiting for him; that plaintiff, as he entered the dining room, said to him:

D 'Have you heard the boys have taken over the Government. I have told you many times that you do not recognise your brothers, now the secretaries must be imprisoned for life imprisonment, and the Ministers must be guillotined';

and that Rev Kgoleng added:

'Yes, the President refuses to take advice. It is true that they must be guillotined and the secretaries must be sent for life imprisonment.'

E Mr Gopane went on to say that because of the news of the coup and also because of the above remarks, he became nervous and worried about his own position and safety; that he then said to plaintiff and Rev Kgoleng,

'if these people are going to pick me up, let us then go and buy some drink, so that when they come here I must be drunk, I do not want to see myself being taken out to prison'; F

that the three of them then went and purchased a bottle of gin and returned to his home; that they spent the rest of the day together, partaking of the alcohol and listening to the news.

It is of course well known that the instigators of the coup had...