Hepner v Roodepoort-Maraisburg Town Council

• Jurisdiction: South Africa
• Judge: Steyn CJ, Beyers JA, Rumpff JA, Holmes JA, The Hon. Mr. Justice VAN WINSEN heard the argument but owing to an indisposition did not take part in the judgment - EDS.*Van Winsen JA
• Judgment Date: 25 September 1962
• Citation: 1962 (4) SA 772 (A)
• Hearing Date: 04 September 1962
• Court: Appellate Division

Steyn, C.J.:

This appeal turns upon the single issue, raised by way of C exception and motion to strike out in the Court below, whether or not the respondent was, in terms of sec. 62 of the Local Government Ordinance, 17 of 1939, of the Province of Transvaal, read with its Staff Regulations promulgated under Administrator's Notice 616 of 4th July 1951, entitled to terminate the appellant's services as a permanent employee upon one month's notice.

D According to sec. 62 (1) of the Ordinance, a Municipal Council, such as the respondent, is empowered inter alia to appoint such officers as it may consider necessary, and

'unless it shall be otherwise stipulated in the contract with or in the appointment of an officer of the council, it may at any time remove such officer upon notice of not less than one month or, in the case of misconduct, immediately without notice'.

E This is followed by a proviso, imposing certain restrictions upon the removal from office of an officer holding the post of town clerk, medical officer of health, town treasurer or town engineer. and of a sanitary inspector. The appellant is not such an officer.

F It is common cause that the Staff Regulations of the respondent are incorporated in and form part of its contract of employment with the appellant. The question is whether by these regulations, as so incorporated, the parties have, for the purposes of sec. 62 (1) of the Ordinance, 'otherwise stipulated'. The Court below held that they have not done so.

In dealing with this question, I have to refer first of all to the G submission by counsel for the respondent that, because such a stipulation would involve the abandonment or waiver of a statutory right of dismissal by the respondent, the parties cannot be held to have stipulated otherwise, unless they have done so in express terms or by necessary implication. The regulations do not provide that a permanent H employee shall not be dismissed on a month's notice. What has to be found, therefore, is a necessary implication that he shall not be so dismissed. For this submission counsel relied primarily upon Ketteringham v City of Cape Town, 1934 AD 80 at p. 88 and City of Cape Town v Kenny, 1934 AD 543 at p. 547. These decisions dealt with a similar provision for removal from office upon three months' notice in sec. 114 of the Cape Ordinance, 10 of 1912. In Ketteringham's case it was contended that certain pension fund rules precluded the dismissal of the municipal

Steyn CJ

officer upon such notice. This Court rejected that contention inter alia on the ground that

'the rules as a whole do not contain any necessary implication that defendant waived or abandoned its right of giving three months' notice'.

In Kenny's case a similar contention was advanced, likewise A unsuccessfully, in regard to a stipulation to the effect that a member of the fire brigade will be entitled to one week's notice if, in the opinion of a board of officers, his services are no longer required. WESSELS, C.J., observed:

'The City Council is a statutory body, and the Ordinance which creates it expressly gives the Council the power to dismiss any officer or servant by giving him three months' notice (sec. 114 of the Cape B Municipal Ordinance; see also sec. 118). The section, however, gives the Council the right to make other stipulations with regard to notice of dismissal. It must therefore be quite clear from the contract that the Council, assuming it could legally do so, intended to give up its statutory rights of dismissal and to entrust this right to a special body of officers.'

Counsel for the respondent argued his case on the basis that the criterion of necessary implication does not differ from the requirement C of a contract which is quite clear, but did so on the assumption that 'quite clear' means 'by necessary implication' in the sense of an implication which excludes every other reasonable possibility. I do not, however, understand the expression 'quite clear', in relation to the D waiver or abandonment of a right, in that sense. There is authority for the view that in the case of a waiver by conduct, the conduct must leave no reasonable doubt as to the intention of surrendering the right in issue (Smith v Momberg, 12 S.C. 295; Victoria Falls and Transvaal Power Co v Consolidated Langlaagte Mines Ltd., 1915 AD 1 at p. 62) but in Martin v De Kock, 1948 (2) SA 719 (AD) at p. 733, this Court E indicated that that view may possibly require reconsideration. It sets, I think, a higher standard than that adopted in Laws v Rutherfurd, 1924 AD 261 at p. 263, where INNES, C.J., says:

'The onus is strictly on the appellant. He must show that the respondent, with full knowledge of her right, decided to abandon it, whether expressly or by conduct plainly inconsistent with an intention to enforce it.'

F This accords with the test applied in Kenny's case and was followed in Collen v Rietfontein Engineering Works, 1948 (1) SA 413 (AD) at p. 436, and Linton v Corser, 1952 (3) SA 685 (AD) at p. 695. (Cf. Ellis and Others v Laubscher, 1956 (4) SA 692 (AD) at p. 702). In my opinion the test is more correctly stated in these cases. What has to be ascertained in this case, therefore, is whether the staff regulations of the respondent are plainly inconsistent with its right to terminate G the appellant's service under sec. 62 (1) of the 1939 Ordinance. The appellant's contention is not that the regulations restrict that right, but that they exclude it altogether.

I should add that the above-mentioned test is not to be understood as requiring a special degree of proof of a waiver. It is now settled law that

H 'no matter how serious an allegation of fact may be, the onus of proving that fact is, in civil cases, discharged on a preponderance of probability'.

(Ley v Ley's Executors and Others, 1951 (3) SA 186 (AD) at p. 192; Northview Properties (Pty.) Ltd v Lurie, 1951 (3) SA 688 (AD) at p. 696; van Lutterveld v Engels, 1959 (2) SA...