Hintsho and Another v Minister of Public Service and Administration and Others

• Jurisdiction: South Africa
• Judge: Miller AJ
• Judgment Date: 16 November 1995
• Citation: 1996 (2) SA 828 (TkS)
• Docket Number: 1989/94
• Hearing Date: 16 November 1995
• Counsel: E D Moseneke SC (with him I V Maleka) for the applicants. C G Marnewick SC (with him P Barratt) for the respondents.
• Court: Transkei Supreme Court

Miller AJ:

The applicants ask for an order in the following terms:

1.

H That the provisions of Decree 11 of 1989 (Tk), Decree 5 of 1990 (Tk) and Decree 14 of 1992 (Tk) be declared invalid, of no force and effect and contrary to the provisions of the Constitution of the Republic of South Africa Act 200 of 1993.

2.

That the compulsory retirement of the applicants in terms of the I provisions of the said decrees be declared to be wrongful, unlawful, invalid and of no force and effect.

3.

That it be declared that the first and second applicants are entitled to remain in employment until they attain the ordinary retirement age of 65 and 60 years respectively or until their earlier retirement is justified by J reason of misconduct, ill-health, unsuitability to discharge their duties or other exceptional circumstance.

Miller AJ

4.

A That the respondents be directed to reinstate or take such steps as are necessary to effect the reinstatement of the applicants in their respective places of employment which they occupied immediately before the aforesaid wrongful and unlawful compulsory retirement.

5.

B That the aforesaid reinstatement of the applicants should:

5.1

operate retrospectively to the date of purported wrongful and unlawful compulsory retirement;

5.2

be on such terms and conditions of employment which are not less favourable than the terms and conditions of employment which were applicable to them immediately prior to the said wrongful C and unlawful compulsory retirement;

5.3

be on the basis that the applicants are entitled to the payment of and should be paid their respective monthly salaries, annual bonuses, leave pay and other emoluments and employment benefits which they would otherwise have received, but for the D aforesaid wrongful and unlawful compulsory retirement;

5.4

be on the basis that the applicants are entitled to reinstatement of their pension benefits due to them and that the pension contributions due by them in terms of the provisions of the E Transkeian Government Service Pension Fund Act 4 of 1970, should continue to operate as if the said compulsory termination had not taken place;

5.5

be on the basis that the applicants are entitled to remain in employment until they attain the ordinary retirement age of 65 F years in respect of the first applicant and 60 years in respect of the second applicant, unless their earlier retirement is justified by reason of misconduct, ill-health, mental incapacity, unsuitability to discharge their duties or other similar exceptional circumstances.

6.

That those respondents who choose to oppose any of the reliefs sought G be directed to pay costs.

The first applicant has annexed a schedule to his founding affidavit which contains the names, dates of birth, retirement dates, the government department in which they were employed and the ranks of 84 persons. The first applicant avers that, although these proceedings have been instituted in his name and that of the second applicant, H it has been agreed between the Government Attorney, who represents the respond-ents, and the applicants' attorneys of record that 'these proceedings should serve as a test case which will determine the fate of the persons referred to in (the schedule) as well'. Notwithstanding the fact that this averment has been admitted by I the respondents, I cannot and do not regard the persons whose names appear in the aforesaid schedule as being parties in these proceedings. No application has been made to join them as applicants and they have not in fact been joined as parties and the manner in which the applicants have been cited does not allow this matter to be J dealt with as a class action.

Miller AJ

A The first applicant was born on 29 March 1934 in Tsolo. He joined the Transkei Public Service on 2 August 1982 as a clerk, grade II, in the Department of Transport. On 31 March 1986 he was transferred from the Department of Transport to the Department of Local Government and Land Tenure where he was employed B as an administrative clerk. He thereafter, while in the employ of the Department of Local Government and Land Tenure, received various promotions, namely, to senior administrative clerk on 1 June 1989, to administrative officer on 1 July 1991 and to senior administrative officer on 1 July 1992. He held the post of senior administrative officer until 31 March 1994 when he was placed on compulsory C retirement in terms of the provisions of the Public Service Act 43 of 1978, as amended by the provisions of Decree 11 of 1989 and Decree 14 of 1992.

The first applicant became a contributing member of the Transkeian Government Service Pension Fund upon his employment in the public service. He enjoyed the D usual employment benefits applicable to public servants save that he did not, because of his compulsory retirement, have the opportunity to take advantage of the housing loan subsidy, which was introduced during 1987, or to become a member of the medical aid scheme, which was introduced during October 1994.

The first applicant's conditions of service were governed by the Public Service Act E 43 of 1978. When he joined the public service that Act provided that he would have to retire from employment upon reaching the age of 65 years - this was provided for by s 15 of that Act. Decree 11 (Transkeian Government Service Pensions Amendment, Constitution Amendment, Public Service Amendment, Education Amendment and Intelligence Service and State Security Amendment) of F 1989 was promulgated on 16 June 1989. This Decree, in terms of s 11 thereof, was deemed to have come into operation on 1 April 1989. Section 15 of the Public Service Act 43 of 1978 was amended by s 4 of Decree 11 of 1989, which section provides as follows:

'4. Section 15 of the Public Service Act 43 of 1978, is hereby amended -

(a)

by the substitution for ss (1) of the following subsection:

G "(1) Subject to the provisions of ss (2) and (5) an officer (other than a member of the services or an officer employed in the Intelligence Service) shall have the right to retire from the public service and shall be so retired on the day on which he attains the age of 60 years, if that day is the first day of a month or, if that day is any later day, on the first day of the month immediately following the H month in which he attains the age of 60 years;" and

(b)

by the substitution for ss (2) and (3) of the following subsection:

"(2) If it is in the public interest to retain an officer (not being a member of the services or an officer employed in the Intelligence Service) in his post beyond the age at which in accordance with ss (1) he shall I be retired, he may be so retired from the public service but retained in his post from time to time, on the recommendation of the Commission and subject to the approval of the Minister, for further periods which shall not, except for the approval, by resolution, of the Military Council, exceed in aggregate 12 calendar months." '

J The effect of this amendment was therefore to reduce the age of compulsory retirement of employees whose conditions of service were

Miller AJ

A governed by the Public Service Act 1978, from 65 years to 60 years. Other provisions of Decree 11 of 1989 reduced the retirement age of departmental officials employed by the Department of Education and members of the Intelligence Service and the State Security Council from 65 years to 60 years. This Decree also has an ouster clause and s 10 thereof provides as follows: B

'10. No civil proceedings shall be brought in any court of law by reason of any action or decision taken in terms of the provisions of this Decree.'

The second applicant was born on 12 December 1938 at Engcobo. He joined the public service on 22 June 1967 when he was employed as a warder at Butterworth prison by the Department of Prisons. He was, at that time, employed by the South C African Department of Prisons. He remained in the employ of the Department of Prisons until his compulsory retirement on 31 December 1993. During his employment he was promoted from warder to lieutenant and then to the ranks of captain, major, lieutenant-colonel, major-general, lieutenant-general and, D ultimately, general. When Transkei became independent on 26 October 1976, his employment was transferred from the South African Department of Prisons to the Transkei Department of Prisons. At that stage his conditions of service provided for the compulsory retirement age of 60 years. This retirement age was secured and constitutionally guaranteed by the provisions of s 65 of the Transkeian Constitution E Act 15 of 1976, which provides as follows:

'(1) All persons who immediately prior to the commencement of this Act are in the service of the Government of Transkei shall become public servants of Transkei.

(2) Any person who becomes a servant of the Republic under ss (1) or who, on F or after the date of commencement of this Act, is transferred from the service of any other government to the service of the Republic shall be entitled to retire from the service of the Republic at the time at which he would have been entitled to retire if he had not become a servant of the Republic.'

The second applicant, during his employment with the Department of Prisons, enjoyed the usual employment benefits available to public servants, including a G housing subsidy, a car subsidy and membership of the Transkeian Government Service Pension Fund. His conditions of service, after his transfer from the South African Department of Prisons to the Transkeian Department of Prisons were regulated by the Prisons Act 6 of 1974. It was in terms of s 67 of this Act that his age of retirement was determined to be 60 years. This section was, however, H amended by s 1 of Decree 5 of 1990...