Hira and Another v Booysen and Another
Jurisdiction | South Africa |
Judge | Corbett CJ, Nestadt JA, Milne JA, Goldstone JA and Nicholas AJA |
Judgment Date | 03 June 1992 |
Citation | 1992 (4) SA 69 (A) |
Hearing Date | 20 March 1992 |
Court | Appellate Division |
A Nicholas AJA:
This appeal arises out of an application brought in the Durban and Coast Local Division of the Supreme Court for the review of certain disciplinary proceedings conducted under the Indians Education Act 61 of 1965 ('the Act').
The applicants were Mr Kishore Purbhoojee Hira ('Hira') and Mr Perumal Naidu ('Naidu'), who are teachers on the staff of schools in Stanger, B Natal. Each occupies on a full-time basis in a permanent capacity a post included in the establishment of a State school and consequently is a person referred to in s 15(1) of the Act. Both are members of the Teachers Association of South Africa ('TASA'), which is a private organisation whose membership is restricted to persons employed as teachers in schools C falling under the Department of Education and Culture in the House of Delegates. It is an association of teachers recognised by the Minister of Education and Culture under s 30 of the Act. Hira is the editor of a newsletter published quarterly by the Stanger branch of TASA and distributed among the three to four hundred members of that branch.
The first issue of the newsletter of the Stanger branch of TASA appeared D in November 1987. It contained an article which was entitled 'The Joys and Frustrations of Teaching' (hereinafter referred to as 'the subject article'). The author was Naidu.
The publication of this article led to a letter dated 8 April 1988 being addressed to Hira from the Office of the Director-General, Administration: E House of Delegates. It informed him that he was charged with misconduct in terms of s 16(f) of the Act, in that
'. . . on or about November 1987 (he did) publish or permit or cause to have published for public dissemination amongst members of the Teachers Association of South Africa, and otherwise than at a meeting convened by F an association or organisation recognised by the Minister as representative of persons contemplated in s 15(1) of the said Act, a written article entitled "The Joys and Frustrations of Teaching" in the TASA Stanger branch newsletter (vol 1 No 1) which was critical of the administration of the Department of Education and Culture of the Administration: House of Delegates'.
There was an alternative charge which is not now relevant. A similar G letter was addressed to Naidu, as well as to certain other teachers who are not concerned in these proceedings. Section 16 provides that any person referred to in s 15(1) of the Act shall be guilty of misconduct and subject to disciplinary proceedings in terms of s 17 if -
'(f) he publicly, otherwise than at a meeting convened by an association H or organisation recognised by the Minister as representative of persons contemplated in ss (1) of s 15, criticises the administration of any department, office or institution of the State'.
In a reply dated 25 April 1988 attorneys acting for Hira and Naidu stated that the charges were denied: it was obvious that the subject article was never intended to be anything but light-hearted and humorous; I and in any event the acts complained of did not fall within the ambit of s 16(f) of the Act.
Section 17 of the Act comprises 29 subsections which contain detailed provisions as to the procedure to be followed in cases where misconduct is charged. Subsections (1)-(3) deal with a charge of misconduct. In terms J of ss (8)(b), if the person charged denies it, the Director-General shall
Nicholas AJA
A appoint a person to enquire into the charge. The procedure to be observed at the enquiry is set out in the following provisions:
'(9)(b) The law relating to witnesses and evidence which applies in connection with criminal cases in a magistrate's court, shall mutatis mutandis apply for the purposes of and at any such enquiry: Provided that subpoenas to procure the attendance of witnesses thereat shall be issued B by the person who is to hold the enquiry.
(10) The Director-General may authorise any person to be present at the enquiry and to adduce evidence and arguments in support of the charge, and to cross-examine any person called as a witness for the defence.
(11)(a) At the enquiry the person charged may be present, shall have the C right to be heard, to cross-examine any person called as a witness in support of the charge, to inspect any documents produced in evidence and to call other persons as witnesses, either personally or by a representative, and may give evidence himself.
(b) The failure of the person charged to be present at the enquiry, either personally or by a representative, shall not invalidate the proceedings.
(c) The person holding the enquiry shall keep a record of the D proceedings at the enquiry and of the evidence given thereat.'
Subsection (13) provides that:
'The person holding the enquiry shall after the conclusion thereof decide whether the person charged is guilty or not guilty of the misconduct with which he is charged and inform him and the Director-General of his decision.'
E Subsection (15) gives to a person found guilty of misconduct a right of appeal to the Minister. In terms of ss (19), the Minister may, inter alia, allow the appeal in whole or in part or dismiss the appeal and confirm the finding. If the person charged has been found guilty of misconduct, and his appeal has been dismissed, then in terms of ss (23) the Director-General may make a recommendation to the Minister that F
the person charged be cautioned or reprimanded;
a fine, not exceeding R200, be imposed upon the person charged;
the person charged be transferred to another post;
the emoluments or grade or both the emoluments and grade of the person charged be reduced; or
G the person charged be discharged from the service of his employer or be called upon to resign therefrom'.
In terms of ss (25)(a) the Minister is empowered, inter alia, to act in accordance with the recommendation of the Director-General made in terms of ss (23). There is no provision for any appeal from a decision by the H Minister.
The Director-General appointed Mr J H Booysen, a senior magistrate attached to the Durban magistrate's court, to enquire into the charge. I shall refer to him as 'the magistrate'.
The enquiry was held on 24 January 1989. The 'defendants' formally I admitted that the newsletter referred to in the charge was distributed among the members of the Stanger branch of TASA; that Hira was the editor of the newsletter; and that Naidu was the author of the subject article. They placed on record a denial that the article criticised the administration of any department, office or institution of the State; and that, even if it were to be found that the article was criticism, it constituted public criticism. The Department called as a witness Mr B J Panday, who
Nicholas AJA
A is Chief Director, Control in the Department of Education in the Administration: House of Delegates. He was examined and cross-examined. The case for the defendants was closed without Hira or Naidu giving evidence.
The magistrate announced his finding at the end of the enquiry. He found that the subject article did criticise 'the administration of (a) B department, office or institution of the State'. He said that s 16(f) was contravened if criticism was expressed anywhere except at a meeting of teachers. By distributing the newsletter to members of TASA, Hira as the editor and Naidu as the author of the article were responsible for the public criticism of the Department. He accordingly found each of them C guilty of a contravention of s 16(f) of the Act as charged.
On 31 January 1989 Hira and Naidu noted an appeal to the Minister. They did not challenge the magistrate's finding that the article was critical of the Department, but contended that the magistrate erred in holding that any criticism, other than criticism expressed at a meeting of teachers, constituted public criticism; and that the criticism was clearly not D public and the finding was clearly wrong. The magistrate then filed a 'Statement of findings and reasons therefor' to which reference will be made later in this judgment.
By letter dated 15 May 1989, Hira was advised that the Minister had E dismissed the appeal, confirmed the magistrate's finding and imposed upon him a fine of R100. A similar letter was presumably written to Naidu.
By notice of motion dated 4 September 1989 Hira and Naidu launched an application against the magistrate as first respondent and the Minister of Education and Culture: House of Delegates, as second respondent, in which they claimed: F
an order that the finding made by the first respondent on 24 January 1989 that the applicants had contravened s 16(f) of the Act be reviewed and set aside;
an order that the decision of the second respondent, dismissing the appeals of the applicants and confirming the magistrate's G finding and imposing a fine on each of the applicants, be reviewed and set aside; and
an order for costs.
It was alleged in paras 19 and 20 of the founding affidavit as the only ground of review that the magistrate and the Minister erred in making H their respective decisions and findings. In support of the allegation the applicants relied on two documents annexed to the founding affidavit, namely the notice of appeal to the Minister against the magistrate's finding, and their representations to the Minister in support of the appeal.
The application was heard by Bristowe J. During the argument it was assumed by all concerned that the decisions in question were reviewable. I After judgment had been reserved, however, a doubt arose in the learned Judge's mind, and he called for written argument on the point. The substantial contention on both sides was that if the respondents had misinterpreted s 16(f), their decisions could be corrected on review. Bristowe J held...
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