Hira and Another v Booysen and Another

• Jurisdiction: South Africa
• Citation: 1992 (4) SA 69 (A)

Hira and Another v Booysen and Another
1992 (4) SA 69 (A)

1992 (4) SA p69

Citation	1992 (4) SA 69 (A)
Court	Appellate Division
Judge	Corbett CJ, Nestadt JA, Milne JA, Goldstone JA and Nicholas AJA
Heard	March 20, 1992
Judgment	June 3, 1992

Flynote : Sleutelwoorde B

Review — In what cases — Common-law review — Present-day position as to what acts or decisions reviewable stated and explained.

Review — Of finding of disciplinary enquiry conducted in terms of s 17 of Indians Education Act 61 of 1965 — Section 16 defining misconduct — C Enquirer misinterpreting s 16(f) under which person concerned charged — Court having regard to nature of enquiry prescribed by s 17 and to fact that enquirer required to exercise powers and functions of purely judicial nature; to fact that enquirer and assessor(s) advising him need not be judicially trained; to many problems of statutory interpretation arising D in application of various criteria in s 16; and to fact that enquiry of criminal nature, which might lead to punitive sanctions — Concluding that Legislature not intending enquirer to have exclusive jurisdiction in regard to interpretation of various grounds for misconduct listed in s 16 — Where it can be shown that enquirer, who made finding of guilty, so misinterpreted paragraph under which person charged that, had correct E criterion been applied, no grounds for finding of guilty existing, Court entitled to review enquirer's decision and set it aside.

F School and school board — Teacher — Disciplinary proceedings — Indians Education Act 61 of 1965 — Section 16(f) providing that any person referred to in s 15(1) guilty of misconduct if 'he publicly, otherwise than at a meeting convened by an association or organisation recognised by the Minister as representative of persons contemplated in ss (1) of s 15, G criticises the administration of any department . . . of State' — Appellants both persons contemplated by s 15(1), and members of association of teachers recognised under s 30 of Act — First appellant the editor of newsletter in which article by second appellant published — Newsletter distributed only to branch members of teachers' association — H Appellants charged with having publicly criticised Department of Education and Culture in House of Delegates — Court on appeal holding that 'publicly' to be interpreted restrictively, so that domestic or quasi-domestic criticism not criticism made publicly — For purposes of case, 'family' regarded as members of branch of teachers' association of I which appellants members — Court concluding that, though article critical of Department, its dissemination among branch members not constituting public criticism — Section 16(f) not contravened.

Headnote : Kopnota

(Per Corbett CJ; Nestadt JA, Milne JA, Goldstone JA and Nicholas AJA concurring): The present-day position in South Africa in regard to J common-law review is as follows:

1992 (4) SA p70

(1)

Generally speaking, the non-performance or wrong performance of a statutory duty or power by A the person or body entrusted with the duty or power will entitle persons injured or aggrieved thereby to approach the Court for relief by way of common-law review.

The dictum in Johannesburg Consolidated Investment Co v Johannesburg Town Council 1903 TS 111 at 115 applied.

(2)

B Where the duty/power is essentially a decision-making one and the person or body concerned ('the tribunal') has taken a decision, the grounds upon which the Court may, in the exercise of its common-law review jurisdiction, interfere with the decision are limited.

The dictum in Johannesburg Stock Exchange and Another v Witwatersrand Nigel Ltd and Another 1988 (3) SA 132 (A) at 152A-E applied.

(3)

Where the complaint is that the tribunal has committed a material error of law, then the reviewability of the decision will depend, C basically, upon whether or not the Legislature intended the tribunal to have exclusive authority to decide the question of law concerned. This is a matter of construction of the statute conferring the power of decision.

(4)

Where the tribunal exercises powers or functions of a purely judicial nature, as for example where it is merely required to decide whether or not a person's conduct falls within a defined D and objectively ascertainable statutory criterion, then the Court will be slow to conclude that the tribunal was intended to have exclusive jurisdiction to decide all questions, including the meaning to be attached to the statutory criterion, and that a misinterpretation of the statutory criterion will not render the decision assailable by way of common-law review. In a particular case it may appear that the tribunal was intended to have such exclusive jurisdiction, but then the legislative intent must be clear.

(5)

Whether or not an erroneous interpretation of a statutory E criterion, such as is referred to in para (4) (ie where the question of interpretation is not left to the exclusive jurisdiction of the tribunal concerned), renders the decision invalid depends upon its materiality. If, for instance, the facts found by the tribunal are such as to justify its decision even on a correct interpretation of the statutory criterion then, in the absence of some other review ground, there would be no ground for interference. Aliter, if, applying the correct criterion, there F are no facts upon which the decision can reasonably be justified. In this latter type of case it may justifiably be said that, by reason of its error of law, the tribunal 'asked itself the wrong question', or 'applied the wrong test', or 'based its decision on some matter not prescribed for its decision', or 'failed to apply its mind to the relevant issues in accordance with the behests of the statute'; and that as a result its decision should be set aside on review.

(6)

In cases where the decision of the tribunal is of a discretionary G (rather than purely judicial) nature, as for example where it is required to take into account considerations of policy or desirability in the general interest or where opinion or estimation plays an important role, the general approach to ascertaining the legislative intent may be somewhat different.

The appellants were teachers who occupied on a full-time basis in a permanent capacity posts included in the establishment of State schools falling under the Department of Education and Culture in the House of H Delegates ('the Department') and were, consequently, persons referred to in s 15(1) of the Indians Education Act 61 of 1965. Each was a member of TASA, a private organisation whose membership was restricted to persons employed as teachers falling under the Department. TASA was an association of teachers recognised by the Minister under s 30 of the Act. The first appellant was the editor of a newsletter published by the Stanger branch of TASA and distributed among the 300-400 members of that branch. An article entitled 'The Joys and Frustrations of Teaching' written by the I second appellant was published in the November 1987 issue of the newsletter. In consequence thereof, disciplinary charges under s 16(f) of the Act were preferred against the appellants on the grounds that, by writing and disseminating the article, they were alleged to have publicly criticised the Department. Section 16(f) provides that any person referred to in s 15(1) will be guilty of misconduct and subject to disciplinary charges if 'he publicly, otherwise than at a meeting convened by an association or organisation recognised by the Minister as representative J of persons contemplated

1992 (4) SA p71

A in ss (1) of s 15, criticises the administration of any department, office or institution of the State'. The appellants denied that their conduct fell within the ambit of s 16(f).

The first respondent had been appointed to conduct the disciplinary enquiry in terms of s 17 of the Act. He had concluded that s 16(f) was contravened if criticism was expressed anywhere other than at a meeting of teachers and that, by distributing the newsletter to members of TASA, the first appellant as editor and the second appellant as author of the article had been responsible for public criticism of the Department in B contravention of s 16(f). His finding was confirmed by the second respondent and fines of R100 were imposed. The appellants then applied to a Local Division for an order that the first and second respondents' decisions be reviewed and set aside. The Court held that 'if the respondents misapplied the section (s 16(f)) that was in each case a mere mistake of law' which was not reviewable per se. On appeal the issues were, firstly, whether the first respondent's finding and the second respondent's confirmation of it had been correct and, secondly, whether C the decisions were reviewable.

Held (per Nicholas AJA; Corbett CJ, Nestadt JA, Milne JA and Goldstone JA concurring), as to the first issue, that the word 'public' was one of wide significance and that it was difficult to define the dividing line between the extremes of 'in public' and 'in private'.

Held, further, that it appeared that the policy behind s 16(f) was that it D was required for the protection of the 'public image' of the government service and that the service should not be exposed to public criticism from within by those who owed an obligation of loyalty to their employer.

Held, further, that the rationale of s 16(f) suggested that it should be construed restrictively, so as to limit the area of its operation only to criticism expressed in circumstances such as tended to tarnish the public E image of 'any department, office or institution of the State'.

Held, further, that a second consideration which pointed to a restrictive interpretation was that s 16(f) was a penal provision, breach of which might render the...