Jenkins v Government of the Republic of South Africa and Another

• Jurisdiction: South Africa
• Citation: 1996 (3) SA 1083 (TkS)

Jenkins v Government of the Republic of South Africa and Another
1996 (3) SA 1083 (TkS)

1996 (3) SA p1083

Citation	1996 (3) SA 1083 (TkS)
Case No	1343/95
Court	Transkei Supreme Court
Judge	Dukada AJ
Heard	December 14, 1995
Judgment	January 18, 1996
Counsel	N B Locke for the applicant.; S M Mbenenge for the respondents.

Flynote : Sleutelwoorde

Constitutional law — Human rights — Right to procedurally fair administrative action in terms of s 24 in chap 3 of Constitution of the Republic of South Africa Act 200 of 1993 — Applicant employed by Transkei Mining Corporation ('the Corporation') in C 1989 — Receiving use of official vehicle for official and private trips, and free unfurnished house — Corporation closed down in 1993 and assets eventually placed under control of Member of Executive Council for Economic Affairs and Tourism in Province of Eastern Cape — Applicant continuing to enjoy use of official vehicle and D free accommodation until benefits summarily withdrawn in June 1995 — Court adopting liberal approach in interpretation of s 24(b) of Constitution — Party entitled to procedural fairness under s 24(b) entitled to principles which are right, just and fair in particular set of circumstances — Words 'the right to procedurally E fair administrative action' to be generously interpreted — Principle of 'legitimate expectation' deployed in administrative law to ensure that administrative decisions fair in all respects — 'Legitimate expectation' not defined in Constitution because concept already part of common law — Principle premised on duty of administrative F body to act fairly when making administrative decision — Continued use of vehicle and occupation of premises by applicant for period of more than 18 months generating reasonable and genuine expectation that she would be given hearing should Government eventually decide to withdraw such benefits — Decision to withdraw benefits without prior consultation with applicant fundamentally flawed — G Decision set aside.

Public service — Employees of — Conditions of service — Amendment of — Who are members of public service — Applicant employed by Transkei Mining Corporation ('the Corporation') in 1989 — Receiving certain benefits — Corporation closed down H and assets eventually placed under control of Member of Executive Council for Economic Affairs and Tourism in Province of Eastern Cape — Applicant continuing to enjoy benefits until these summarily withdrawn in 1995 — Applicant seeking reinstatement of benefits — Applicant submitting that respondents precluded from withdrawing benefits because respondents waiving right to do so in terms of s I 236(4) of Constitution of the Republic of South Africa Act 200 of 1993 — Section 236(4) only applicable to institutions performing Governmental functions under control of State officials immediately before commencement of Constitution — No evidence that Corporation performing Governmental functions prior to J commencement of Constitution — Corporation no longer operating and all assets

1996 (3) SA p1084

A absorbed by Government — In any event, even if Government were to review terms and conditions of former employees of Corporation, appropriate instrument to vary conditions contemplated in s 236(4) being legislation — Failure by competent authority to amend or vary terms and conditions of service of employees referred to B in s 236(4) not constituting waiver.

Waiver — What constitutes — Failure by competent authority to amend or vary terms and conditions of service of employees referred to in s 236(4) of Constitution of the Republic of South Africa Act 200 of 1993 not constituting waiver of right to withdraw benefits.

Headnote : Kopnota

C The applicant had been employed by the Transkei Mining Corporation ('the Corporation') in January 1989. Her conditions of service at the Corporation included use of an official vehicle for official and private trips, and a free unfurnished house leased by the Corporation on her behalf. The Corporation had been closed down in December 1993; it was taken over by the Ministry of Commerce, Industry and Tourism in the former Republic of the Transkei, whereafter that department had become defunct and the assets D of the Corporation were put under control of the Member of the Executive Council ('MEC') for Economic Affairs and Tourism in the Province of the Eastern Cape. The applicant had enjoyed the use of the benefits until June 1995 when they were summarily withdrawn. She had obtained a rule nisi calling upon the respondents to show cause why they should not return the vehicle and restore the occupation of the house to her forthwith. The respondents had launched a counter-application for an order directing the applicant to return the vehicle.

E The applicant's cause of action was that the Corporation had not been liquidated in terms of the law and that the vehicle still belonged to the Corporation, not to the Government of South Africa. She further contended that the contract of employment entered into between herself and the Corporation still subsisted and that the respondents were bound to honour the terms thereof. She also alleged that certain officials of the F Department of Commerce had made assurances and undertakings that the employees of the Corporation would not forfeit their benefits should the Corporation be closed and the employees become absorbed in the Government.

With regard to the preliminary point raised by the respondents that they had been joined incorrectly because the matter fell under the exclusive jurisdiction of the MEC for Economic Affairs and Tourism in the Province of the Eastern Cape; that the decision to deprive the applicant of the benefits had been taken 'at provincial government level' and G not by the respondents; that the second respondent (the Minister of Economic Affairs) had been wrongly joined as there was no Minister of Economic Affairs in the Province of the Eastern Cape, only an MEC; and that the applicant had sued a national Minister of the National Government on an issue which fell under the competence of the MEC of a provincial government, the Court held as follows:

(1) The test to determine whether there had been a misjoinder in the proceedings was whether or not a party had a 'direct and substantial interest' in the subject-matter of the H action, ie a legal interest in the subject-matter of litigation which might be affected prejudicially by the judgment of the Court. (At 1088D-E.) It was common cause that the Corporation had been put under the control of the MEC for Economic Affairs and Tourism in the Eastern Cape. In terms of s 126(1) of the Constitution of the Republic of South Africa Act 200 of 1993, a provincial government had no competence to deal with matters pertaining to mining. The Corporations Act 10 of 1985 (Tk), in terms of which the I Corporation had been established, provided that a corporation would not be liquidated except by or under the authority of an Act of the National Assembly. The Corporation had not yet been liquidated as provided for in that Act: it was de jure still in existence though de facto no longer operating. There was no evidence that the national Ministry of Mining and Mineral Affairs had taken over the affairs of the Corporation and, in view of the fact that the MEC had no competence to deal with mining matters, the Court held that the national Government had a direct and substantial interest in the affairs of the J Corporation and had thus been correctly joined. (At 1088F-1089B/C, summarised.)

1996 (3) SA p1085

A (2) With regard to the second respondent, the administration of the Corporations Act had been assigned to a competent authority within the Government of the Eastern Cape, and the fact that the second respondent had been described as the Minister of Economic Affairs and not an MEC did not make any material difference, in the light of the fact that the applicant had specifically made reference to the Province of the Eastern Cape, and not to the national Government: the second respondent had been adequately described in the papers and had been correctly joined. (At 1089E-F/G.)

B As to the applicant's submission that the respondents were precluded from withdrawing the benefits in question because they had waived their right to do so in terms of s 236(4) of the Constitution, because when they had taken over the assets of the Corporation, they had failed to review the terms and conditions of service of the applicant, the Court held that the provisions of s 236(4) of the Constitution applied only to institutions which had been performing governmental functions under the control of State officials immediately C before the commencement of the Constitution. (At 1091C/D.) There was no evidence that the Corporation had been performing governmental functions prior to the commencement of the Constitution. (At 1091I.) The Corporation was no longer operating and all its assets had been absorbed by the Government. There could be no question of reviewing the terms and conditions of service of former employees of the Corporation, as they were now permanent employees of the Government and were subject to the laws applicable in the Public Service. The contracts of employment entered into by the D Corporation and its employees had been superseded by the new employment contracts entered into with the Government. Even if the Government were to review the terms and conditions of the employment of former employees of the Corporation, this would have been done by way of legislation, which was the appropriate instrument to vary the conditions of employment of employees contemplated in s 236(4). A delay or failure by a competent authority to amend or vary the terms and conditions of service of employees E referred to in s 236 did not constitute...