Mbelu and Others v MEC for Health and Welfare, Eastern Cape, and Others

• Jurisdiction: South Africa
• Judge: Somyalo J
• Judgment Date: 14 December 1995
• Citation: 1997 (2) SA 823 (TkS)
• Docket Number: 1885/95
• Counsel: G C Marnewick (with him CN Patel) for the applicants P B Hodes (with him T Deva Pillay) for the respondents
• Court: Transkei Supreme Court

Somyalo J:

The applicants represent a group of nurses dismissed by the Department E of Health and Welfare (Eastern Cape Province) on 10 October 1995 for engaging in strike action.

This is one of three applications, between the same parties, argued before me on 9 and 10 November 1995.

The following relief is sought: F

'(i)

The decision taken on 10 October, 1995 to dismiss the applicants from their employment by the Department of Health of the Province of the Eastern Cape is hereby set aside.

(ii)

The respondents are ordered to take all the necessary steps to reinstate the applicants forthwith to their former positions in the said Department, such reinstatement to be on conditions of employment no G less favourable than those terms and conditions which governed employment of the applicants prior to their aforesaid dismissal.

(iii)

Alternatively to paras (i) and (ii) above:

(aa)

The validity of s 19 of the Public Service Labour Relations Act, H 1994, in relation to the provisions of the Constitution of the Republic of South Africa Act 200 of 1993 is hereby referred to the Constitutional Court for determination.

(bb)

The applicants are to institute the appropriate proceedings pursuant to para (aa) above within one month of the granting of this order, failing which this order shall lapse. I

(cc)

Pending the determination of the validity of s 19 of the Public Service Labour Relations Act, 1994, the respondents are ordered to take all the necessary steps to reinstate the applicants forthwith to their former positions in their department, such reinstatement to be on conditions of employment no less favourable than those which governed the employment of the applicants prior to their aforesaid dismissal. J

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(dd)

The costs of these proceedings are reserved for decision by the A Constitutional Court and, failing such determination by that Court, the parties are given leave to set this application down for further hearing on that question.'

The application is brought by way of notice of motion proceedings and final relief is sought. B

Both parties have filed lengthy affidavits in which various matters are placed in issue. These, however, relate, in the main, to the background of the strike action dating back several years. I have dealt comprehensively with this in my judgment in case No 1049/94 (which is one of the three applications between the parties referred to above). C In an application of this nature, the general rule was stated by Van Wyk J in Stellenbosch Farmers' Winery Ltd v Stellenvale Winery (Pty) Ltd 1957 (4) SA 234 (C) at 235E–G to be:

'Where there is a dispute as to the facts a final interdict should only be granted in notice of motion proceedings if the facts as stated by the respondents together with the admitted facts in the applicants' affidavits D justify such an order. . . . Where it is clear that facts, though not formally admitted, cannot be denied, they must be regarded as admitted.'

The rule was quoted with approval in Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at 634E–F.

In seeking final relief, applicants contend that the facts in the present case fall within the guidelines set out above. E

From the papers before me emerges a long history of dissatisfaction within the nursing community of former Transkei which culminated in a strike commencing on 28 September 1995. The strike affected 32 hospitals, health centres and clinics in the area and involved approximately 6 000 nurses. At the time of the strike action the F applicants' employment was governed by the Public Service Act, 1994 (Proc 103) published in Government Gazette 15791 of 3 June 1994 and the Public Service Labour Relations Act, 1994 (Proc 105) published in Government Gazette 15794 of 11 June 1994).

On 10 October 1995 the second respondent, acting in terms of the Public Service G Labour Relations Act, 1994, dismissed the applicants from their employment.

Section 19(11) of the Public Service Labour Relations Act, 1994 reads as follows:

'(a)

If employees participate in any strike in contravention of this section, H the head of department shall by means of a notice give them an ultimatum to return to work within one day or such longer period as the head of department at his or her sole discretion may determine, and if they fail to do so he shall by means of a further notice, instead of the normal disciplinary procedure or action, afford them the opportunity of providing him or her within three working days with a written explanation for not performing their normal duties. I

(b)

A notice referred to in para (a) may be made by means of verbal communication, a letter, publication thereof in any manner or the affixing thereof at the employees' fixed place of work or, if they do not have a fixed place of work, at the place where they sign on or report for duty.

(c)

Upon the expiry of the period of three working days referred to in para (a), the head of department shall take into account any written explanations so J

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made, and may thereafter immediately terminate the services of any A such employees at his or her sole discretion, and notwithstanding the provisions of s 17(1) and (4) of the Public Service Act and s 12 of the Correctional Services Act 8 of 1959.'

The applicants, in their submissions, have raised several objections to the ultimatums, and these may be summarised as follows: B

(a)

The ultimatums were not communicated to the first six applicants in their capacities as members of the nurses 'ad hoc' committee for transmission to the applicants.

(b)

The ultimatums were not communicated to individual applicants, nor were they posted to any of the applicants. C

(c)

None of the applicants was given any opportunity to make representations of any kind before a final decision to dismiss him or her was taken.

(d)

The respondents did not communicate or even endeavour to communicate ultimatums to the applicants through the unions which, with the knowledge of D the respondents, represent some of the applicants.

(e)

None of the applicants was given an opportunity, after his or her individual dismissal, to make representations in order to have his or her particular dismissal withdrawn. E

The applicants, so it was argued, were entitled to expect that the rules of natural justice should be applied to their case. There was no justification for the exclusion of the audi alteram partem principle in respect of the applicants, especially in view of the fact that chap VI of the Public Service Act of 1994 clearly enshrines the requirements of the principles of natural justice in general and the requirements of a hearing prior to a F dismissal in particular, so the argument continues. Applicants further attack the concession by respondents that they could only treat the striking nurses as a body or a group as untenable and anathema to our law. Applicants relied on the dictum of Botha JA in Minister of Education and Training and Others v Ndlovu 1993 (1) SA 89 (A) at 104G:

'Proposition (a) denies that such a common attribute is required to constitute a G group of candidates. It postulates that action can be taken against individual candidates who are innocent of any irregularity on the ground that they belong to a group of which some members are proved to have been guilty of an irregularity.'

The further submission by the applicants is that the modes of communication chosen by H respondents to communicate with the striking nurses, including the applicants, were manifestly inadequate in the light of the following:

(a)

To the knowledge of the respondents the strikers did not go to the hospitals and were not likely to go to the hospitals where notices were put up. I

(b)

There is no indication that the newspapers in which notices appeared are read by any of the applicants.

(c)

There is no evidence to suggest that any of the applicants should have heard the statements made over the radio or that such statements would otherwise have come to their notice.

(d)

None of the notices or ultimatums invited the applicants or any of J

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them to make representations before a decision could be taken...