Moodley and Others v Minister of Education and Culture, House of Delegates, and Another

• Jurisdiction: South Africa

Moodley and Others v Minister of Education and Culture, House of Delegates, and Another
1989 (3) SA 221 (A)

1989 (3) SA p221

Citation	1989 (3) SA 221 (A)
Court	Appellate Division
Judge	Corbett CJ, Hoexter JA, Botha JA, Kumleben JA, Eksteen JA
Heard	March 2, 1989
Judgment	March 31, 1989

Flynote : Sleutelwoorde F

School and school board — Teacher — Dismissal of — Indian Education Act 61 of 1965 — Notice of termination of services — G Validity of — Distinction between taking of decision and administrative act of notifying person affected — Signatory of notice not purporting to be party taking decision to terminate services — Probabilities overwhelming that decision taken by competent authority — Notice accordingly not formally defective — Grounds of dismissal H — Misconduct of temporary assistants and teachers on probation — Procedure for dismissal in ss 17 and 18 of Act not applicable because appellants not permanent staff as required by Act — Teacher on probation employed at employers' pleasure — Precarious tenure placing appellants beyond purview of sections — Regulations not able to be I used to enlarge meaning of Act because not drafted by Parliament — Applicability of provisions of Act not extended by regulations — Audi alteram partem rule to be implied in view of profound consequences of dismissals for appellants unless clear intention to exclude the rule is evident in legislation — Such intention to oust audi alteram partem J rule clearly evident in legislation — Mala fides of decision to terminate services

1989 (3) SA p222

A Regard being had to political considerations relevant to determination of teacher's willingness to re-establish order in schools — No factual foundation to allegation of mala fides — Refusal to refer to oral evidence on basis of finding that no factual foundation to allegation of mala fides accordingly not improper exercise of discretion — Appeal dismissed. B

Headnote : Kopnota

Eleven appellants, teachers at a State school for Indians established under s 3 of the Indian Education Act 61 of 1965, of whom nine had been on probation and the remaining two in temporary positions, and all of whose services had been terminated by written notice, had applied in the Durban and Coast Local Division for an order setting aside, as C unlawful, the decision terminating their employment as teachers, and reinstating them in their former posts on the same terms and conditions as previously with retrospective effect to the date on which their services had been terminated. The application was dismissed and, with the leave of the Court a quo, the appellants appealed to the Appellate Division. Appellants attacked the termination of their services on the grounds: (i) that the notices advising of the termination of their D services were formally defective in that the signatory lacked authority to give notice; (ii) that their dismissals were based on allegations of misconduct but the procedures prescribed by ss 17 and 18 of Act 61 of 1965 had not been observed; (iii) that alternatively to (ii) the principles of natural justice had been flouted in that the appellants had not been afforded a hearing before being dismissed; and (iv) that the decision to terminate their services was vitiated by mala fides, the respondents having had regard to appellants' political sympathies in reaching the decision to terminate their services. E Held, that, with regard to (i), a distinction had to be drawn between the taking of a decision and the administrative act of notifying the person affected and in the present case the relevant notice did not purport to have been signed by the person who had taken the decision to terminate appellants' services: it remained overwhelmingly probable that, if the decision had not been taken by first respondent, it had been taken by second respondent with the concurrence of first respondent and, since either one would have been competent to take the decision F and since the decision had been taken by one or both of them, there was no merit in appellants' argument based on the alleged formal invalidity of the notices terminating their employment.

Held, further, that, with regard to (ii), the sections in question applied, in terms of Act 61 of 1965, to persons occupying on a full-time basis in a permanent capacity a teaching position and accordingly did not apply to temporary assistants and furthermore also did not apply to a teacher on probation because the term 'probation', in contrast G to 'permanent', when used in the context of the appointment of a teacher, carried the inescapable connotation of a person on trial whose competence and suitability remained to be determined and whose selection remained subject to approval and confirmation.

Held, further, that the regulations, not having been drafted by Parliament, could not be treated with the Act as a single piece H of legislation and as an aid to interpretation of the Act; the regulations could not be used to enlarge the meaning of the provisions of the Act and therefore could not extend the applicability of the sections in question beyond that provided for in the Act.

H Held, further, that, in any event, on a proper construction of the regulations it appeared that teachers on probation did not and could not enjoy a permanent appointment and held their post purely at the pleasure of their employer and the fact of their precarious tenure placed them beyond the purview of the sections.

I Held, further, that, with regard to (iii), in view of the profound effect their dismissals had on their employment, the audi alteram partem rule was to be implied unless an intention that the operation of the rule should be excluded appeared clearly from the provisions of the relevant regulations read in the context of the regulations and the Act and the cumulative effect of the following factors, namely the Minister's untrammelled discretion in this regard which did not hinge on an enquiry and for which he was not obliged to furnish reasons; the lack of formal procedures for the dismissal of temporary or J probationary staff, and the fact that the regulations did not

1989 (3) SA p223

A limit the grounds for dismissal of such personnel; the fact that the regulations provided no security of tenure for probationary and temporary staff, and the manifest object of the probation system to provide a convenient testing period which could be terminated speedily and with little complication, pointed incontrovertibly to an intention in the legislation to oust the operation of the audi alteram partem rule and the respondents were accordingly under no obligation to afford appellants the opportunity to make representations before being dismissed.

B Held, that, with regard to (iv), assuming it was open to appellants to challenge respondents' decision, the question whether, if the respondents in deciding to dismiss appellants had had regard to or had been influenced by the political sympathies of any of the appellants, that would constitute an ulterior and improper consideration vitiating the decision to terminate appellants' services, had to be answered in the negative because it would have been important for the purpose of the restructuring and staff replacement to facilitate the restoration of order, tightening of discipline and promotion of efficiency, to C have regard to such considerations to determine the willingness of teachers to restore order at the schools.

Held, further, that the trial Judge, in refusing to refer the matter for the hearing of oral evidence based on his finding that the allegation of mala fides was lacking in factual foundation, had accordingly not D failed to exercise a proper discretion. The appeal was accordingly dismissed.

The decision in the Durban and Coast Local Division in Moodley and Others v Minister of Education and Culture, House of Delegates, and Another confirmed.

Case Information

Appeal against a decision in the Durban and Coast Local Division (Thirion J). The facts appear from the judgment of Hoexter JA.

E P A M Magid SC (with him M Donen) for the appellants referred to the following authorities: Omar and Others v Minister of Law and Order and Others; Fani and Others v Minister of Law and Order and Others; State President and Others v Bill 1987 (3) SA 859 (A) at 893D - F and 907D - E; Somers v Director of Indian Education and Another 1979 (4) SA 713 (D) at 716D - E; Chief Registrar of Deeds v Hamilton-Brown 1969 (2) SA 543 (A) at 547H; F Schierhout v Minister of Justice 1926 AD 99 at 108; South African Defence and Aid Fund and Another v Minister of Justice 1967 (1) SA 263 (A) at 270B - G and at 278C; Pretoria North Town Council v A1 Electric Ice-Cream Factory (Pty) Ltd 1953 (3) SA 1 (A) at 11A - C; Plascon Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at 634E - 635C; Minister of Law and Order and Others v Hurley G and Another 1986 (3) SA 568 (A); Minister of Law and Order and Another v Dempsey 1988 (3) SA 19 (A) at 35B - F and at 38F - I; Moosa Bros & Sons (Pty) Ltd v Rajah 1975 (4) SA 87 (D) at 93H; Mustapha and Another v Receiver of Revenue, Lichtenburg, and Others 1958 (3) SA 343 (A); Hack v Venterspost Municipality and Others 1950 (1) SA 172 (W); Van Wyk NO H and Another v Van der Merwe 1957 (1) SA 181 (A) at 188B - D; R v Ngwevela 1954 (1) SA 123 (A); Minister van Naturellesake v Monnakgotla 1959 (3) SA 517 (A) at 521D; Dhlamini v Minister of Education and Training and Others 1984 (3) SA 255 (N) at 257E - I; Naidoo v Director of Indian Education; Naidoo v Director of Indian Education and Another 1982 (4) SA 267 (N) at 273H - 274D; Ngubane v Minister of Education and I Culture, Ulundi, and Another 1985 (3) SA 160 (D) at 162B - E; Winter and Others v Administrator-in-Executive Committee and Another 1973 (1) SA 873 (A) at 889; Everett v Minister...