Muller and Others v Chairman, Ministers' Council, House of Representatives, and Others

• Jurisdiction: South Africa
• Judge: Howie J and Nel J
• Judgment Date: 26 April 1991
• Citation: 1992 (2) SA 508 (C)
• Hearing Date: 15 March 1991
• Court: Cape Provincial Division

F Howie J:

This is an application for the review of certain administrative action taken against applicants arising out of their participation in a strike over pay and promotion grievances. They are officers in the public service. The action taken, purportedly in terms of s 20 of the Public Service Act 111 of 1984 ('the Act'), involved four of them being suspended and all of them being charged with certain disciplinary offences.

G First respondent was inappropriately cited - that is common cause - and no further mention need be made of him. Second to fifth respondents are officials of the Administration: House of Representatives. Second respondent is the Director-General. Third and fifth respondents are the regional representatives in the Department of Budgeting and Auxiliary H Services at Bellville and Wynberg, respectively. Fourth respondent is the Director: Personnel Management.

The proceedings were launched as a matter of urgency. By the time we heard the application urgency was no longer in issue. It is therefore unnecessary to refer to the evidence or arguments which pertained to I that question.

The substantive relief sought in the notice of motion is an order

(a)

declaring the suspensions and the disciplinary charges invalid;

(b)

declaring applicants entitled to the rights and privileges attaching to their respective posts, and specifically including the right not to be victimised for lawfully representing fellow J officers and employees in relation to their grievances;

Howie J

(c)

A directing respondents to restore those rights and privileges.

We were informed during the hearing that the suspensions had, since the launching of the application, been lifted. However the validity or otherwise of the suspensions is still a live issue in relation to the requested declarator and the matter of costs.

B The background facts are not in dispute. Widespread dissatisfaction among officers and employees of the Administration: House of Representatives in the Peninsula and parts of the Boland started coming to a head during the middle of 1990. Their complaints covered a fairly varied field but I have mentioned salary and promotion grievances because these were the main trouble areas. Representations were made on C their behalf to the relevant authorities. The consistent answer on the salaries question was that insufficient funds were available. This, and the other responses forthcoming from the authorities, failed to stem the mounting discontent. A Worker's Action Committee was formed in early September 1990 to represent officers and employees in the Western Cape, D including Paarl and Worcester. All the applicants are members of that committee. It became actively involved in conveying employee grievances and demands to the relevant senior officials, including second respondent. The reactions from what I might term the management side still failed to meet the demands of the dissatisfied officers and E employees or to halt the momentum of their efforts to obtain what they sought. In early October they gave the Action Committee a mandate to take strike action. I may say that the application papers do not use the word 'strike' but Mr Arendse, who appeared for applicants, did do so and it is entirely appropriate in all the circumstances. Certain strike action began on 16 October and on 19 October it was decided to proceed F with the strike in earnest. That decision was implemented. All the applicants took part.

While the strike was in progress second respondent addressed a circular letter dated 22 October to all officers and employees in which, having recorded the authorities' 'sympathy for the dissatisfaction of the officers', he conveyed the Administration's request that official G duties be resumed immediately. He pointed out that non-compliance would infringe the Act and would be visited with disciplinary steps.

When this letter failed to have the desired effect upon all officers, a letter was addressed on second respondent's behalf, inter alia, to first and second applicants. It was dated 23 October and began by stating that consideration was being given to the improvement of service H conditions. Then came the following paragraphs:

'U word hiermee aangesê om nie later nie as 13:00 vandag by u werkspunt terug te wees en u pligte te hervat. Gedurende die tydperk wat u van diens afwesig was sal u nie betaling ontvang nie. Indien u nie hierdie opdrag gehoorsaam nie is u optrede onwettig en teenstrydig met die bepalings van u diensvoorwaardes en kom dit op ernstige wangedrag neer.

I Die voorafgaande beteken dus dat indien u nie teen 13:00 vandag dienste hervat het nie u ongemagtigde afwesigheid by u werkspunt aangeteken word en sal daar dissiplinêr teen u opgetree word wat die beëindiging van dienste van werknemers en beamptes op proef kan meebring en die skorsing sonder salaris en gevolglike aanklag van wangedrag en moontlike ontslag van beamptes tot gevolg sal hê.'

J The letter concluded by adverting to the consequences of dismissal.

Howie J

A In the founding affidavit first applicant alleges that 'we' received that letter, the implication being that each applicant did so. Not all of them refer to it in their individual supporting affidavits but the most probable inference is that they were all aware of that ultimatum. As to their reaction to it, it is apparent from what applicants say or omit to say, as regards their whereabouts and activities on 23 and 24 B October, that they were absent from their posts on those days either some of the time or throughout, and that if they were present at their offices they did not perform their duties.

The next development was that by letter dated 25 October, written on second respondent's behalf, applicants were all charged under s 20 of the Act with misconduct arising out of their absences or activities on C 23 or 24 October. There was a main charge and three alternatives, all the charges alleging misconduct in one or other form described in s 19 of the Act.

Finally, first, second, third and fifth applicants received letters dated 25 or 26 October whereby they were suspended without pay in terms of s 20(2) of the Act.

The present proceedings were launched on 6 November. I have already D summarised the relief sought.

Some of the review grounds alleged in the application papers were not argued by Mr Arendse, and rightly so, in my opinion. It is unnecessary to refer to them.

I shall confine myself to the grounds alleged in the papers on which E he did present written or oral argument. It is convenient to list them as follows:

(1)

The suspensions were not effected by the appropriate Minister or upon his authority as required by s 20 of the Act read with reg A25.1 of the Public Service Regulations. (The latter were F published in Government Notice 2047 of 11 December 1959 and reg A25 in Government Notice R 1868 of 31 August 1987.)

(2)

The charges preceded the suspensions whereas, in terms of the Public Service Staff Code ('the Code'), the suspensions should have preceded the charges.

(3)

The suspensions and charges were not preceded by a G fact-gathering and communications exercise by management as should have been carried out in terms of the Code.

(4)

Not all striking officers and employees were charged and suspended and the selective and adverse treatment meted out to applicants was unfair and unreasonable.

(5)

H Such selective treatment constituted victimisation of applicants by the authorities in retaliation for applicants' role in the strike and preceding activities on behalf of their fellow officers and employees.

(6)

Applicants' suspension without pay was unfair in the absence of their being afforded a hearing beforehand.

I As to ground (1), counsel for the parties informed us after argument had been addressed on this point, that it had been agreed as a fact, which could be recorded accordingly, that the suspensions had indeed been effected by the appropriate Minister. This ground therefore fell away.

As to ground (2), the Code, in part V, deals with labour regulations in the public service. It is unnecessary for present purposes to quote J or even

Howie J

A in any detail to summarise the contents of part V. Suffice it to say that the purpose of that chapter as stated in section A is to establish guidelines for promoting sound management-employee relations, and the handling of labour unrest, by way, inter alia, of sound communication and the early identification of problems which may damage such B relations. Suggested communications guidelines are set out in section B. Suggested guidelines for dealing with labour unrest are contained in section C, particularly insofar as strikes are concerned.

In section C, clauses (16)-(25) deal with disciplinary action against strikers, more specifically those identified as 'instigators'. The action applicable to instigators who are officers is set out thus in clause (20)(b): C

'A charge of misconduct which must be preceded by suspension without pay.'

(The underlining is in the text.)

Under the heading 'General' is clause (28), in para (a) of which departmental action during strikes is urged, in the interests of the D service and the implementation of the principles of merit and efficiency, to be 'reasonable and fair' so that those involved have

'sufficient opportunity (as opposed to a protracted/deferred procedure) to state their case'.

Mr Arendse referred, in regard to the standing of the Code, to the E judgment in Administrator, Transvaal, and Others v Zenzile and Others 1991 (1) SA 21 (A) where, at 34G-H, the Code is described as having 'paramountcy'. It was urged upon us that this statement, together with the above-quoted provision requiring that a charge be preceded by a suspension, imposed a procedural obligation upon second respondent which he had failed to...