Noble & Barbour v South African Railways and Harbours

• Jurisdiction: South Africa
• Court: Appellate Division
• Judge: Innes CJ, De Villiers JA and Kotzé JA
• Judgment Date: 29 September 1922
• Citation: 1922 AD 527
• Hearing Date: 03 July 1922

Innes, C.J.:

These special cases were heard together. Both plaintiffs were pre-union employees of the Cape Government Railways who became servants of the defendant administration at the establishment of Union. The main issue in the litigation is whether the questions in dispute are governed by the regulations made under the Cape Civil Service Act of 1895 now repealed, or by the regulations framed under the Railways and Harbours Service Act of 1912. The claims advanced by the plaintiffs respectively are numerous and varied, but they have this common feature that they are all based upon the protective operation of sec. 144 of the South Africa Act. I propose, therefore, to consider the effect of that section before dealing in detail with the contentions of the parties. The section reads as follows: -

"Any officer of the public service of any of the colonies at the

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establishment of the Union who is retained in the service of the Union or assigned to that of a province shall retain all his existing and accruing rights, and shall be entitled to retire from the service at the time at which he would have been entitled by law to retire and on the pension or retiring allowance to which he would have been entitled by law in like circumstances if the Union had not been established."

The general safeguard thereby provided refers, it will be seen, only to rights; that is, to legal rights; not to expectations dependent upon uncertain contingencies or upon official discretion, however well founded in custom or usage those expectations may be. And the rights protected are of two classes - existing and accruing. An existing right is one actually vested at the contemplated date in the person concerned. The expression "accruing rights," literally a right which is growing, signifies, as here used, a right in course of being acquired - one which will accrue to the official by effluxion of time if he duly continues his service; a right which, though not vested in him at the contemplated date, will by virtue of machinery then in existence become his at some future time. But as pointed out by DE VILLIERS, J.P in Marshall v Union Government (1917, T.P.D., p. 376) "an accruing right can only be a legal right; a right which, though not accrued, and which may therefore not be claimable at a particular time, would in the ordinary course of events be claimable when it has accrued." In addition to the above general provisions the clause specially safeguards the position of the officials concerned in case of voluntary retirement in respect both of the date of such retirement and the calculation of their pensions. These matters would seem to be instances of accruing rights and therefore to fall under the protection of the earlier provisions. But it is unnecessary for present purposes to consider the reason or effect of these special stipulations; they do not bear upon any of the points at issue in this appeal.

One would naturally look to the various pre-Union statutes regulating the public service for rights vested in or accruing to public officials at the establishment of Union. And the more important ones would probably be there found. But such rights might arise otherwise. There is nothing to prevent their being constituted by statutory regulations within the limited area covered by the rule making authority. However arising they

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could be lawfully varied or diminished thereafter by the Union Parliament or under its authority, but not in any other way.

That, of course, is obvious as regards rights conferred by statute, but the same principle would apply to any rights which may have sprung from regulations. Once taken under the protection of sec. 144 such rights would cease to be subject to the old rulemaking machinery which created them. They could be varied only by new machinery established by an authority entitled to amend by sec. 144 itself, namely, the Union Parliament. The learned Judge dealt with the general position created by sec. 144 and with the question of subsequent variation as follows: -

"It was not intended by the South Africa Act to confer upon the holder of a right a greater right than he had at the taking effect of Union. If the colony which he served had the power by statute to reduce or abrogate his statutory right, that power passed to the successors of the Colonial Legislature, namely, the Union Parliament. If the colonial authority which framed regulations had the power of repealing, altering or amending such regulations, that power passed to the successor of the colonial authority. Under sec. 88 of Act 32 of 1895, the Governor had the power to amend or repeal laws made under that section. When, therefore, the plaintiffs entered the Union service they did not take with them unconditionally the privileges provided for by existing regulations; they took those privileges subject to the right of the Governor to repeal or amend the regulations conferring them. If certain leaves were provided for by the regulations the right of a civil servant was to have that privilege until the regulations were amended or repealed. The privilege was conditional on non-repeal or non-amendment of the regulations, and that conditional right and no more was protected by sec. 144 of the South Africa Act."

But that statement is, in my opinion, too wide. The Union' Parliament derives its undoubted power to reduce or abrogate pre-Union rights, not from being the successor of the various local legislatures, but because of the provisions of the South Africa Act (see sec. 152). And any such rights conferred by regulation were crystallised by incorporation into sec. 144. Thus incorporated they could only be taken away by the authority, directly or indirectly exercised, of the Union Parliament - directly by an Act repealing or altering the regulation, indirectly

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by a regulation framed under a statute clearly contemplating the abrogation of pre-Union rights by the rule making authority. I cannot think that the jurisdiction of the Governor-General-in-Council as successor to the Cape Governor-in-Council was unaffected by sec. 144 and that without further legislation he could immediately after Union have interfered by regulation with rights protected by that clause. The sole power so to interfere was in the Union Parliament and was exercisable either directly or by due and clearly expressed delegation. Such is the legal position; but the fact, that as a court of law we confine ourselves to that, is not intended in any degree to minimise the moral protection afforded by sec. 144 to holders of pre-Union rights. It is not to be thought that Parliament would itself vary, or would authorise the variation of rights recognised by the constitution, save upon over-riding considerations of public interest. And the intention to do so would need to be unmistakably expressed.

The post-Union regulations with which this controversy is concerned were framed under Act 28 of 1912. That measure in conjunction with Act 29 of 1912 introduced the principle, new to the Cape Province, of...