President of Bophuthatswana and Another v Sefularo

• Jurisdiction: South Africa
• Judge: Steward CJ, Galgut AJA, Kotzé
• Judgment Date: 11 December 1992
• Docket Number: AD 9/92
• Court: Bophuthatswana Appellate Division
• Hearing Date: 23 October 1992
• Citation: 1994 (4) SA 96 (BA)

Stewart CJ:

This appeal concerns the audi alteram partem rule.

D The respondent is a medical doctor. He has been a medical officer appointed by the Government of the Republic of Bophuthatswana to serve as such at the Thusong Community Hospital, Itsoseng, since 1985. Since 1990 he has, from time to time, unofficially acted as Deputy Medical Superintendent in the place of the Medical Superintendent at that hospital during the temporary absence of the latter. The medical services of the E respondent rendered as aforesaid were satisfactory and were accepted by the appellants as being satisfactory.

On 28 May 1991 the respondent was handed a letter by the Superintendent of the hospital. It was addressed to the respondent by the Secretary for Health and Social Welfare. It reads:

F 'The State President has directed that your services be summarily terminated in terms of s 3(1)(a) of the Security Clearance Act 40 of 1985.

The termination of services is with immediate effect.'

It is common cause that the respondent was given no notice of dismissal, was not advised of any reasons for dismissal and was not given any G opportunity to meet any allegations which might have given rise to his dismissal.

The respondent brought an application in the General Division for an order setting aside the termination of his services. He raised a number of grounds in support of his contention that his dismissal was invalid. The Court a quo did not find it necessary to consider all these grounds, since H it was of the view that success on one ground was sufficient to warrant the granting of his application. This ground upon which he succeeded was that there had not been compliance with the audi alteram partem rule. It accordingly set aside the direction terminating his services [*] .

It is against this finding that the appellants appeal. I

The appellants contend that it was not incumbent upon them, or either of them, to give the respondent notice of termination of his services nor to afford him an opportunity to meet the allegations giving rise to the J

Stewart CJ

A decision to dismiss him. This contention is based on the wording of the Security Clearance Act 40 of 1985, the relative portions of which read:

Preamble

In the interest of public safety, national security and the maintenance of law and order, to require security clearance in respect of persons as a B prerequisite to their employment or appointment, in certain capacities or offices, by the State, certain educational or training institutions and certain para-statal bodies, and, in such interests, to empower the President to terminate or order the termination of the employment or appointment of persons holding certain posts or offices with the State or such institutions or bodies in certain circumstances, to repeal the General Laws Further Amendment Act 1979, and to provide for incidental matters' C

and s 3:

'3. President may terminate or order the termination of service or appointment of certain persons in interest of public safety or national security

(1)

Notwithstanding the provisions of any other law the President may, if he is on reasonable grounds satisfied that a person D appointed in any capacity or office referred to in s 2(1)(a), endangers or constitutes a threat to the public safety or national security or the maintenance of law and order -

(a)

in the case where such a person is an officer, or where the general powers of appointment and dismissal or of dismissal vests with the State, summarily terminate the service or appointment of such person;

. . . .' E

The appellants concede that, generally speaking, the termination, without notice, of a person's employment creates a situation where the audi alteram partem principle is of application. However, they say that the passages quoted indicate clearly that it was the intention of Parliament, F when promulgating this legislation, to oust the application of this rule and that, accordingly, the respondent had no right to an opportunity to meet the allegations against him.

As to the concession, it is rightly made. In providing the reasons for the judgment of the Court a quo Khumalo J said: [*1]

G 'The audi alteram partem rule is a principle of natural justice which promotes fairness by requiring persons exercising statutory powers which affect the rights or property of others to afford a hearing before the exercise of such powers. It has existed from antiquity and is today the cornerstone of the administrative laws of all civilised countries. In John v Rees and Others; Martin and Another v Davis and Others; Rees and Another v John [1970] Ch 345 ([1969] 2 All ER 274) at 400 (Ch) and 307G H (All ER) it is said that:

"The laws of God and man both give the party an opportunity to make his defence, if he has any. I remember to have heard it observed by a very learned man upon such an occasion, that even God Himself did not pass sentence upon Adam, before he was called upon to make his defence."'

I In Smith v Attorney-General, Bophuthatswana 1984 (1) SA 196 (B) at 201H ((1982-3) 3 BSC 48) at 53F-G) I subscribed to the view that

'(t)he maxim audi alteram partem is deeply embedded in the administrative and judicial procedures and is always presumed to be implied'. J

Stewart CJ

A The principle is of general application and is based upon the premise that justice can only be done between conflicting interests if both sides have an opportunity to state their side of the story. In Administrator, Cape, and Another v Ikapa Town Council 1990 (2) SA 882 (A) at 889G-I/J the following appears:

'Applicability of the principles of natural justice

B The maxim audi alteram partem is a principle of natural justice which is part of our administrative law. Its basis is fundamental fairness. Winter and Others v Administrator-in-Executive Committee and Another 1973 (1) SA 873 (A) at 890 in fine. There is a marked trend in our case law not to adhere to the old classification of decisions by a public...