Schierhout v Minister of Justice

• Jurisdiction: South Africa
• Judge: Solomon ACJ, De Villiers JA, Kotzé JA, Curlewis AJA and De Villiers AJA
• Judgment Date: 08 April 1925
• Citation: 1925 AD 417
• Hearing Date: 25 March 1925
• Court: Appellate Division

Kotzé, J.A.:

In order to appreciate the precise nature of the present appeal it will be necessary to refer to the previous history of the legal proceedings instituted by the appellant against the respondent. The appellant had been an assistant magistrate and a member of the public service of the Union. Certain disciplinary steps were taken against him as far back as the years 1913-14 in the Cape Province, and subsequently at Pretoria. The appellant thereupon instituted an action against the Minister of Justice in the year 1918 in the Transvaal Provincial Division.

In this action the appellant, as plaintiffs prayed for an order setting aside the act of the Governor-General-in-Council, whereby, on November 1st, 1917, he had been reduced to the status of a second grade principal clerk with reduced emoluments; and likewise setting aside the act of the Governor-General-in-Council of September 1st, 1914, removing the appellant from the position of a detached assistant magistrate and appointing him to a status of second grade principal clerkship.

He further prayed for a declaration that he is entitled to be reinstated in a position at least equivalent in status and dignity to the position held by him in December, 1913; and also a declaration that he is entitled to the status of an officer who, between April 1st, 1913, and November, 1917, has neither misconducted himself nor discharged the duties of his office inefficiently, and that all entries in the official records to the contrary should be expunged. A claim of £5,000 as and for damages was also made by him. I may add

Kotzé, J.A.

here that the Public Service Commission, after a statutory enquiry, had recommended that the appellant was temperamentally unfitted for magisterial duties and should be transferred to some other post.

On behalf of the Minister an exception was taken that the declaration was bad in law and disclosed no cause of action. The exception was upheld by the Transvaal Provincial Division. The appellant thereupon appealed to this Court against the order of the Provincial Division, with the result that the appeal was dismissed with costs (1919, A.D., p. 30 ff.).

Subsequently the appellant instituted an action in the Cape Provincial Division against the Minister of Justice for the recovery of damages on the ground that the Government had unlawfully caused him to be degraded from his position as a detached assistant Magistrate, and transferring him to a position of a lower grade, namely, that of principal clerk, second grade, in the office of the Attorney-General at Pretoria. Two questions were submitted by consent of parties for the Court's decision: -

(1) Whether the plaintiff had been degraded; and

(2) If so, whether he was legally or illegally degraded.

The trial judge found on both questions in favour of the plaintiff (the appellant), and entered judgment for him in the sum of £500 with costs. The Minister appealed from this decision to this Court, which set it aside and allowed the appeal with costs. (Union Government v Schierhout (1922 AD 179)).

Not satisfied with the result of the above proceedings, the appellant in June, 1923, commenced an action in the Transvaal Provincial Division for damages against the Minister of Justice and Victor Mellor Robinson and Andries Hofmeyr, members of the Public Service Commission, in their private capacities. The ground of this action was the alleged malicious and fraudulent act of the defendants in having falsely and maliciously represented to the Act ing Governor-General-in-Council, in August...