Schierhout v Minister of Justice

• Jurisdiction: South Africa
• Judge: Innes CJ, Solomon JA, De Villiers JA, Kotzé JA and Wessels JA
• Judgment Date: 14 October 1925
• Hearing Date: 16 September 1925
• Court: Appellate Division

Solomon, A.C.J.:

This is an application to this Court to amend the order which it made on the 12th January, 1925, in the appeal of the Minister of Justice versus Schierhout. The appeal was one

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against the judgment of the Transvaal Provincial Division reversing a decision of the magistrate of Pretoria. In his action in the magistrate's court the applicant alleged that he had been since the 10th September, 1914, and still was chief clerk to the Attorney-General of the Transvaal, and that since 30th June, 1922, the Minister of Justice had wrongfully refused to pay him his salary. He, therefore, claimed salary, for three months ending September 30th, 1922, which with certain deductions for which he gave credit, amounted to £105 15s. 9d. The substantial plea to this claim was that the plaintiff had been lawfully retired from the public service. The magistrate held that the plaintiff had been lawfully retired and gave judgment for the defendant.

From this decision the plaintiff appealed to the Transvaal Provincial Division which came to the conclusion that he had been illegally retired. A question then arose as to the form of the relief to which he was entitled. It was suggested that to order payment of salary to the plaintiff was in effect ordering reinstatement in his office, in other words, specific performance of his contract and if so, the magistrate had no jurisdiction to try the case. But as both plaintiff and defendant were anxious to have the question of the legality of plaintiff's retirement tested, it was agreed that the summons should be amended to include a prayer for damages. The Transvaal Provincial Division thereupon ordered that the magistrate's judgment should he set aside, and that judgment should be entered for the plaintiff declaring that he was illegally retired from his office and entitled to damages, the amount of which, if not fixed by agreement, should be assessed by the magistrate. Now, the last part of the order with regard to damages was made under a misapprehension of the agreement which had been come to between the parties as regards the inclusion in the summons of a prayer for damages. In his judgment the learned Judge said that it had been agreed that the case should he decided as if The plaintiff's right to damages only was in issue. It is common cause, however, that this was not so and that the plaintiff had never abandoned his claim for salary. The only reason indeed why he consented to the inclusion of a claim for damages was to prevent the proceedings proving abortive through a possible want of jurisdiction in the magistrate's court. Had the learned Judge been in possession of all the facts it is clear that he

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would not have adjudged that the plaintiff was merely entitled to damages.

The next step in the litigation was that the defendant appealed to this Court from the judgment of the Transvaal Provincial Division and that the plaintiff entered a cross-appeal against that part of the judgment which ordered that "the case should proceed and be decided as if the plaintiff's right to demand damages only was in issue."

In the result this Court dismissed both the appeal and the cross-appeal. It is clear, however, that in dismissing the cross-appeal this Court laboured under the same misapprehension as the learned Judges in the Transvaal Provincial Division with regard to the arrangement arrived at between the parties, In his judgment the Chief Justice, referring to the suggestion that the claim for salary was in effect a prayer for specific performance which the magistrate had no jurisdiction to entertain, said: "In order to avoid this difficulty it was agreed," in the words of STRATFORD, J., who delivered the judgment of the Court, "that the summons should by content be amended to include a prayer for damages and that the case should proceed and b e decided, as if the plaintiff's right to demand damages only was in issue. No formal amendment seems to have been made, but the above is an authoritative statement of the facts and the respondent is of course bound by the arrangement. So that the order must stand, and the magistrate must assess the damages." It is clear that this portion Of the judgment is based upon the same misapprehension as existed in the minds of the judges in the Transvaal Provincial Division with regard to the agreement arrived at between the parties, and the dismissal of the cross-appeal followed upon that misapprehension. The respondent has no desire to avail himself of this mistake, and in a letter addressed to the Registrar by the Government attorney for submission to the Court it is stated that "the Government treats the judgments merely as declaring that Mr. Schierhout was illegally retired, and does not rely on them as confining him to a claim for damages or as precluding him from pursuing such other remedy as he thinks he is entitled to."

In these circumstances the applicant is entitled to come to the Court to ask for an amendment of that part of the order which was based upon a misapprehension. The difficulty is to determine

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what is best to be done to meet the situation. The applicant asks us to amend the order by declaring that he is entitled in law to claim his emoluments. That would involve a determination of the questions whether he is still a member of the service, and therefore entitled to his salary month by month; or whether he has been wrongfully dismissed, and therefore entitled only to sue for damages. It might also require us to consider incidentally whether the claim for salary is one for specific performance as was suggested in the court below and accordingly outside the jurisdiction of the magistrate. These are questions of importance which have not been argued, and which it would not be right to decide without argument. It is clear however, that they cannot be dealt with this term which concludes to-day, so that the application would have to stand over for argument to the next sitting of the Court. One advantage of that would be that it would in all probability come before the same Judges as sat in the appeal but on the other hand it means considerable delay in determining the matter.

Another possible course would be to recall the order dismissing the cross-appeal and to remit the case to the magistrate not merely to assess the damages but on the claim for salary and in the alternative for damages. The applicant objects to the case being sent back to the magistrate and to the inclusion in the summons of a claim for damages.

If it is referred to the magistrate, the probability is that whatever his decision might be there would be a further appeal, so that in the end the delay in this event would be greater than if the arguments on the application are postponed to the next term. In all the circumstances we have come to the conclusion that the more satisfactory course would be to order the application to stand over for further argument to the next sitting of the Court.

Applicant, in person: The onus is on the respondent in view of the proviso to sec. 35 of Act 32 of 1895 (Cape).

J. M. Murray, for the respondent (without admitting that the onus was on him) : Applicant's only remedy is in damages. The claim for salary is unfounded as a servant cannot sue for salary after wrongful dismissal. See Wolhuter v...