Schierhout v Union Government (Minister of Justice)

• Jurisdiction: South Africa
• Judge: Innes CJ, Solomon JA, CG Maasdorp JA, Juta AJA and AFS Maasdorp Acting AJA
• Judgment Date: 20 January 1919
• Hearing Date: 09 December 1918
• Court: Appellate Division

Innes, C.J. :

This is an appeal from an order of the Transvaal Provincial Division setting aside a declaration on the ground that it disclosed no cause of action. The appellant was prior to 1910 a Cape civil servant; he is now a member of the Public Service of the Union; and by these proceedings he seeks redress in respect of certain disciplinary action to which he has been subject. The action complained of was taken on two different occasions, widely separated in point of time, yet connected by the sequence of events; and it will be convenient to give a brief outline of the occurrences which led up to the present litigation,-taking for that purpose the facts as stated in the declaration. Having entered the Cape Service in 1892, the applicant was towards the end of 1912 appointed detached assistant magistrate at Somerset West, a post which was graded on the scale £450-£20-£550. In December, 1913, while drawing salary at the rate of £490 per annum, he was charged under the Public Service Act of 1912, sec. 16 (L), with misconduct of a serious character, in that he had conducted himself in an improper or unbecoming manner in the discharge of his duties, and had shown gross discourtesy to certain members of the public. He was accordingly in terms of sec. 17 (2) of the Act temporarily suspended from duty, and from the emoluments of his office, and was

Innes, C.J.

required within a specified date to furnish a written statement of admission, denial or explanation. Details of the charges were furnished to him at the time. They have been annexed to the declaration, and it will be necessary hereafter to refer to them. In January, 1914, an enquiry was held in the matter by Mr. Blackstone Williams, Magistrate of Cape Town, who had been appointed to act as Statutory Commissioner on behalf of the Public Service Commission. At that enquiry the appellant and his attorneys were present. Mr. Blackstone Williams reported the result of his investigation in due course, and his report was considered by two members of the Public Service Commission - the third member being at the time absent on leave. The actual findings of the Magistrate are neither set out nor annexed; but the recommendations of the Commission thereon were to the effect that the appellant, being temperamentally unfitted for magisterial duties, should be removed to some other post-his emoluments to remain unaltered, but the post to be of a lower grade. These recommendations were, accepted by the Minister of Justice and the appellant was, in March, 1914, notified of the fact. The order of suspension was discharged, his arrear emoluments were restored, and his pay was continued at the same rate as before. He protested against the proposed degradation as being on various grounds illegal. But on 1st September, 1914, on being notified of his appointment as principal clerk to the Attorney-General on his personal scale of £450-£2O-£550, he assumed duty as such; and the first chapter of his disciplinary experiences was for the time closed. The second chapter opened a few years later. In the early part of 1916, according to the declaration, the appellant learned that in the report of the Public Service Commission for 1914 he was alleged to have been convicted of misconduct and transferred in consequence. He petitioned Parliament for redress, but without success, owing, so it is said, to certain statements there made by the Minister of Justice. These statements were reproduced in a Pretoria newspaper; and the appellant considered himself justified and called upon to answer them. He did so in the form of an anonymous letter giving, in the words of the declaration, "an account of so much of the relevant facts as seemed in good faith to the plaintiff to be required to set himself right in the eyes of the public." No copy of the communication thus made to the Press has been annexed. But the impression which it made upon his departmental superiors was shown

Innes, C.J.

by a letter from the Secretary of Justice charging him with misconduct of a serious nature, in having contrary to sec. 16 (e) of the Act contributed to a newspaper on official subjects, and in contravention of the regulations publicly commented on the administration of his department, and attempted to secure outside intervention in relation to his position in the Service. The letter called upon him to transmit to the proper quarter within the prescribed time a written statement admitting, denying or explaining the misconduct alleged. The appellant excepted on certain grounds to the jurisdiction of the Public Service Commission to deal with the matter. But he was informed on 1st November, 1917, that the Commission had recommended a reduction in status to the rank of second grade principal clerk on the scale £400-£20-£500. The Governor-General subsequently approved of the recommendation which was carried into effect. The appellant contends that all the disciplinary measures taken against him were illegal and void. He asks that the action of the Governor-General in Council both in September, 1914, and in November, 1917, be set aside; that he he declared entitled to reinstatement in a position equivalent in status and dignity to that held by him in December, 1913, and entitled further to the status of an officer who between the dates in question has neither misconducted himself nor been inefficient. Finally lie claims damages in the sum of £5,000. The question for our determination, therefore, is whether the reasons disclosed in the declaration constitute, if established by evidence, a legal ground for invalidating the action complained of.

The appellant's case falls manifestly under two heads: that which is concerned with his transference to Pretoria in 1914; and that which is concerned with the reduction of his emoluments in 1917. The first is covered by sees. 1 - 13 of the declaration inclusive, the second by the remaining paragraphs. And it will be convenient to deal with these on the footing that they constitute in form, as they certainly do in substance, two separate and distinct counts of the declaration.

Before dealing with the sufficiency of the first count, however, I propose to examine two general contentions advanced by the respondent which if upheld would render any further consideration of that count unnecessary. It was suggested that the declaration contained no allegation that the transference in 1914 constitutes a reduction in status; and as it clearly involved...