Schierhout v Union Government

• Jurisdiction: South Africa
• Judge: De Villiers JA, Kotzé JA, Wessels JA, JER De Villiers AJA and Gardiner AJA
• Judgment Date: 22 October 1926
• Citation: 1927 AD 94
• Court: Appellate Division

De Villiers, J.A.:

This is an application to this Division to recall its judgment delivered on the 9th February, 1922, overruling a judgment delivered by VAN ZYL, J., in the Cape Provincial Division in favour of the applicant, and to confirm the latter judgment. The case before this Court is fully reported in 1922 AD 179. The applicant, an officer of the Union Public Service, sued the Minister of Justice as representing the Union Government for damages on the ground that defendant had unlawfully caused him in contravention of his rights as an officer, to be degraded by depriving him of his position as a detached assistant magistrate and transferring him to a position of a lower grade, namely that of a principal clerk of the second grade in the office of the Attorney-General, Pretoria. Two questions were

De Villiers, J.A.

submitted for the decision of the trial court: (1) Whether plaintiff was degraded, and (2) if so, whether he was legally or illegally degraded. On the first question VAN ZYL, J., held in the affirmative, a view endorsed by this Court on appeal. On the second question the learned Judge held that wrongful intent was an essential element in misconduct of a serious character; that there had been no finding of serious misconduct-in that sense by the Commissioner, and consequently disciplinary action under sec. 17 (2) (iii) of Act 29 of 1912 could not properly be taken. He held therefore that the degrading was illegal, and entered judgment in favour of the plaintiff for £500 damages, the amount agreed upon. On appeal to this Court the judgment was set aside on the ground that wrongful intent was not an essential element in misconduct of a serious character, that the decision as to whether there was such misconduct rested with the Governor-General-in-Council under sec. 17 (2) (iii) of the Act, and not with the Court, that upon the evidence before the Court the decision of the Governor-General-in-Council had been duly given, and that there were no grounds which would entitle this Court to set that decision aside.

The applicant now asks the Court to reopen the case, set aside its own judgment and enter judgment in his favour as pronounced by VAN ZYL, J. The grounds upon which this extraordinary power of the Court is invoked are shortly that certain documents have come to light since the judgment of the Court was delivered and that if at that time this Court had had them before it in addition to the documents printed in the record, it would have seen (1) that no meeting of the Executive Council was held on 31st August, 1924 presided over by Lord DE VILLIERS or at all; (2) that on the merits of the case the Governor-General-in-Council did not decide to find the applicant guilty of serious misconduct and to inflict the penalty of degradation in terms of sec. 17 (2) (iii) of the Act, but that the appointment to a post of the next lower grade was made because a post of the same grade as that of Detached Assistant Magistrate was then not available. It is said that the Court was misled into holding the contrary by the withholding of the documents from it on the part of the agents of the respondent government, which documents it was their duty to have placed before the Cape Provincial Division at the trial. The documents which according to the applicant have since been discovered are: -

De Villiers, J.A.

(a)

The affidavits dated 19th and 21st November, 1913, sworn to by H. A. Fagan, and the affidavit dated the 19th November, sworn to by A. T. Solomon, put in at the enquiry held before Mr. Blackstone Williams (see page 257 of the A.D record) and forming part of the record of the proceedings at the enquiry;

(b)

Copy of the affidavit sworn to by Sergeant Thomson with a view to instituting criminal proceedings against H. A. Fagan, also put in at the enquiry (see page 403 of the record). This affidavit is printed on page 306 of the A.D record of the case against the respondent in which this Honourable Court gave judgment in favour of your petitioner on 12th January, 1925;

(c)

Copy of the Memorandum handed to the Sergeant of Police by Fagan and Solomon's bookkeeper, attached to your petitioner's letter of the 1st January, 1914, page 75 of the record;

(d)

Telegram dated 5th December, 1913, from the Department of. Justice to the Magistrate of Stellenbosch directing that Fagan should not be arrested except on his instructions. Your petitioner has seen this telegram but has no copy of it;

(e)

The visiting magistrate's report to which Mr. Blackstone Williams referred to in his report. This document your petitioner has also seen since the enquiry;

(f)

Minute of the Public Service Commission dated 21st August, 1914, subsequently printed on page 44 of the A.D record of the 1924/5 case referred is in (b);

(g)

The Executive Council Minute dated 31st August, 1914, subsequently filed on page 64 of the A.D record referred to in (b). A copy of a draft of this minute as it was before it went to the Acting Governor-General was filed in the 1921/22 case on page 109."

There is no charge of fraudulently withholding the documents, but in his argument when pressed by the Court the applicant did not scruple to impute fraud to the late Minister of Justice in the Minute which was placed before the Governor-General. This charge of fraud is stated in his answering affidavit to consist in having falsely represented to the Acting Governor-General that

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at the enquiry held by Mr. Blackstone Williams' evidence had been disclosed which would support a finding of guilty. In the same affidavit he also charges the Minister with fraud in having falsely represented to the trial Court in his evidence that an adjudication into the merits of the case had taken place in accordance with law by the Acting Governor-General-in-Council.

Now a final judgment of a court of law being res judicata is not to, be lightly set aside. On the other hand it stands to reason that a judgment procured by the fraud of one of the parties whether by forgery, perjury or in any other way such as fraudulently withholding material documents, cannot be allowed to stand. That was the Roman law (C. 7. 58), and that is our law (Voet 42.1.28).

But baseless charges of fraud are not encouraged by courts of law. Involving as they do the honour and liberty of the person charged they are in their nature of the greatest gravity and should not be lightly made, and when made should not only be made expressly but should be formulated with a precision and fullness which is demanded in a criminal case. In the application now before the Court, it is a matter of the utmost difficulty to ascertain the exact charges of fraud against the Minister, As the charge of withholding the documents appears to me to imply deliberately doing go, I have no hesitation in saving that there is no foundation for it whatever. That is clear from the affidavit put in by Mr. Hoal and the other documents before the Court. Nor is there any foundation for the charge that the Minister of Justice intended to mislead the Acting Governor-General or this Court. That was admitted by the applicant himself in the case which he brought against the Government in 1923. According to the terms of settlement "The plaintiff withdraws his claim against the defendants as well as all allegations and charges of malice or bad faith made by him in this action and on all other occasions, in writing or otherwise, for which he expresses his regret, and he undertakes not to continue or institute any proceedings against the defendants or any other persons, (including the Union Government) in connection with the disciplinary proceedings against him in 1913/14 or 1917, and with his retirement from the Public Service in 1922 other than his...