Traube and Others v Administrator, Transvaal, and Others

• Jurisdiction: South Africa
• Judge: Goldstone J
• Judgment Date: 14 December 1987
• Citation: 1989 (1) SA 397 (W)
• Hearing Date: 12 December 1987
• Court: Witwatersrand Local Division

Goldstone J:

The six applicants are qualified medical doctors, C having received the degrees of MB B Ch from the University of the Witwatersrand.

The first and fifth applicants graduated in 1985 and the other four applicants in 1986. They are all employed by the Transvaal Provincial Administration at the Baragwanath Hospital in Soweto.

D The first applicant completed her internship at Baragwanath Hospital in 1986. She was then appointed as a senior house officer in internal medicine, at the same hospital, for the first half of 1986. Such appointments are for six-month periods. She was appointed for the second half of 1987, and is presently in that position.

The position of the fifth applicant is similar to that of the E first applicant. He was appointed as a senior house officer in the department of paediatrics, for the second half of 1987, and he is presently serving in that position.

The second, third, fourth and sixth applicants will all complete their periods of internship at Baragwanath Hospital at the end of this year.

F The first and fifth respondents made application to continue as senior house officers for the first half of 1988. The other respondents made application to become senior house officers for the same period.

From the point of view of the professional careers and education of the applicants as medical practitioners, the appointments which they seek are of considerable importance to them.

G The six applications were all turned down, and the applicants were informed of those decisions during November 1987. The decision not to appoint or to reappoint the applicants, was taken by the Director of Hospital Services, Transvaal, who is the second respondent. It is common cause that there was only one reason for that decision having been taken, and that is the signature by each of the applicants of a H letter addressed by a number of medical practitioners employed at Baragwanath Hospital to the South African Medical and Dental Council and which letter was published in its journal, The South African Medical Journal, of 5 September 1987. I do not propose to read the letter. Suffice it to say that it contains some very serious criticisms of the I Transvaal Provincial Hospital policy, with regard to the conditions in the department of medicine. In particular the criticisms relate to what is described in the letter as 'disgusting and despicable' conditions in the medical wards, and the 'deplorable' attitude of the authorities in relation thereto.

The second respondent, in his answering affidavit, sets out at J some length the background to the present policy of the Transvaal Provincial

Goldstone J

A Administration with regard to Baragwanath Hospital. In the light of the allegations made by him, he says that a number of the allegations contained in the letter, are false.

In the replying affidavit the applicants join issue with the second respondent in respect of a number of factual allegations made by him. They stand by most of the factual allegations made in the letter.

B It is not possible to resolve the many disputes of fact on the affidavits. However, as the applicants seek final relief on motion, I shall assume the correctness of the allegations made by the second respondent.

It is not in dispute that it has long been the practice at Baragwanath Hospital that applications for senior house officer positions C are selected by the various departments, and that approval by the superintendent of the hospital, the Director of Hospital Services or the Administration follow as a matter of course. This is confirmed by the heads of two of the departments at Baragwanath Hospital. They cannot remember one single instance where similar applications had not been approved, save where there have been formal defects in the D applications, and in those cases those defects have always been allowed to be remedied.

It is also not in dispute that, before taking the decision not to approve the applications of the applicants, none of them were given a hearing. In Publications Control Board v Central News Agency Ltd 1970 (3) SA 479 (A) at 488H - 489B Rumpff JA said this:

E 'It is of course firmly established in our law that when a statute gives judicial or quasi-judicial powers to affect prejudicially the rights of person or property, there is a presumption, in the absence of an express provision or of a clear intention to the contrary, that the power so given is to be exercised in accordance with the fundamental principles of justice. One of these principles is that the person affected should be given an opportunity to defend himself or of F being heard. If, however, on a proper construction of the statute, it appears that the Legislature did not intend the person affected to have the right of being heard, the implied right will be held to be excluded.'

The decision in the present case was taken in terms of the provisions of s 10(1) of the Public Service Act 111 of 1984. It is there provided that:

'(1)

G In the making of any appointment or the filling of any post in the public service -

(a)

no person who qualifies for the appointment, transfer or promotion concerned shall be favoured or prejudiced;

(b)

only the qualifications, level of training, relative merit, efficiency and suitability of the persons who qualify for the H appointment, promotion or transfer concerned, and such conditions as may be prescribed or as may be directed by the commission for the making of the appointment or the filling of the post, shall be taken into account.'

The respondents' case, as made out by the second respondent, is that the applicants having been parties to the letter published in the South African Medical Journal, makes them unsuitable for the appointment I as senior house officers. That is a decision which undoubtedly prejudicially affects the rights of the applicants. Not only does the decision deny their appointments, but it also could prejudicially affect their professional careers. A decision that a professional person is unsuitable for a post is potentially of the utmost importance and J will, if it remains, be a permanent blot on his good name.

Goldstone J

A Not all decisions taken under s 10 of the Act would...