Zondi and Others v Administrator, Natal, and Others

• Jurisdiction: South Africa
• Judge: Corbett CJ, Joubert JA, Smalberger JA, F H Grosskopf JA, Goldstone JA
• Judgment Date: 26 March 1991
• Citation: 1991 (3) SA 583 (A)
• Hearing Date: 18 March 1991
• Court: Appellate Division

Corbett CJ:

The facts upon which this appeal must be decided, as they appear from the affidavits filed, are as follows.

E The eight appellants were all formerly employed in various capacities in the Roads Department of the Natal Provincial Administration ('the Administration'). In the case of each appellant the terms of his appointment were set forth in a standard letter which contained the following provisions:

F 'Notwithstanding the fact that your salary is paid monthly your employment is terminable on the giving of 24 hours' notice on either side (to expire on a day other than a Saturday, Sunday or public holiday) and such notice may take effect at any time either during or at the end of a month.

Accommodation may be provided as an act of grace. This is a privilege and not a right, and the Department reserves the right to withdraw the G privilege at any time, and to make such charges for it as it thinks fit.'

In terms of s 21(4)(a) of the Provincial Government Act 69 of 1986, read with s 14(1) and s 3(2)(d) of the Public Service Act 111 of 1984, and as from 1 August 1986, the appellants were transferred and appointed to the Public Service and became subject to the provisions of the Public H Service Act. All the appellants received letters advising them of their transfer and appointment to the Public Service. It is common cause that after their transfer to the Public Service the appellants' employment continued to be subject to the contractual provisions quoted above. By reason of the fact that such employment was terminable on 24 hours' notice they were classed as temporary employees. Nevertheless, most of I the appellants were employees of long standing, their individual periods of employment, as at November 1988, ranging from five to 24 years.

At the relevant times the appellants were all members of the National Education, Health and Allied Workers Union ('NEHAWU'), an unregistered trade union, said to be representative of the majority of the employees J engaged by the Administration. The latter did not recognise

Corbett CJ

A NEHAWU as a collective bargaining agent on behalf of employees and refused to negotiate with it with regard to the conditions of employment of its members. The attitude of the Administration was that employees' grievances should be aired at meetings of Workers' Committees, held once every three months, the minutes of which were forwarded to the Provincial Secretary. B

On 27 October 1988 certain officials of NEHAWU, acting on its behalf, wrote a letter to the Provincial Secretary informing him of a series of resolutions which were taken at a general meeting of the Union held on 15 October 1988 and which articulated workers' grievances. On 3 November 1988 the Provincial Secretary replied stating, inter alia, that inasmuch C as NEHAWU was not recognised by the Commission for Administration he was not in a position to enter into any form of negotiation with it. At the same time he assured the Union that the Administration recognised the need for the improvement of the conditions of service of workers, where feasible, and in this connection referred to the established channels of communication between the Administration and its employees.

D On 15 November 1988 the appellants, together with many other workers in the Roads Department and in other Administration institutions (altogether over 3 000 in number, and eight per cent of the Administration's total work force) went on strike. They cited dissatisfaction with the Provincial Secretary's response to NEHAWU's E letter of 27 October 1988 as the reason for the strike.

On the same day that the strike commenced a meeting of workers in the Roads Department was called and addressed by the Roads Superintendent, Mr E de Klerk. He advised them that the way to resolve their grievances was through the Workers' Committee meetings. He further told them that F they should return to work, failing which they would face dismissal, and that they had three hours in which to decide whether they wished to resume work. After three hours the workers indicated that they intended continuing with the strike. Each of them was then handed what was termed in the papers 'a letter of ultimatum', reading as follows:

'Please take notice that you are participating in an illegal strike.

G Your notice of employment provides for the giving of 24 hours' notice on either side.

As you are participating in an illegal strike, the Provincial Administration of Natal is entitled to give you 24 hours' notice of the termination of your services. If your services are so terminated you will, if you are a member of the Temporary Employees' Pension Fund, forfeit certain pension rights.

H You are directed to resume your official duties failing which steps will be taken to secure your dismissal. You are hereby invited to make representations to the Roads Superintendent of Merebank by 17 November 1988 stating why you should not be dismissed for participating in the illegal strike.

Unless such representations are made in writing, within the above period, it shall be assumed that you do not wish to make such I representations in which event your services will be terminated.'

The letter was also read out by Mr De Klerk and translated by an interpreter. One of the workers instructed the others to throw the letters back at Mr De Klerk and the majority of them did so. It appeared that the first appellant (B Zondi) was not present at the meeting and that he and the eighth appellant (M M Kweyama) were not there when the J letters were

Corbett CJ

A handed out. Accordingly, on 21 November 1988 there were sent to them by certified mail copies of the letter of ultimatum giving them until 28 November 1988 to make their representations, if any.

In the meanwhile on Sunday, 20 November 1988, a meeting was held between representatives of the Administration, the State Attorney and a B Mr Zondo, a member of the firm of attorneys representing NEHAWU. By that stage none of the workers who had been handed letters of ultimatum had either made representations or returned to work. Mr Zondo was informed...