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[1989] ZASCA 90
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Adminstrator of Transvaal and Others v Traub and Others (4/88) [1989] ZASCA 90; [1989] 4 All SA 924 (AD); 1989 (4) SA 731 (A); (1989) 10 ILJ 823 (A) (24 August 1989)
CASE NO 4/88
IN THE SUPREME COURT OF SOUTH AFRICA
(
APPELLATE
DIVISION
)
In the matter between:
ADMINISTRATOR OF THE TRANSVAAL
First Appellant
DIRECTOR OF
HOSPITAL SERVICES
Second Appellant
SUPERINTENDENT OF
BARAGWANATH
HOSPITAL
Third Appellant
and
BEVERLY
TRAUB
First Respondent
LINDA JIVHUHO
Second Respondent
ZOLELA NGCWABE
Third Respondent
GIDEON FRAME
Fourth
Respondent
HUBERT HON
.. Fifth Respondent
MARK FRIEDMAN
Sixth Respondent
CORAM
: CORBETT CJ, HOEXTER, E M GROSSKOPF, KUMLEBEN, et F H GROSSKOPF,
JJA.
DATE OF HEARING
: 9 May 1989
DATE OF JUDGMENT
: 24 August 1989
/
JUDGMENT
2
JUDGMENT CORBETT
CJ:
The Baragwanath Hospital ("the
hospital") provides medical and hospital services for the people of Soweto. It
also functions as a
teaching hospital for the medical faculty of the University
of the Witwatersrand. For many years prior to 1987 members of the medical
staff
at the hospital had complained to the responsible authorities about the
conditions prevailing in the wards serving the depart-ment
of Medicine. It
appears that the department was housed in halls that were originally built
during World War II. Not only were the
buildings old, but in addition the ward
facilities, such as bathrooms, toilets, etc, were wholly inadequate. The
position was further
aggravated by an insufficient number of wards, resulting in
gross overcrowd-ing in the existing wards. Occupancy, in terms of the
number of
patients accommodated in a ward, ranged between
3 150% and 300% of the
numbers which the wards were designed to take. Patients who did not have beds
were accommodated on mattresses
on the floor. It was extremely difficult, if not
impossible, under these conditions to provide proper medical and nursing
services;
the department was understaf-fed; and, it is alleged, patients were
discharged earlier than they should have been in order to provide
beds for
incoming patients.
In about September 1987 matters came to a head. On the 5th
of that month the South African Medical Journal published a letter signed
by 101
doctors, virtually all of whom were employed in the department of Medicine at
the hospital. Signatories included Prof A Dubb,
then acting head of the
department, senior specialists, physicians and others. The letter (which I shall
refer to as "annexure M")
draws attention to the conditions obtaining in the
medical wards at the hospital and emphasizes the inaction of the authorities,
despite repeated appeals and pleas over
4
the years. The language employed in annexure M is strong and
abrasive, as the following extract will show:
"The conditions in the medical wards at the hospital are disgusting and
despicable. The attitude of the responsible authorities can
only be described as
deplorable. The state of affairs is inhumane. Facilities are completely
inadequate. Many patients have no beds
and sleep on the floor at night and sit
on chairs during the day.. The over-crowding is horrendous. Nurses are
alloca-ted according
to the number of beds, and not to the number of patients.
Ablution facilities are far short of accepted health requirements, and
ethical
standards are un-doubtedly compromised. Pleas for help have been met by
indifference and callous dis-regard. Patients and
their problems are treated
with utter contempt by the authori-ties. Nothing is done to correct this
af-front to human dignity. Here
is human suf-fering which cannot be portrayed by
mere statistics.
The administration has reacted in two
5
ways. Firstly, it has been said that im-provements cannot be made at the
existing hospital, as plans are being made to build a new
hospital in Soweto.
These statements have proved to be devoid of truth. The passage of time and
inquiries at provincial council level
have shown that there is no basis or
justification for this excuse. Secondly, they say that unfortunately there is no
money for new
facilities. This answer is utterly hypocritical. An expensive
ad-ministration block has been erected at the hospital, and a R300-million
hospital mainly for whites is planned alongside H.F. Verwoerd Hospital in
Pretoria. We have yet to see any evidence of the promised
plans to rebuild
Baragwanath Hospital. Appeals for help and caring through various channels have
been to no avail.
The population of Soweto is very large and resources at Baragwanath are
meagre. Influx control has been abolished. How much greater
Baragwanath's burden
now is. Has there been planning to anticipate this? The attitude of the
administrators to the
6
problem, and to our attempts to give some semblance of a
quality service to the people of Soweto, is just unbelievablel Discharge
patients, do not admit 'unnecessary' patients. Do they understand (or care) that
premature discharge is the order of the day? Even
so, the oyercrowding worsens.
We are of necessity forced to lower our expectations in the quality of care we
can offer our patients.
The uncaring, uncompromising attitude to the handling of
sick human beings is beyond belief."
The six respondents in this appeal all graduated
with the medical degrees
MB ChB from the University of the
Witwatersrand, the first and fifth
respondents at the end
of 1985 and the others at the end of 1986. First and
fifth
respondents both did their internships at the hospital du-
ring
1986. During the first half of 1987 first respondent
held the position of
Senior House Officer ("SHO") in the
department of Internal Medicine at the
hospital. The
position of SHO is held on a six-monthly basis and
7
appointments are made on application. First respondent applied
to serve in the same position during the second half of 1987 and this
application was granted. The fifth respondent completed his internship at the
end of 1986. Having worked for six months in the departments
of Surgery,
Obstetrics and Gynaecology, and Medicine, he occupied the position of SHO in the
department of Paediatrics in the second
half of 1987. The other respondents
were, during 1987, interns at the hospital and were due to complete their
internship at the end
of that year. The respondents were all signatories of
annexure M.
In or about September 1987 each of the respondents made
application for an SHO post at the hospital for the first six months of 1988,
five of them in the department of Paediatrics and one in the department of
Medicine. In the case of first and fifth respondents the
application was in each
case in effect one for an extension of an
8
existing appointment as SHO (though first respondent would be
moving from the department of Medicine to the department of Paediatrics);
in the
case of the other respondents the application was in each case one for a new
appointment as SHO. In accordance with the existing
practice the applica-tions
were forwarded to the head of the department concern-ed, who submitted them with
favourable recommendations
to the Director of Hospital Services, Transvaal
(second appellant), whose function it was, under delegated powers, to make
appointments
to the position of SHO. During Novem-ber 1987 each of the
respondents was notified that his or her application for the post of SHO
had not
been approved. It is now common cause that the second appellant decided to
reject the respondents' applications because they
had signed annexure M.
On
30 November 1987 the respondents launched an urgent application in the
Witwatersrand Local Division,
9
citing as respondents the Administrator of the Transvaal (first
appellant) the second appellant and the Superinten-dent of the hospital
(third
appellant), and claiming the following substantive relief, viz an order -
(1) directing the appellants (respondents below), or any of them, to confirm the
respondents (applicants below) in the positions
in which they were recommended
by the respective de-partments at the hospital;
(2) alternatively, directing appellants, or any of them, to reconsider the
applications of the applicants lawfully and in accordance
with the provisions of
the relevant ordinan-ces and regulations and directing that this be carried out
forthwith.
The application came before
Goldstone J on 12 December 1987. Two days later he gave judgment in favour
10
of the respondents with costs and made an order setting aside
the decision of the second appellant in not approving the appointment
of each of
the respondents. He further directed the first appellant to cause the
applications of the respondents to be considered
either by himself or by any
person to whom he might delegate the duty, other than second appellant and third
appellant, as a matter
of urgen-cy, and in any event before 31 December 1987,
and after the respondents had been afforded the opportunity of a fair hearing.
The judgment of Goldstone J has been reported (see
Traube and Others v
Administrator, Transvaal, and Others
1989 (1) SA 397
(W); and I shall call
this "the reported judgment"). With leave of the Judge a
quo
the
appellants appeal to this Court against the whole of the judgment and order.
At this point I digress by pointing out that, although the subsequent history
of the matter is not refer-
11
red to in the papers, it is a matter of public record and is
briefly to this effect. Pursuant to the order of Gold-stone J the first
appellant appointed a Mr Badenhorst, the director of personnel, to consider the
applications anew. Written and oral representations
were made to him by and on
behalf of the respondents. Certain of the respondents thereafter obtained
appointments as SHO's at the
hospital. One whose application was turned down
again took the matter to Court and obtained an order directing that she be
ap-pointed
to the post for which she had applied (see
Traube v Administrator,
Transvaal, and Others
1989 (2) SA 396
(T) ). Consequently, apart from the
question of costs, the issues raised by this appeal do not presently have any
practical significance.
I now revert to the present case. In the Court a
quo
the appellants took the point
in limine
that the respondents
had failed to give to them the written notification required by sec 34(2) of the
Public
12
Service Act 111 of 1984 ("the Act") and that the application
should accordingly be dismissed. This point was overruled by Goldstone
J (see
reported judgment pp 404 I - 405 E). On the merits the learned Judge held that
the decision of the second appellant not to
appoint the respondents to the
positions applied for by them (strictly there was a separate decision in each
instance, but it is
convenient to speak of "a decision" in the singular) should
be set aside as invalid on the ground that the second appellant had not
afforded
the respondents a fair hearing before taking the decision (see the reported
judgment p 404 F-G).
On appeal appellants' counsel contended that the Judge a
quo
erred in reaching the conclusion which he did, both on the point in
limine
and on the merits. It will be convenient to consider the merits
before the point in
limine
.
The right which is generally referred to by means
13
of the maxim
audi alteram partem
has been discussed and
analysed in a number of recent judgments of this Court (see, eg,
Strydom v
Staatspresident, Republiek van Suid-Afrika, en 'n Ander
1987 (3) SA 74
(A);
Omar and Others v Minister of Law and Order and Others; Fani and Others v
Minister of Law and Order and Others; State President and
Others v Bill
1987
(3) SA 859
(A);
Castel NO v Metal & Allied Workers Union
1987 (4) SA
795
(A);
Attorney-General, Eastern Cape v Blom and Others
1988 (4) SA 645
(A);
Cabinet for the Territory of South West Africa v Chikane and Another
1989 (1) SA 349
(A) ). The maxim expresses a principle of natural justice
which is part of our law. The classic formulations of the principle state
that
when a statute empowers a public official or body to give a decision
prejudicially affecting an ihdividual in his liberty or
property or existing
rights, the latter has a right to be heard before the decision is taken (or in
some instances
14
thereafter - see
Chikane
's case,
supra
, at p 379
G), unless the statute expressly or by implication indicates the con-trary. One
of the issues in this matter is whether
what I shall call "the
audi
principle" is confined to cases where the decision affects the liberty, property
or existing rights of the individual ccncerned or
whether the impact of the
principle is wider than this. I shall deal with this issue in due course.
It
was submitted on appellants' behalf that the
audi
principle did not apply
in the present case, but that even if it did second appellant did give the
respondents a fair hearing and
that consequently there was no ground for
complaint. I shall consider this latter submission first, for if it is
well-founded it
obviates the need to enquire into the applicability of the
audi
principle to the circumstances of this case.
It is not clear from the affidavits precisely
15
when second appellant took the decision not to appoint the
respondents to the SHO posts for which they had applied. The letters conveying
the decision to the respondents were dated in four instances 12 November, in one
instance 18 November and in another instance (that
of 6th respondent) 27
November, 1989. It would seem, however, that the decision must have been taken
some time before this, probably
towards the end of October, for there are on
record letters from Dr Bolton, acting head of the department of Paediatrics,
dated 29
October 1987, and from Prof Van Gelderen, chairman of the Medical
Advisory Committee ("MAC"), dated 2 November 1987, both addressed
to third
appellant and expressing concern at the fact that applica-tions for posts of SHO
in the Paediatrics department had been
turned down by second appellant,
apparently because the applicants had signed annexure M. The letters ask that
the matter be reconsidered.
There was no written
16
response to these letters, but at a meeting of the MAC held on
11 November 1987 the committee were informed by third appellant that
he had been
told by second appellant that the decision would not be reversed and that second
appellant would not give reasons for
his decision. Third appellant did, however,
suggest that a meeting with second appellant "might bear some fruit". This
meeting eventually
took place on 20 November 1987. At this meeting the general
problems at the hospital were discussed and the MAC dele-gates asked
second
respondent to reconsider his decision. This he agreed to do, but was unable to
give a date upon which his decision would be
made known. The papers do not
reveal any formal notification of a resolve by second appellant not to alter his
original decision,
but this is obviously what occurred; and it would seem from
the date of the letter to sixth respondent that it occurred between 20
and 27
November 1987.
17
One further matter should be mentioned in this regard. In a
supplementary affidavit, filed together with the original notice of motion,
first respondent (who deposed to the founding affidavit) stated the
following:
"3 In order to clarify the basis of the applicants argument, I wish to
supplement my founding affidavit with the following allegations:
3.1
None of the applicants were
told of any reason that might count against them in the confirmation of their
positions before the decisions
not to confirm them had been
taken.
3.2
None of the applicants were
afforded the opportunity of replying to any such reason in any way whatsoever or
of making representations
in any form whatsoever.
3.3
Had we been given the opportunity, we would all have taken it and
submitted representations to the authorities.
In our
representations, we would, inter alia, have drawn the attention of the
18
authorities to our dedication to our work, our commitment to
improving standards of medical care at Baragwanath Hospital and the various
references that were attached to the founding affidavit."
In his answering affidavit second appellant stated in response to this and
other supplementary affidavits -
"Ek word meegedeel dat die eedsverklarings hoofsaaklik submissies bevat
waarmee ek nie hoef te handel nie. Ek ontken egter feitlike
bewerings
teenstrydig met my weergawe."
There is nothing in second appellant's affidavit to suggest that the
respondents were at any stage given a hearing.
On the basis of these facts
appellants' counsel contended that the respondents were given a fair hearing. In
this regard reliance
was placed upon the meeting between representatives of the
MAC and second appellant on 20 Novem-ber 1987. It was conceded by counsel
that
this meeting
19
obviously took place after the original decision had been
taken, but it was contended that this constituted sufficient compliance
with the
audi
principle.
This argument was not raised in the Court a
quo
; nor was it made one of the grounds for the application for leave to
appeal. That aside, the argument must in my opinion fail, for
at least two
reasons. Generally speak-ing, in my view, the
audi
principle requires the
hearing to be given before the decision is taken by the official or body
concerned, that is, while he or it
still has an open mind on the matter. In this
way one avoids the natu-ral human inclination to adhere to a decision once taken
(see
Blom
's case,
supra
, at p 668 C-E;
Omar
's case,
supra
, at p 906 F;
Momoniat v Minister of Law and Order and Others;
Naidoo and Others v Minister of Law and Order and Others
1986 (2) SA 264
(W), at p 274 B-D). Exceptionally, however, the dictates of natural justice may
be satisfied
20
by affording the individual concerned a hearing after the
prejudicial decision has been taken (see
Omar
's case,
supra
, at p
906 F-H;
Chikane
's case,
supra
, at p 379 G;
Momoniat
's
case,
supra
, at pp 274 E - 275 C). This may be so, for instance, in cases
where the party making the decision is necessarily required to act
with
expedition, or where for some other reason it is not feasible to give a hearing
before the decision is taken. But the present
is, in my opinion, not such a
case. There is no suggestion that the decision whether or not to appoint the
respondents to the posts
applied for by them had to be taken in a hurry: in fact
all the indications are to the contrary. Nor is there any basis for concluding
that for some other reason a hearing prior to the decision was not
feasible.
Furthermore, the meeting of 20 November can by no stretch of
imagination be regarded as a fair hearing given to the respondents. None
of the
respondents was
21
present; and there is no indication that the members of the
MAC delegation were in any way authorized by any of the respondents to
make
representations on his or her behalf. Nor does it appear that the delegation did
more than ask the second appellant to reconsider
his decision. This would be a
far cry from making the kind of individual representations described in par 3 of
first respondent's
supplementary affidavit (guoted above). And finally, although
the members of the MAC delegation may have surmised that the decision
of the
second appellant was in general motivated by the respondents' signature of
annexure M, the attitude of second respondent at
that stage seems to me to have
been one of secrecy in regard to the precise reasons for his decision. At a fair
hearing the respondents
would have been entitled to be told the reasons for the
contem-plated rejection of their applications.
For all these reasons the argument that
the
22
respondents were in fact given a fair hearing must fail.
I
turn now to the question as to whether they were entitled
to such a
hearing.
As I have said, the power to make the appointments in question was
vested by way of delegation in the second appellant. Such delegation
had taken
place in terms of sec 8 of the Act. It is common cause that sec 10(1) of the Act
governed the exercise by second appellant
of this power. It reads:
"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 appointment,
promotion or transfer concerned, and such
condi-
23
tions 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 ac-count."
Thus, one of the criteria which the second appellant had
to take into
account when considering whether or not to
appoint the respondents to the
posts applied for by them
was the "suitability" (Afrikaans: "geskiktheid") of
each
of the respondents. In his answering affidavit second
appellant
averred -
"...dat die geskiktheid van 'n aansoeker ook beoordeel word op sy algemene
persoonlik-heidshoedanighede en optredes wat alle be-kende
aspekte van sy
persoonlikheid en op-trede insluit. Hierdie kriteria dek 'n wye
veld."
24
He further dealt at length with annexure M. While conceding
that the halls in which the department of Internal Medicine was housed
were old
and did not conform to the requirements of a modern teaching hospital, that
certain of the facili-ties, such as bathrooms
and toilets, could be criticized
and that there was overcrowding in certain sectors of the hospital, second
appellant in general
rejected the allega-tions in annexure M that nothing had
been done by the re-sponsible authorities to alleviate the situation or
that the
attitude of the authorities was one of indifference and disregard. Second
appellant further described in detail what had
been done and broadly ascribed
the inability to overcome the problems in the department of Medicine to the
rapidly increasing population
of Soweto (which meant increasing demands for
medical and hospital services) and the lack, from time to time, of the public
funds
necessary
25
to finance improvements. Second appellant
disputed a number of allegations in the letter and, in particular, took
exception to the
statement that the new R300m hospital to be built alongside the
H F Verwoerd Hospital in Pretoria was "mainly for whites". This statement,
he
said, was untrue: in fact, the extension to the H F Verwoerd Hospital would
provide approximately 900 additional beds for black
patients, and none for
whites. Moreover, this misstatement created the impression that the authorities
were guilty of racial discrimination.
Second appellant characterized the
contents of annexure M as prejudicial to the department of Hospital Services and
as being in certain
respects de-famatory and insulting. It had also caused
friction and division as between certain medical personnel and the hos-pital
administration. Because the respondents had made themselves party to the
allegations contained in annexure M he considered that they
were unsuitable for
appointment
26
in a professional capacity at the hospital. For that rea-son
he turned down their applications.
A major portion of respondents' replying
affidavit is devoted to annexure M, to second appellant's criticisms thereof and
to a justification
of the averments contained in annexure M. This raises a
number of factual disputes, which obviously cannot be resolved on the
affidavits.
This was recognized by Goldstone J, who proceeded to consider the
matter on the assumption that second appellant's alle-gations of
fact were
correct (see reported judgment p 400 B). I shall do the same, also taking into
account facts alleged by the respondents
and not disputed by the
appel-lants.
It seems to me, however, that annexure M is really of historical
importance only. It explains the reason why second appellant decided
not to
appoint the respondents to the posts of SHO applied for by them. The real
issue
27
is not whether the averments in annexure M are true or false,
nor whether annexure M provided good grounds for second appellant's
decision,
but rather whether second appellant was entitled to take this decision without
giving the respondents an opportunity to
be heard. I turn to this issue.
In
the founding affidavit and in the replying affidavit it was alleged by the
respondents that they were all properly qualified, committed
and highly
competent doctors; and that, in accordance with a practice which had existed
"for decades", they were selected on merit,
from a large pool of applicants, for
the position of SHO by the heads of the departments concerned, who recommended
their appointment
to the second appellant. This is not disputed. It was also
alleged that in the past it had long been the practice for second appellant
to
approve the appointment of persons so recommended "as a mere matter
28
of course". It was pointed out that second appellant did not
know applicants personally or what their prospects, plans or preferences
were,
whereas the head and members of the relevant department did. Accordingly second
appellant understandably "always acted formally
to confirm an appointment
effectively catalysed and perfected by the university authorities". Indeed,
members of the medical faculty
could not remember a single instance of an
applica-tion, duly recommended by the departmental head, which had not been so
confirmed,
save for cases of formal defects in the application, which could be
remedied. More particu-larly, in the case of an SHO, the invariable
practice, so
it is stated, had always been that his application for re-appointment was
automatically confirmed after the expiry of
the first six-month period. Save for
the occasion giving rise to the present litigation (as far as first and fifth
respondents are
concerned), this practice had never
29
been departed from. This, too, is not disputed.
In the respondent's replying affidavit it was
also pointed out (and this
is not in dispute) that the
appointments sought by the respondents -
"....were not simply casual appointments. They are appointments forming part
of the permanent structure of medical administration
in South Africa, and are
essential components in an evolutionary and hierarchical develop-ment of
professional graduation in the
Pro-vincial Administration pertaining to
hospi-tals. A medical student acguires an acade-mic degree in the expectation
and the object
of first obtaining employment, experience and skill as a senior
house officer, there-after graduating to the status of a regis-trar,
and
thereafter further graduating to the status of a specialist. This kind of
progression is carefully structured by the university
concerned acting in close
co-operation with the hospital administration. No medical student would ever
embark upon a medical course
of six years on the risk that upon his graduation
the question as
30
to whether he would ever get a position as an intern, and ever
qualifying as a medical practitioner would be dependent entirely on
the
arbitrary discretion of the second (appellant)."
That this system was a well-established one was stressed in another passage
in the affidavit reading -
"Over a period of at least 30 years graduating medical students are placed
into internship through the university, and after a person
remains a senior
house officer for a period of 18 months, he becomes a medical officer or
registrar. There is further progession
from that status to other
posi-tions."
Respondents also emphasized that upon being taken into employment by the
hospital administration "pursuant to this well-established
practice and
structure of professional progress" they were required to make compulsory
pension contributions with a view to receiving
a permanent pension
31
on reaching the age of retirement. If employment were to be
prematurely terminated all that the respondents would be entitled to is
a return
of their capital contributions, plus a nominal amount of interest. Another
benefit flowing from employment was membership
of a medical aid scheme. In the
founding affidavit and in the replying affidavit there is reference to what is
termed a "legitimate
expectation". In the founding affidavit it is alleged that
all the respondents, because of their qualifications, previous service
in the
hospital and recommendations from their prospective heads of department, had a
legitimate expectation that their appointments
would be "confirmed". And in the
replying affidavit it is said that respondents', claim to a hearing arises from
the fact that the
decision of the second appellant refusing confirmation of the
res-pondents' respective appointments affected their legal rights and
interests,
as well as from the fact that in all
32 the circumstances they had a
legitimate expectation to be heard before their appointments were not
confirmed.
Respondents stated furthermore that appointment to the posts for
which they had applied and for which they were qualified was crucial
to their
immediate professional development and that they would be seriously prejudiced
in their careers if they were not able to
obtain these appointments. In
practice, having been found "unsuitable" for appointment by the second
appellant, they would not be
able to obtain professional employment, and pursue
their academic and professional careers, at any other teaching hospital in the
Transvaal, and probably in the rest of the country as well. This also does not
appear to be in dispute. Indeed, it is of the essence
of the appellants' case
that the respondents' signature of annexure M esta-blished their unsuitability
for this professional appoint-ment.
33
I return now to the question as to what the scope of
application of the
audi
principle is. As I have stated, the classic
formulations of the principle refer to decisions prejudicially affecting an
individual
in his liberty, pro-perty or existing rights. In the present case,
obviously, the question of liberty does not arise. Nor is it sugges-ted
that
second appellant's decision not to approve respon-dents' appointments affected
their property. In the Court a
guo
, however, it was held that the
decision undoubtedly prejudicially affected the rights of the respondents (see
reported judgment at
p 400 I), Goldstone J adding -
"Not only does the decision deny their ap-pointments, but it also could
prejudicially affect their professional careers. A deci-sion
that a professional
person is unsuitable for a post is potentially of the utmost im-portance and
will, if it remains, be a perma-nent
blot on his good name."
Later in his judgment the learned Judge stated that where
34 the
suitability of an applicant was in issue and an adverse decision had serious
consequences to the person concerned, both in
relation to his application and in
relation to his career, then in the absence of a clear provision to the contrary
in the statute,
fairness demanded that he be entitled to be heard before he was
made to suffer such an adverse decision. Goldstone J further found
that the Act
did not contain any such provision to the contrary (see reported judgment at p
401 C-E). With reference to the principle
of "legitimate expectation" (upon
which I will elaborate later), Goldstone J said (reported judgment at p 402
C):
"In the present case s 10 of the
Act
obliged the second respondent to have regard,
inter alia
, to the
suitability of the applicants. Their claim to a hearing, before being adversely
held unsuitable, arises therefore from a
statutory duty and not from a
legitimate expectation."
35
I am not persuaded, with respect, that the second appellant's
decision could be said to have prejudicially affected the respondents
in their
existing rights. Clearly they had no right to be appointed to the posts applied
for by them. No doubt, provided that they
qualified for the appointment, the
second appellant was under a statutory duty, in terms of sec 10(1) of the Act,
to consider their
applications without favour or prejudice and in the light of
the criteria laid down, viz their qualifications, level of training,
relative
merit, efficiency and suitability; and there was vested in the respondents a
correlative statu-tory right that their applications
be so considered. But that,
in my view, is as far as it goes. Second appellant's refusal to appoint them, as
such
, did, therefore not affect an existing right. This brings me to the
concept of a legitimate expectation.
The phrase "legitimate expectation" was evidently
36
first used in this context by Lord Denning MR in the English
case of
Schmidt and Another v Secretary of State for Home Affairs
[1968] EWCA Civ 1
;
[1969]
1 All ER 904
(CA), at p 909 C and F. The case concerned a decision by the Home
Secretary not to ex-tend the study permits of two aliens who were
studying in
the United Kingdom. It was contended,
inter alia
, that the Home Secretary
had failed to observe the precepts of natural justice in that he had not given
the students a hearing before
taking this decision. The contention failed. Lord
Denning referred to the decision of the House of Lords in
Ridge v Baldwin and
Others
[1963] 2 All ER 66
(which has proved to be a veritable watershed in
modern English administrative law) and stated that the speeches in that case
show
-
".... that an administrative body may, in a proper case, be bound to give a
person who is affected by their decision an opportunity
of making
representations.
37
It all depends on whether he has some right or interest, or, I
would add, some legitimate expectation, of which it would not be fair
to deprive
him without hearing what he has to say."
In the case before the Court Lord Denning held that the students concerned
had not had any right, or indeed any legitimate expectation,
of being allowed to
stay once their permits had expired.
Although in
Schmidt
's case it was
found that there was no scope for the application of the concept of a legitimate
expectation, there have been a large
number of subsequent decisions in England
(including some of the House of Lords) accepting the concept as an integral part
of the
rules relating to the
audi
principle. In some of these cases the
party claiming the benefit of the principle has been held to have had such a
legitimate expectation,
in others not. A useful and comprehensive overview
and
38
analysis of the relevant decisions is to be found
in an article by Prof. Robert E. Riggs, published in (1988) 36 American Journal
of Comparative Law, pp 395 ff. In an epitomical first paragraph to his article
Prof Riggs states:
"Since the landmark decision of
Ridge v. Baldwin
, handed down by the
House of Lords in 1963, English courts have been in process of imposing upon
administrative decision-makers a
general duty to act fairly. One result of this
process is a body of case law holding that private interests of a status less
than
legal rights may be accorded procedural protections against administrative
abuse and unfairness. As these cases teach, a person whose
claim falls short of
legal right may nevertheless be entitled to some kind of hearing if the interest
at stake rises to the level
of a 'legitimate expectation.' The emerging doctrine
of legitimate expectation is but one aspect of the 'duty to act fairly,' but
its
origin and development reflect many of the concerns and difficulties
accompanying the broader
39
judicial effort to promote administrative fairness. As such, it provides a
useful window through which to view judicial attempts
to mediate between
individual interests and collective demands in the modern administrative
state."
This appears to be a fair
summing up of the situation.
In order to illustrate the nature and scope of
"the doctrine of legitimate expectation", as it is some-times now called (see
eg.
R v Secretary of State for the Home Department
,
ex parte Ruddock
and others
[1987] 2 All E R 513
(QB), at p 528 h), I shall refer briefly to
some of the more pertinent and authoritative decisions of the English courts.
The first
of these is
Breen v Amalgamated Engineering Union
(now
Ámalgamated Engineering and Foundry Workers Union) and Others
[1971] 1 All ER 1148
(CA). The appellant in that case had been elected by his
fellow workers as their shop steward for the ensuing year. By the rules
of the
respondent trade union the election was
40 subject to approval by the
district committee of the union. The latter held a meeting at which it was
declded to refuse such approval.
The appellant was not invited to the meeting,
nor were reasons given for the committee's decision. The appellant
bróught an
action against the respondent for an order declaring the
decision to be invalid. The action failed; and on appeal the decision of
the
trial judge was affirmed by a majority. The case is of importance and interest
for the exposition of the legal principles involved
by Lord Denning MR, who gave
the dissenting judgment in the Court of Appeal. On the question as to whether
the decision of the committee
was reviewable he said (at p 1153 h-j):
"It is now well settled that a statutory body, which is entrusted by a statute
with a discretion, must act fairly. It does not matter
whether its functions are
described as judicial or quasi-judicial on the one hand, or as administrative on
the other
41
hand, or what you will. Still it must act
fairly. It must, in a proper
case, give
a party a chance to be heard: "
He held further that the same principle applied to certain domestic bodies,
which had quite as much power as statutory bodies. He
then proceeded (at p 1154
f-h):
"Then comes the problem: ought such a body, statutory or domestic, to give
reasons for its decision or to give the person concerned
a chance of being
heard? Not always, but sometimes. It all depends on what is fair in the
circumstances. If a man seeks a privilege
to which he has no particular claim -
such as an appointment to some post or other - then he can be turned away
without a word. He
need not be heard. No explanation need be given: see the
cases cited in
Schmidt v Secretary of State for Home Affairs
. But, if he
is a man whose property is at stake, or who is being deprived of his livelihood,
then reasons should be given why he
is being turned down, and he should be given
a chance to be heard.
42
I go further. If he is a man who has some right or interest, or some legitimate
expectation, of which it would not be fair to deprive
him without a hearing, or
reasons given, then these should be afforded him, according as the case may
demand."
Referring to the appellant's
case, Lord Denning said (at p 1155 b-c):
"Seeing that he had been elected to this office by a democratic process, he had,
I think, a legitimate expectation that he would
be approved by the district
committee, unless there were good reasons against him. If they had something
against him, they ought
to tell him and give him a chance of answering it before
turning him down. It seems to me intolerable that they should be able to
veto
his appointment in their unfettered
discretion."
The concept of a
legitimate expectation, as giving a basis for challenging the validity of the
decision
43 of a public body on the ground of its failure to observe the
rules of natural justice was given the stamp of approval by the House
of Lords
in
O'Reilly v Mackman and others and other cases
[1982] 3 All ER 1124
, at
pp 1126 j - 1127 a (see also
Findlay v Secretary of State for the Home
Department and other appeals
[1984] 3 All ER 801
, at p 830 b-c;
Council
of Civil Service Unions and others v Minister for the Civil Service
[1983] UKHL 6
;
[1984] 3
All ER 935
, at pp 944 a - e, 949 f - j, 954 e - h;
Leech v Parkhurst Prison
Deputy Governor
;
Prevot v Long Larton Prison Deputy Governor
[1988] UKHL 16
;
[1988] 1
All ER 485
, at p 496 d) and by the Judicial Committee of the Privy Council in
Attorney-General of Honq Kong v Ng Yuen Shiu
[1983] UKPC 2
;
[1983] 2 All ER 346.
It
is clear from these cases that in this context "legitimate expectations" are
capable of including expectations which go beyond
enforceable legal rights,
provided they have some reasonable basis (
Attorney-General
44
of
Hong Kong
case,
supra
, at p 350 c). The nature of such a legitimate
expectation and the circumstances under which it may arise were discussed at
length
in the
Council of Civil Service Unions
case,
supra
. The
following extracts from the speeches of Lord Fraser and Lord Roskill are of
particular relevance:
"But even where a person claiming some benefit or privilege has no legal
right to it, as a matter of private law, he may have a legitimate
expectation of
receiving the benefit or privilege, and, if so, the courts will protect his
expectation by judicial review as a matter
of public
law Legitimate, or reasonable,
expectation may arise either from an express promise given on behalf of a
public authority or from
the existence of a regular practice which the
claimant can reasonably expect
to continu
e
per
Lord Fraser at pp
943 j - 944 a." (My emphasis.)
"The particular manifestation of the duty
45
to act fairly which is presently involved is that part of the recent evolution
of our administrative law which may enable an aggrieved
party to evoke judicial
review if he can show that he had 'a reasonable expectation' of some occurrence
or action preceding the decision
complained of and that that 'reasonable
expectation' was not in the event fulfilled" -
per
Lord Roskill at p 954
e.
After indicating that the phrases
"reasonable
expectation" and "legitimate
expectation" were to be
equated and having expressed a preference for the
latter,
Lord Roskill continued (at p.954 g) -
"The principle may now said to be firmly
entrenched in this branch of the
law. As
the cases may show, the principle is closely
connected with 'a
right to be heard'. Such
an expectation may take many forms. One
may be an
expectation of prior consultation.
Another may be an expectation of
being
allowed time to make
representations,
46
The reference in Lord Fraser's speech to "a
regular practice" is illustrated, for example, by
O'Reilly
's case,
supra
, in which it was stated by Lord
Diplock that, although under prison rules remission of
sentence was not a matter of right but of indulgence, a
prisoner had a
legitimate expectation based upon "his
knowledge of what is the general
practice" that he would
be granted the maximum remission of one-third if by
that
time no disciplinary award of forfeiture of remission had
been made
against him. In public law, said Lord Diplock
(see pp 1126-7)-
"...such legitimate expectation gave to each appellant a sufficient interest
to challenge the legality of the adverse disciplinary
award made against him by
the board on the ground that in one way or another the board in reaching its
decision had acted outwith
the powers conferred on it by the legislation under
which it was acting; and such grounds
47
would include the board's failure to observe the rules of natural justice: which
means no more than to act fairly towards him in
carrying out their
decision-making process, and I prefer so to put it."
In the case of
McInnes v Onslow Fane
and
another
[1978] 3 All ER
211
(Ch) (an application for a
boxer's manager's licence, which was refused
by the boxing
board of control) Megarry V-C distinguished three types
of
decisions which may be encountered when the court is
asked to intervene :
(1) decisions in forfeiture cases, ie where the
decision takes away some
existing right or
position, as where a member of an organization
is
expelled or a licence is revoked;
(2) decisions in application cases, ie the decision
merely refuses to grant
the applicant the right
or position that he seeks, such as membership
of
the organization or a licence to do
certain
48
acts; and (3) decisions in expectation cases, which differ from the application
cases only in that the applicant -
"...has some legitimate
expectation from what has already happened that his application will be granted.
This head includes cases
where an existing licence-holder applies for a renewal
of his licence, or a person already elected or appointed to some position
seeks
confirmation from some confirming authority: ......" (at p 218 c).
McGarry V-C continued (p 218 d- f):
"It seems plain that there is a substantial distinction between the
forfeiture cases and the application cases. In the forfeiture
cases, there is a
threat to take something away for some reason; and in such cases, the right to
an unbiased tribunal, the right
to notice of the charges and the right to be
heard in answer to the charges (which, in
Ridge v Baldwin
, Lord Hodson
said were
49
three features of natural justice which stood
out) are plainly apt. In the application cases, on the other hand, nothing is
being
taken away, and in all normal circumstances there are no charges, and so
no requirement of an opportunity of being heard in answer
to the charges.
Instead, there is the far wider and less defined question of the general
suitability of the applicant for membership
or a licence. The distinction is
well-recognised, for in general it is clear that the courts will require natural
justice to be observed
for expulsion from a social club, but not on an
application for admission to it. The intermediate category, that of the
expectation
cases, may at least in some respects be regarded as being more akin
to the forfeiture cases than the application cases; for although
in form there
is no forfeiture but merely an attempt at acquisition that fails, the legitimate
expectation of a renewal of the licence
or confirmation of the membership is one
which raises the question of what it is that has happened to make the applicant
unsuitable
for the membership or licence
50
for which he was previously thought suitable."
(See also
R v Secretary of State for the Environment, ex
parte
Brent London Borough Council and others
[1983] 3
All ER 321
(QB), at p
354 f - h).
As these cases and the guoted extracts from
the judgments indicate, the
legitimate expectation doctrine
is sometimes expressed in terms of some
substantive benefit
or advantage or privilege which the person concerned
could
reasonably expect to acquire or retain and which it would
be unfair
to deny such person without prior consultation
or a prior hearing; and at
other times in terms of a
legitimate expectation to be accorded a hearing before
some decision
adverse to the interests of the person
concerned is taken. As Prof. Riggs
puts it in the article
to which I have referred (at p 404) -
"The doctrine of legitimate expectation is construed broadly to protect
both
51 substantive and procedural expectations." In practice the two forms
of expectation may be interrelated and even tend to merge.
Thus, the person
concerned may have a legitimate expectation that the decision by the public
authority will be favourable, or at
least that before an adverse decision is
taken he will be given a fair hearing. And in passing, I must say, with respect,
that I
do not agree with the statement of Goldstone J in
Mokoena and Others v
Administrator, Transvaal
1988(4) SA 912 (W), at p 918 E to the effect that
legitimate expectation refers to the rights sought to be taken away and not to
the right to a hearing.
52 /
52
A frequently recurring theme in these English cases concerning
legitimate expectation is the duty on the part of the decision-maker
to "act
fairly". As has been pointed out, this is simply another, and preferable, way of
saying that the decision-maker must observe
the princi-ples of natural justice
(see
O'Reilly
's case,
supra
, at pp 1126 j - 1127 a;
Attorney-General of Honq Kong
case,
supra
, at p 350 g - h;
Council of Civil Service Unions
case,
supra
at p 954 a - b).
Furthermore, as Lord Ros-kill explained in the last quoted case, the phrase, "a
duty to act fairly", must not be
misunderstood or misused. It is not for the
courts to judge whether a particular decision is fair. The courts are only
concerned
with the manner in which the decisions was taken and the extent of the
duty to act fairly will vary greatly from case to case. Many
features will come
into play including the nature of the decision and the relationship of those
involved before the
53 decision was taken (see p 954 b - c); and a relevant
factor might be the observance by the decision-maker in the past of some
established
procedure or practice. It is in this context that the existence of a
legitimate expectation may impose on the decision-maker a duty
to hear the
person af-fected by his decision as part of his obligation to act fairly. (See p
954 e; cf
Lloyd and Others v McMahon
[1987] 1 All ER 1118
(HL), at p 1170
f - g).
Another feature of the modern English admin-istrative law which
emerges from a study of the aforemen-tioned cases, and others, is
that the old
classification of decisions into judicial, quasi-judicial and administra-tive no
longer seems to have any relevance
in this sphere. In
R v Gaming Board for
Great Britain, ex parte Benaim and another
[1970] EWCA Civ 7
;
[1970] 2 All ER 528
(CA), Lord
Denning MR stated that the "heresy" to the effect that the principles of natural
justice apply only to judicial proceedings,
and
54 not to administrative
proceedings, was "scotched" in
Ridge v Baldwin
. This was confirmed by
Lord Diplock in
O'Reilly
's case,
supra
, at p 1130 a, and by Lord
Oliver in
Leech
's case,
supra
, at p 505 e, where the latter stated
that -
"....the susceptibility of a decision to the supervisory jurisdiction of the
court does not rest on some fancied distinction between
decisions which are
'administrative' and decisions which are 'judicial' or 'quasi-judicial'."
I turn now to our law. In recent years
there have been a number of cases
in provincial divisions
in which the traditional scope of the principles
relating
to the observance of natural justice (in particular the
precept
audi alteram partem
) has been extended to decisions
affecting a person
who has no existing right, but merely
a legitimate expectation (see
Everett v Minister of the
Interior
1981(2) SA 453 (C), at pp 456 - 7;
Lanqeni and
55
Others v Minister of Health and Welfare and Others
1988(4) SA 93 (W), at
p 96 B - 98 A;
Mokoena
's case
supra
at pp 918 C - 920 B;
Lunt v
University of Cape Town and Ano-ther
1989(2) SA 438 (C), at pp 447 D - 448
D; cf
Sisulu v State President and Others
1988(4) SA 731 (T), at p 737 G
- H). This extension has taken place on the persua-sive authority of the English
decisions referred
to above. In the matter of
Castel NO v Metal and Allied
Workers Union
1987(4) SA 795 (A) this Court had occasion to discuss the
legitimate expectatlon principle. The case concerned the refusal by the
chief
magistrate of Durban to grant permis-sion, in terms of sec 46(3) of the Internal
Security Act 74 of 1982, for the holding of
an open-air gathering. The decision
was attacked by the applicant (a trade union) on the ground,
inter alia
,
that the chief magistrate had failed to observe the
audi
principle. This
Court held that the decision did not affect any right of the appli-
56
cant's, nor did it entail legal consequences to it,
and
that accordingly, on the authority of the majority judgment
in
Laubscher v Native Commissioner, Piet Retief
1958 (1)
SA 546
(A), the
audi
principle did not apply. The Court
(
per
Hefer J A) went on to consider an argument based on
legitimate
expectation (at p 810 E - 811 A):
"By urging upon us the great inequity which the principle in
Laubscher
's case may, in his submission, bring about (and has brought
about in later cases) and the pressing need for legal reform, applicant's
counsel invi-ted us to extend the principle in order that relief may be granted
in cases where an ad-ministrative decision, which
does not affect a person's
rights but nevertheless involves serious consequences to him, is taken with-out
observance of the
audi alteram partem
rule. Such a result may be
achieved, it was suggested, by adopting the approach presently in vogue in the
Courts in England and certain
other countries which affords re-lief in cases
where there is no pre-existing right but the person concerned has what is
57
sometimes referred to as a 'legitimate
expectation'. (Wade
Administrative Law
5th ed at 464-5. An illustrative
discussion of the topic appeared in
1987 SALJ 165
in an article 'Legitimate
Expectation and Natural Justice: English, Australian and South African Law' by
John Hlophe.)
Counsel's invitation must be declined. The majority judgment in
Laubscher
's case has been consistently followed and applied in a long
line of decisions, including several in this Court. I am not unmindful
of the
serious and, in certain respects, justified criticism which has been levelled at
some of the decisions and at the principle
involved. (See eg Baxter
Administrative Law
at 577 et
seg
; John Hlophe's article
supra
; Taitz 'The Application of the
Audi Alteram Partem
Rule in
South African Adminis-trative Law'
1982 THRHR 254.)
It may well be that there is
indeed a need for legal reform. But it would be idle to explore the possibility
of reform in the present
case. Even if the 'legitimate expectation' approach
were to be adopted, there is no room for its application here. Applicant's
58
counsel submitted that the applicant had a legitimate
expectation that it would re-ceive a fair hearing, and that its applica-tion
would not be refused on grounds which it had not been afforded an opportunity to
refute. There is, however, no factual basis for
such a submission. Unlike the
English and Australian cases on which counsel relied, nothing had happened
before the application for
authority was submitted and nothing hap-pened
thereafter which could have caused the applicant to entertain such an
expecta-tion;
there is not even an allegation in its affidavits that it in fact
did entertain it. I am by no means sure that this case would in
England be
classified as a 'legiti-mate expectation' case. There is nothing in the case
which calls for an extension of the accepted
principle."
I do not read these remarks as closing the
door upon an extension of the
existing grounds for applying
the
audi
principle to include the case
where a legitimate
expectation is shown to have existed. As the
above-quoted
59 passage from the judgment emphasizes, there was in that case
no factual basis for such a legitimate expectation. Nor do I think
that
Laubscher
's case,
supra
, poses an insuperable obstacle to such
extension. In that case, which was decided on exception, the appellant had been
refused the
written permission which in terms of sec 24(1) of the Native Trust
and Land Act 18 of 1936 he required to enter upon Trust property.
He challenged
the validity of the refusal,
inter alia
, on the grounds that the
autho-rity concerned had failed to observe the
audi
principle. This
ground was ordered to be struck out by the Judge of first instance and his
decision was upheld on appeal. Schreiner
JA, delivering the majority judgment,
said of the appellant at p 549 E - F):
"He clearly had no antecedent right to go upon the property and the refusal did
not prejudicially affect his property or his liberty.
Nor did it affect any
legal right
60
that he already held. It can be said to have affected his
rights only in the sense that it prevented him from acquiring the right
to go on
to the property; to the same extent but no further it may be said to have
involved legal consequences to him."
The question as to whether a person who had no antecedent right, but an
antecedent legitimate expectation, could lay claim to the
benefit of the
audi
principle did not arise for decision. This is not surprising seeing
that at that stage the doctrine of legitimate expectation had
not yet been
conceived in the land of its birth. Moreover, since the case was decided on
exception, it is not possible to say whether
the facts would have justified the
application of this doctrine, as it has been developed in English law.
The
question which remains is whether or not our law should move in the direction
taken by English law and give recognition to the
doctrine of legitimate
ex-pectation, or some similar principle. The first footsteps
61 in this direction have already been taken in certain provin-cial divisions
(see the cases quoted above). Should this Court give
its imprimatur to this
movement; or should it stop the movement in its tracks?
In the
Council of
Civil Service Unions
case,
supra
, at p 953 h Lord Roskill observed
that since about 1950 as a result of a series of judicial decisions in the House
of Lords and in
the Court of Appeal there had been "a dramatic and, indeed,
radical change in the scope of judicial review"; and that this change
had been
described "by no means critically, as an upsurge of judicial acti-vism". One
aspect of this change in the scope of judicial
review was, of course, the
evolution of the legitimate ex-pectation principle. And it was evolved, as I
read the cases, in the social
context of the age in order to make the grounds of
interference with the decisions of public authorities which adversely affect
individuals
co-extensive
62
with notions of what is fair and what is not fair in the
particular circumstances of the case. And it is of in-terest to note that
likewise in Australia (see
Cunningham v Cole and Others
(1982-3) 44 ALR
334
, where the judgment contains an extensive review of the authorities; and the
discussion in (1985) 59 AW 33) and New Zealand (see
Chandra v Minister of
Immiqration
[1978] 2 NZLR 559)
it has been found necessary, or at any rate
desirable, to extend the scope of judicial review to include cases of legitimate
expectation.
In my opinion, there is a similar need in this country. There
are many cases which one can visualize in this sphere - and for reasons
which I
shall later elabo-rate I think that the present is one of them - where an
adherence to the formula of "liberty, property
and existing rights" would fail
to provide a legal remedy, when the facts cry out for one; and would result in a
decision which ap-
63 peared to have been arrived at by a procedure which was
clearly unfair being immune from review. The law should in such cases be
made to
reach out and come to the aid of persons prejudicially affected. At the same
time, whereas the concepts of liberty, property
and existing rights are
reasonably well defined, that of legitimate expectation is not. Like public
policy, unless carefully handled
it could become an unruly horse. And in working
out, incrementally, on the facts of each case, where the doctrine of legitimate
expectation
applies and where it does not, the courts will, no doubt, bear in
mind the need from time to time to apply the curb. A reasonable
balance must be
maintained between the need to protect the individual from decisions unfairly
arrived at by public authority (and
by certain domestic tribunals) and the
contrary desirability of avoiding undue judicial interference in their
administration.
In general it is probably correct to say
that
64
a person who applies for appointment to a post is not
enti-tled to be heard before the authority concerned decides to appoint someone
else or to make no appointment. The present case, however, exhibits certain
distinctive features which, in my view, take it out of
the general rule. The
first feature is that this is no ordinary appointment. As the evidence
indicates, the appointment of a young
doctor to the post of SHO is a rung, and
an essential one at that, in the ladder of professional progress in the hospital
hie-rarchy.
Refusal to appoint an applicant to such a post constitutes a
set-back to his professional career; and, where the ground of refusal
is
unsuitability, also an im-pugnment of his professional reputation. The second,
and perhaps more significant, feature is the practice
which had existed for
decades and in terms of which an application for the post of SHO carrying the
recommendation of the de-partmental
head had invariably, and as a matter of
mere
66
give the respondent a fair hearing before he took his
deci-sion. In other words, the
audi
principle did apply.
Second
appellant denied respondents their appoint-ments as SHO because of their
signature of annexure M. I shall assume, in appellants'
favour, that his
decision was taken pertinently with reference to the criterion of suitability
and was not a punitive action. Nevertheless
because he ignored the
audi
principle second appellant's decision was, in my opinion, fatally flawed. In the
circum-stances of this case his omission to give
the respondents a hearing and
to apprise them of the ground upon which he was contemplating a rejection of
their applications consti-tuted
a failure on his part to observe the precepts of
natu-ral justice or, in other words, a failure to act fairly.
It was argued
by appellants' counsel that the second appellant's decision was neither judicial
nor quasi-judicial, but purely administrative
in nature; and that,
65
formality, been granted by the Director of Hospital Servi-ces. And in the case
of first and fifth respondents there is the further
feature that the practice
had always been to extend automatically the incumbency of a post as SHO, when
applied for. (I shall, however,
leave out of account the question of pension
rights.)
These features, taken in conjunction with one another, constituted
good ground, in my opinion, for each of the respondents having
a legitimate
expectation that once his or her application for the post of SHO had been
recommended by the departmental head concerned,
second appellant's approval of
the appointment would follow as a matter of course; and/or a legitimate
expectation that in the event
of second appellant contemplating a departure from
past practice, in the form of a refusal to make the appointment for a particular
reason - especially where that reason related to suitability - the second
appellant would
67
therefore, the
audi
principle, and generally the
require-ments of natural justice, did not apply. It is true that our courts have
used the classification
of acts or decisions into judicial or quasi-judicial on
the one hand and purely administrative on the other hand in order to determine
whether the actor or decision-maker was obliged, when exer-cising his powers, to
observe the rules of natural justice, and more particularly
the
audi
principle. As has been pointed out by, amongst others, Prof M Wiechers
Adminis-tratiefreg
2 ed, p 141, this classification and its appli-cation
in administrative law to questions such as the justi-ciability of acts or
decisions
on the ground of a failure to observe the dictates of natural justice
appear to have been derived from English law. English law itself
has now,as I
have indicated, discarded it. Furthermore, there have been warnings in the past
by our courts against a too-ready adoption
of this classification as a solution
for
68
a particular legal problem. In the case of
Pretoria North
Town Council v Al Electrical Ice-Cream Factory (Pty) Ltd
1953 (3) SA 1
(A)
Schreiner JA stated at p 11 A-C:
"The classification of discretions and functions under the headings of
'administra-tive', '
quasi
-iudicial' and 'judicial' has been much
canvassed in modern judgments and juristic literature; there appears to be some
difference
of opinion, or of linguistic usage, as to the proper basis of
classifica-tion, and even some disagreement as to the usefulness of
the
classification when achieved. I do not propose to enter into these interesting
questions to a greater extent than is necessary
for the decision of this case;
one must be careful not to elevate what may be no more than a convenient
classification into a source
of legal rules. What primarily has to be considered
in all these cases is the statutory provision in question, read in its proper
context."
In a dissenting judgment
delivered in the case of
South
69
African Defence and Aid Fund and
Another v Minister of Justice
1967 (1) SA 263
(A) Williamson JA said of this
classification (at p 278 C-D):
"I, however, fear the rigidity which such classification and labelling may
induce. I appreciate the value, in its proper sphere,
of a scientific analysis
and subdivision under proper nomenclature of the applications in practice of a
legal principle. I think,
however, it is possible that, in the case of the basic
principle of 'fair play' under consideration, an undue limitation may be placed
upon its scope by an attempt to define its applicability entirely by means of
type or class tests. The essential feature in each
instance is, I think the true
meaning and effect, in the surrounding circumstances, of the enabling statutory
provision."
And in
Oberholzer v
Padraad van Outio en h Ander
1974 (4) SA 870
(A) Rumpff CJ stated (at p 875
in fin - 876 B):
"Die Hof a
quo
het bevind dat die
funksie
70
van die Padraad 'administratief' was en dat
dit derhalwe nie nodig was om
appellant 'n
geleentheid te gee om op die bewerings van
mev Conradie te
antwoord nie. Hierdie
etikettering van 'n funksie, sonder meer,
is m.i.
gevaarlik en kan lei tot oorvereen-
voudiging van die vraag of geregtigheid
in
besondere omstandighede geskied het of nie.
Die doel, bewoording en
samehang van wetge-
wing wat ter sprake is en die aard van die
belang van
'n persoon wat deur optrede deur
sodanige wetgewing geraak word, moet
noukeu-
rig oorweeg word "
(See also
remarks of Goldstone J in the more recent case of
Langeni and Others v
Minister of Health and Welfare and Others
,
supra
, at p 96
B-G.)
One of the difficulties in applying this classifi-cation is to
determine precisely what is meant by the terms "quasi-judicial".and
"purely
administrative" (see the dis-cussion of this in Baxter
Administrative
Law
, pp 344-8, 575-6). In the
Defence and Aid
case,
supra
,
Botha JA,
71 delivering the majority judgment, said (at p270 B-D) -
"It is quite clear from a long series of
cases in this Court that, apart
from
other possible
requirements, the incorpora-
tion of the maxim
audi alteram partem
can
only be implied where a -
'statute
empowers a public official to give a decision prejudicially af-fecting the
property or liberty of an individual'
or, what amounts to the same thing, where a statute empowers a public official
to exercise, in relation to the property or liberty
of an individual,
quasi
-iudicial functions."
This
dictum appears to define "quasi-judicial" in terms of the effect which the
decision has upon the individual concerned. On this
basis a classification as
quasi-judicial adds nothing to the process of reasoning: the court could just as
well eliminate this step
and proceed straight to the question as to whether the
decision does
72
prejudicially affect the individual concerned. As I have
shown, traditionally the enquiry has been limited to prejudicial effect upon
the
individual's liberty, property and existing rights, but under modern
circumstances it is appropriate to include also his legitimate
expectations. In
short, I do not think that the quasi-judicial/purely administrative
classification, relied upon by counsel, is of
any material assistance in solving
the problem presently before the Court.
For these reasons I agree with the
conclusion reached by the Judge a
quo
to the effect that the decision of
the second appellant to turn down the applications of the respondents for the
posts of SHO at
the hospital was invalid by reason of his failure to accord the
respondents a fair hearing before taking the decision.
This brings me to the
procedural point in
limine
raised by the appellants, viz. the failure by
the respon-
73 dents to follow the procedure laid down by sec 34 (2) of the
Act. The relevant portions of sec 34 read as follows:
"(1) No legal proceedings shall be instituted against the State or any body
or person in respect of any alleged act in terms of this
Act, or any alleged
omission to do anything which in terms of this
Act should have been done, unless
(2) No such legal proceedings shall be com-menced before the expiry of at
least one calendar month after a written noti-fication,
in which particulars as
to the alleged act or omission are given, of intention to bring those
proceedings has been served on the
defendant."
It is common cause that no written notification such as that referred to in
sec 34(2) was given in the present case. Goldstone J held,
however, that the
requirements of sec 34(2) did not apply to the legal proceedings brought by the
respondents in that they did not
rely for their cause of action on any act in
terms of the Act or any omission
74 to do anything which should have been done in terms of the Act (see
reported judgment at p 405 C). It was argued on appeal that
in thus holding the
Judge a
quo
erred.
Sec 34(2) undoubtedly hampers the ordinary rights
of an aggrieved person to seek the assistance of the courts; and indeed, as
Goldstone
J points out (reported judgment p 405 D), it confers no discretion
upon the court to trun-cate the period of nctice in exceptional
circumstances.
The subsection should consequently be restrictively con-strued and not extended
beyond its expressed limits (see
Avex Air (Pty) Ltd v Borough of Vryheid
1973 (1) SA 617
(A), at p 621 F).
The respondents' cause of action is based
upon the second appellant's omission to give them a fair hearing before deciding
to turn
down their applications. The right to a fair hearing and the
corresponding obligation to afford it derive from the common law (see
Attorney-General, Eastern
75
Cape v Blom and Others
1988 (4) SA 645
(A), at p 662
F-I;
Staatspresident en Andere v United Democratic Front en 'n Ander
1988
(4) SA 830
(A), at pp 871 E - 872 E). In the
circumstances I do not think
that respondents' application was blocked by the provisions of sec 34(2). If
there be any ambiguity or
uncertainty about the meaning of the sub-section, then
a restrictive approach to its interpretation would tend to support this
conclusion.
The appeal is dismissed with costs, including the costs of two
counsel.
M M CORBETT HOEXTER JA)
F H GROSSKOPF JA)