University of the North and Others v Ralebipi and Others (JA20/02) [2003] ZALAC 14; (2003) 24 ILJ 2132 (LAC); [2003] 11 BLLR 1120 (LAC) (30 September 2003)

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[2003] ZALAC 14
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University of the North and Others v Ralebipi and Others (JA20/02) [2003] ZALAC 14; (2003) 24 ILJ 2132 (LAC); [2003] 11 BLLR 1120 (LAC) (30 September 2003)

21
IN THE LABOUR
APPEAL COURT OF SOUTH AFRICA
HELD
IN JOHANNESBURG
CASE NO JA20/02
In the
matter between:
UNIVERSITY
OF THE NORTH FIRST
APPELLANT
COUNCIL
OF THE UNIVERSITY OF THE NORTH SECOND
APPELLANT
GM
NEGOTA NO
THIRD APPELLANT
EXECUTIVE
COMMITTEE OF COUNCIL FOURTH APPELLANT
and
MATABOLE
DOROTHY ROCKY RALEBIPI FIRST RESPONDENT
SELAELO
THIAS KGATLA SECOND
RESPONDENT
DINEO
TALITHA SELOANA THIRD
RESPONDENT
JOHN
KGWALE TSEBE
FOURTH RESPONDENT
DORNAN
DANJUMA DECENT SHENI FIFTH RESPONDENT
JUDGMENT
JAFTA AJA:
Introduction
[1]
The first appellant is a university and employer of five respondents
who were appointed to various posts prior to the appointments
which
form the subject- matter of this appeal. The second appellant is the
governing body and council of the first appellant. The
third
appellant was the chairperson of the council and the fourth appellant
was its executive committee. During 1999 the respondents
were already
employees of the university but when certain vacancies within the
first appellant were advertised, some of them applied
for different
posts. After following certain procedures the council of the first
appellant (as it was then constituted) appointed
them to those posts.
However, the establishment of the posts to which they were appointed
together with the actual appointments generated
a deep-rooted
controversy within the university which initially led to the
suspension of the principal of the said university and
the
respondents, themselves.
[2] The
entire university was plunged into crisis due to lack of proper
leadership, management and general governance. Academic programmes,
teaching and learning were disrupted as the situation degenerated to
total chaos. The Minister of Education was compelled to appoint
an
assessor to investigate the matter and make recommendations as to how
normality could be restored to the institution. In his investigation
the assessor found that within the high ranking officials including
the academic staff, there was dissatisfaction with the management
style of the suspended principal. It was felt, especially among the
academic staff, that the university’s senate was not consulted
in
various matters in which it had direct interest. The assessor’s
report which forms part of the record before us contains scathing
criticism against the university’s council and its chairperson, the
third appellant. The two are blamed for having largely contributed
to
the chaotic situation that prevailed at the university. The fourth
appellant too received its fair share of criticism in the report.
The
assessor then recommended, inter alia, that an administrator be
appointed to replace and assume the functions of the council
as well
as management. Indeed on 8 December 2000 Patrick Thomas Fitzgerald
was appointed as the administrator of the first appellant.
He is the
person who deposed to the main affidavit filed on behalf of the first
appellant in its attempt to challenge the validity
of the
respondents’ appointments.
The facts
[3] Shortly
after his appointment, the principal of the first appellant embarked
upon a transformation process which included restructuring
of
management structures and establishment of new structures to underpin
such transformation. New posts within the established structures
were
created and the university sought to fill them. Applications were
invited from prospective candidates and the respondents duly
applied.
They were interviewed and eventually appointed to such posts. The
first respondent who was then a professor and head of
department of
information studies was appointed to the position of Chief Executive,
Administration with effect from 1 November 1999
up to 31 October
2004. The second respondent who was also a professor and head of
department was appointed to the post of Dean of
Student Affairs. The
third respondent who was a lecturer in the department of social work
was appointed as a Manager, Total Quality
Management. The fifth
respondent who was a dean of the faculty of health sciences was
appointed as Dean of Research. The other three
respondents were also
appointed for a fixed period, commencing on 1 November 1999 and
lapsing on 31 October 2004. All respondents
with the exclusion of the
fourth respondent, entered into written agreements setting out the
terms and conditions of their respective
appointments.
[4] The
position of the fourth respondent is totally different from that of
the other respondents. He was already a librarian prior
to the
appointments in question. His post was merely brought into the new
management structure without any substantive changes. In
other words,
he became part of the new management team without any changes to his
terms and conditions of service.
[5] On 19
January 2000 the first respondent received a letter of suspension
from the third appellant in his capacity as acting chairperson
of the
council. The reasons given for such suspension were gross
insubordination of council and bringing the university into
disrepute.
On 21 January 2000 the third appellant addressed another
letter to the first respondent informing her that the post she had
been
appointed to had been “temporarily suspended” pending
investigations. She was also directed in the same letter, to resume
her
former post. Letters in similar terms were also issued on the
same date to other respondents. But surprisingly, a similar letter
was also issued to the fourth respondent who was not appointed to any
new post. He too was directed by Mr. Negota to “ vacate forthwith
the office you occupy and revert to your former position”. This is
completely astonishing when considered in the light of the fact
that
the fourth respondent was not appointed to any post. To require him
to vacate the office of the librarian he had been occupying
prior to
the other appointments and revert to his former position is
incomprehensible, to say the least.
[6] The
aforesaid suspensions precipitated a joint application in the court a
quo by the respondents in an attempt to have the suspensions
set
aside and their employment contracts reinstated. The court a quo
found in respondents’ favour and ordered that the respondents
be
permitted to carry out their duties in terms of their respective
contracts. The court also issued a declarator to the effect that
contracts entered into between them and the first appellant were
valid. The application was opposed by the appellants who also lodged
a counter-application. The latter application was dismissed and the
first appellant was ordered to pay costs of the entire application.
The first appellant then applied for and was granted leave to appeal
to this court.
The issues
[7]
Although leave was sought on the basis of various grounds, leave was
expressly granted after the Judge in the court a quo had
dealt with a
single point relating to the construction of the term ‘academic
employee’. Initially Mr. Moshoana, who appeared
for the respondents
before us, contended that leave was restricted to the single ground
dealt with in the judgment granting leave.
However during the debate
of the issue he relented and conceded that the judgment granted
unrestricted leave. However, in the notice
of appeal the appellants
pursued only the following major grounds :
7.1 The
court a quo erred in attaching a narrow meaning to the phrase
‘academic employee’ and consequently finding that the respondents
were not academic employees as envisaged in the
Higher Education Act
101 of 1997
. Therefore, the court a quo should have found that the
appointments of the respondents, which did not comply with the
requirements
of
s 34
(2) of the said Act regarding consultation with
the senate thereon, were invalid ab initio.
7.2 The
court a quo further erred in granting a declaratory order which
enforces the employment agreements despite the fact that such
agreements had been terminated on notices issued in terms thereof. I
should mention that I have paraphrased the aforesaid grounds.
[8] Before
dealing with the above issues I should comment on the formulation of
the order granted by the court a quo. It reads thus:
“ It is
declared that the contracts of employment concluded between the first
respondent and the applicants, in the absence of
any lawful
termination of those contracts subsequent to the order made by this
court on 8 March 2000, remain of full legal force
and effect and that
the applicants be permitted to carry out their duties in accordance
with their respective contracts of employment”.
The order was
formulated in this manner even though there was evidence placed
before the court to the effect that termination notices
were served
upon the respondents but such notices had not come into operation at
the time of the hearing of the matter. However,
the said hearing was
on 22 June 2001 but judgment was reserved and handed down on 26 March
2002. It is clear from its judgment that
the court a quo did not deal
with the issue pertaining to the notices of termination. Before us
Mr. Brassey, who appeared together
with Mr. Hulley for the
appellants, challenged the validity of the order, in this regard, on
the ground that it was not based upon
any findings as the court a quo
did not consider the issue. The question of whether or not that part
of the order was competently
issued is something I shall later return
to. At this stage it suffices to mention that during the hearing of
this appeal the respondents
were afforded a chance to consider their
position towards the proposition that this court should adjudicate
that issue even though
the court a quo had not dealt with it. Indeed
the respondents have, later and through their legal representative,
consented to us
dealing with the issue.
[9] I shall
now turn to issues raised in this appeal which I shall consider
separately. I shall first deal with the question of interpretation
and then consider the issue and the effect of notices of termination.
This approach appeals to me for the simple reason that if the
definition of academic employee includes the respondents the need to
consider the other issue will fall away. Since the case against
the
fourth respondent stands on a different footing, it will also be
dealt with separately.
The proper
meaning of academic employee
[10] In
challenging the validity of the employment contracts the appellants
contended in the court a quo, that the respondents’
appointments
were effected without compliance with the peremptory terms of
s34
(2)
of the
Higher Education Act in
that there was no consultation with
the senate before such appointments were made. The power to appoint
employees of a public higher
education institution such as the first
appellant, vests in the council but if the appointment to be made
relates to an academic
employee the council should first consult the
senate before making such appointments.
Section 34
of the Act reads
as follows:
“
(1)
The council of a public higher education institution must appoint the
employees of the public higher education institution.
(2)
Notwithstanding subsection (1) the academic employees of the public
higher education institution must be appointed by the council
after
consultation with the senate.
(3) The
council must determine the conditions of service, disciplinary
provisions, privileges and functions of the employees of the
public
higher education institution, subject to the applicable labour law.”
[11] What
is clear from the reading of the entire section is that a council of
each public higher education institution is empowered
to appoint all
employees of such institution and without any restriction determine
their conditions of service, privileges, duties
and functions as well
as the disciplinary code applicable to them. Except in the case of
academic employees, the section and indeed
the entire Act does not
prescribe any conditions precedent to the exercise of the power to
appoint employees. The prerequisite to
the appointment of academic
employees is consultation with the senate. If consultation has not
taken place prior to such appointment
the power to appoint it seems
to me, cannot be validly exercised. However, the said prerequisite,
it must be emphasized, applies
and is confined to the appointment of
academic employees and no other employee of the public institution.
Therefore, the construction
of the term “academic employee” is
utterly fundamental to the enquiry of determining whether or not
respondents were validly
appointed.
[12]
In construing the term great assistance is to be derived from the
definition section of the Act, which provides useful guidance
to the
court regarding the meaning the Legislature intended to be attached
to each defined term appearing in the body of the Act.
As definitions
are specifically designed to reveal to courts the meaning preferred
by the Legislature on particular terms or phrases,
effect must be
given to its intention by means of applying the defined meaning
unless strict adherence thereto contradicts a clearly
established
intention of the Legislature. The defined meaning should be applied
even if it leads to hardship or absurdity unless
such absurdity is so
gross that it could never have been intended by the Legislature. The
court’s aversion to the results of the
defined meaning cannot
constitute justification for departing from the definition. Thus in
Orlando Fine Foods (Pty) Ltd v Sun
International Ltd
1994 (2) SA 249
(BGD) Waddington J
had
occasion to consider circumstances under which a statutory definition
could be departed from and the learned Judge following a
decision of
the Appellate Division said at 255E:
“
[I]n order to decide whether words in an
actment are inconsistent with a definition,one must consider
whether the application of
the definition to the clause in question
would lead to an injustice, incongruity and absurdity of such
dimension that the Legislature
could clearly never have intended
that result.”
See
also
Brown v Cape Divisional Council and
Another
1979 (1) SA 589
(A) at 601F-602A.
[13]
The term “academic employee” means , in terms of
section 1
, ‘any
person appointed to teach or to research at a public higher
education institution and any other employee designated as
such by
the council of that institution’. The proper reading of the
definition reveals that academic employee , as envisaged in
the Act,
carries three meanings. Firstly, it means employees who were
primarily appointed to teach students, secondly, those who
were
appointed to do research , and lastly, the employees who, although
not appointed to teach or do research , were specially
designated as
academic employees by the council. It is quite obvious from the facts
that the respondents in the present case were
not designated as
academic employees . It seems to me that such designation would
normally take place after the employee had been
appointed as there
could be no basis upon which the council could so designate someone
who is not yet its employee. Therefore,
to insist on consultation
with the senate prior to appointment of such people would not make
any logical sense.
[14] In my
view the requirement of consultation applies to those candidates
whom the council intends to appoint for the primary
functions of
teaching or doing research. Consultation must precede the actual
appointment as
s 34(2)
expressly requires that such appointments be
effected after consultation with the senate. The question that arises
immediately is
whether the respondents were appointed to either teach
students or do research. If they were not appointed to teach or do
research
then in terms of the definition they are not academic
employees as envisaged in
s 34(2).
[15] In
determining what functions the respondents were appointed to perform
recourse must be had to the terms of their respective
employment
agreements. The first respondent was appointed to provide
professional and administrative leadership particularly in
an
efficient implementation of the university’s strategic and action
plans which included transformation and development. Her
key
functions included the following:
(a)
designing and developing operational plans, budgets and expenditure
controls;
(b)
generating and supplying accurate statistics and other progress
reports required by the Department of Education;
(c)
providing effective management of various divisions as well as
effective supervision of staff under her control; and
(d)
explicating the professional and community outreach, renewal goals
and objectives of the university. This included the responsibility
to
inspire the general staff at the university.
[16] The
second respondent was appointed to perform duties similar to those
performed by the first respondent although such performance
was to be
confined to his division. In addition to those duties he was required
to ensure that:
the
recruitment and intake of students was increased;
the
lifes of students in both the residences and classrooms were
synchronised;
there were developmental programmes such as tutorials
and mentors for supporting students; and
a
high quality is maintained in the teaching, research, training and
development of programmes and standards.
[17] The
third respondent too had duties similar to those of the other
respondents. In addition thereto she was tasked to ensure that:
orchestrated reviews of the university’s plans,
systems, programmes
and transformative changes were developed and
implemented;
vision and strategic leadership was also provided;
the
university’s systems, policies, procedures, programmes and
performance measures were monitored; and
policies and practices designed to yield quality and
optimal support to
students were developed and implemented.
She
was also required to advise senior officials within and outside the
university.
[18] The
fifth respondent as well had similar duties with key areas applying
exclusively to him. He was required to ensure that :
high
post-graduate training standards, research programmes, innovations
and research performance outputs were maintained;
senior academics do not only teach but also research,
supervise post-
graduate students and mentor junior academics to teach
well,
research
and improve their abilities and qualifications;
new competitive post-graduate programmes are designed,
approved,
registered and implemented;
the university’s research, training and development
programmes and
standards are maintained at a high quality
level; and
academic staff produce and publish quality research
publications in
national and international reputable journals.
[19] As it
appears from above , none of the respondents was appointed to teach
or to do research by himself or herself. Those who
had something to
do either with teaching or research, were required to provide an
environment conducive to proper teaching or research.
Others were
required to play a supervising role to staff members who were
directly involved in teaching or research. But not a single
respondent was appointed to perform the function of teaching or
research. Therefore, if the statutory definition is adhered to in
the
strict sense, not a single respondent would qualify to be an academic
employee.
[20]
However, before us Mr. Brassey contended for an expanded meaning of
the phrases “to teach” or “to do research”. He criticised
the
court a quo for adopting a narrow meaning thereof. No Vice
–Chancellor or his equivalent , so the argument went, would accept
that he was not an academic and none of the other respondents would
have accepted this either. In my view, the fallacy in this argument
lies in the fact that it seeks to contradict the clear stance adopted
by the respondents throughout the proceedings, namely, that
they were
not academic employees hence
s 34(2)
did not find application to
their appointments. It may be so that some principals are appointed
from the ranks of professors but
that does not automatically make
them, as principals, academic employees as envisaged in the section.
[21]
Although in their heads of argument the respondents contended that a
purposive interpretation of the relevant legislation should
be
adopted, in oral argument before us Mr. Brassey did not pursue the
point when the court debated the issue with him. Instead he
contended
that the functional approach should have been followed by the court a
quo. He submitted that in terms of that approach
the phrase “academic
employee” should be given its natural ordinary meaning which, it
was argued, included the employees who
managed and supervised other
employees who were directly involved in teaching or research. Whilst
not expressing any firm opinion
on whether the contended meaning
constitutes the ordinary meaning of the term in question, I hold
the view that the issue of what
the ordinary meaning happens to be,
is not the key issue in the present matter. The central issue remains
: whether the application
of the definition to
s 34(2)
leads to an
absurdity of the nature that could never have been contemplated by
the Legislature. In
deed
in
Canca v Mount Frere Municipality
1984 (2)
SA 830
(Tk) Davies J,
after reviewing
authorities on the point, stated at 832 B-G:
“
The question whether a word in a particular
section of a statute should be given its statutory definition or the
ordinary meaning
has come up for decision in a number of cases… The
principle which emerges is that the statutory definition should
prevail unless
it appears that the Legislature intended otherwise
and, in deciding whether the Legislature so intended, the court has
generally
asked itself whether the application of the statutory
definition would result in such injustice or incongruity or
absurdity as
to lead to the conclusion that the Legislature could
never have intended the statutory definition to apply”.
[22]
The above approach was recently approved and reaffirmed by the
Supreme Court of Appeal in
Hoban v ABSA Bank
Ltd t/a United Bank and Others
[1999] 2 All SA 483
(SCA).
In
that case
Howie JA
(writing
for the court) said at para[18]:
“
[18]
Finally, and most importantly, it is not enough to warrant departure
from the defined meaning that the subject matter of the
rule or
section under examination differs from the subject matter of
provisions in which the defined meaning clearly does apply.
That is
not the test. There is a line of cases including decisions of this
Court, in which the true approach is stated. The inference
is
compelling that none of them, was drawn to the court’s attention in
either the First Consolidated case or in Rontgen matter.
They are
collected in Canca v Mount Frere Municipality
1984 (2) SA 830
(Tk) at
832 B-C in a passage which in my opinion sets out the position
correctly.”
See also
ABP 4x4
Motor Dealers (Pty) Ltd v IGI Insurance Co Ltd
1999 (3) SA 924
(SCA)at paras [17]-[18].
[23]
In the present matter it was argued on the appellant’s behalf that
the application of the definition meaning would lead to
an absurdity.
It was submitted that the absurdity in question lies in the
exclusion of those responsible for managing and supervising
teachers
and researchers from the meaning of the term academic employee.
However, I do not agree that such exclusion leads to an
absurd
conclusion. Even if one were to assume that the result is absurd, I
am quite certain that it cannot constitute the absurdity
which could
never have been intended by Parliament.
[24] In my
view, it is clear from the definition itself that the Legislature has
deliberately intended to restrict the meaning of
academic employee
and that it was quite alive to the fact that the first part of the
definition was indeed narrow hence the granting
of the power to
councils to designate as academic employees, the employees who did
not fit within that part of the definition. Academic
employees or
academics, as they are popularly referred to, are terms that carry a
certain popular meaning and in my opinion it can
be assumed that when
Parliament passed the
Higher Education Act it
was aware of such
popular and ordinary meaning. It would appear that the Legislature
decided that the term should not carry its
ordinary meaning. This is
made clear by the provisions of
s 30
found in the same chapter as
s
34(2).The
former section provides that the principal of a public
higher education institution shall be responsible for the management
and administration
of the institution. Obviously it cannot be said
that a principal is appointed to teach or to do research. Therefore,
in terms of
the Act he or she cannot be regarded as an academic
employee unless duly designated as such by the council because his or
her primary
functions are to manage and administer the institution.
If the appointment of the principal does not have to be preceded by
consultation
with the senate there is nothing absurd in applying the
same procedure in respect of appointments of the employees whose
duties are
mainly to assist the principal in managing and
administering the institution. It is also worth noting that the same
principal is
the chairperson of the very senate whose consultation is
not required prior to his appointment
(s 26(4)(a)).
[25]
Whether or not employees who were academics immediately before
their appointment to administrative or managerial posts lose
their
privileges as academics would not affect the interpretation of
section 34(2).
Even if such loss were to be taken as amounting to an
injustice, it certainly would not be an injustice that could not have
been
intended so as to justify the departure from the definition
meaning.Our courts have in the past declined to expand a statutory
meaning
even where the narrow meaning rendered the statute
inoperative. In
Barkett v SA N ational Trust &
Assurance Co Ltd 1951 (2) 353 (A) Centlivres CJ
confirmed the said principle in the following terms at 363 E-G:
“
This Court, however, in a case where the
literal meaning of a statute rendered it practically inoperative,
refused to give an expanded
meaning to the words used by the
Legislature.See Ex Parte Minister of Justice: In re Rex v Jacobson &
Levy
1931 AD 466.
In the instant case there is, in my opinion, no
justification for giving an expanded meaning to the words used by the
Legislature:
those words are quite intelligible in their context and
the fact that the Legislature may well have overlooked the rule of
law that
a master is responsible for his servant’s negligence
acting within the scope of employment affords no justification for a
court
of law to supply the omission of the Legislature.”
This case has been applied in a number of
decisions and this specific passage has recently been relied upon in
Summit Industrial
Corporation v Jade Transporter 1987 (2 ) SA 583
(A) at 597 B.
[26]
In casu, to accept the interpretation contended for by the appellants
would not only do violence to the language employed by
the
Legislature but would also fly in the face of the principle in
Barkett
. It must be
remembered that here we are dealing with a narrow interpretation
which does not render the statute practically inoperative
and
therefore there can be no justification whatsoever for the expanded
meaning. The words deliberately chosen by the Legislature
cannot and
should not be subverted in favour of what the Court considers to be
the spirit of the law unless the preferred interpretation
is
consistent with the clearly established intention of the Legislature
whilst at the same time the definition meaning is inconflict
therewith. The principle that the language employed by the
Legislature must be respected and effect thereto be given, has
received
the stamp of approval from the Constitutional Court in
S
v Zuma and Others
[1995] ZACC 1
;
1995 (2) SA 642
(CC
). In a
unanimous judgment in that case
Kentridge AJ
stated at 652I-653-B;
“
While we must always be conscious of the
values underlying the Constitution, it is nonetheless our task to
interpret a written instrument.
I am well aware of the fallacy of
supposing that general language must have a single “objective”
meaning. Nor is it easy to avoid
the influence of one’s personal
intellectual and moral preconceptions. But it cannot be too strongly
stressed that the Constitution
does not mean whatever we might wish
it to mean. We must heed Lord Wilberforce’s reminder that even a
constitution is a legal instrument,
the language of which must be
respected. If the language used by the lawgiver is ignored in favour
of a general resort to “values”
the result is not interpretation
but divination.”
This dictum has been followed in many cases
including a decision of the Supreme Court of Appeal in Standard Bank
Investment Corp
v Competition Commission
[2000] ZASCA 20
;
2000 (2) SA 797
(SCA) at
para
[18]
.
[27]
To conclude this point, I must indicate that the section we are
called upon to construe is located in the context of governance
of
public higher education institutions. The entire chapter 4 is devoted
to issues of governance. It sets out structures through
which such
institutions are governed, namely , the council, the senate and the
principal. The latter two structures being accountable
to the
council. The council is given wide powers subject only to certain
specific limitations in respect of basically matters that
directly
affect students. For example, the council has the power to determine
the language policy of the institution with the concurrence
of the
senate; and academic functions including the studies, instruction,
research and examination of students may not be amended
or repealed
without the senate’s concurrence (s 27(2) and 32 (2)(b)). Moreover,
s 37(4) stipulates that the senate’s approval
is required for
determining entrance requirements, the number of students to be
admitted, minimum requirements for re-admission
and exclusion of
students who fail to meet requirements for re-admission . In respect
of other matters a mere consultation is required
for the exercise of
power by the council. Therefore, the primary intention of the
Legislature in chapter 4 was to establish structures
through which
public institutions are governed and also confer powers to such
structures with some limitations, in varying degrees,
depending on
the subject –matter to be dealt with. In my view, the narrow
meaning of academic employee does not clash with that
intention. In
the circumstances I hold that the court a quo was indeed correct in
attaching the narrow interpretation to the term.
However, there is
nothing in the Act which precludes councils from consulting senates
before making important appointments such
as those we are dealing
with herein. Indeed it is not only desirable to do so but such
practice, could also enhance the level of
cooperation between the
two structures. Nevertheless that is a matter of policy for the
institutions themselves to decide and not
the courts of law.
The effect of
termination notices
[28] The
employment agreements concluded by the four respondents and the
first appellant provided for termination of the said agreements
by
one party issuing a three months’ notice to the other party. On 30
April 2001 and whilst the present application was pending
in the
court a quo, the first appellant issued notices terminating the
agreements. The said notices were supposed to take effect
at the end
of July 2001. Meanwhile the matter was set down for hearing on 22
June 2001 and judgment was reserved. So, when the hearing
was held
the notices had not become effective. The notices were served upon
the respondents’ attorneys who, presumably, on their
instructions
demanded that the appellants comply with the interim order granted on
8 March 2000 and which declared that respondents
were entitled to be
remunerated in terms of the said agreements. Although the court a quo
alluded to the fact that the respondents’
attorneys appeared to
have contested the notices, the respondents did not raise any
substantive challenge to the issuance of the
notices, which was done
in terms of the agreements themselves. It therefore seems that the
first appellant has competently issued
the notices and that in terms
thereof the contracts terminated on 30 July 2001. Consequently, I am
persuaded that the court a quo
erred in formulating its order in the
manner it did which rendered the entire order confusing.
The fourth
respondent’s case
[29] At the
time the other respondents entered into written agreements with the
first appellant in October 1999 and in terms of which
they were
appointed to new posts, the fourth respondent did not conclude any
new employment agreement nor was he appointed to a
new post. He
retained his old post of a librarian on the same terms and
conditions. He was merely drawn into the new management team
without
any substantive changes. Quite clearly, therefore , the chairperson
of the council erroneously included him when he issued
letters of
suspension on 21 January 2000. The fourth respondent was entitled to
challenge the validity of the decision to suspend
his post and
since the appellants have failed to furnish reasons for the
suspension, it had to be set aside. It is also not clear
from the
record why the appellants sought to appeal against the whole
judgment including the portion relating to the fourth respondent.
As
a result the entire appeal against this respondent must fail.
Costs
[30] There remains the issue of
costs. Insofar as the fourth respondent is concerned, the ordinary
rule that costs follow the cause
should apply. In the case of the
other respondents there has been partial success in their favour and
also in the favour of the
appellants. This means each side has
partially succeeded before us. Having given a careful consideration
to the matter, I am of
the opinion that justice would be served if
each party pays its appeal costs. However, I am not convinced that
there is any basis
for altering the costs order awarded by the court
a quo. Its decision on the interpretation issue has been confirmed
on appeal.
Although the order pertaining to the declaration cannot
be sustained in its original form, the appellants could not have
escaped
liability for costs in the court below simply because notices
terminating the contracts became effective after the date of hearing.
The respondents would still be entitled to their costs even if when
judgment was handed down, the termination of the agreements
was
upheld.
[31]
Accordingly the following order is made :
The
appeal against the fourth respondent is dismissed with costs.
The
appeal is allowed only to the limited extent that clarity is given
on the status of the agreements between the first appellant
and
the first, second, third and fifth respondents, for the period
beyond 30 July 2001.
In
respect of the remaining parties , each party shall pay its own
appeal costs.
The
order of the court a quo is set aside and the following order is
substituted therefor:
The
appellants’ decision dated 21 January 2000 and in terms of which
the respondents’ appointments were suspended is hereby
declared
null and void.
It
is further declared that the employment contracts concluded by the
first respondent and first, second, third and fifth applicants
during October 1999 were valid until terminated on 30 July 2001.
The
counter-application is dismissed.
The
first respondent is ordered to pay costs of the entire proceedings.
________________________
JAFTA AJA
I agree.
_______________________
NICHOLSON
JA
I agree.
_________________________
WILLIS JA
Appellants’
counsel: M.S.M. Brassey SC and GI Hulley
Appellants’
Attorneys: Hlatshwayo Du Plessis
Van der Merwe Nkaiseng
Respondents’
Attorney: G N Moshoana
Of: Mohlaba & Moshoana Inc.
Heard on 26
August 2003
Delivered
on 30 September 2003