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[1991] ZASCA 35
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Zondi and Others v Administrator of Natal and Others (304/89) [1991] ZASCA 35; 1991 (3) SA 583 (AD); [1991] 2 All SA 211 (A); (1991) 12 ILJ 497 (A) (26 March 1991)
case no 304/89
IN THE SUPREME COURT OF SOUTH
AFRICA
(
APPELLATE
DIVISION
)
In the matter of:
B ZONDI
1st Appellant
M B NKOMO
2nd Appellant
M S
GUMEDE
.... 3rd Appellant
B M NZIMANDE
4th Appellant
J M
MKHIZE
. 5th Appellant
N T HLOPHE
6th Appellant
B L
NZIMANDE
7th Appellant
M M KWEYAMA
8th Appellant
and
THE ADMINISTRATOR OF NATAL
1st Respondent
CHIEF SUPERINTENDENT OF ROADS
,
MEREBANK
2nd Respondent
THE PROVINCIAL SECRETARY, NATAL
3rd Respondent
CORAM
: CORBETT, CJ, JOUBERT, SMALBERGER, F H GROSSKOPF,
et
GOLDSTONE JJA.
DATE OF HEARING
: 18 March 1991
DATE OF JUDGMENT
: 26 March 1991
1
JUDGMENT
CORBETT
CJ
The facts upon which this appeal must be decided, as they appear from the
affidavits filed, are as follows:-
The eight appellants were all formerly employed in various capacities in the
Roads Department of the Natal Provincial Administration
("the Administration").
In the
case of each appellant the terms of his appointment were set forth in
a standard letter which contained the following provisions:
"Notwithstanding the fact that your salary is paid monthly your employment is
terminable on the giving of twenty-four hours notice
on either side (to expire
on a day other than a Saturday, Sunday or public holiday) and such notice may
take effect at any time either
during or at the end of a
month.
Accommodation may
be provided as an act of
2.
grace. This is a privilege and not a right, and the Department reserves the
right to withdraw the privilege at any timé, and
to make such charges for
it as it thinks fit."
In terms of sec
21(4)(a) of the Provincial Government Act 69 of 1986, read with secs 14(1) and
3(2)(d) of the Public Service Act 111
of 1984, and as from 1 August 1986 the
appellants were transferred and appointed to the Public Service and became
subject to the
provisions of the Public Service Act. All the appellants received
letters advising them of their transfer and appointment to the
Public Service.
It is common cause that after their transfer to the Public Service the
appellants' employment continued to be subject
to the contractual provisions
quoted ábove. By reason of the fact that such employment was terminable
on twenty-four hours'
notice they were classed as temporary employees.
Nevertheless most of the appellants were employees of long standing, their
individual
periods of
3 employment, as at November 1988, ranging from five
to
twenty-four years.
At the relevant times the appellants were all members of the National
Education, Health and Allied Workers Union ("NEHAWU"), an unregistered
trade
union, said to be representative of the majority of the employees engaged by the
Administration. The latter did not recognize
NEHAWU as a collective bargaining
agent on behalf of employees and refused to negotiate with it with regard to the
conditions of
employment of its members. The attitude of the Administration was
that employees' grievances should be aired at meetings of Workers'
Committees,
held once every three months, the minutes pf which were forwarded to the
Provincial Secretary.
On 27 October 1988 certain officials of NEHAWU, acting on its behalf, wrote a
letter to the Provincial Secretary informing him of
a series of resolutions
which
4
were taken at a general meeting of the Union held on 15 October 1988 and
which articulated workers' grievances. On 3 November 1988
the Provincial
Secretary replied stating,
inter alia
, that inasmuch as NEHAWU was not
recognized by the Commission for Administration he was not in a position to
enter into any form
of negotiation with it. At the same time he assured the
Union that the Administration recognized the need for the improvement of
the
conditions of service of workers, where feasible, and in this connection
referred to the established channels of communication
between the Administration
and its employees.
On 15 November 1988 the appellants, together with many other workers in the
Roads Department and in other Administration institutions
(altogether over 3 000
in number, and 8 per cent of the Administration's total work force) went on
strike. They cited dissatisfaction
with the Provincial Secretary's response to
NEHAWU's letter of 27 October 1988 as the reason for the strike.
5 On the
same day that the strike commenced a meeting of workers in the Roads Department
was called and addressed by the Roads Superintendent,
Mr E de Klerk. He advised
them that the way to resolve their grievances was through the Workers' Committee
meetings. He further told
them that they should return to work, failing which
they would face dismissal, and that they had three hours in which to decide
whether
they wished to resume work. After three hours the workers indicated that
they intended continuing with the strike. Each of them was
then handed what was
termed in the papers "a letter of ultimatum", reading as follows:
"Please take notice that you are participating in an illegal strike.
Your notice of employment provides for the giving of 24 hours' notice on either
side.
As you are participating in an illegal strike, the Provincial Administration
of
6
Natal is entitled to give you 24 hours' notice of the termination of your
services. If your services are so terminated you will,
if you are a member of
the Temporary Employees' Pension Fund, forfeit certain pension rights.
You are directed to resume your official duties failing which steps will be
taken to secure your dismissal. You are hereby invited
to make representations
to the Roads Superintendent of Merebank by 17 November. 1988 stating why you
should not be dismissed for
participating in the illegal strike.
Unless such representations are made in writing, within the above period, it
shall be assumed that you do not wish to make such representations
in which
event your services will be
terminated."
The letter was also read
out by Mr De Klerk and translated by an interpreter. One of the workers
instructed the others to throw the
letters back at Mr De Klerk and the majority
of them did so. It appeared that the first
7
appellant (B Zondi) was not present at the meeting and that he and the
eighth appellant (M M Kweyama) were not there when the letters
were handed out.
Accordingly, on 21 November 1988 there were sent to them by certified mail
copies of the letter of ultimatum giving
them until 28 November 1988 to make
their representations, if any.
In the meanwhile on Sunday 20 November 1988 a meeting was held between
representatives of the Administration, the State Attorney and
a Mr Zondo, a
member of the firm of attorneys representing NEHAWU. By that stage none of the
workers who had been handed letters
of ultimatum had either made representations
or returned to work. Mr Zondo was informed that a decision had been taken to
dismiss
all striking workers by sending them letters terminating their services
as from 30 November 1988. Mr Zondo was further advised that
should workers
return to work before 30 November 1988 they would be given the opportunity
8
of applying for re-appointment, which applications would be
considered on their merits. Mr Zondo told the meeting that he would speak
to the
workers and recommend that they return to work as soon as possible; he would
tell them about the letters of dismissal and
the fact that they would have to
apply for re-employment.
On 21 and 22 November 1988 each of the workers who had been handed letters of
ultimatum was sent by certified mail a letter emanating
from the Provincial
Secretary and stating:
"By direction of the Provincial Secretary, Natal Provincial Administration, you
are hereby given 24 hours' notice of termination
of your services from close of
duty on 30 November 1988."
Similar
letters of termination were sent to first and eighth appellants on 28 November
1988, neither of them having made representations
or returned to work by that
date.
9
Termination of the employment of the striking workers would
have meant that they forfeited accumulated employment benefits, including
pension rights and leave benefits. It was thus calculated to cause them
substantial prejudice and affect existing rights.
In an attempt to persuade the striking workers to return to work the
Administrator of Natal issued a press statement on Thursday,
24 November 1988.
This statement was published in the daily newspapers circulating in Natal and
was broadcast over the radio. In
this statement the Administrator, after
reviewing the course of events to date, made the following announcement:
"Workers who have returned to official duty and those who do so not later than
Friday, 25 November 1988 may have their letters terminating
their employment
withdrawn and in doing so retain their pension and leave
benefits."
10 This deadline for
returning to work was extended. in terms of a notice released to the Press by
the Provincial Secretary and published
on 26 November 1988. It read:
"Although Friday, 25 November 1988 was fixed as the last day for staff members
illegally on strike to resume duty and to be considered
for the withdrawal of their notices of termination of service, the
Administration, recognising that many of its staff may have been
misled, will as
a gesture of goodwill consider withdrawing notices of termination of service to
staff members who have been on strike
and report for duty at their normal time
on Monday, 28 November 1988. Thereafter all notices will be enforced and those
affected
will lose their pension benefits, housing subsidies and leave
benefits."
Although this notice speaks
of striking workers reporting for duty "at the normal time on Monday, 28
November 1988", it would seem
that this deadline was further extended to the
11
"close of business", i e 16h30, on 28 November 1988.
A substantial number of striking workers returned to work by the extended
deadline and had their letters of dismissal withdrawn. A
number of others,
including the appellants, did not meet the extended deadline, but reported for
duty at starting time, i e 06h30,
on Tuesday, 29 November 1988. At their place
of work they were told by Mr De Klerk that they had been dismissed with effect
from
close of duty on 30 November 1988; and that they were to report to collect
their pay on the following day and thereafter to vacate
the accommodation
provided for them by the Administration.
On 29 November 1988 the Provincial Secretary issued a further press
statement, which included the following:
"The Administrator-in-Executive Committee has carefully considered the present
circum-
12
stances regarding the strike of certain NPA. workers and has decided to abide by
the previous announcements which set the close of
duty on 28 November 1988 as
the deadline for workers to return to work.
A further approximately 800 workers today arrived at the various institutions
involved, but in terms of the deadline set the termination
of their services was
confirmed and they have been advised to re-apply for employment if they so wish
with effect from 1 December
1988."
On 6
December 1988 NEHAWU, as first applicant, and some 87 workers (including the
appellants), all being employed by the Administration
at its Merebank section,
launched an urgent ápplication in the Durban and Coast Local Division,
citing as respondents the
Administrator of Natal (first respondent), the Chief
Superintendent of Roads, Merebank (second respondent) and the Provincial
Secretary,
Natal (third respondent) and claiming a rule
nisi
calling
13
upon the respondents to show cause why an order should not be
granted (a) declaring that the purported dismissals of the worker applicants
were unlawful and null and void; (b) interdicting the respondents from evicting
the worker applicants from the accommodation allocated
to them in terms of their
conditions of employment; and (c) ordering respondents who opposed the
ápplication to pay the costs
thereof. The application also asked that the
relief sought under (b) be ordered to operate with immediate effect as an
interim order.
The matter came before Hugo J on 8 December 1988 and by consent he granted
the orders sought. On the return day, which was 2 February
1989, all three
respondents appeared to oppose the application; and they made a
counter-application for the ejectment of the worker
applicants from their
accommodation. At this stage it transpired that in the interim a number of the
applicants
14
had been re-employed and that the confirmation of the rule was
sought only on behalf of NEHAWU and fourteen worker applicants (including
the
appellants).
In the founding affidavit, which was deposed to by first appellant, it was
averred that shop stewards of NEHAWU had attempted to notify
all striking
workers of the extended deadline (viz 16h30 on Monday, 28 November 1988), but
that in the case of the worker applicants
they were only able to do so during
the evening of Monday 28 November, i e after the deadline had expired.
Nevertheless, all individual
worker applicants reported for work at the earliest
opportunity, that is at starting time the next morning. It is alleged by the
worker applicants that they did not know of the deadline before being told of it
on the Monday evening.
In par. 17 of the founding affidavit the following averment is made:
15
"As indicated above, the First Applicant's shop stewards were
unable to communicate with the individual employees until late on the
28th
November, after which the employees reported for work at the very next starting
time. I submit that in those circumstances,
having regard to the fact that the
First Respondent's ultimatum was not timeously furnished to the employees, . and
also having regard
to the fact that the rules of natural justice were not
followed in that none of the employees was given an opportunity to furnish
an
explanation for his arrival at work after the deadline on 28th November, the
First Respondent's decision to terminate the employment
contracts of the
individual Applicants is grossly unreasonable."
Respondents' answering affidavit, in addition to canvassing the general
merits of the appiication, raises the special defence that
in terms of sec 34(2)
of the Public Service Act the applicants were obliged to give one calendar
month's written notification to
the respondents of their
16 intention to
bring the application and that since the applicants had failed to do so their
application should be dismissed on this
ground.
This special defence was argued in
limine
before Hugo J on the return
day. Counsel for the applicants submitted, on the authority of the decision of
Goldstone J in the case
of
Traube and Others v Administrator, Transvaal
,
and Others
1989 (1) SA 397
(W), at 404 I - 405 E, that sec 34 did not
apply. Hugo J, while expressing misgivings about the correctness of this
decision, accepted
its correctness and the non-applicability of sec 34 to the
facts of the case under consideration.
It was conceded before Hugo J by counsel appearing on behalf of the
respondents that the
audi alteram partem
rule ("the
audi
rule")
applied to the dismissal of the worker applicants and that a failure to give
effect to the rule would render the dismissals
void. The learned Judge
17
pointed out that this concession had been made in the light of the decision in
the case of
Mokoena and Others v Administrator, Transvaal
1988 (4) SA 912
(W) and stated that he had no doubt that it had been properly made. He,
nevertheless, held that on the facts there had been due compliance
with the
audi
rule. He accordingly discharged the rule
nisi
with costs and
granted the counter-application for ejectment.
All the applicants applied for and obtained (from Hugo J) leave to appeal to
this Court; and in due course a notice of appeal in all
their names was filed.
In the end, however, the appeal was pursued only by the eight appellants. The
reasons for NEHAWU and the other
worker applicants dropping out of the appeal do
not appear from the record.
Before us it was again common cause that the
audi
rule applied in this
case; the point of dispute being
18
whether respondents had complied with the rule. Having regard
to the reasons stated in
Mokoena
's case,
supra
(see particularly
pages 916 D - 918 B) and in view of the evidence in this case that the
appellants were substantially prejudiced
in their pension, leave and other
benefits by being dismissed, it may be accepted that the respondents' concession
regarding the
audi
rule was correctly made.
The argument of appellants' counsel as to why respondents should be held not
to have complied with the
audi
rule may, I think, be fairly summed up as
follows:
(1) The opportunity for striking workers to make representations, tendered in
the letter of ultimatum (issued on 15 November 1988),
constituted compliance
with the
audi
rule; and had the appellants merely been given twenty-four
hours' notice of dismissal after 17 November 1988, there would have been
no
ground of complaint. (This, I may say, was also conceded by
19
appellants' counsel in the Cóurt a
quo
.)
(2) There were, however, developments after 17'November,
viz the inducement
held out to striking workers by the
first respondent on Thursday, 24 November
to the effect
that those who returned to duty by Friday, 25 November
might have the letters terminating their employment withdrawn; and the
extensions of this deadline, firstly to the normal time for
reporting for duty
on Monday, 28 November, and then later to the close of business at 16h30 on that
day.
(3) Those striking workers who reported for duty by 16h30
on Monday, 28
November had their letters of dismissal
withdrawn, whereas those who reported
for duty at
starting time on Tuesday, 29 November did not. (In
the case of
the latter their dismissals were confirmed
and they were told to collect
their wages and vacate
their accommodation on the following day.)
20
(4) In the circumstances there were in effect two decisions
by the
respondents: the original decision to'terminate
on notice the contracts of
workers who participated in -
the strike; and a subsequent decision to refuse
to
withdraw letters of termination in cases of striking
workers who had
failed to meet the deadline for return
to work on 28 November.
(5) The victims of this latter decision, who included the
appellants and who
as a result thereof lost their jobs,
were not given any opportunity to be
heard before the
decision was taken. Had they been given such
an
opportunity they could have explained that they did not
know of the
deadline until after it had passed and that
had they gained timeous knowledge
of the deadline they
would have complied with it. Such
representations
might well have induced the respondents to withdraw
their
letters of termination as well.
21
(6) The opportunity to make representations between 15 and 17 November 1988 did
not suffice because by reason of subsequent developments
a new criterion for
dismissal had arisen, viz reporting for duty prior to the expiry of the
deadline, and representations relevant
to this criterion could not have been
made between 15 and 17 November.
I should here interpolate that
as far as the first appellant and the eighth appellant are concerned the time
for making representations,
fixed in their letters of ultimatum, terminated on
28 November 1988, but this would not seem to affect the substance of appellants'
argument and I shall ignore this difference.
The counter-argument presented by respondents' counsel was to the following
effect:
(a) There was only one decision, viz the decision taken on
22
about 20 November 1988 to give all striking workers notice of termination of
their contracts as from 30 November 1988.
(b) The opportunity given to striking workers to make
representations as
between 15 and 17 November 1988
constituted compliance with the
audi
rule.
(c) The subsequent developments merely amounted to
respondents making a
concession to the effect that
those who returned to work by the extended
deadline
might have their letters of termination withdrawn.
(d) The concession was thus conditional upon individual
workers meeting the
deadline; if a worker did not meet
the deadline, whatever the reason might
be, he did not
qualify for the concession.
The arguments and
the issue which they highlight are finely balanced, but in my judgment the
general
23
contention of the appellants must prevail. - It is true that
the Administrator's announcement on 24 November 1988 merely' indicated
that
those workers who complied with the deadline for return to work
might
have their letters of termination withdrawn (and that the same non-committal
attitude on the part of the Administration is evinced
in the Provincial
Secretary's announcement on 26 November 1988), but in practice those complying
with the deadline appear in fact
to have had their letters of termination
withdrawn; and those not so complying had their dismissals confirmed. It is to
be inferred
that the Administration, as a matter of policy, decided upon this
course of action. There is thus good ground for the view that in
substance there
were two decisions and that those who did not have their letters of termination
withdrawn lost their employment partly
because of their initial participation in
the strike and partly because they failed to return to work by the
stipulated
24
deadline. As far as the latter decision was concerned the
workers adversely affected by it did not have an opportunity of explaining
why
they failed to comply with the deadline. One can conceive of various reasons for
non-compliance which would exonerate an individual
worker of all blame and which
consequently, if given, might well have moved the Administration to withdraw his
letter of termination,
despite non-compliance. In such circumstances the absence
of an opportunity to explain would bring about inequity and an inequality
of
treatment as between those who complied with the deadline and those who did
not.
Having regard to the aforegoing and to the consideration that the
audi
rule is founded upon a general duty to act fairly, i e to observe the principles
of natural justice, I am of the view that the workers
(including the appellants)
who reported for work on the Tuesday morning ought to have been given an
opportunity to explain why they
25
did not meet the deadline before their- dismissals were confirmed.
Respondent's failure to afford them such an opportunity accordingly
invalidates
their dismissals.
As to the applicability of sec 34 of the Public Service Act, the point is now
covered by the decision of this Court in
Administrator, Transvaal, and Others
v Traub and Others
[1989] ZASCA 90
;
1989 (4) SA 731
(A), at 764 B-H, which establishes that
the section does not constitute a bar to these proceedings (cf also
Administrator, Orange Free State
,
and Others v Mokopanele and
Another
[1990] ZASCA 69
;
1990 (3) SA 780
(A), at 789 A-C).
Appellants' counsel indicated that the relief sought in par (b) of the rule
nisi
was no longer apposite and was not being pursued. And, of course,
the counter-application falls away.
Respondents' counsel raised the position of
NEHAWU
26
which was a party to the appliction in the Court a
quo
,
but did not in the end figure as an appellant, and argued that it was not
entitled to a reversal of the order as to costs made against
it in the Court a
quo
. Although counsel did not mention them, the same point would apply to
those workers who were applicants in the Court below, but did
not appeal.
The appellants, as succesful parties, will become entitled to the costs of
the application in the Court a
quo
and I have difficulty in visualizing
any separate costs for which NEHAWU should be held responsible to the
respondents. However, in
case respondents should have incurred additional costs
attributable to NEHAWU's participation in the application, an appropriate
rider
will be added in regard to costs. I do not consider it necessary to make any
such provision with reference to the other applicants
who did not appeal.
27
There is a certain 'amount of confusion about who. was the first
applicant in the Court below and consequently for the sake of clarity
I shall
name the successful applicants in the Court's order.
The appeal is accordingly allowed with costs, such costs to include the costs
of two counsel. The order of the Court a
quo
is altered to read:
"The rule
nisi
is in part confirmed and a final order is
issued:-
(a) declaring the purported dismissals of applicants B Zondi, M B Nkomo, M S
Gumede, B M Nzimande, J M Mkhize, N T Hlophe, B L Nzimande
and M M Kweyama to
have been unlawful and null and void; and
(b) ordering respondents to pay the aforesaid applicants' costs in regard to the
application, jointly and severally, the one paying
the other to be absolved,
such costs to include the costs of two
counsel."
It is further ordered that such additional costs as respondents may have
incurred by reason of the
28
participation of NEHAWU in the application be paid by
NEHAWU.
M M CORBETT
JOUBERT JA)
SMALBERGER JA) CONC
UR
F H GROSSKOPF JA)
GOLDSTONE JA