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1990
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[1990] ZASCA 69
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Administrator of the Orange Free State and Others v Mokopanele and Others (506/89) [1990] ZASCA 69; 1990 (3) SA 780 (AD); [1990] 2 All SA 430 (A); (1990) 11 ILJ 963 (A) (1 June 1990)
Case No 506/89
IN THE SUPREME COURT OF SOUTH AFRICA APPELLATE
DIVISION
In the matter between:
THE ADMINISTRATOR OF THE ORANGE FREE STATE
First Appellant
THE DIRECTOR OF HOSPITAL SERVICES
,
ORANGE FREE STATE
Second Appellant
THE PROVINCIAL SECRETARY OF THE ORANGE
FREE STATE PROVINCIAL ADMINISTRATION
Third Appellant
THE MEDICAL SUPERINTENDENT PELONOMI
HOSPITAL
Fourth Appellant
and
PULENG ELLEN
MOKOPANELE
First Respondent
MMANOKENG MARY MOEENG
Second
Respondent
OZIE LITJAMELA
Third Respondent
CORAM:
HOEXTER, VAN HEERDEN, STEYN, JJA et
NICHOLAS, FRIEDMAN, AJJA
HEARD:
4 May
1990
DELIVERED:
1 June 1990
JUDGMENT
HOEXTER, JA
2
HOEXTER, JA
Towards the end of August and at the beginning of
September 1987 and at the Pelonomi Hospital in Bloemfontein ("the hospital") a
large
number of workers employed by the Orange Free State Provincial
Administration ("the administration") went on strike for two or three
days. On
17 September 1987 the administration summarily dismissed some of the workers who
had taken part in the strike. These included
the two respondents in this appeal.
The four appellants are respectively.(1) the Administrator of the OFS; (2) The
Director of Hospital
Services for the OFS; (3) The Provincial Secretafy; and (4)
the Medical Superintendent of the hospital.
Also employed at the hospital in
August 1987 was Mr O Litjemela ("L") . L was summarily dismissed by the
administration on 31 August
1987. At the time of their
3
dismissal the respondents and L were all members of the Public Service. They
were "employees" as defined by sec 1 of the Public Service
Act, 111 of 1984.
Before dismissing them the administration did not give either of the respondents
or L a hearing. During April 1988
the respondents and L ("the applicants") took
legal steps against the appellants. On notice of motion they applied in the
Court below
("the application") inter alia for an order (see para 2 of the
relief claimed in the notice of motion) declaring "the applicants'
purported
dismissals" by the Provincial Secretary, acting on behalf of the Administrator,
"to be wrongful and unlawful", and setting
the said dismissals aside. The
application was founded on an allegation that the administration had failed to
apply the maxim "audi
alteram partem" ("the audi principle"). The appellants
resisted the application. On behalf of all four appellants there was filed
a
single
4
opposing affidavit. It was deposed to by Mr G J Rossouw who is a senior
official in the Public Service. Mr Rossouw is an Assistant
Director, Labour
Utilisation, in which capacity he is employed by the administration.
The
application came before VAN COLLER, J. Having heard argument thereon the learned
Judge granted the applicants the relief sought
by them in para 2 of their notice
of motion; and the appellants were ordered to pay, jointly and severally, the
costs of the application.
For a full exposition of the facts of the case and a
discussion of the reasons which prompted the Court a quo to issue the orders
aforesaid reference should be made to the judgment of VAN COLLER, J which has
been reported sub nom Mokopanele en Andere v Administrateur,
Oranje Vrystaat, en
Andere 1989(1) SA 434 (0). With the leave of the learned Judge the appellants
appeal to this Court. The appellants
do not, however, pursue the appeal in
respect of L who was
5
cited as the third respondent. In his founding affidavit L denied that he had
participated in the strike. The truth of this denial
was not challenged by the
appellants. In his answering affidavit Mr Rossouw. informed the Court that-it
had been decided to pay L
his salary from 1 September 1987 to 31 December 1987,
on which date he attained retirement age. The appeal is therefore limited to
a
consideration of the merits of the case made out on behalf of the two
respondents.
Expressing agreement with the reasoning of GOLDSTONE, J in
Mokoena and Others v Administrator of Transvaal and Others
1988 (4) SA 912
(W),
VAN COLLER, J concluded (at 443C) that the administration should have accorded
the respondents a hearing prior to dismissing
them; and that its failure to do
so rendered their dismissal invalid. Immediately before recording this
conclusion in his judgment
the learned Judge made the
6
following further observations on the merits and eguities
of the case (at 443A-C):-
'n Verdere oorweging wat vermelding verdien is die feit dat aan die applikante
gesê is dat indien hulle nie die volgende dag,
d w s 27 Augustus, hul
werksaamhede hervat nie hulle ontslaan sou word. Nieteenstaande die feit dat
hulle aan die opdrag gehoor gegee
het, is hulle nogtans ontslaan. Afgesien van
die feit dat die Administrasie deur die optrede moontlik die eleksie uitgeoefen
het
om die applikante nie te ontslaan nie en die ontslag van die applikante op
grond hiervan ook moontlik onregmatig was, verhoog dit
die mate van onbillikheid
waarmee teen die applikante opgetree
is."
In argument before us Mr
Cilliers, who led for
the respondents, supported the conclusion of the Court
below that the
dismissal of the respondents was invalid.
He advanced two separate grounds,
to which he alluded
respectively as the "narrow" and the "broad"
argument.
For the sake of convenience I shall use the same
words. The
broad argument on behalf of the
respondents was to the effect that the circumstances of the
/
7
case were clearly such as to attract the principles of natural justice; and
that the Court below had correctly decided that the administration's
failure to
apply the audi principle rendered the dismissals invalid. The narrow-argument
pressed upon us by Mr Cilliers was based
on the premise that the administration
had in any case elected not to dismiss the respondents which possibility was
adumbrated in
that portion of the judgment of VAN COLLER, J (at 443A-C) earlier
quoted. For purposes of his narrow argument counsel for the respondents
accepted
the validity of the general legal proposition that an employee's participation
in an illegal strike represents an unlawful
repudiation of his contractual
obligation to work or at any rate a fundamental breach of that obligation which
entitles his employer,
if the latter so chooses, summarily to dismiss the errant
employee. However, Mr Cilliers went on to argue that in so far as a vested
right
summarily to
8
dismiss the respondents had accrued to the administration, the latter had
through its representative, Mr Rossouw divested itself of
that right when it
conditionally exercised its power of election not to dismiss, and the
respondents accepted the election by complying
with the condition. The
administration was thereafter precluded from relying, as a ground for summary
dismissal, upon any illegal
work-stoppage on 25 and 26 August 1987. This
particular submission had not been advanced in the respondents' heads of
argument, which
were prepared by other counsel. Before the start of argument in
this Court, however, Mr Cilliers informed Mr Olivier, who appeared
for the
appellants, that he proposed to rely on the narrow argument.
In the course of
a thorough argument on behalf of the appellants Mr Olivier dealt with the
respondents' broad argument by contending
that the administration's decision
9
to dismiss the respondents did not fall within the compass of administrative
law and that there was simply no room for an application
of the rules of natural
justice in general or the audi principle in particular. The contractual
relationship between the respondents
and the administration, he argued, was
purely that of master and servant; and inasmuch as the respondents'
participation in the strike
amounted to unlawful repudiation of their contracts
of service, their summary dismissal had been not only legitimate but fair and
equitable to boot. In regard to Mr Cillier's narrow argument Mr Olivier made a
twofold submission. In the first place he contended
that the affidavits filed in
the application contained insufficient evidence to support a conclusion that Mr
Rossouw had been authorised
by the administration to inform striking workers
that if they failed to return to work on 27 August 1987 they would be
dismissed.
10
Alternatively, and even assuming that Mr Rossouw had been clothed with such
authority, it was said that Mr Rossouw's aforesaid intimation
was not reasonably
susceptible of the interpretation that if the striking workers did return to
work by the stipulated date, the
administration would not thereafter summarily
dismiss them on the strehgth of the work-stoppage on 25 and 26 August 1987. The
validity
of these submissions must now be considered.
The respondents are
both women who were employed at the hospital as cleaners. In this capacity the
first respondent had been employed
since 1973 and the second respondent since
1966. The first respondent is a widow who started work at the hospital at an
annual wage
of R366. Since 1978 she has made monthly contributions to a
compulsory pension fund. At the date of the dismissal her net monthly
wage was
R341,35. The personal circumstances of the second respondent are different,
but
11
in regard to the course of the strike and what was
communicated to the
strikers by Mr Rossouw the founding
affidavit of the second respondent is
substantially the
same as the first respondent's affidavit. In
comparing-
the salient features of the respondents' version with what
is
said in Mr Rossouw's affidavit I shall, for the sake of
brevity, confine
myself to the first respondent's founding
affidavit.
In order to gain a proper perspective it
is
convenient to refer to some of the statements
contained in
Mr Rossouw's lengthy opposing affidavit. He expressly
avers
that he is duty authorised to make the opposing
affidavit and to oppose the
application on behalf of the
appellants. In para 1 of his affidavit Mr
Rossouw gives
the following description of his post and the scope of his
official duties:-
"Ek is uit die aard van my pos belas met personeelaangeleenthede wat insluit
die
12
onderhandelings met werknemers in diens van die Provinsiale Administrasie van
die Oranje-Vrystaat, onder andere ook werknemers te
Pelonomi Hospitaal,
Bloemfontein."
Later in his affidavit Mr Rossouw
describes the various
services provided by medical and non-medical staff
(such as
cleaners) at the hospital; and he points out that the
dislocation
of any of these services as a result of a work-
stoppage may entail very serious conseguences.
On 25 August 1987 Mr Rossouw was informed that
some of the workers at the
hospital were on strike.
Thereupon he decided -
" om as waarnemer die situasie in oënskou
te neem en my hulp waar nodig aan te
bied."
Accordingly he proceeded to the hospital
where in the .
reception area of the oncology department he encountered an
unruly mob of
strikers who demanded that the Medical
Superintendent should present himself. Mr Rossouw advised
the Medical Superintendent not to expose himself to the
13
refractory strikers. After discussions with the Medical
Superintendent and the secretary of the hospital -
" en telefoniese konsultasie met lede van
die Departement Hospitaaldienste van die Provinsiale Administrasie van die
Oranjer Vrystaat, het ek opdrag gekry om met die groep
samesprekings te
voer."
Mr Rossouw then went back to the strikers and
when the
latter had calmed down somewhat, Mr Rossouw asked them to
appoint
their own representatives to speak with him.
Thirteen strikers came forward
and for some hours Mr
Rossouw was elsewhere closeted with them, during
which
negotiations -
" verskeie klagtes en probleme bespreek is,
welke klagtes en probleme na my mening opgelos is, insluitend die nie-erkenning
van 'n vakbond."
On 26 August 1987 Mr Rossouw was
advised that a group of
workers had again foregathered in the reception area
of the
oncology department. Mr Rossouw proceeded to the hospital
and entered the said area at 10h30. As on the previous
14
day he encountered an unruly and noisy throng. Again he
asked for
representatives to be appointed. His request
was met; and he held
consultations with such
representatives until 13h15. Mr Rossouw returned to
the
reception area at 16h00. He told the striking workers
there present
that if they refused to return to work
forthwith disciplinary action would be
taken against them,
and -
"Ek het hulle ook meegedeel dat indien hulle nie die volgende dag hulle werk sou
hervat nie, hulle ontslaan sou word."
The first respondent's version of this
last
intimation by Mr Rossouw to the strikers at
16h00 on 26
August 1987 is the following:-
"Mr Rossouw stated that unless we returned to work the following day, we would
face dismissal. In the light of this ultimatum I and
a large number of fellow
employees elected to return to work the following day. This I did and I
continued to work in accordance
with my duties until 17 September when the
Administration purportedly dismissed
me."
15
I should add that in his affidavit Mr Rossouw admits that
according to
hospital records examined by him the first
respondent in fact worked from 27
August to 17 September
1987.
Finally mention should be made of an averment in
the
first respondent's affidavit that the officials of the
Administration to whom
she had referred -
" were at all relevant times hereto acting
on behalf of the Administration and in the course of their employment as such
and within the scope of their duties."
This was not
denied by Mr Rossouw in his opposing
affidavit. That Mr Rossouw failed to
challenge the first
respondent's assertions in regard to his own position
in
negotiating during the strike is hardly surprising. What
Mr Rossouw
himself says in the opposing affidavit points
clearly and _cogently to the
conclusion that he, with the
knowledge and approval of the administration,
mediated at
16
the hospital between the strikers and the administration
with the object
of trying to négotiate the end of a strike
whose continuation might
have paralysed the essential
services which the hospital was required to
provide for the
community it served. It is clear on the papers that in
so
mediating and negotiating Mr Rossouw was authorised and
empowered to
issue to the strikers the ultimatum which he
did. Indeed, his statement
that
" alle inligting aangaande die staking
deurgestuur was tot op die hoogste vlak, dit wil sê die Uitvoerende
Komitee van die Oranje-Vrystaat en dat alle verwikkelinge
op die hoogste. vlak
rapporteer is....,"
lends support to first
respondent's statement as to Mr
Rossouw's authority. In my judgment the first
limb of
the appellants' argument is unsound.
The second limb of the argument appears to me to
be
equally untenable. What Mr Rossouw said to the
respondents on 26 August was: "If you do not go back to
17
work tomorrow you will be dismissed." What Mr Rossouw's ultimatum naturally
and necessarily implied was that if the striking workers
returned to work on 27
August the administration would refrain from dismissal despite the violation of
its contractual rights of
which the strikers had been guilty on 25 and 26
August. The ultimatum was, I think, a clear intimation to the strikers that if
they
returned to work on 27 August the administration would waive its right of
dismissal. Waiver is a form of contract. See Roodepoort-Maraisburg
Town Council
v Eastern Properties (Pty) Ltd
1933 WLD 224
per GREENBERG, J at 226. Before a
party can be held to have surrendered his right, he must know his right. Here
there can be no doubt
that Mr Rossouw fully appreciated the administration's
right to dismiss striking workers.
The legal doctrine here involved may perhaps best be described as that of
election. But in a situation
18
such as this the exact nomenclature is less important than a recognition of
the fundamental principle that a contracting party who
has once approbated
cannot thereafter reprobate. The position is elucidated by DE VILLIERS, JP in
the judgment of this Court in Hlatshwayo
v Mare and Deas
1912 AD 242.
The point
in issue in that case was whether a litigant had by his conduct acquiesced in a
judgment and had thereby lost the right
to appeal against it. At 258-259 the
learned Judge of Appeal said:
"Brissonius, de Verborum Significatione, sub voce
acquiescere defines 'acquiescere' as 'consentire, suffragari, concedere," which
seems to show that to constitute acquiescence there
must be consent. This is
also what Merlin (Rep I., p. 132) calls it. He speaks of consentement. In
Roman-Dutch law the point was
raised by means of the exceptie van homologatie;
homologein is to agree or to promise. If we look at the root of the word
acquiescere
it means to quiesce or rest in (berusten) in the judgment. None of
the writers have analysed what this exactly means, but from the
above it would
seem that to constitute acquiescence there must be consent either in act or
word. A person has the right to re-open
the case or to appeal; he voluntarily
chooses to do
19
an act which is clearly inconsistent with this right, and he is therefore
presumed to have consented to the judgment. Whether then
we base the doctrine of
acquiescence on the consent which is implied or the choice which is exercised,
or call it waiver makes no
difference. At bottom the doctrine is based upon the
application of the principle that no person can be allowed to take up two
positions
inconsistent with one another, or as is commonly expressed to blow hot
and cold, to approbate and reprobate."
The principle of election finds ready application
in
the contractual relationship of master and servant. See
Chamber of Mines of
South Africa v National Union of
Mineworkers and Another 1987(1) SA 668 (A)
where the
following was said at 690 D-G:-
"One or other of two parties between whom some legal relationship subsists is
sometimes faced with two alternative and entirely inconsistent
courses of action
or remedies. The principle that in this situation the law will not allow that
party to blow hot and cold is a fundamental
one of general application. A useful
illustration of the principle is offered in the relationship between master and
servant when
there comes to the knowledge of the former some conduct on the part
of the latter justifying the servant's dismissal. The position
in which
the
20
master then finds himself is thus described by BRISTOWE, J in Angehm and Piel
v Federal Storage Co
1908 TS 761
at 786:
'It seems to me that as soon as an act or group of acts clearly justifying
dismissal comes to the knowledge of the employer it is
for him to elect whether
he will determine the contract or
retain the servant He must be
allowed a reasonable time within which to make his election. Still, make it he
must, and having once made it he must abide by it.
In this, as in all cases of
election, he cannot first take one road and then turn back and take another.
Quod semel placuit in electionibus
amplius displicere non potest (see Coke Litt
146, and Dig 30.1.84.9; 18.3.4.2; 45.1.112). If an unequivocal act has been
performed,
that is, an act which necessarily supposes an election in a
particular direction, that is conclusive proof of the election having
taken
place.'
The above statement of the principle may
require amplification in the following respect indicated by Spencer Bower
Estoppel by Representation
(1923) para 244 at 114-5:
'It is not .... quite correct to say nakedly that a right of election, when once
exercised, is exhausted and
21
irrevocable, or in Coke's phraseology: quod semel in electionibus placuit
amplius displicere non potest, as if
mere mutability were for its own sake alone banned and penalized by the law
as a public offence, irrespective of the question whether
any individual has
been injured by the volte-face. It is not so. A man may change his mind as often
as he pleases, so long as no
injustice is thereby done to another. If there is
no person who raises any objection, having the right to do so, the law raises
none.'"
I return to the facts of the present case. In the light of what had happened
at the hospital on 26 and 27 August 1987 the administration
was not legally
entitled to change its mind as it sought to do when it purported to dismiss the
respondents on 17 September 1987.
Moreover such change of mind involved a rank
injustice to the respondents; and, as they were entitled to do, they raised
objection
to it. Simple justice between employer and employee demands that their
objection should be sustained.
In my view there is no answer to the
narrow
22
argument put forward by Mr Cilliers, and it must be upheld. This conclusion
renders it unnecessary for me to consider the merits of
the broad argument based
upon the audi principle.
In the Court below the appellants resisted the
application on the further ground (see 443 D-G of the reported judgment) that
there
had not been due compliance with the provisions of sec 34 of Act 111 of
1984. On this point VAN COLLER, J held (443G - 444 ) against
the appellants. In
argument before us Mr Olivier, while not abandoning the point, preferred
(wisely, I think) not to argue it. Sec
34 is limited to legal proceedings in
respect of acts or omissions "in terms of this Act." Since the appeal goes
against the appellants
on the narrow argument it is necessary to say no more
than that the cause of action upon which that argument is founded derives from
the common law. As that cause of action is unrelated to
23
any act in terms of Act 111 of 1984, or any omission to do anything which in
terms of the Act should have been done, sec 34 has here
no application.
The
appeal is dismissed with costs, such costs to include the costs consequent upon
the employment of two counsel.
G G HOEXTER, JA
VAN HEERDEN, JA )
FRIEDMAN, AJA )