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[1990] ZASCA 156
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Administrator of Transvaal and Others v Theletsane and Another (239/1989) [1990] ZASCA 156; 1991 (2) SA 192 (AD); [1991] 4 All SA 132 (AD); (1991) 12 ILJ 506 (A) (30 November 1990)
LL
Case
No 239/1989
IN THE SUPREME COURT OF SOUTH
AFR
ICA
APPELLATE DIVISION
In the matter between:
THE ADMINISTRATOR OF
TRANSVAAL
First Appellant
THE DIRECTOR OF HOSPITAL
SERVICEs
Second Appellant
THE SENIOR ADMINISTRATOR OF
VEREENIGING HOSPITAL
Third
Apellant
and
LIZZY THELETSANE
First
Respondent
SARAH MASEOLA
Second
Respondent
CORAM
:
BOTHA,
SMALBERGER, STEYN, F H GROSSKOPF
JJA et NICHOLAS AJA
HEARD
:
5
NOVEMBER 1990
DELIVERED
: 30 NOVEMBER 1990
JUDGMENT
BOTHA JA
:-
2.
I
have
had the benefit of reading the judgment of my Brother SMALBERGER.
I
respectfully disagree with him. For
convenience, and to facilitate the writing of my judgment,
I
shall, in stating my views, frequently link
them to the contrary views expressed by my Colleague, and in doing so
I
shall refer to
his judgment as "the main judgment".
The foundation
of the respondents' claim for relief in their application to the
Court
a quo
is to be found in the excerpts from the first respondent's affidavit
which are quoted in the main judgment. It was that they were
not
afforded a hearing of any kind at all prior to their dismissal on 10
December 1987. That allegation is said in the main judgment
to be
manifestly improbable.
I
agree,
but
I
go further:
in my view the allegation is so fanciful as to be absurd and unworthy
of any credence.
I
shall
return to this aspect of the case later in this judgment. For present
purposes it is to be noted that the respondents'
3. foundational allegation formed
no part of the grounds upon which they obtained relief in the Court
a
quo
. Nor was it relied upon in this Court on behalf of the
respondents. On the contrary, their counsel's argument was based on
the premise
that the respondents had in-deed been afforded a hearing
prior to their dismissal. The argument was that the opportunity which
was
offered to the respondents to make representations was not a
proper opportunity complying with the requirements of the
audi
rule. The case thus sought to be made out for the respondents is an
entirely new one. In support of it, three contentions were advanced:
(a) that no notice was given to the respondents that their dis-missal
was being contemplated, before or at the time that the interviews
with them were held; (b) that the interviews as offered to them were
expressed to be limited in scope to representations regarding
their
reasons for having stayed away from work; and (c) that the interviews
as held in fact excluded representations
4. as to (other) reasons why they
should not be dismissed. No trace of a case based on these
contentions can be found in the respondents'
affidavits.
In the main
judgment it is said that the respondents are entitled to make out a
case for relief on the appellants' own averments if
the latter
provide a proper foundation for relief. As a general proposition
I
accept that that is so. However, when the
proposition is applied to the particular circumstances of the present
case, my approach
differs fundamentally from that which is reflected
in the main judgment.
Part of the reasoning in the main
judgment may, for ease of reference, be stated as follows: the
appellants were not specifically
required to deal with the form of
the hearing given, but they chose to deal fully with the events of
the day in question, not only
to show that the respondents had been
af forded a hearing, but also that the hearing had been a proper
5.
and
fair one; consequently they will not be disadvantaged or prejudiced
if their affidavits are relied upon to determine not only
whether a
hearing took place, but also the nature and ambit thereof; and in
considering the appellants' affidavits the test is whether
they are
reasonably capable of being inter-preted in such a way that they
raise a valid defence to the relief sought by the respondents,
i e
that the respondents were given a fair hearing in relation to why
they should not be dismissed. With respect,
I
am wholly unable to subscribe to this
manner of approaching the appellants' affidavits. It was not for the
appellants to show that
the respondents were given a proper hearing;
they were called upon only to meet the specific allegations put
forward by the respondents
in support of the relief claimed. The
appellants were required to answer a case founded on the allegation
of fact that the respondents
were not given a hearing; they were not
called upon in any other way to raise a
6.
valid defence to the relief
sought. In particular, for
instance, the question whether the
hearing given was
unduly limited in its scope was
not an issue to which
the appellants' deponents were
required to address
their minds. It is not permissible
to consider the
appellants' affidavits in
isolation, divorced from the
context of the case which they
were answering. To the
extent that the appellants'
deponents went further than
may have been necessary to answer
the case as
presented, it cannot be postulated
a
priori
that they
will not be prejudiced if their
affidavits are relied
upon to determine the nature and
ambit of the hearing
that took place. To do so may be
unfair to the
appellants and in effect is
tantamount to reversing the
onus.
Another part of the reasoning in
the main judgment may be stated as follows: the fact that the
appellants' affidavits are not consistent
and uneguivocal concerning
the nature of the hearing given
7.
does not preclude a consideration
of the affidavits
with a view to determining the
true case being put
forward by the appellants; when
dealing with the
equivocality evident in the
affidavits one should adopt
"a robust, common-sense
approach" in deciding what case
is being put forward in them; that
involves that due
regard must be had to the
probabilities; at the same
time, due consideration must be
given to the possible
advantages of
viva voce
evidence as a means of
elucidating or resolving equivocal
statements; and
regard must be had to the
substance and true meaning of
the affidavits, disregarding if
necessary words or
phrases totally inconsistent
therewith. With respect,
I
again
find myself wholly unable to accept this manner
of approaching the affidavits. It
negates the inci-
dence of the onus; it fails to
give due effect to the
contextual setting of the
affidavits as being an answer
to the case put forward by the
respondents; and it may
lead to the drawing of conclusions
which are unfair to
8.
the appellants.
The "true case" put forward by the appellants was that the
respondents had been given a hearing before their
dismissal; it was
no part of the appellants' case to anticipate and counter possible
unstated contentions concerning the supposed
inadequacy of the
hearing given, with reference to its precise nature and ambit. It is
not permissible to base factual findings regarding
such contentions
on a mere weighing up of probabilities.
I
do not wish to comment on the statement
that in considering the affidavits one should adopt "a robust,
common-sense approach";
there is no need for me to do so. For my
purpose it is enough to say that in motion proceedings, as a general
rule, decisions of
fact cannot properly be founded on a consideration
of the probabilities, unless the court is satisfied that there is no
real and
genuine dispute on the facts in question, or that the one
party's allegations are so far-fetched or clearly untenable as to
warrant
their rejection merely on the papers, or
9.
that
viva voce
evidence would not disturb the balance
of probabilities appearing
from the affidavits. This
rule, which is trite, applies to
instances of disputes
of fact (see e g
Sewmungal and Another
NNO v Regent
Cinema
1977 (1) SA 814
(N) at 818G-821G and the authorities discussed there)
and also in cases where an applicant seeks to obtain final relief on
the basis
of the undisputed facts together with the facts contained
in the respondent's affidavits (see
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634E-635C and the authorities cited there). It
is clear, in my view, that the room for deciding matters of fact on
the basis
of
what is contained in a
respondent's affidavits, where such affidavits deal equivocally with
facts which are not put forward directly
in answer to the factual
grounds for relief on which the applicant relies, if it exists at
all, must be very narrow indeed.
Reference was
made above to the onus.
I
do
10.
not
think it can be doubted that in regard to the "issue"
(raised in argument, but not on the papers) as to whether the
hearing
that was given was a proper one, the onus is on the respondents to
prove that it was not. Their counsel sought to argue to
the contrary,
contending that a proper hearing constituted a "juris-dictional
fact" in relation to the Administration's
power to dismiss
summarily.
I
do
not agree with this view of the situation. The power of dismissal
owes its existence to the contract of service, and it exists
independently of the manner in which it is exercised. In the latter
respect, a proper hearing is required by virtue of the principles
of
natural justice, which are imprinted on the contract because of the
relevant legislative provisions, but these bear on the manner
of the
exercise of the power only, and not on its existence as such. The
respondents' case is that their dismissal was wrongful and
unlawful
because of the manner in which they were dismissed. In accordance
11.
with ordinary principles they must
establish the facts relating to one or more of the three contentions
mentioned earlier in this
connection, in order to justify a finding
that the hearing was inadequate and that, in consequence, they were
dismissed wrongfully
and unlawfully.
I
referred
earlier to the danger of drawing conclusions from the appellants'
affidavits which may be unfair to them. In my opinion that
danger
does not permit of a finding in favour of the respondents in this
case. The reality of such a danger can best be demonstrated
by
examining the main source of the equivocation which is to be found in
the appellants' affidavits. It relates to the "issue"
whether the opportunity which was offered to the respondents to make
representations, was expressed to be an unlimited one, embracing
all
reasons as to why they should not be dismissed, or a restricted one,
confined only to reasons as to why they stayed away from
work. In
this
12. regard the affidavits of the
appellants' deponents abound with two phrases:
(i) "redes waarom hulle nie
ontslaan moet word nie"; and (ii) "redes waarom hulle nie
gaan werk het
nie". These expressions are
not mutually exclusive of each other; (i) is simply wider than (ii).
If (i) is considered by itself,
it suggests
prima facie
that
all reasons relevant to dismissal are being contemplated; but if the
user of the expression happens to believe that only a satisfactory
explanation of the stay-away from work is relevant to a dismissai,
his use of (i) would signify no more than (ii). Converseiy, if
(ii)
is considered by itself, it suggests
prima facie
that oniy
reasons relevant to the stay-away were being contemplated; but if the
speaker knows that such reasons are only part of
the wider ambit of
reasons which are relevant to a dismissal, his use of (ii)
13. would
signify only that he was contemplating part of (i). So it is the use
of (i) and (ii) side by side in the affidavits which
lies at the root
of the ambiguity reflected in them. But with regard to the "issue"
whether the opportunity given was an
unlimited or a
restricted
one, it is important to observe that (i) and
(ii),
considered by themselves, are neutral to a
resolution
of the issue; and that neither (i) nor (ii),
by itself,
is inconsistent with the notion of either an
unlimited
or a restricted opportunity. From this
analysis
it seems to me that a number of vital
conclusions
must follow. The very fact that each of
the
appellants' deponents uses both the expressions (i)
and (ii)
shows quite plainly that they were not
addressing
their minds to any possible difference in
meaning
between the two. They had obviously not been
alerted to
the possibility that there might be
significance
in using either the one or the other
expression.
They cannot be faulted for not having been
14.
more
careful in their choice of language, having regard to the
respondents' affidavits and the factual allegations that they were
called upon to answer. In these circumstances
I
am convinced that it would be unfair to the
appellants to decide the case against them purely on what is
contained in their affidavits.
Moreover, the affidavits being
equivocal in the manner explained above, and having regard to the
incidence of the onus,
I
can
see no ground upon which the Court can give preference to the
possible construction which favours the respondents and reject the
other possible construction which favours the appellants, whatever
the probabilities may be. It certainly cannot be said that the
construction favouring the appellants is so fanciful or clearly
untenable that it falls to be rejected out of hand as being false.
And
I
do not see
how the Court can be satisfied that
viva
voce
evidence would not produce
credible testimony that the deponents intended to refer to an
opportunity to be heard in the
15. wide sense and not in the
narrow sense only.
I
propose
to refer briefly only to some
features of the individual
affidavits as analyzed in
the main judgment. Olivier, in
paragraphs 7.6 and 17,
uses expression (i), but in
paragraph 9.1, in dealing
with the questionnaire, he uses
the equivalent of
expression (ii). On the face of
it, his choice of
language cries out for an
explanation. There are
probabilities, mentioned in the
main judgment,
suggesting that for Olivier an
enquiry in the sense of
(ii) was of overriding importance,
thus eclipsing (i).
But his use of (ii) is not
irreconcilably inconsistent
with (i) ; nor is the use of the
questionnaire, or any
of the other probabilities. An
explanation that (ii)
was intended to be referred to
merely as a particular
facet of (i) is by no means
excluded. The same point
emerges even more strongly from
the affidavit of
Harmsen. In paragraph 9 (b) the
impact of his use of
expression (i) is clear. This is
fortified by
16.
paragraph 13(a). Harmsen's
statement that the workers
were told they were "now"
being given an opportunity
"to put their case",
considered in the light of the
history of the preceding court
proceedings, puts paid
to the contention that the
respondents were not
informed that their dismissal was
being contemplated.
In the main judgment it is said
that the case which
each worker was invited to put
appears from Harmsen's
response to paragraph 13(b) of the
first respondent's
affidavit, in which Harmsen uses
the equivalent of
expression
(ii). With respect,
I
do
not agree with
this interpretation of his
affidavit. He was dealing
specifically with the respondents'
allegation that they
had been told the forms were
required to be filled in
simply for record purposes, to
enable them to carry on
their work; his reply related only
to the purpose of
completing the forms; and there is
no reason to surmise
that he was thereby qualifying the
generality of his
previous statements as to the wide
nature of the
17.
opportunity
to be heard. With regard to Nel,
I
respectfuliy disagree with the manner in
which his affidavit is interpreted in the main judgment. Paragraphs 2
and 5, at best for
the respondents, are ambiguous; they are certainly
not inconsistent with the notion that an unrestricted opportunity was
being offered,
relating generally to reasons why the workers should
not be dismissed. Paragraph 9 must be read in that light. So reading
it,
I
can see no
justification for rejecting out of hand Nel's conclusion stated
therein, by reason of the terms of the questionnaire and
the
probabilities. In regard to Bossert, it follows from what
I
have said already that
I
respectfully disagree with the inferences
from his affidavit which are drawn in the main judgment.
The foregoing survey of the
appellants' affidavits shows that there is no clear and unequivocal
statement to be found anywhere in
them that the respondents were not
informed that their dismissal was
18.
being
contemplated, or that the opportunity offered to them to make
representations was in terms limited in its scope, or that the
interviews as held were actually restricted as to the ambit of the
representations that were allowed. The findings in the main judgment
in favour of the respondents on these points, leading ultimately to
the conclusion that the requirements of the
audi
rule had not been complied with, are all based on a process
consisting of the interpretation of the affidavits, the drawing of
inferences
therefrom, and the assessment of the probabilities. Such a
process is not permissible in motion proceedings, as a general rule;
none
of the recognized exceptions to the general rule is applicable
in this case. Moreover, the respondents seek to base a case on the
appellants' affidavits, which is a new case, not foreshadowed in
their founding affidavits. In my opinion the process to which
I
have referred is
a
fortiori
not permissible in these
circumstances.
19.
In
the judgment of the Court
a quo
the order
made in favour of the respondents
was based on grounds
found to exist by
means of a process of reasoning
similar in
nature to that reflected in the main
judgment.
It follows from what
I
have
said that the
order granted cannot be
supported on those grounds.
In
argument before this Court counsel for the respondents advanced a
number of other grounds in support of the order granted. It was
contended that the hearing afforded the respondents was not a fair
one, for three reasons: the short period of the notice given before
the interviews took place; the short time taken over each individual
interview; and the failure to inform the respondents that it
was
intended to hold it against them that some of the other workers had
not been deterred by the strike from performing their duties.
In my
opinion these contentions must fail, because of the exigencies of the
peculiar situation that existed. It was obviously necessary
for the
20.
Administration
to determine the position of the workers
concerned
as quickly as was reasonably possible. A
very
substantial number of the Hospital's work force
were
involved. The situation had been preceded by
Court
proceedings in which the workers were represented
by
attorneys and counsel. In these circumstances
I
do
not consider
that it was unreasonable or unfair to hold the interviews at short
notice, and not to plan for, or
to arrange,
interviews of protracted duration. In any event it seems to me that
these complaints are really
untenable, in
view of the fact that the respondents
have
made no attempt to show that they required, or
requested,
a longer period of notice or interviews of
longer
duration in order to state their case
adequately.
As to the fail
ú
re
to notify them that
account would be taken
of the fact that other workers did not participate in the strike, it
suffices to say
that
I
do not think that failure, in the
particular
circumstances of this case,
resulted in an unfair
21 .
hearing. The next argument was
that Olivier had exercised his discretion improperly by excluding
rele-vant material from the enquiry.
In my view there is no room for
this argument. On the conclusions stated eariier, it must be accepted
that the scope of the hearings
had not been unduly curtailed and that
the respondents were free to make any representations they wished to
make. Olivier's views
as to what was rele-vant are accordingly of no
consequence. Finally, it was argued that the dismissals were wrongful
and unlaw-ful
because Olivier had decided to give the workers,
including the respondents, 24 hours' notice, whereas the notices
served on them
provided for a shorter period of notice in effect.
There is no substance in this argument. It is clear from Olivier's
affidavit that
he believed that summary dismissal for misconduct was
justified. The respondents have not contended to the contrary. The
fact that
Olivier's intention to give 24 hours' notice was not
carried into effect is
22.
irrelevant.
There remains one matter to be
dealt with. In view of the conclusion arrived at earlier, the
question arises as to what order is to
be made now in respect of the
respondents' application. In this Court their counsel submitted that,
if his main argument based on
the appellants' affidavits failed, the
application should nevertheless not be dismissed, but should be
referred to
viva voce
evidence. This is in accordance with the
stance taken up by counsel in the Court
a quo
. In
Kalil v
Decotex (Pty )Ltd and Another
1988 (1) SA 943
(A) at 981D-E
CORBETT JA, after referring to a number of cases in which it was held
that an application to refer a matter to evidence
should be made at
the outset and not after argument on the merits, observed that that
was no doubt a salutary general rule, but that
he did not regard it
as an inflexible one. The.recent tendency of the courts seems to be
to allow counsel for an applicant, as a
general
23.
rule, to
present his case on the footing that the applicant is entitled to
relief on the papers, but to apply in the alternative for
the matter
to be referred to evidence if the main argument should fail: see
Marques v Trust Bank of Africa Ltd and
Another
1988 (2) SA 526
(W) at
530E-531I and
Fax Directories (Pty) Ltd
v S A Fax Listings CC
1990 (2) SA 164
(D & C) at 167B-J. It seems to me that such an approach has much
to commend itself, for the reasons stated in the last-mentioned
two
cases, but for the purposes of the present case there is no need to
pursue the point. Here the respondents were granted relief
on the
papers, but wrongly as it has now turned out.
I
shall assume that this Court has a
discretion to substitute for the order of the Court
a
quo
an order referring the matter to
evidence. In my judgment, however, there are cogent reasons why such
a course ought not to be followed.
I
mentioned earlier that the respondents'
application was founded on an allegation that was so far-fetched as
to
24. be absurd. Their case amounted
to this, that the Administration's officials deliberately set out to
mislead and deceive them in
a manner so clumsy and blatant that there
is no prospect of it being believed. The allegations were persisted
with in the replying
affidavits. To begin with, therefore, there is
nothing in the respondents' affidavits which is worthy of
investigation by
viva voce
evidence. Turning to the
appellants' affidavits, they do not give rise to a "dispute of
fact" in the ordinary meaning of
that expression. The
respondents tried in argument to build up a case on the foundation of
those affidavits, quite different from
the case put forward by them.
It has now been found that the appellants' affidavits are ambiguous
and consequently not capable of
establishing the case sought to be
made out. In these circumstances the submission that the matter
should now be referred to evidence
amounts to a second application,
in the alternative, to be given an opportunity of trying to
25. make a case purely out of the
cross-examination of the appellants' deponents. In the meantime about
three years have elapsed since
the respondents' dismissal, and nearly
two years since the Court
a quo
delivered its judgment. In my
opinion justice requires that the application to refer the matter to
evidence must be refused.
The order of the Court is as
follows:-
The appeal is allowed with costs,
including the costs of two counsel.
The order of the Court
a quo
is set
aside, and there is substituted
for it
the following order:
"The application is dismissed
with costs, including the costs of two counsel."
A.S. BOTHA JA
STEYN JA
F H GROSSKOPF JA
CONCUR
NICHOLAS AJA
239/89
N
v H
IN THE SUPREME COURT OF SOUTH
AFRICA
(
APPELLATE DIVISION
)
In the matter between:
THE ADMINISTRATOR OF
TRANSVAAL
First Appellant
THE DIRECTOR OF HOSPITAL
SERVICES
Second Appellant
THE SENIOR ADMINISTRATOR OF
VEREENIGING HOSPITAL
Third
Appellant
and
LIZZY THELETSANE
First
Respondent
SARAH MASEOLA
Second
Respondent
CORAM
:
BOTHA,
SMALBERGER, STEYN
F H, GROSSKOPF, JJA
et
NICHOLAS, AJA
HEARD
:
5
November 1990
DELIVERED
:
30
November 1990
JUDGMENT
SMALBERGER, JA :-
The first and second respondents
(as applicants) sought an order in the Witwatersrand Local
/2
2
Division against the appellants
(as respondents)
declaring,
inter alia
, that
their purported dismissal
on 10 December 1987 from the
employ of the Transvaal
Provincial Administration ("the
Administration") was
wrongful and unlawful. The matter
came before
STREICHER, J. The learned judge
granted the
application and issued the
following order:
"1. It is declared that the
applicants are in the lawful employment of the Transvaal Provincial
Administration.
It is declared that
the
applicants' dismissal on
10
December 1987 was wrongful
and
unlawful.
It is declared that the
applicants are entitled to be paid their salaries as employees of
the Transvaal Provincial Administra= tion
for the period 11 December
1987 to date.
The respondents are directed to
take all steps necessary to cause and to ensure that the applicants
/3
3
are paid their salaries as
employees of the Transvaal Provincial Administration for the period
11 December 1987 to date.
5. The respondents are ordered to
pay the costs of the application jointly and severally, such costs to
include the costs occasioned
by the employment of two counsel."
The appellants appeal against this
order with leave of
the judge a
quo
.
The relevant events preceding
those of
10 December 1987 (which will be
dealt with in some
detail later) are common cause and
to the following
effect. The first and second
respondents have been
employed by the Administration as
cleaners at the
Vereeniging Hospital ("the
Hospital") since 1974 and
1971 respectively. They have,
since 1978 and 1976
respectively, been members of, and
monthly contri=
butors to, a pension scheme which
now falls under the
Temporary Employees Pension Fund
Act 75 of 1979.
/4
4 On 27 October 1987 workers at
the Hospitai went on strike. The reason for the strike was the
refusal of the Hospital's authorities
to recognise the trade union to
which the workers belonged and the subsequent dismissal of four of
their leaders. The first respondent
was on leave at the time, but she
subsequently failed, when her leave ended, to return to work. The
second respondent likewise stayed
away from work. The Administration
proceeded to dismiss workers participating in the stay-away. It did
so without giving them a hearing.
In this way both first and second
respondents came to be dismissed. The first respondent and three of
her co-workers thereupon brought
an urgent application in the
Witwatersrand Local Division for an order declaring their purported
dismissal wrongful and unlawful
and of no force and effect. The
matter came
/5
5 before GOLDSTONE, J, who granted
the application. The judgment is reported as
Mokoena and Others v
Administrator, Transvaal
1988(4) SA 912 (W).
The learned judge in
Mokoena's
case held
that the applicants' membership of
the pension scheme
entitled them to a hearing before
they could be
dismissed, in accordance with the
principles of
natural justice enshrined in the
maxim
audi alteram
partem
("the
audi
rule"). He stated (at 917 G)
"That someone in the position
of Mrs Mokoena or the other applicants who were members of the
pension scheme can be dismissed
and the right to their pension
thereby destroyed on the whim of an official and without enquiry,
must be repugnant to any reasonable
and decent person. The unfairness
of it is really patent."
He consequently held that the
applicants were entitled
to a hearing before a decision was
taken to terminate
their employment and so destroy
their right to a pen=
sion upon retirement. He further
stated (at 918 B)
/6
6
that the official determining the
question of their dismissal "would have been obliged to give
honest and
bona fide
consideration to any representations made
by them. Failure to have done so would have vitiated such a
decision". In addition
to declaring the purported dismissal of
the applicants wrongful and unlawful, GOLDSTONE, J, also granted an
order declaring that
the applicants "remain in the lawful employ
of the Transvaal Provincial Administration". The effect of the
judgment, therefore,
was that the applicants (including the first
respondent) were reinstated in their employment. It was accepted by
all concerned that
the judgment in
Mokoena's
case applied
equally to all workers at the Hospital (including the second
respondent) in a position similar to that of the applicants
in that
case. The judgment in
Mokoena's
case was delivered on 9
December
/7
7
1987.
Its correctness was not challenged in the
present
appeal. It is common cause that compliance
with
the
audi
rule was a prerequisite for the lawful dismissal of the first and
second respondents. It is
against this
backdrop that
I
turn
to consider, for the
purposes of the
present appeal, the events which it
must be
accepted occurred on 10 December 1987, and the
legal
consequences flowing therefrom.
At
approximately 05h45 on the morning of 10 December 1987 a number of
reinstated workers, including the two respondents, presented
themselves for work at the Hospital. There is a marked dispute on the
affidavits concerning the ensuing events, which
culminated
in the dismissal of 189 workers. The case
advanced
by the respondents was that they were again
dismissed
without a hearing. As to what occurred,
the first
respondent alleged the following (in
paragraph
13(a) and (b) of her founding affidavit):
/8
8
"(a) In
particular,
I
state
that at about 07h30 the Third Respondent, Mr Harmsen, arrived. He
addressed the assembly so gathered by means of a loud hailer.
There
were several hundred of us. He informed us that he was too busy
preparing the necessary forms required to enable us to resume
work.
He further advised that we ought not to be surprised to see the
presence of other workers employed during our absence as the
said
workers were going to complete their employment on the lOth December
1987. We, however, would only be able to resume our positions
on the
following day, namely the llth December 1987. He asked us to be
patient and to wait whilst the forms necessary for us to resume
our
work were prepared.
(b) Apart from this address, Mr
Harmsen did not explain to us why it was necessary to sign any form.
We all understood the position
to be that these forms related to
administrative procedures which had to be complied with so as to
enable us to resume employment
the following day."
/9
9
After setting out how she was
called to a certain hall
where an official of the
Administration interviewed
her and filled in a form, her
affidavit continues
(paragraph 14):
"Later
that day,
I
was
presented with a document by the Administration's officials. This
document, which is headed, Termination of Employment, indicated
that
I
had allegedly
been given an opportunity on the lOth December 1987 to advance
reasons why
I
should
not be dismissed. It is alleged that it was verbally intimated to me
that my services had been terminated with effect from
the llth
December 1987, and that that verbal intimation was confirmed by the
said notice. My last working day was therefore to be
the 10th
December 1987."
Reverting to what occurred when
she was questioned in
the hall she claimed (paragraph 16
(a)):
"It was
never stated to me that my questionlng at the table in the hall was
in fact a hearing requiring me to advance reasons
why
I
should not be dismissed. Furthermore, no
adverse facts were ever brought to my attention as being relevant to
such an enquiry. As
I
have
already indicated, the whole purpose of answering
/10
10
questions and signing the form was
represented to me as being necessary to enable the Administration to
attend to its bureaucratic
paperwork so as to facilitate the
resumption of employment on the llth December 1987, and to secure my
arrear salary. The Third Respondent
had made it clear to all the
workers assembled that our employment would be recommencing on the
llth December 1987."
Similar allegations are made by
the second respondent.
The appellants strenuously deny
the
respondents' allegations. They
claim that the
respondents were given a fair
hearing before their
dismissal.
I
shall in due course analyse the
affidavits filed on behalf of the
appellants in some
detail in order to determine what
form the hearing
took, and whether the requirements
of the
audi
rule
were complied with. It is common
cause that at the
commencement of the hearing the
appellants, on account
of the irreconcilable factual
disputes, took up the
attitude that the matter should be
referred to oral
/11
11
evidence. The respondents
contended that the matter could be decided on the appellants'
affidavits; alternatively they asked that
the matter should be
referred to evidence. In the event the judge a
quo
, applying
the principles laid down in
Plascon-Evans Paints Ltd v Van
Riebeeck Paints (Pty) Ltd
1984(3) SA 620 (A) at 634 E - G,
arrived at his judgment having regard to the averments made by the
appellants together with such
facts as were common cause.
The case put
forward by the respondents in their affidavits (apart from the
guestion of whether they were given adequate notice) is,
as
I
have already pointed out, that they were
not given a hearing before their dismissal. The appellants deny this.
In the light of the
preceding events which culminated in the judgment
of GOLDSTONE, J, in
Mokoena's
case it is
/12
12 manifestly
improbable that the respondents were not afforded a hearing of any
kind. If it is accepted (at any rate for the purposes
of this appeal)
that they were given a hearing, then one must look to the appellants'
affidavits to determine the nature and ambit
of such hearing.
Notwithstanding the fact that the appellants' allegations are (in the
respects that matter) at total variance with
theirs, the respondents
are entitled to make out a case for relief on the appellants' own
averments if they provide a proper foundation
for such relief. This
would seem to follow logically from what was stated in the
Plascon-Evans
case (
supra
)
at 634 H -
I.
In
this regard
I
am
mindful of the fact that the case the appellants were called upon to
meet was that the respondents had not been afforded any hearing
before dismissal. They were not specifically required to
/13
13
deal with the
form which the hearing they claim to have given the respondents took.
However, it is apparent, from a proper perusal
of the appellants'
affidavits, that they chose to deal fully with the events of the day
in question. The purpose thereof was not
only to show that the
respondents had been afforded a hearing, but that the hearing had
been a proper and fair one. Because of the
course they chose to adopt
the appellants will not, in my view, be disadvantaged or prejudiced
if their affidavits are relied upon
to determine not only whether a
hearing took place, but the nature and ambit thereof.
I
did not understand Mr Weinstock, for the
appellants, to contend to the contrary. Once the nature and ambit of
the hearing afforded
the respondents has been established, the next
step will be to enquire whether such hearing satisfied the
requirements of the
audi
/14
14
rule.
Before analysing the appellants'
affidavits
I
need
to consider the correct way in which to
approach them. A problem arises in
the present
matter because the appellants'
affidavits are not
entirely consistent and
unequivocal concerning the
nature of the hearing they claim
the respondents were
given on 10 December 1987. After
carefully
considering the affidavits deposed
to by the
appellants' officials concerned,
the judge a
quo
arrived at the following
conclusion:
"The Administration conducted
an inquiry which consisted of no more than a series of questions to
the applicants. All the questions
related to the question whether the
applicants had stayed away from work and what the reason for them
staying away was. The applicants
were not given an opportunity to
state their contentions not related to the stay-away but related to
the decision to dismiss. The
applicants were therefore not afforded a
proper hearing and a proper opportunity to state their contentions as
to
/15
15
why they should not be dismissed,
but only a very constricted opportunity to state some of their
contentions."
This finding was reached
notwithstanding passages in
the appellants' affidavits which
suggest that a wider
enquiry was held, and that the
respondents were
afforded 'an opportunity to
advance reasons why they
should not be dismissed. The
equivocality evident
in the appellants' affidavits does
not preclude a
consideration of the affidavits
with a view to
determining the true case being
put forward by the
appellants. Just as in the case of
disputes on
motion, so too, when dealing with
equivocality of
the kind present in the
appellants' affidavits, one
should adopt "a robust,
common-sense approach" (per
PRICE, JP, in
Soffiantini v
Mould
1956(4) SA 150 (E)
at 154 G) in deciding what case is
being put forward .
in the affidavits. As further
stated by PRICE, JP,
/16
16 in
Soffiantini's
case at 154 H (in a slightly different context, but equally
applicable here): "Justice can be defeated or seriously impeded
and delayed by an over-fastidious approach to a dispute raised on
affidavits". See, too, in this regard the remarks of COLMAN,
J,
in
Carrara & Lecuona (Pty) Ltd v Van
der Heever Investments Ltd and Others
1973(3) SA 716 (T) at 719 G, viz:
"I
accept the duty to avoid fastidiousness and
to make a robust approach to the matter, applying as much common
sense to the problem
as
I
may
happen to command". The application of common sense to a problem
such as the present requires that due regard be had to the
probabilities. At the same time, due consideration must be given to
the possible advantages of
viva
v
oce
evidence as a means of elucidating or resolving equivocal statements
(cf
Sewmungal and Another NNO v Reqent
Cinema
1977(1) SA
/17
17 814 (N) at 820 E - F). In each
case the proper approach to adopt will needs depend upon the peculiar
circumstances of such case
(cf.
Wiese v Joubert en Andere
1983(4) SA 182 (0) at 203 C). Ultimately, it seems to me, the test is
whether an opposing party's affidavits (bearing in mind the
possible
effect of
viva voce
evidence) are reasonably capable of being
interpreted in such a way that they raise a valid defence to the
relief sought by the applicant.
Differently put, there must be
reasonable certainty that the opposing affidavits are not capable of
sustaining a defence. This boils
down to the question, in the present
matter, whether the appellants' affidavits are reasonably susceptible
of the interpretation
that the respondents were given a fair hearing
in relation to why they should not be dismissed. In considering this
matter regard
must be
/18
18 had to the substance and true
meaning of the affidavits, disregarding if necessary'words or phrases
totally inconsistent therewith.
I
turn
now to consider, firstly, the affidavit of Mr Olivier, a director of
Hospital Services in the Administration in charge of
"arbeidsaangeleenthede
en spesifiek wegbly- of staking -aksies
by provinsiale hospitale en inrigtings". It fell largely to him
to decide what steps,
if any, were to be taken concerning the
respondents' continued employment. It was he who co-ordinated the
procedures followed and
the interviews held on 10 December; he too
ultimately decided on the fate of the workers. His approach and
attitude must inevitably
have influenced and guided the officials
under him. In paragraph 7.6 of his affidavit Olivier said the
following:
/19
19
"Na die uitspraak van die hof
het ek na ek regsadvies ontvang het, besluit dat die werkers wat aan
die pensioenfonds vir tydelike
werknemers behoort en wat versuim het
om aan te meld vir hulle normale diens toe hulle moes, aangehoor
behoort te word om redes aan
te voer waarom hulle nie ontslaan moes
word nie. Die applikante het onder hierdie groep resorteer."
In a later passage in his
affidavit (in paragraph 17)
Olivier states:-
"Die uitspraak van die hof
maak dit duidelik dat nieteenstaande die bepalings van die applikante
se dienskontrakte, diegene wat
pensioenbydraes gemaak het, 'n
geleentheid gegee moes gewees het om te verduidelik waarom hulle nie
ontslaan moes word vir hulle
versuim om te werk nie."
This reflects the correct approach
- if
their dismissal was contemplated
the respondents were
entitled to be informed
accordingly and given an
opportunity to put their case. But
despite what he
says, is this really what Olivier
had in mind, or did
he contemplate some lesser, more
restricted enquiry?
Earlier actions speak louder than
subsequent words,
/20
20
and to answer this question one
needs, in the first place, to look at what he did. Thereafter one
must examine the considerations
which governed his decision to
dismiss the respondents. These are the true pointers to his state of
mind at the time, and are indicative
of the likely nature of the
hearing the respondents would have been afforded.
Olivier organized eight teams of
two persons each to conduct the necessary enquiries and to question
each worker who qualified for
a hearing. For this purpose standard
prepared questionnaires were used on which the workers' answers were
to be recorded. Once completed
the questionnaires were to be attested
by a commissioner of oaths. These questionnaires are of great
significance - so much so that
they are, in my view, ultimately
conclusive of the nature of the hearing that took place. The
pro
/21
21
forma
questionnaire reads
as follows:-
"AFFIDAVIT
CLOCK
NO:
NAME:
REFERENCE NO:
ADDRESS:
1. Did you clock in on 27 October
1987? Yes/No.
At what time?
Did you leave the Hospital
premises of your own will? Yes/No.
2. Did you clock out on 27 October
1987? Yes/No
3. On what reason did you leave
the Hospital
premises on 27 October 1987?
4. Did you report f or duty on the
days
following 27 October 1987? Yes/No.
Were you day - off/on leave/sick
leave on 27 October 1987?
When did you resume duty? "
It will immediately be apparent
from the wording of the questionnaire that it is concerned only with
the events of 27 October 1987
and the subsequent stay-away. It seeks
only to elicit information relevant thereto. It does not invite the
worker to advance any
reason why he or she should not be dismissed
for staying away from work - as one would
/22
22
confidently have expected if that
had been the purpose
of the enquiry. The wording of the
questionnaire
strongly suggests an enquiry or
hearing limited to
whether the workers could
satisfactorily explain their
absence from work. The form and
content of the
questionnaire are at variance with
any suggestion of a
hearing designed to give the
workera an opportunity to
state their case against
dismissal. Support for
this view is to be found in
paragraph 9.1 of the
affidavit of Olivier where he
said:
"Afgesien van die betrokke
vrae is aan elke algemene assistent op taktvolle wyse gevra of hy
enige bykomende besonderhede wil
verstrek waarom hy op 27 Oktober
1987 of daarna nie gewerk het nie. Ek verwys na die eedsverklarings
van MNR NEL bylae 'JW04' en
MNR BOSSERT bylae 'JW05'. Sodanige
bykomende inligting is dan op die blanko gedeelte paslik aangebring
deur die betrokke span."
/23
23
As Olivier was not himself
concerned with the completion of the questionnaires he was obviously
not speaking from personal knowledge
- but his statement no doubt
mirrors his instructions to his subordinates. And that any further
questions were limited (at least
in the case of the first and second
respondents) to why "[s]y op 27 Oktober 1987 of daarna nie
gewerk het nie" appears
from the additional information recorded
on their respective questionnaires. In this regard the first
respondent is recorded as having
said "Was met verlof. Toe ek
wou terug keer, het mense gesê die baas sê niemand mag
kom werk nie. Sy was bang. Die
radio het ook gesê dat almal
afgedank is en dat nuwe mense in diens geneem is. Ek het nie geweet
wat om te doen nie."
The second respondent simply stated "Ek
was bang om terug te keer werk toe." It seems to me improbable
in the extreme that
if either respondent
/24
24 had been
asked to advance reasons why they should not be dismissed their
answers would not have focussed cm that question. One
would at least
have expected some reference to their length of service, the
financial prejudice they would suffer, the absence of
previous
disciplinary steps against them and perhaps even a promise or
undertaking not to again participate in a stay-away. After
all,
following on the application before GOLDSTONE, J, their minds must
have been attuned to such considerations faced as they had
been with
the danger of dismissal.
I
cannot
accept that they would have been so astute as to have deliberately
refrained from giving answers of that kind in order to strengthen
their hand in a later application for the setting aside of their
dismissals. Their lack of response also indicates a subjective belief
cm their part that the question of their dismissal was not being
considered at
/25
25
that stage. The questionnaires'
total silence, both
in respect of guestions and
answers, in relation to
reasons why the respondents should
not be dismissed, to
my mind overwhelmingly indicates
that they were never
asked to advance any reasons in
that regard.
A perusal of Olivier's affidavit
reveals that
he considered only the
guestionnaires and that his
dismissal of the two respondents
was based on the fact
that they could offer no
acceptable explanation for
staying away from work. In
paragraph 9.3 of his
affidavit he states that:
"Nadat die verskillende
kommissarisse van ede met die vorms gehandel het, het ek elke
individuele vorm met enige bykomstige redes,
behoorlik nagegaan. Nie
in een geval kon ek grondige rede vind waarom die persoon toegelaat
moes gewees het om dienste onvoorwaardelik
voor te sit nie."
He then proceeds to provide
details of the numbers of
workers who did not participate in
the strike or
stay-away, and continues
(paragraph 9.4):
/26
26
"Daar is van die standpunt
uitgegaan dat as al hierdie persone met hulle werksaamhede kon
voortgegaan het is die rede wat deur
sommige ontslane werkers
aangevoer is, nl. dat hulle geintimideer was, nie aanvaarbaar nie, en
dat daar hoegenaamd geen substansie
vir hulle bewering is dat hulle
nie geweet het dat hulle moes kom werk het nie."
In relation specifically to the
first respondent he
concludes (paragraph 9.6):
"Insgelyks is die eerste
applikant LIZZY THELETSANE se redes waarom sy nie haar normale
dienste voortgesit het nie, gemeet teen
voormelde feite, nie
aanvaarbaar nie."
He essentially adopts a similar
attitude towards the
second respondent.
The only yardstick for dismissal
applied by
Olivier was whether there was an
acceptable
explanation for staying away from
work. Nowhere
does he refer to any other
consideration. That being
so, it is more than likely that
the interviews would
have been confined to the question
whether the
/27
27 workers could satisfactorily
explain their absence from work. Olivier obviously failed to
appreciate the distinction between an
enquiry that (1) asked for
reasons to be advanced why a worker had stayed away from work, and
(2) one that called for reasons why
such worker should not be
dismissed. He equated the one to the other, whereas they are separate
and at times distinct enquiries.
The first is narrower than the
second; the second, being a broader enquiry, could encompass the
first. The first enquiry alone would
not satisfy the requirements of
the second; in many instances the second enquiry would only arise if
the first produced no satisfactory
explanation. The approach Olivier
adopted precluded him from ever reaching the second enquiry. He
appears to have simply taken up
the attitude that if a worker could
not provide a satisfactory explanation for his or her
28/
28
absence
from work, dismissal had to follow as a matter of course. This is
partly evidenced by the fact that he dismissed all the workers
who
returned to work on 10 December 1987.
I
turn
next to consider the affidavits of Olivier's subordinates Messrs
Harmsen, Nel and Bossert.
I
do
so against the background of Olivier's affidavit, bearing in mind
that they would have followed Olivier's instructions and directives
with regard to the procedures to be followed and the form of
interview to be held. They would therefore not have pursued a course
other than that indicated by Olivier.
Harmsen is the assistant director
of the Hospital. He was present at the Hospital on 10 December 1987.
In regard to the arrangements
made to give the workers a hearing he
stated the following (in paragraph 9(b) of his affidavit):
29/
29
"Aangesien daar opdrag gegee
is deur MNR OLIVIER dat al die werkers wat aan die pensioenfonds
behoort en gestaak het die geleentheid
gegee moet word om aangehoor
te word, waarom hulle nie ontslaan moet word nie, is daar verskeie
beamptes se hulp verkry en was agt
spanne behulpsaam. Elke span het
bestaan uit twee beamptes wat werkers dan individueel gespreek het.
Tydens hierdie gesprek is die
werkers gevra om die vorm, bylae 'JW03'
te voltooi en gevra of hy enige redes wil aanvoer waarom hy nie
ontslaan moes word nie. Indien
hy sodanige redes wou aanvoer was dit
op die vorm neergeskryf. Beide applikante het verdere redes aangevoer
soos blyk uit die vorm,
bylaes 'JN1' en 'FB1'. Nadat die vorms
voltooi is, is die werkers na 'n Kommissaris van Ede geneem wat die
verklaring beëdig
het waarna die vorm na MNR OLIVIER geneem is
wat dan besluit het of die werker ontslaan moes word al dan nie. MNR
OLIVIER het besluit
dat beide applikante ontslaan moes word.
At a later point in his affidavit
he says: "Ek ontken
dat die applikante onbewus was van
die feit dat hulle
gespreek is om redes aan te voer
ten einde ontslag te
verhoed." Much of paragraph
9(b) of Harmsen's
affidavit is hearsay. He is unable
to speak
30/
30
personally of what transpired when
the respondents were
guestioned and, in particular,
whether they were asked
to advance reasons why they should
not be dismissed.
While
I
accept
Harmsen's present belief that Olivier
gave the instruction referred to
in the guoted passage
it is unlikely, having regard to
Oliviers' probable
state of mind, that the
instruction would have been
given in those terms. What Harmsen
claims he was
told must be tested against his
conduct at the time.
In response to the allegations in
paragraph 13(a) of
the first respondent's affidavit
he stated:
"Ek het die werkers, 189 in
getal, met h megafoon toegespreek en vir hulle gesê dat hulle
nou h geleentheid gebied sal
word om hulle saak te stel."
The case each worker was invited
to put appears from
his response to paragraph 13(b),
vlz:
"Dit was duidelik gestel dat
die vorms voltooi moes word om elke werker se werksbywoning te bepaal
en hom die
31/
31
geleentheid te gee om sy
werks-afwesigheid te verduidelik."
(This, it may be observed, is in
keeping with Olivier's
perception of what form the
hearing should take.)
Significantly, nowhere in
Harmsen's affidavit does he
specifically state that he
personally ever advised the
workers that they were to be
allowed an opportunity to
put forward reasons why they
should not be dismissed.
If anything his affidavit, viewed
in relation to what
he actually did, points to the
workers being given an
opportunity to explain their
absence from work
nothing more.
Nel was the official who conducted
the
interview with the first
respondent. From my analysis
of Olivier's affidavit it seems
very unlikely that he
would have instructed Nel to ask
the first respondent
(or, for that matter, any other
worker) for reasons why
she should not be dismissed. The
opening sentence of
32/
32 paragraph 2 of his affidavit is
entirely consistent with Olivier's probable directives. It reads:
"Op 10 Desember 1987 was ek
een van die
persone wat behulpsaam was ten
einde die werkers wat versuim het om te kom werk sedert 27 Oktober
1987 aan te hoor en h verduideliking
te vra vir die versuim."
With regard to the interviews he
conducted, Nel stated
(in paragraph 5 of his affidavit):
"Ek het vir die werkers
duidelik gemaak dat die ondersoek gehou word sodat hulle kon
verduidelik waarom hulle van die werk afgebly
het sedert die staking
op 27 Oktober 1987 en dat dit gedoen moet word ten einde hulle in
staat te stel om hulle werk te behou
en dat hulle vir my enigiets
moet vertel wat hulle wil vertel in hierdie verband
." (My
underlining.)
The words underlined could,
notionally and
grammatically, relate to either
"waarom hulle van die
werk afgebly het" and "ten
einde hulle in staat te stel
om hulle werk te behou". But
having regard to their
general context, the instructions
Nel would probably
33/
33
have been given by Olivier, and
the passage from paragraph 2 of Nel's affidavit quoted above, they
must, in my view, be taken to refer
to why they stayed away from
work. That, after all, was the focal point of the enquiry according
to Olivier. In any event, asking
workers to explain their absence
from work in order that they might retain their employment (on the
basis, presumably, of their furnishing
a satisfactory explanation for
such absence) is not quite the same as asking workers to furnish
reasons why they should not be dismissed.
The latter is a broader,
more explicit enquiry. But even going so far as accepting that Nel
believes that he asked the workers to
furnish reasons why they should
not be dismissed, it is improbable that he did so. Because if he did,
one would have expected the
first respondent to have reacted
positively, or Nel to have elicited information relevant thereto. It
is
34/
34
quite apparent from the
questionnaire completed by the
first respondent that neither
happened. In the
concluding paragraph of his
affidavit (paragraph 9) Nel
states:
"Ek bevestig dat nie alleen
die eerste applikant nie maar al die werkers wat ek ondervra het,
baie duidelik bewus was van die
rede waarom hulle aangehoor is en dat
dit waa om redes te verskaf waarom hulle nie ontslaan moet word nie."
This is a conclusion which Nel
draws which is not
justified when regard is had to
the terms of the
questionnaire and the
probabilities. Significantly,
too, it is the f irst time in his
af f idavit that Nel
makes specific reference to the
reasons for the
interviews being to enable workers
"om redes te verskaf
waarom hulle nie ontslaan moet
word nie".
The official who interviewed the
second
respondent was
Bossert. What
I
have
said in regard to
Nel is of equal application to
Bossert, whose affidavit
35/
35
is couched in similar terms to
that of Nel, with one important exception. Bossert does not draw the
conclusion which Nel does in paragraph
9 of his affidavit. What
Bossert does say (paragraph 5) is
that:
"Na voltooiing van die
vraelys het ek elke werker gevra of daar enigiets is wat hy of sy wil
vertel waarom hy nie die betrokke
dag gaan werk het nie."
This was the cardinal enquiry
which Olivier had in
mind, and the question one would,
in the circumstances,
expect to have been asked of the
workers. The
"vraelys" contained no
questions remotely related to
reasons why second respondent
should not be dismissed.
The only other question which
Bossert asked is that
referred to in the above
quotatioh. That too did not
constitute an invitation to
provide reasons against
dismissal. It follows from what
Bossert said he
did
that he never afforded the second
respondent an
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36
opportunity to furnish reasons why
she should not be dismissed. If Bossert did not do so, why would Nel?
They were, after all, both
carrying out the same instructions and
performing the same duties.
In the light of the above analysis
what conclusion can be reached (despite the degree of equivocation
present in their affidavits)
regarding the appellants' version of the
relevant events of 10 December 19877 In my view the appellants'
version can be said with
reasonable certainty to amount to the
following:
Olivier was aware of the fact
that the respondents were entitled to an opportunity to make
representations if their dismissal was
being contemplated;
Olivier was of the view that all
that needed to be established was whether or not the respondents had
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37
a satisfactory explanation for
staying away from work;
What was conveyed to the
respondents by the appellants' officials prior to and during the
interviews held with them was that what
was to be canvassed were
their reasons (or explanations) for having stayed away from work;
The interviews held were in fact
confined to this limited sphere of investigation;
The respondents were not asked to
advance reasons why they should not be dismissed from their
employment. Nor were they specifically
made aware by the appellants'
officials that their dismissal was being contemplated.
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38
(f) The only consideration which
Olivier considered relevant in deciding whether the respondents
should be dismissed was whether they
had an acceptable explanation
for having absented themselves from work. In my view the appellants'
affidavits, on a proper
approach thereto, are not
reasonably capable of the
interpretation that the
respondents were afforded an
opportunity to advance reasons why
they should not be
dismissed (as opposed to reasons
why they had stayed
away from work). The probabilities
are so
overwhelmingly in favour of the
conclusions reached
that
viva voce
evidence is
unlikely to bring about any
change in the situation -
particularly as the impact of
the questionnaire will essentially
remain unaffected by
viva voce
evidence.
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39
Have the requirements
of the
audi
rule been satisfied in the present matter having regard to what
I
have found the
appellants' version of the events of 10 December 1987 to be? Before
dealing with this there is another matter which
requires to be
mentioned and disposed of. There is no justification for holding (in
the absence of any specific intimation to them
by the appellants'
officials to that effect) that the respondents, when interviewed,
appreciated (or must of necessity have appreciated)
that what was
being contemplated was their dismissal, and that they should
therefore of their own accord have advanced reasons against
their
dismissal. In finding for the applicants in
Mokoena's
case GOLDSTONE, J, held that they were entitled to a fair and proper
hearing before their dismissal. He did not direct that they
should be
afforded a hearing of any kind. His order simply reinstated the
dismissed workers. They would have
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40
returned to work in the belief
that they could continue
their employment. The respondents,
unless advised
accordingly, would not have known
the precise purpose
of the interviews. At best for the
appellants it can
be said that the respondents must
have suspected that
the interviews had to do with the
continuation of their
employment. But it cannot be said
that they must
have appreciated that what they
were being afforded was
an opportunity to state reasons
why they should not be
dismissed.
It is neither necessary, nor
desirable, to
attempt to define the parameters
of the
audi
rule.
Its principles are flexible, and
should remain so.
In the words of TUCKER, LJ, in
Russell v Duke of
Norfolk and Others
[1949] 1
ALL ER 109
[CA] at 118:
"The requirements of natural
justice must depend on the circumstances of the case, the nature of
the inquiry, the rules under
which the tribunal is acting, the
subject-matter that is being dealt with, and so forth.
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41
Accordingly,
I
do not derive much assistance from the
definitions of natural justice which have been from time to time
used, but, whatever standard
is adopted, one essential is that the
person concerned should have a reasonable opportunity of presenting
his case."
(See
Turner v Jockey Club of
South Africa
1974(3) SA
633 (A) at 646 D - F.) What the
audi
rule calls for
is a fair hearing. Fairness is
often an elusive
concept; to determine its
existence within a given set
of circumstances is not always an
easy task. No
specific, all-encompassing test
can be laid down for determining whether a hearing is fair -
everything will depend upon the circumstances
of the particular case.
There are, however, at least two fundamental requirements that need
to be satisfied before a hearing can
be said to be fair; there must
be notice of the contemplated action and a proper opportunity to be
heard. Applied to the facts of
the present case, the respondents
should at least have been made aware of the
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42
fact that their dismissal was
being contemplated, and have been afforded an opportunity of
advancing reasons why they should not be
dismissed. It is not
necessary to decide whether the notice of the contemplated action
should always precede the opportunity to be
heard, or whether they
can occur concomitantly. Circumstances may justify an attenuated
hearing e g where prompt and decisive action
is called for (cf
The
Administrator of Transvaal and Others v Zenzile and Others
,
unreported Appellate Division judgment delivered on 27 September 1990
at p 55). An attenuated hearing is one limited as to the form
it
takes but not as to its essential nature. The enquiry must still go
to the heart of the matter, and not to some lesser consideration.
When all is said and done, however, the ultimate test of whether the
notice was adequate and the opportunity of being
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43
heard a proper one is whether the
overall proceedings, objectively considered, were fair in the
circumstances. In the present instance
it is common cause that the
respondents were entitled to be heard before any action to dismiss
them was taken. They were, more specifically,
entitled to be heard in
relation to the question of their dismissal. A failure to afford them
a proper opportunity to advance reasons
why they should not be
dismissed would vitiate any decision to dismiss them. Such failure
occurred in the present case. The respondents
were not given a fair
hearing on the question of whether or not they should be dismissed.
They were given a limited hearing - an
opportunity to explain why
they had stayed away from work - when the real issue was the broader
one of their dismissal. Once the
respondents were entitled to be
heard on the question of why they should not be dismissed, it was
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44
not sufficient to provide them
only with an opportunity to explain their absence from work. The
hearing they were given therefore
did not satisfy the requirements of
the
audi
rule.
There remains
one further matter to be considered. It is this. It was contended in
the altern
á
tive
by the appellants (and
I
quote
from their heads of argument) "that it is for the Administration
to decide what information is relevant and what matter
should be
taken into account and that the matter ends there". This
contention is based on an accep= tance that Olivier had decided
that
the only consideration relevant to the respondents' dismissal was
whether they could satisfactorily account for their failure
to return
to work, and had therefore restricted the hearing to such
consideration. It was argued that no interference with the exercise
of Olivier's
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45
discretion in this regard was
justified. For this
argument reliance was placed on a
passage in the
judgment of this Court in the case
of
Minister of Law
and Order v Dempsey
1988(3)
SA 19(A) at 35 D - F. It
is not necessary to consider the
passage concerned (the
correctness of which may be open
to some doubt). In
relation thereto the judge a
quo
said the following:
"This passage is however no
authority for the proposition that the Administration could, without
having heard the workers, decide
what was relevant and what not. A
decision as to what was relevant and what not was part of the
decision to dismiss, and if the
audi alteram partem
rule had
to be complied with that decision could not have been taken before an
opportunity had been given to the person concerned
to make
representations as to why he should not be dismissed."
I
agree.
In any event, if a functionary
misconceives the true nature of
the enquiry he is
called upon to hold because of an
incorrect perception
of what is relevant, and
consequently conducts the
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46 wrong enquiry, the enquiry is
deficient in law. The person affected by the outcome of the enquiry
would not have had a fair hearing,
and the
audi
rule would not
have been satisfied.
In the result the appeal in my
view should fail. It accordingly becomes unnecessary for me to
consider any of the other contentions
raised by the respondents.
J W SMALBERGER JUDGE OF APPEAL