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[1994] ZASCA 121
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Pfuhl v Minister of Justice (384/1992) [1994] ZASCA 121 (20 September 1994)
LL/IH Case No 384/1992
IN THE SUPREME COURT OF SOUTH AFRICA APPELLATE DIVISION
In the matter between:
JOHANN F PFUHL
Appellant
and
MINISTER OF JUSTICE
Respondent
COURT
: HOEXTER, VAN HEERDEN, KUMLEBEN, F H GROSSKOPF and HOWIE
JJA
HEARD
: 9 MAY 1994
DELIVERED
: 20 SEPTEMBER 1994
JUDGMENT
VAN HEERDEN
JA
:
2
During March 1992 the appellant brought
review
proceedings against the respondent in the Cape
Provincial Division. The substantive relief sought by him was an order setting
aside
a decision to terminate his services as an employee in the Department of
Justice. The main ground advanced in support of the application
was that the
audi alteram partem
("
audi
") principle applied; and that since he
had not been afforded a hearing prior to his dismissal, the Department was not
entitled to
terminate his employment. The application, which was opposed by the
respondent, was dismissed by the court a
quo
(per Friedman JP), and that
decision has been reported:
1992 (3) SA 744.
The salient allegations in the various affidavits lodged in the court a
quo
are fully summarised in the judgment of Friedman JP (at pp 745-749),
and there is no need for repetition in this judgment. At this
stage it suffices
to draw attention to the
3 following:
1) During June 1989 the appellant, a
quadriplegic
with limited use of his arms, received a
letter from an official in the Department of Justice.
It read:
"Goedkeuring is verleen dat u as 'n staats-aanklaer te Landdroskantoor,
Wynberg, in 'n tydelike hoedanigheid op drie maande proef
met ingang van 1
Augustus 1989 aangestel kan
word."
2)
During
the period 1 August 1989 to 30 April 1990 the appellant appeared almost
exclusively in the Wynberg maintenance court. That
court was situated on the
first floor of the court building and, unlike the ordinary criminal courts
situated on the second and fourth
floors, was readily accessible to a person in
a wheelchair.
3)
Various
reports emanating from the Wynberg magistrate's court, dated 28 September 1989,
were forwarded to Mr Booysen, Chief Director,
Administration, Department of
Justice, who, under
4 delegated authority,
had appointed the appellant as
prosecutor. Those reports conveyed to him that
because of the
appellant's disability he could not be
used effectively in the
ordinary criminal courts.
This was also the opinion of the chief
magistrate of
Wynberg, to whom Mr Booysen had spoken after
receipt
of the reports.
4) At this stage, and prior to
the expiry of
the three month period of probation, Mr
Booysen
decided that the period of his employment should
not
be extended. For reasons which are not material
to
this appeal, the appellant was not informed of
the
decision prior to the expiration of that period on
31
October 1989. In the result the appellant
continued
to prosecute in the Wynberg maintenance court
after
that date and even received an increase in
salary.
5) During March 1990 Mr Booysen received
a
recommendation from the Director :
Personnel
Management suggesting that in the light of
various
5 reports the appellant's employment should be
terminated. On 13 March Mr Booysen decided to accept
the recommendation. The upshot was the receipt by
the appellant (on 30 March) of a telegram terminating
his
services on 30 April and also a letter, dated 29
March 1990, from
the Director-General : Justice. The
letter was received by the appellant during early
April and
the material paragraph read as follows:
"Dit spyt my om u mee te deel dat ek vanweë die vereistes wat die pos
van Staatsaanklaer stel en met inagneming van u gesondheidstoestand
nie 'n keuse
net as om u dienste met ingang van 1 Mei 1990 te beëindig
nie."
As indicated above, it was the appellant's case
that this termination of his services was invalid because of the Department's
failure
to apply the
audi
rule.
It was rightly common cause in the court a quo that the appellant's
appointment was governed by the Public Service Act 111 of 1984
("the Act") and
the Public Service Staff Code ("the Code") referred to in
6 s 36 of
the Act, and that he had been appointed as a
temporary employee and not as an officer. S 12 of
the Act
deals with employment on probation. It
reads as follows :
"(1) The appointment of a person and the transfer and promotion of an
officer in the A or B division shall be made on probation
-
(a) unless, in the case of an appointment
in -
(i) the A division, the Commission recommends otherwise; or (ii) the B
division, the person having the power to approve such an appointment,
directs
otherwise; or
(b) if, in the case of a promotion or
transfer in -
(i) the A division, the Commission so recommends; or
(ii) the B division, the person
having the
power to approve such a
transfer or promotion, so
directs.
(2) (a) Subject to the provisions of
paragraphs
(b) and (c) and subsection (3A),
the period of probation so
recommended or
directed shall not be less than 12
calendar
months.
b) If an officer who is serving on probation is transferred or promoted to
another post, a lesser period of service on probation may
be recommended or
directed in the new post, which together with the period of probation served in
the former post, shall total at
least 12
calendar
7
months.
(c) The period of probation of an officer
shall be extended by the number of days' leave taken by him during the period of
probation
or any extension thereof. (3) If the head of the office, branch,
subdepartment, institution or department certifies that during the
period of
probation or extended period of probation, the officer concerned has been
diligent and his conduct uniformly satisfactory
and that he is in all respects
suitable for the post which he holds, and if the officer has complied with all
the conditions to which
his appointment, transfer or promotion was subject, the
person having the power to make the appointment, transfer or promotion
concerned,
may confirm that appointment, transfer or promotion, but if the
probationary appointment, transfer or promotion is not so confirmed
-
(a) the head of department shall, in the case of an officer serving in the A
division, report the reasons for the non-confirmation
to the Commission, which
shall, subject to the provisions of subsection (5) make such recommendation in
the matter as it may deem
fit;
(b) the person having the power to make the appointment, transfer or
promotion concerned may, in the case of an officer serving in
the B division,
extend the period of probation or act according to the provisions of subsection
(4).
(3A) If the promotion of an officer is made on
probation and the only condition of such promotion is that the officer shall
comply
with the training requirements directed by the Commission, such promotion
shall, notwith-
8
standing provisions to the contrary in this Act, be deemed to have been
confirmed with effect from the day immediately succeeding
the date upon which
that officer complied with those requirements.
(4)(a)
Notwithstanding anything to the contrary contained in subsection (2) or in
Chapter VI, but subject to the provisions of paragraph
(b) and subsection (5),
an officer who is serving on probation may be discharged from the public service
by the person having the
power of discharge, either during or at or after the
expiry of the period of probation -
(i) by the giving of one month's notice; or
(ii) forthwith, if his conduct or performance is
unsatisfactory.
(b) Before an officer
serving in the A division is so discharged, the Commissioner shall first make a
recommendation. (5)(a) Notwithstanding
anything to the contrary contained in
sections 13 and 28, but subject to the provisions of paragraph (b), a person
whose transfer
or promotion on probation is not confirmed and who immediately
prior to that transfer or promotion on probation was an officer, other
than an
officer on probation, shall be transferred to the post formerly held by him, or
to a post of equivalent grading, and shall
receive such salary as he would have
received in his former post if he had not been transferred or promoted on
probation.
(b) In the case of the transfer of an officer serving in the A division,
the Commission shall first make a recommendation."
Save as explained below, the provisions of
9 s 12(2)(b) and
(c) and (3A), to which reference is
made in subsection 2(a), are not material to this
appeal.
(Subsection (3A) was amended by Act 47 of
1993, but in respects not
significant for present
purposes.)
The court a q
uo
found :
(a) that s 12(1), as
well as para 10 of Chapter
B III II of the Code, prescribe that the
appointment
of both an officer and an employee must be
on
probation ;
(b) that the probationary period may not be
less than 12
months, and
(c) that the provisions of s 12(1) and (2)
and
the said para 10 of the Code override any
contractual
term in conflict therewith, and that consequently
the
appellant was as a matter of law appointed for
a
probationary period of 12 months (at p 749 E - I).
The court apparently also accepted as correct the attitude of counsel on
both sides that although
10
the Act and the Code are silent on the early
termination of the probationary appointment of
an employee
, he
cannot be in a better position than an officer, and that consequently the
appellant's employment on probation could be terminated
under s 12(4)(a); i.e.
either forthwith, if his conduct or performance was unsatisfactory, or by the
giving of one month's notice
(at p 750 H - I).
Relying in the main
on the judgment of this court in
Moodley v Minister of Education and Culture,
House of Delegates
1989(3) SA 221(A), Friedman JP went on to hold that as a
necessary implication of the Act an employee who is on probation is not
entitled
to be heard before it is decided to terminate his employment on one month's
notice (at p 753 J) . He also rejected two further
contentions advanced on
behalf of the appellant; viz, that the decision
in casu
was vitiated by
an incorrect factual perception, or, alternatively, that
11
the papers gave rise to disputes of fact which should be referred for
oral evidence. For the reasons set out below, it will be unnecessary
to consider
those contentions.
The finding that s 12(1) of the Act applies to
employees, was clearly based on a tacit premiss which appears to have been
common cause
in the court a.
quo
; i.e. that the words "a person" include
an officer and an employee. On a purely linguistic approach, and having regard
only to the
provisions of the subsection, there is something to be said for this
view. There are, however, weightier considerations pointing
the other
way.
The words "a person" appear in a number of the provisions of the Act, but
no purpose would be served by attempting to determine their
meaning in each
instance. Suffice it to say that the words sometimes include both officers and
employees, whilst in other provisions
they are used in contradistinction
to
12
officers and/or employees. One notes, however, that
in s 12,
but for the use of the words in subsections
(1) and (5)(a), the
references are all confined to an officer. Moreover, in s 12(5)(a) the words
clearly denote somebody who was an
officer when transferred or promoted on
probation and thereafter remained an officer.
S 12(4)(a) in my view
provides the clearest pointer to the legislature's intention. Nowhere in the Act
is provision made for the discharge
of an employee serving on probation. By
contrast, that subsection in terms deals with the termination of the
probationary appointment
of an officer, and if the legislature intended that the
appointment of an employee should be on probation, it is not easy to grasp
why
the word "officer", and not the words "a person", appears in s
12(4)(a).
Furthermore, unlike s 12(3) which governs the confirmation of the
probationary appointment of an
13
officer, there is no provision in the Act which deals
with
the confirmation of such an appointment of an employee. In sum, were one to hold
that the words "a person" in s 12(1) includes
an employee, the curious situation
would be that the legislature failed to attach any specific legal consequences
to the probationary
employment of an employee.
The question remains
: why were those words, and not the words "an officer", used in s 12(1)? A
plausible answer is that a person
only becomes an officer when he is appointed
as such. In other words, at the time when such an appointment is under
consideration,
he is not yet an officer.
Even as regards officers a
probationary period may be less than 12 months. This is so because s 12(2)(a)
merely prescribes that the
period of probation "so recommended or directed"
shall not be less than 12 months. This phrase has reference to s 12(1)(b) in
terms
of which the transfer or promotion
14 of an officer must be on
probation if the prescribed
recommendation or direction is made. Hence, in the
absence of
such a recommendation or direction,
s 12(2) does not prescribe a
minimum period of
probation.
I turn to the relevant provisions of the Code.
Para
10(1) of Chapter B III II reads thus :
"(l)In terms of section 12(2) of the Public Service Act, 1984, the minimum
probationary period is twelve calendar months. All appointments,
except those as
Foreign Service Officer, Grade VI, Information Officer, Pupil Health Inspector
and Pupil Technician (all work fields)
and other equivalent pupilage grades as
well as those meant in paragraph 16(1), should be effected on twelve calendar
months probation.
The probationary period in respect of the former two ranks is
two years and in respect of Pupil Health Inspectors two and a half
years while
pupil technicians are appointed on three years' probation where the three-year
National Diploma for Technicians is the
minimum requirement for appointment and
four years probation where the four-year National Diploma for Technicians is
prescribed as
minimum requirement. The probationary period of a candidate who
holds a Junior (or equivalent) Certificate and who is appointed as
a Pupil
Agricultural Officer or a Pupil Superintendent: Horticulture, is five
years."
15 The first sentence of para 10(1) does no
more
than to repeat, without any significant
additional
provision, the gist of s 12(2) of the Act. True, the
next sentence says that all appointments, save for
those
specifically mentioned, should be effected on
12 months' probation,
but this must be read in
conjunction with para 15. For the rest para
10(1)
simply designates varying, and longer,
probationary
periods for certain specified posts which are
no
doubt held by officers. Para 11 deals only
with
quarterly progress reports in respect of officers
and
pupil technicians on probation. Paragraphs 12,
13
and 14 are confined to officers. Finally there
is
para 15 which applies the contents of paras 10
-14
mutatis mutandis
to "candidates for
permanent
employment in posts referred to in section
s 7(1)(c)(i)" of the Act. They are however,
candidates for
employment on the fixed establishment.
They do not include a temporary employee - such as
16
the appellant - appointed under s 7(l)(c)(ii) of
the
Act.
Of course, if para 10(1) was intended to apply
to appointments of employees, there would have been no need to provide in para
15 that
para 10 shall apply
mutatis mutandis
to a specific class of
employees. But since para 15 does so provide, the most likely inference is that
the draftsman of the Code
did not intend para 10(1) to govern the appointment of
employees. This inference is strengthened by the absence of a tenable
explanation
how the appointment, under s 7(l)(c)(ii) of the Act, of an employee
under a special contract can be accommodated under para 10(1)
should it be
construed as relating to
all
appointments.
It may be that on
a proper interpretation of para 10(1) the requirement that all appointments must
be on probation relates only to
such which in terms of s 12(2) of the Act must
be made for a probationary
17 period of not less than 12 months. But
whatever the
true ambit of the subparagraph may be, it does not in
my
opinion deal with the appointment of employees.
In the result I hold
the view that neither the Act nor the Code required that the appellant's
appointment be made on probation. Consequently,
although the designation of the
appellant's appointment as "op....proef" was devoid of legal consequences under
the express provisions
of the Act and the Code, his appointment for a period of
three months was perfectly valid.
In passing I may mention that counsel for the respondent accepted that
the words "a person" in s 12(1) of the Act do not include an
employee.
Now, we know that after the expiry of his written
appointment on 31 October 1989 the appellant continued to prosecute in the
Wynberg
Magistrate's Court; that he was paid his monthly salary, and that he
even received an increase. There is little doubt
18
that Mr Booysen was fully aware of these facts, but
it was
only towards the end of March 1990 that he decided to accept a recommendation to
terminate the appellant's services. True,
in affidavits filed on behalf of the
respondent, officials of the Department state that during a conversation with
the appellant
in October 1989, they attempted to convey to him, in as delicate a
manner as possible, that he was not suitable for the post of prosecutor,
but
they refrain from saying that they intimated to him that he would not be
re-appointed. Nor do they allege that they had the authority
to do
so.
In the light of what has been said above, it would be idle to
suggest that during the period of six months between 1 November 1989
and 30
April 1990 there was no longer any contractual relationship between the
appellant and the Department. Objectively viewed,
their conduct points clearly
to a mutual intent to bring about some form of tacit
19 relocation
of the pre-existing relationship.
That much was conceded by counsel for the
respondent
in supplementary Heads of Argument
prepared by him after the oral
hearing of the appeal.
(Both parties were requested by this court to file
such Heads.) Relying on certain authorities he
submitted, however, that the new agreement brought
about by the tacit relocation contained the same
terms as the original one. Consequently, so the
argument
continued, the appellant's further
employment was also on probation
- presumably for two
consecutive periods of three months each. I do not
agree.
There is no general rule that a tacit
relocation is governed by all the terms of the
original
agreement, and in particular by one relating
to the duration of that agreement. In every case
the
provisions of the new agreement fall to be determined
from the parties' conduct and such other
considerations as may be relevant
. In casu
the
20
appellant's probationary employment had come to an
end and,
as said, that employment was not required or governed by specific provisions of
the Act or the Code. Hence the readiest inference
from the parties' conduct is
that the appellant was tacitly reappointed, under s 7(l)(c)(ii) of the Act, as a
temporary employee
for an indefinite period. That being so, his employment
could, in terms of para 5 of Chapter B XV II of the Code, have been terminated
by one month's notice. However, by virtue of the decision of this Court in
Administrator, Natal v Sibiya
[1992] ZASCA 115
;
1992 (4) SA 532
, he was entitled to be
heard before a decision to terminate his services was taken. The failure to
afford him a hearing therefore
invalidated that decision.
In
conclusion I should mention that the parties were in agreement that this appeal
does not give rise to a constitutional issue.
21 The appeal succeeds with costs, including
the
costs of two counsel, and the following is
substituted for the order made by the court a
quo
:
"The application is allowed with costs, including the costs of two counsel,
and the respondent's decision to terminate the appellant's
services, as conveyed
to him in the letter dated 29 March 1990, is set
aside."
H J O VAN HEERDEN JA
AGREED
: HOEXTER JA KUMLEBEN JA FH GROSSKOPF JA HOWIE JA