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1992
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[1992] ZASCA 180
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Minister of Water Affairs v Mangena and Others (708/89) [1992] ZASCA 180; (1993) 14 ILJ 1205 (A) (28 September 1992)
IN THE SUPREME COURT OF SOUTH AFRICA
(
APPELLATE
DIVISION
)
CASE NO 708/89
In the matter between
THE MINISTER OF WATER
AFFAIRS
Appellant
and
GREGORY MANGENA AND 25
OTHERS
Respondent
CORAM
: HOEXTER, KUMLEBEN, GOLDSTONE, JJA et NICHOLAS, HOWIE,
AJJA
DATE HEARD
: 20 AUGUST 1992
DATE DELIVERED
: 28 SEPTEMBER 1992
2 JUDGMENT
GOLDSTONE JA
:
The respondents were all employees of the
Department of Water Affairs. The appellant is the
Minister responsible for
that department. It is common
cause that the respondents were employed pursuant to the
provisions of s 3(2) of the Water Act, 54 of 1956 ("the
Act"). Insofar as
it is now relevant, it is there
provided as follows:
"(2) The Minister may from time to time appoint such temporary engineers,
surveyors, clerks or other employees as may be necessary
to enable the functions
of the department to be exercised: Provided that-
3
(a) appointments made in terms of this
sub-section shall be
limited to
duties performed at the site where
the department is engaged in
actual
constructional or investigational
work or which bear a
direct
relationship to specific projects or
schemes under construction or
under
investigation;
(b) ..."
The respondents were all initially employed on the Palmiet Government Water
Scheme at Grabouw. During the second half of 1987 they
were transferred to work
on the Bissets Drift project which is part of the Riviersonderend Government
Water Scheme. They were housed
at Ruensveld West, Grabouw.
It is alleged on
behalf of the appellant, and not disputed by the respondents, that the
actual
4
construction and investigation work at the Bissets
Drift
project ended on 30 June 1989.
The respondents were dismissed on notice by
letters dated 26 May 1989. In the case of six of the
respondents the dismissal was to take effect from 1
October 1989. In the
case of the rest of them it was to
take effect from 1 July 1989. The letters, except in
regard to the date of
termination, read as follows:
"OORTOLLIGE PERSONEEL: RUENSVELD WES Weens die algemene afname in die
werksaamhede van die Direktoraat Konstruksie, spyt dit my om
u mee te deel dat
die Departement nie verder van u diens gebruik kan maak nie en dat u oortollig
verklaar word met ingang van 1 Julie
1989. U laaste werksdag is dus 30 Junie
1989."
The temporary employees employed on the
Bissets Drift project, other than the respondents, were
transferred to other projects of the department. In that
regard an assistant engineer employed by the department,
Mr Gideon
Stefanus du Plessis, said the following:
5
3. "Dit is my Departement se beleid om, waar die dienste van persone wat, soos
die Applikante in die onderhawige geval, kragtens
die bepalings van artikel 3
(2) van die Waterwet by die Departement in diens is, nie verder benut kan word
nie, pogings aan te wend
om hulle op ander projekte van die Departement, wat
kragtens Hoofstuk V van die Waterwet uitgevoer word, in diens te neem. Dit is
vir dié rede dat ek, nadat die Departement op 20 April 1989 besluit het
om werk aan die projek soos voormeld te staak, Mnr
M.S. HARTY (die meganiese
voorman), Mnr C.P. DU TOIT (die werkevoorman) en Mnr P.A. LAROS ('n assistent
ingenieur) wat in nouer kontak
met die verskillende werkers as ekself was,
versoek het om rapporte aan my te verskaf aangaande elkeen se behendighede en
ervaring.
Nadat die gemelde persone op die versoek gereageer het, het ek oor ' n
tydperk van 2 tot 3 weke navrae gedoen by ander projekte van
die Departement in
poging om arbeiders in geskikte vakatures geplaas te kry. Die pogings - behalwe
vir werkers wat verkies
6
het om oortollig verklaar te word en Applikante Nr
2 tot en met Nr 26 - was suksesvol gewees. In weerwil van die feit dat ek selfs
na die 26ste Mei 1989 pogings aangewend het om vir die Applikante op ander
projekte in diens geneem te kry, was ek nie daarmee suksesvol
nie omdat daar nie
enige vakatures bestaan het nie. Geen vertoë wat deur of namens die persone
tot my of die Departement gerig
sou kon geword het, kon die posisie affekteer
nie, omdat daar geen vakatures bestaan het nie."
The respondents approached the Court a
quo
for an order declaring that
their dismissals were null and void. They founded their application on two
grounds. The first was that
they were not given a hearing and the second was
that the functionary of the Department of Water Affairs who purported to dismiss
them had no authority to do so.
7
The learned judge a
quo
found for the
respondents on the second ground and made an appropriate declaratory order in
their favour.
In a judgment handed down in this Court on 20 August 1992 in
the case of
Administrator of Natal v S A Sibiya and Another
, Case No
100/91, it was held that where an employer is a public authority, a decision by
it to dismiss an employee, whether on notice
or otherwise, involves the exercise
of a public power. Such a power has to be exercised regularly and in accordance
with the principles
of natural justice, including the principle of
audi
alterem partem
. As it was put in the judgment:
"In the instant case a just and proper exercise of the power to dismiss
involved an inquiry into the individual circumstances of each
of the workers
whose retrenchment was being considered."
8
It was added that:
"... elementary fairness required that the respondents should have been accorded
a hearing before the appellants took their decision
to dismiss the
respondents."
On the face of it the judgment in the
Sibiya
case is wholly applicable to the facts of the present case. The
appellant decided to retrench part only of the temporary labour force
which was
employed on the Bissets Drift project. It was decided unilaterally which of the
employees would be kept on and which would
be dismissed.
However, Mr Visser,
who appeared for the appellant, submitted that the employment of the respondents
terminated automatically on 30
June 1989 when the work on the Bisset Drift
project came to an end. That made the notices of dismissal unnecessary and
irrelevant.
It also followed, so it was argued, that the
9
audi alteram partem
principle was not of
application in the present case.
Mr Visser's submission was founded upon the
terms of the proviso contained in s 3(2) (a) of the Act which is set out above.
It followed,
so counsel submitted further, that an appointment once made would
terminate automatically when the project or scheme was completed.
I do not
agree. In the first place the words preceding the proviso give the Minister an
unfettered power to appoint temporary employees.
The sub-section does not limit
the terms upon which he may appoint them either generally or in respect of the
duration of their employment.
Mr Visser's argument treats the proviso as an
independent enacting clause. That is a fallacious method of interpretation: see
Mphosi v Central Board for Co-operative Insurance Ltd
1974(4) SA 633(A)
645 A-F. The principal matter to which s 3(2) applies is the
10
employment of temporary employees. The proviso
does no more than limit the circumstances in which those employees may be
appointed.
Apart from being fallacious, the interpretation contended for by
Mr Visser would result in the anomaly that an employee would not
know when, or
if, his employment had come to an end. That would depend upon facts not likely
to be within his knowledge. This unusual
and unhappy situation could neither
have been intended nor contemplated by the legislature.
It follows that on a proper construction thereof, proviso (a) to s 3(2) of
the Act limits only the Minister's power to make appointments
in terms of the
substantive part of the sub-section. It places no limitation on the terms of any
appointment made by him. I might
add that the officials in the department so
understood and so applied the provisions. They did not act on the basis that the
employment
of any of the
11
employees came to an end when the Palmiet
Government Water Scheme was completed in 1987 or when the Bissets Drift project
was completed
in 1989. In both cases they decided which of the employees should
be transferred to other places of work. Furthermore, the department's
standard
form of contract in respect of temporary employees, which forms part of the
appeal record, contains terms which are inconsistent
with a fixed-term contract.
It makes provision for transfer for other duties (clause 5) and for termination
on notice (clause 10).
It was thus necessary for the appellant to give to the
respondents notice of termination of their services. In addition, they were
entitled to a prior hearing. They were not afforded one. On that account their
dismissals were a nullity. It is consequently unnecessary
for this Court to
consider the question
12
relating to the authority of the functionary who
purported to dismiss them.
The reliance upon proviso (a) to s 3(2) of the Act
was raised for the first time on appeal by Mr. Visser, who did not appear in the
Court a.
quo
. As counsel for the respondents and members of the Court had
no prior notice of this point, counsel on both sides were requested
to furnish
the Court with additional written argument. They did so in a manner which was
most helpful and for which the Court is
indebted to them.
The appeal is dismissed with costs.
R J GOLDSTONE
JUDGE OF APPEAL
HOEXTER JA)
KUMLEBEN JA)
NICHOLAS AJA) CONCUR
HOWIE AJA)