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1992
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[1992] ZASCA 181
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Public Servants League of South Africa and Others v Minister of Water Affairs (374/91) [1992] ZASCA 181 (28 September 1992)
IN THE SUPREME COURT OF SOUTH AFRICA
(
APPELLATE
DIVISION
)
CASE NO 374/91
In the matter between
THE PUBLIC SERVANTS LEAGUE OF SOUTH
AFRICA AND 14
OTHERS
Appellants
and
THE MINISTER OF WATER
AFFAIRS
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 first appellant is the Public Servants League of
South Africa. The other fourteen appellants, members of the first appellant,
were employed by the Department of Water Affairs. The Respondent is the Minister
responsible for that Department.
The appellants sought an order in the Court
a
quo
declaring that the dismissals on notice of the second to fifteenth
appellants, by letters dated 12 June 1989, were null and void.
They also sought
an order setting aside the dismissals. Their application was dismissed with
costs. The judgment by Steenkamp J is
reported as
Staatsdiensliga van
Suid-Afrika en Andere v Minister van Waterwese
1990(2) SA 440(NC). As
appears therefrom (at
3
442 H-J) the first appellant abandoned any claim
for relief or for costs.
I need refer to only one of the grounds relied upon
by the second to fifteenth appellants, viz. that they were not afforded a
hearing
by their employer before they were dismissed.
In a judgment handed down in this Court on 20
August 1992, in the case of
Administrator of Natal and
Another 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 alteram partem
. As it
was put in
the judgment:
"In the instant case a just and proper exercise of the power to dismiss
involved an enquiry into the individual circumstances of each
of
4
the workers whose retrenchment was being
considered."
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."
Counsel who appeared for the
respondent properly conceded that the legal relationship between the second to
fifteenth appellants and
the respondent in the present case was no different
from that which existed between the parties in the
Sibiya
case. They were
not given a hearing before they were dismissed and on that account such
dismissals were a nullity. It follows that
on this ground they were entitled to
the substantive relief claimed by them. It is unnecessary to consider the other
grounds relied
upon by the appellants in the Court a
quo
and in this
Court.
5
Although, as has already been mentioned, it
abandoned any claim for relief and for costs in the Court a
quo
, the
first appellant is a party to the present appeal. It has not sought any relief.
It could hardly have done so in the light of
the stance adopted by it in the
lower court. This notwithstanding, counsel for the respondent submitted that the
the first appellant's
appeal should be dismissed with costs. In my judgment that
submission should not be upheld. While the first appellant should not
have been
a party to the appeal, its nominal appearance has not resulted in any relevant
additional or wasted costs.
The appeal of the second to fifteenth appellants
is upheld with costs. The order of the Court a
quo
is set aside and the
following order is substituted therefor: "1. The respondent's purported
dismissals of the
second to fifteenth applicants from the
6
service of the State in terms of letters of
dismissal dated 12 June 1989 are declared null and void. 2.(a) The first
applicant is
ordered to pay its own costs.
(b) The applicants are ordered, jointly and severally, to pay the respondent's
wasted costs in respect of the appearances on 23 August
1989.
(c) Save as set out in (b) above, the respondent is ordered to pay the costs of
the second to fifteenth applicants."
R J GOLDSTONE
JUDGE OF APPEAL HOEXTER JA) KUMLEBEN JA) NICHOLAS AJA) CONCUR HOWIE AJA)