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1992
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[1992] ZASCA 182
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Public Servants League of South Africa v Minister of Water Affairs (1/90) [1992] ZASCA 182 (28 September 1992)
IN THE SUPREME COURT OF SOUTH AFRICA
(
APPELLATE
DIVISION
)
CASE NO 1/90
In the matter between
THE PUBLIC SERVANTS LEAGUE OF SOUTH AFRICA
Appellant
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 appellant, the Public Servants League of South
Africa ("the League"), is a staff association for persons employed in the public
sector. It has a membership of more than 40 000 public servants. The principal
object of the League, as appears from its constitution,
is to advance and
protect the rights and interests of its members.
The League sought an order in the Court a
quo
(Nel J) granting it
leave to intervene as an applicant in the application ("the main application")
which had been launched by Mr Gregory
Mangena and twenty-two others ("the
applicants") against the Minister of Water Affairs ("the Minister"). In the main
application
the applicants
3
claimed a declaratory order to the effect that
their purported dismissals were null and void. All of the applicants were
members of
the League.
The application for joinder was dismissed with costs,
including the costs of two counsel. With leave of the Court a
quo
, the
League now appeals to this Court against that order.
The League sought to be
joined as an applicant in the main application so that it might seek an order
in its own right
to the effect that the dismissal of the applicants was a
nullity. The League based its right upon the cumulative effect of the following
three factors:
1.
Its recognition by
government departments as a body representing the collective interests of its
members, all public servants;
2.
The policy in
respect of the retrenchment of public servants as recorded in
a
4
circular issued by the Commission for Administration on 21 July 1987; and 3. An
undertaking to it by the Minister for the Commission
for Administration at a
meeting held on 24 May 1988 to the effect,
inter alia
, that the State
would not take any decisions or steps which would detrimentally affect the
interests of the League or its members
without first consulting with the
League.
In this Court it was submitted that the
cumulative effect of those three factors was to create a legitimate expectation
by the League
that before any government department decided upon a policy of
retrenchment affecting its members, the League would first be consulted.
The
admitted failure so to consult prior to dismissing the applicants, so it was
further submitted, entitled the League to an order
declaring those dismissals to
be null and void.
5
In the view I take of this matter it is
unnecessary to examine the factual basis relied upon by the League to establish
the three
factors referred to above. It is also unnecessary to consider or
decide whether, if they have been proved, they would give rise to
a legitimate
expectation conferring legal rights upon the League.
In the main application the applicants relied upon two grounds for claiming
that their dismissals were a nullity, viz:
1.
That the officials who
dismissed them were not authorized to do so; or
2.
That they were not given a hearing prior to their
dismissals.
The applicants did not rely for relief
upon the failure by the Minister to have consulted with the League prior to the
dismissals.
All that is stated in this
6
regard in the Founding Affidavit of Mr Mangena is
the
following:
"23 Ek wil ook byvoeg dat ek en die ander Applikante almal lede van die
Staatsdiensliga van Suid-Afrika ('die Liga' ) is. Die Liga
net alreeds aan my en
die ander Applikante aangedui dat indien die Respondent bereid sou wees om ons
aan te hoor, amptenare van die
Liga die Applikante sal bystaan en hulle van hulp
sal bedien om hul saak aan die Respondent te stel."
In my judgment, even if the League did have the legitimate expectation
contended for, it was not entitled to be joined in the main
application in order
to pursue its own alleged right of action in the present circumstances. Firstly,
the applicants themselves were
not relying upon such right. Secondly, the
League's interests could in no way have been prejudicially
7
affected by the outcome of the main application.
Thirdly, although relying on its own alleged cause of action the League was not
seeking
the grant of any relief to itself. It follows that neither at common law
nor in terms of the Rules of Court did the League have a
right to the joinder
claimed by it.
The appeal is dismissed with costs, including the costs of two
counsel.
R J GOLDSTONE
JUDGE OF APPEAL
HOEXTER JA)
KUMLEBEN JA) NICHOLAS AJA) CONCUR HOWIE AJA)