Premier of The Eastern Cape Province and Others v Sekeleni (277/2001) [2002] ZASCA 76; [2002] 3 All SA 407 (A) (31 May 2002)

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[2002] ZASCA 76
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Premier of The Eastern Cape Province and Others v Sekeleni (277/2001) [2002] ZASCA 76; [2002] 3 All SA 407 (A); 2003 (4) SA 369 (SCA) (31 May 2002)

REPUBLIC OF SOUTH
AFRICA
IN THE SUPREME COURT OF
APPEAL
OF SOUTH AFRICA
Case number: 277/2001
Reportable
In the matter between:
PREMIER OF THE EASTERN CAPE PROVINCE AND
ANOTHER
First Appellant
and
PRESIDENT OF THE REPUBLIC OF SOUTH
AFRICA
Second Appellant
and
BENJAMIN BONGANI SEKELENI
Respondent
CORAM
: NIENABER, SCHUTZ, STREICHER, FARLAM et
CAMERON JJA
HEARD
: 14 MAY 2002
DELIVERED
: 31 MAY 2002
SUMMARY:
Public Service – Transkei –
Interpretation of section 15(1) and (2) of Public Service Act 43 of
1978 (Transkei), as amended.
_____________________________________________________________
JUDGMENT
_____________________________________________________________
FARLAM JA
[1]
This is an appeal from a judgment of the full
bench of the Transkei Division (Zilwa AJ with Van Zyl and Maya JJ
concurring), sitting
as a court of first instance, which declared
that the retirement of the respondent, who is a former Deputy
Director General in the
office of the Public Service Commission of
the former Republic of Transkei, was invalid and that he was entitled
to such emoluments
and other benefits as would, but for the invalid
retirement, have flowed from his employment contract. The court
a
quo
also ordered the appellants, the Premier of the Eastern Cape
Province and the President, to pay such emoluments and other benefits
for a period of 12 calendar months, to be reckoned from 31 December
1992 (on which date the respondent’s retirement, which was
declared
to be invalid, had purportedly taken place). The emoluments and
benefits already received by him were to be set off against
the
payments to which he was entitled.
[2]
The respondent had applied in the court below
in May 1999 for an order declaring invalid a decision which he
alleged had been taken
by the Minister of the Public Service
Commission of the former Government of Transkei to place him on
compulsory retirement and to
terminate his employment in from the
public service of the former Republic of Transkei with effect from 31
December 1992, in terms
of the provisions of section 15 of the Public
Service Act 43 of 1978 (Transkei), as amended (to which I shall refer
in what follows
as ‘the Act’). The respondent also applied for a
declaration that he was entitled to such emoluments and other
benefits as would,
but for his invalid retirement, have flowed from
his employment contract for the period reckoned from 31 December
1992, to his 65
th
birthday, which occurred on 7 December
1997.
[3]
Before the facts in this case are summarised
it is appropriate to quote the relevant legislative provisions.
[4]
On 31 December 1992, the date of the
respondent’s purported retirement from the Transkeian Public
Service, section 15(1) and (2)
of the Act, as substituted by section
4 of Decree 11 of 1989 (Transkei) and amended by section 3(a) and (b)
of Decree 14 of 1992
(Transkei), read as follows:
‘15(1) Subject to the provisions of subsections (2) and (5) an
officer (other than a member of the services or an officer employed
in the Intelligence Service) shall retire from the public service on
the day on which he attains the age of 60 years, if that day
is the
first day of a month or, if that day is any later day, on the first
day of the month immediately following the month in which
he attains
the age of 60 years.
(2) If it is in the public interest to retain an officer (not being a
member of the services or an officer employed in the Intelligence
Service) in his post beyond the age at which in accordance with
subsection (1) he would otherwise retire, he may be so retained from
time to time, on the recommendation of the Commission and subject to
the approval of the Minister, for further periods which shall
not,
except with the approval, by resolution, of the Military Council,
exceed in the aggregate twelve calendar months.’
[5]
Section 15(5), as substituted by section 3(c)
of Decree 14 of 1992, read as follows:
‘(5) An officer (other than a member of the services, an officer
employed in the Intelligence Service or an officer referred to
in
subsection (9)) may at any time before or after attaining the age of
fifty-five years give written notification to the Director-General
of
his wish to retire from the public service and, subject in every case
to the recommendation of the Commission and the approval
of the
Minister, such officer shall-
(a) if such notification is received at least three calendar months
prior to the day on which he attains the age of fifty-five years,
retire on attaining that age if that day is the first day of a month
or, if that day is any later day, on the first day of the month
following the month in which he attains the said age; or
(b) if such notification is given on any day after he attained the
age of fifty-five years, retire on the first day of the fourth
month
following the month in which such notification is received.’
[6]
The ‘Commission’ referred to in the
section was the Transkeian Public Service Commission and the Military
Council was the body
established with effect from 30 December 1987 to
take the place of the Transkeian Parliament, which was dissolved
following a successful
coup d’etat
in December 1987: see
Matanzima and Another v President of the Republic of Transkei and
Another
1989(4) SA 989 (Tk) and
Hintsho v Minister of Public
Service and Administration and Others
1996(2) SA 828 (Tk SC) at
836 H-837E.
[7]
The respondent submitted in his founding
affidavit that what he called the decision to place him on compulsory
retirement in terms
of section 15 of the Act was invalid. He
contended that the failure of the commission and of the Minister to
act in terms of section
15 of the Act deprived him of the opportunity
firstly to continue in the employ of the Government of Transkei for a
period of twelve
months after his compulsory retirement and secondly
to place facts before the Military Council to enable it to resolve
that he should
continue in the employ of the Government for more than
12 months. He also stated that he knew of no impediment which would
have
prevented him from continuing in the employ of the Government
until 3 June 1994, on which date his conditions of service would have
been amended (in consequence of the coming into operation on that
date of the Public Service Act, 1994, which was published in
Proclamation
103 of 1994) so that the retirement age then applicable
in his case would have been 65 years.
[8]
The appellants conceded that the Minister had
made no decision as to whether the respondent’s services should be
retained after
he reached the age of 60 years and also that the
commission had made no recommendation in that regard.
[9]
The court
a quo
held that subsections
(1) and (2) of section 15 of the Act should be interpreted so ‘as
to blend them’. Referring
inter alia,
to
C and J Clark v
Inland Revenue Commissioners
[1973] 2 All ER 513(Ch)
at 520e-f
and
S v Marwane
1982(3) SA 717 (A) at 747G-748G the court
a
quo
held that the use of the expression ‘subject to the
provisions of subsections (2) and (5)’ at the commencement of
section 15(1),
indicated that subsection (2) was, as it was put, the
master clause and subsection (1) was reduced to a position of
subordination
thereto. It also held that ‘an officer cannot be
placed on compulsory retirement merely upon attainment of the age of
60 years
without the machinery provided for in section 15(2) of the
Act having been exhausted.’
[10]
In motivating this conclusion Zilwa AJ said:
‘I find myself being in respectful agreement with Madlanga J in
Dlisani and Mathwetha v Minister of Safety and Security and
Another
1999(1) SA 1020(Tk) that the Minister has to make a
decision in the exercise of the discretion bestowed upon him at the
time the employee’s
retirement is imminent, in terms of section
15(2) of the Act as to whether or not it is in the public interest to
retain the relevant
employee’s services beyond the age of 60 years.
Since the employee concerned clearly has an interest in such a
decision justice
dictates that he/she should be afforded an
opportunity to make representations prior to the making of such
decision by the Minister.
A duty to act and to exercise such
discretion rests on the Minister and he cannot validly take the
attitude, that if the employee
wishes to be retained, it is his/her
duty to set the process of getting the Minister to exercise his
discretion in terms of subsection
(2) afoot by informing the Minister
of his/her wishes to be retained and tendering to make
representations.
(See:
Shepherd Vuyisile Gantsho v Minister of Education and
Others
(Case no 211/91, an unreported judgment by Beck CJ
delivered on 14 February 1992, and
the decisions quoted therein)). The
Gantsho
judgment, a
judgment of the then General Division of the Supreme Court of
Transkei, which was endorsed by the erstwhile Transkei
Appellate
Division in that court’s unreported judgment in the case of
Stanford Velele Kuse v The Minister of Police and Others
(Case
No 1075/92), delivered on 22 February 1994), is to the effect that
until the Minister has applied his mind to the question of
the public
interest and has come to the decision that the public interest does
not require the employee’s services beyond the said
retirement age
of 60, such employee cannot be compulsorily retired, even though
he/she is over 55. In my view similar considerations
should apply to
the Applicant
in casu.’
[11]
The court
a quo
rejected the
respondent’s prayer that he was entitled to emoluments and other
benefits calculated on the basis that he continued
in post until his
65
th
birthday and held that he was merely entitled to such
emoluments and other benefits as would have flowed from his
employment contract
for 12 months after his retirement, ie, until 31
December 1992.
[12]
Mr
Mbenenge,
who appeared for the
respondent, relied strongly on the three earlier Transkei cases, viz
Gantsho, Kuse
and
Dlisani,
to which reference was made
in the extract from the judgment of the court
a quo
given in
paragraph [10] above.
[13]
In my opinion the interpretation of section
15(1) and 15(2) of the Act adopted by the court
a quo,
relying
on the three earlier Transkeian cases referred to, was wrong. On the
clear wording of these provisions the only decision
the minister can
make, as was correctly submitted by Mr
Kemp,
who appeared with
Mr
Msiwa
on behalf of the appellants, is to negate the effect
of section 15(1) by extending the date of retirement if the
commission so recommends.
In doing so he does not change the
retirement age : he extends the date fixed in terms of section 15(1).
If he has failed to take
such a decision the remedy is not to set
aside his decision (for there is no relevant decision) but a
mandamus
to force him to decide the issue, or, possibly, to seek damages
based on the proposition that if he had decided the matter he would
have decided it in the respondent’s favour : for such a claim to
succeed proof would have been required that it was in the public
interest for his services to be retained beyond the prescribed
retirement age. There was no need for the Minister to decide whether
a person should retire at the age of 60 years : section 15(1)
provides in terms for public servants to retire automatically at that
age.
[13]
It is clear that the expression ‘subject
to’, with which section 15(1) commences, means no more than
if
a
decision to extend an official’s period of service is taken under
section 15(2), then such decision will override the cut-off
point in
section 15(1): it does not mean that
unless
a decision is
taken under section 15(2), section 15(1) never comes into operation.
As Mr
Kemp
correctly contended the expression ‘subject to’
has no
a priori
meaning (see
Pangbourne Properties Ltd v
Gill & Ramsden (Pty) Ltd
1996(1) SA 1182(A) at 1187J-1188A).
While it is often used in statutory contexts to establish what is
dominant and what is subservient
its meaning in a statutory context
is not confined thereto and it frequently means no more than that a
qualification or limitation
is introduced so that it can be read as
meaning ‘except as curtailed by’:
cf Hawkins v Administration
of South West Africa
1924 SWA 57 and
Crook and Another v
Minister of Home Affairs and Another
2000(2) SA 385(T) at 389A-D.
This was clearly what is meant here as is evident from the fact that
section 15(1) is expressly made
subject not only to subsection (2)
but also to subsection (5) which, as has been seen, provides for
early retirement. It is thus
clear that subsections (2) and (5)
contain exceptions to the general rule that one retires automatically
at the age of 60.
[14]
In my view the approach upheld in the
Dlisani
case, that where the Minister fails to take a decision
as to whether or not the retention of an employee’s services beyond
the normal
retirement age is in the public interest he is to be
regarded as having made a ‘negative’ decision, is inconsistent
with the
decision of this Court in
Minister van Onderwys en
Kultuur en Andere v Louw
1995(4) SA 383(A), to which Mr
Kemp
referred.
This case concerned the interpretation of
section 72(1) of the Education Affairs Act (House of Assembly) 70 of
1988, which was substantially
the same as section 15(8) of the Public
Service Act 43 of 1978 (Transkei), and which provided that a ‘person
employed in a permanent
capacity at a departmental institution and
who ... is absent from his service for a period of more than 30
consecutive days without
the consent of the Head of Education ...
shall, unless the Minister directs otherwise, be deemed to have been
discharged on account
of misconduct ...’ It was held that the
section came into operation if the employee without the consent of
the Head of Education
was absent from his or her service for more
than 30 consecutive days. Whether these requirements were satisfied
was objectively
determinable. The coming into operation of the
deeming provision was not dependent upon any decision and there was
no room for a
reliance on the
audi alteram partem
rule. There
was in fact no decision that could be reviewed. It was argued that
the deeming provision did not come into operation
before the Minister
decided whether he was going to direct otherwise. This submission
was held (at 389D) to be without substance.
This was because it was
clear that in the absence of a direction otherwise a discharge came
into operation without more.
[15]
By parity of reasoning, as Mr
Kemp
submitted, in the present case, in the absence of a decision by
the Minister to approve the retention of his services, the
respondent’s
period of service came to end at the end of the month
when he attained the retirement age and the Minister’s failure to
approve
such retention was not a ‘decision’ that could be set
aside on review.
[16]
It is true, as Mr
Mbenenge
contended,
that section 15(1), unlike the section considered in the
Louw
case, is not a deeming provision and is, in terms, ‘subject to’
section 15(2) and section 15(5), but the essential ideas conveyed
by
the two sets of the provisions are the same. Both provided for an
automatic consequence (retirement at the end of the month when
the
retirement age is attained and discharge at the end of a 30 day
period of absence without the requisite consent) in the absence
of a
ministerial decision that such consequence should not come into
operation. The position is in fact similar to that obtaining
where a
proviso has to be interpreted. It is well established that a proviso
is not to be treated as what has been described as
an independent
enacting clause but as being dependent on the main enactment: see
Mphosi v Central Board for Co-operative Insurance Ltd
1974(4)
SA 633(A) at 645C-H. The same approach must apply to other
provisions which are in the nature of exceptions to a general
provision.
[17]
I am also of the view that the
Gantsho,
Kuse
and
Dlisani
decisions are based on an inversion of
the words of section 15(2). Where the subsection spoke of
ministerial approval for the retention
of an officer in his post if
it was in the public interest to do so, the court in the
Kuse
case
said that until the Minister came to the decision ‘that the public
interest did
not
require’ the officer’s services to be
retained he could not be compulsorily retired even though he was over
the retirement age.
[18]
I conclude that the decision in the
Kuse
case was clearly wrong on this point. This renders it
unnecessary to consider the question as to what position in the
hierarchy of
judicial precedent is occupied by decisions of the
one-time Transkeian Appellate Division.
[19]
In the circumstances I am satisfied the
respondent’s application to set aside a decision that was never
made should have been dismissed.
[20]
I am also satisfied that his further prayer
for payment of emoluments and other benefits after the end of the
month when he attained
the statutorily prescribed retirement age
should in any event have been dismissed in its entirety. The only
basis on which this
relief could conceivably have been given him, in
the absence of an order setting aside a decision to place him on
retirement, would
have been proof that it was in the public interest
to retain him in his post after the prescribed retirement age so that
a failure
before he turned 60 to invite him to make representations
as to whether he should be so retained could be said to have caused
him
to suffer damages in the respects he alleged. (I deliberately
use the word ‘conceivably’ because I am not sure that even if
such proof were forthcoming the respondent would necessarily have
been entitled to the relief sought.) No such proof was adduced.
The
position would of course have been different if what was required,
before he could be placed on retirement, was a decision that
it was
not
in the public interest for him to retire but as I have
already held such a decision was not required in terms of the
relevant section.
ORDER
[22]
The following order is made:
1. The appeal is allowed with costs including those
occasioned by the employment of two counsel.
2. The order made by the court
a quo
is set aside
and replaced by the following:
‘The application is dismissed with costs, including
those occasioned by the employment of two counsel.’
......................
IG FARLAM
JUDGE OF APPEAL
CONCURRING:
NIENABER JA
SCHUTZ JA
STREICHER JA
CAMERON JA