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[1992] ZASCA 209
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Minister of Health Kwazulu Government and Another v Ntozakhe and Others (246/1991) [1992] ZASCA 209; 1993 (1) SA 442 (AD); [1993] 1 All SA 421 (A) (26 November 1992)
LL
Case No 246/1991
IN THE SUPREME COURT OF SOUTH AFRICA APPELLATE DIVISION
In the matter between:
THE MINISTER OF HEALTH,
KWAZULU GOVERNMENT
First
Appellant
SECRETARY FOR HEALTH,
KWAZULU GOVERNMENT
Second
Appellant
and
RICHARD NTOZAKHE
First Respondent
VELA GILBERT
NDLOVU
Second Respondent
BHEKI WILLIAM MKHIZE
Third Respondent
CHRISTIAN SHANDU
Fourth Respondent
THAMSANQA NQAMBI
Fifth Respondent
ELLECK NYAWOSE
Sixth
Respondent
B R MKHABA
Seventh Respondent
M M MAHLANGU
Eighth
Respondent
CORAM
: BOTHA, E M GROSSKOPF, GOLDSTONE JJA
HEARD
: 9 NOVEMBER
1992
DELIVERED
: 26 NOVEMBER 1992
JUDGMENT
BOTHA JA
:-
2 The eight respondents were formerly employed
by the KwaZulu Government in its Department of Health. On 4 June 1990 they were
notified
by the second appellant (the Secretary for Health) that the first
appellant ("the Minister") had, with the prior approval of the
Cabinet,
summarily discharged them from the public service in terms of section 15A(1) of
the KwaZulu Public Service Act 18 of 1985
("the Public Service Act").
The
respondents thereupon brought an application against the appellants in the
Durban and Coast Local Division for an order reviewing
and setting aside the
decision to terminate their employment and for certain ancillary relief. The
application was heard by MAGID
J. He granted the relief sought by the
respondents, with costs. Subsequently leave was given to the appellants to
appeal to this
Court. The costs of the application for leave to appeal were
3
ordered to be costs in the appeal.
Section 15A(1) of the Public Service Act
was introduced by section 3 of Act 14 of 1989. It
reads as follows:
"Notwithstanding the provisions of this Act or any other law, the Minister
may with the prior approval of the Cabinet summarily discharge
an officer or an
employee from the public service without the Commission having made a
recommendation for his discharge if -
(a)
in the opinion of the
Cabinet such officer or employee has taken part in a strike or has conspired
with another to strike or takes
part in subversive activities;
and
(b)
in the opinion of the Cabinet the
continued employment of such an officer or employee is not in the interest of
the Government."
The sole issue for
decision is whether
these provisions impliedly exclude the operation of
the
audi alteram partem
principle. The Court
a quo
held that
they did not. Other issues which had been
raised in the papers and in argument before the Court
4
a quo
, and which were discussed in the judgment a
quo
, were
not pursued on appeal, and nothing further need be said about them.
In view
of the narrow issue now before us, no more than brief mention is required of the
undisputed facts giving rise to it. Prior
to their dismissal the respondents
were employed as drivers at the Prince Mshiyeni Memorial Hospital. Their terms
of employment were
governed by the Public Service Act. During May 1990
dissatisfaction arose amongst the drivers at the Hospital about their rates of
pay. This led to a work stoppage on 17 and 18 May 1990, in which the respondents
took part. As a result, they were suspended from
duty. The events were reported
to the second appellant, who in turn reported to the Minister. The Minister
submitted a memorandum
to the Cabinet, setting out the facts and motivating a
recommendation that the respondents be summarily
5 dismissed. The matter was
considered by the Cabinet at a meeting on 29 May 1990. The Cabinet was of
the
opinion that the respondents had participated in a strike as defined in
the Act and that the continued employment of the respondents
was not in the
interests of the Government, and accordingly it approved the summary discharge
of the respondents in terms of section
15A(1) of the Public Service Act. The
Minister thereupon summarily discharged the respondents with effect from 18 May
1990, and they
were notified accordingly. The respondents were at no time
afforded an opportunity of making representations concerning their
dismissal.
It is not in question that the respondents had a right to be
heard
"unless the statute shows, either expressly or by implication, a clear intention
on the part of the Legislature to exclude such a
right."
6 (
Attorney-General, Eastern Cape v Blom
and Others
1988 (4) SA 645
(A) at 662H. ) The case for the
appellants is
that section 15A(1) by implication
evinces a clear intention on the part of
the KwaZulu
Legislature to exclude the right to be heard. In
argument
their counsel advanced a number of consider
ations which, it was contended,
justified the impli
cation. First, he pointed to the provisions
of
sections 18 and 19 of the Act. Section 18 details
the forms of
misconduct of which an officer in the
public service may be guilty; these
include partici
pation in a strike (para (u)). Section 19 prescribes
an
elaborate procedure which is to be followed when
an officer is charged with
misconduct, including
detailed provisions relating to a hearing, the
making
of representations, and so forth. The presence of
these provisions
in the Act indicates, so it was
contended, . that section 15A(1) was intended
to
7 provide an alternative procedure for dealing with public servants who
go on strike, in which the right
to a hearing was necessarily excluded.
Secondly it was argued that this view of the Legislature's intention was
fortified by the fact
that section 15A(1) was introduced into the Act by way of
subsequent amendment, giving rise to the inference that its purpose was
to
exclude any enquiry so as to enable the Cabinet to deal with a strike quickly
and expeditiously.
In support of the arguments mentioned above counsel sought
to rely on an unreported judgment delivered by SHEARER J in the Durban
and Coast
Local Division on 27 October 1988, in the case of
Malimba v Minister of
Education and Culture, KwaZulu Government
. At the same time counsel duly
drew attention to a later case decided in the same Division,
Zindela.v Chief
Minister of KwaZulu. NO and Another
8
1992 (2) SA 333
, in which McLAREN J dissented from
the earlier judgment. In both cases the Court was
concerned with section
21A of the KwaZulu Education
Act 7 of 1978 ("the Education Act"), which
provides
that
" the Minister may, with the prior
approval of the Cabinet, discharge a
teacher from the service of the department
with short notice and without
advancement
of reasons if in the opinion of the Cabinet
the continued
employment of the teacher is
not in the interest of KwaZulu
"
The Education Act contains detailed
provisions
relating to the procedure to be followed in cases of
misconduct
(corresponding broadly to sections 18 and
19 of the Public Service Act) and section 21A of the
former (like section 15A(1) of the latter) was
inserted by subsequent amendment. By reason of those
circumstances SHEARER
J in
Malimba
's case
supra
found
that section 21A impliedly
excluded the right of a
teacher to be heard if the section is invoked.
In
10 of the Education Act and section 15A(1) of the Public Service Act, but
in my view there is no reason to differentiate between the
two sections as far
as the applicability of the
audi alteram partem
principle is concerned.
Counsel for the appellants pointed to the fact that section 15A(1) (unlike
section 21A) is confined to conduct
relating to strikes and subversive
activities, and argued that this showed an intention to provide for a speedy
procedure in which
there would be no room for applying the
audi
rule. It
may be accepted that a more expeditious procedure was envisaged than that laid
down in section 19, but it simply does not
follow that it was intended thereby
to nullify entirely the right to be heard. The reasoning in
Zindela
's
case
supra
at 337E-H is as apposite to section 15A(1) as it is to section
21A. Counsel also relied on the fact that section 15A(1) refers not
only to
officers (to whom section 19 applies) but also to employees (to whom it does
not
11
apply), contending that this justified the inference that it was intended not
only to curtail the right to be heard, but indeed to
exclude it altogether. I do
not agree. Again, the reasoning in
Zindela
's case
supra
(at
337C-E) is applicable; in the present context it can make no difference that
section 21A has the words "without advancement of
reasons", whereas section
15A(1) uses the words "without the Commission having made a recommendation for
his discharge". The point
remains that it cannot be imagined that the
Legislature, if it had intended by the amendment to oust the operation of the
audi
principle, would not have said so. A clear intention to do so cannot
be extracted from the subtle and oblique indications put forward
by counsel for
the appellants.
It follows, therefore, that the arguments for the appellants
which are based on
Malimba
's case
12
supra
must be rejected.
A further argument advanced by counsel
for the appellants was that, since section 15A(1) provided only for the
discharge of an employee
or officer, and not for any lesser form of discipline,
the recognition of a right to be heard would serve no useful purpose. It need
hardly be said that the argument is without substance. Representations by an
affected employee or officer can obviously have a vital
bearing on the opinion
to be formed by the Cabinet in terms of paragraphs (a) and (b) of the section,
and on the decision whether
or not to exercise the power conferred by the
section at all. In the present case, indeed, the respondents' founding and
replying
affidavits contain a number of allegations and contentions that are
germane to the question whether the section could and should
have been
applied.
9
Zindela
's case
supra
McLAREN J held that SHEARER J's
finding was wrong and that the
audi alteram partem
principle was not
excluded.
In my judgment the decision in
Zindela
's case
supra
is clearly correct. I also agree, in general, with the reasons given by McLAREN
J for declining to follow
Malimba
's case
supra
. There is no need
to go into details. I would merely observe that the judgment of this Court in
Administrator, Transvaal, and Others v Zenzile and Others
1991 (1) SA 21
(A), on which McLAREN J rightly relied for rejecting the earlier approach of
SHEARER J, has since been applied and expanded upon
in recent decisions of this
Court: see
South African Roads Board v Johannesburg City Council
1991 (4)
SA 1
(A) and
Administrator, Natal, and Another v Sibiya and Another
[1992] ZASCA 115
;
1992
(4) SA 532
(A).
There are differences between section 21A
13
Finally, counsel for the appellants argued that an intention to exclude the
right to be heard
was to be inferred from the fact that it is the KwaZulu
Cabinet which has to form the requisite opinion in terms of section 15A(1);
counsel said that the Cabinet exercises the prerogative powers of the executive
government, that the Minister was bound to give effect
to its decisions, that
its meetings were secret, and that in constitutional history it was unheard of
for anyone to have a right
to make representations to it. I cannot accept this
argument. The considerations advanced in support of it do not justify the
conclusion
contended for. If the Legislature sees fit to involve the Cabinet in
the process of the dismissal of a public servant, I can perceive
no reason why,
in relation to the duty to observe the
audi alteram partem
principle, the
Cabinet is in a position any different from that of
14 the Minister or a
lesser functionary of the executive government; the considerations attracting
the duty
(as formulated, for instance, in the
South African Roads
Board
case
supra
at 13B-C) apply with equal force - cf
Strydom v
Staatspresident, Republiek van Suid-Afrika, en 'n Ander
1987 (3) SA 74
(A)
at 96J-97C. It is possible, as was stated in the last-cited passage, that the
manner of applying the principle may be influenced
by the constitutional
position, but that is a question which need not be pursued, since it does not
arise in the present case. It
is the exclusion of the principle itself which is
in issue. On that issue the arguments on behalf of the appel-lants are
rejected.
The appeal is dismissed with costs.
A S BOTHA
JA
E M GROSSKOPF JA
CONCUR
GOLDSTONE JA