IN THE HIGH COURT OF SOUTH AFRICA by teHy2w1

VIEWS: 19 PAGES: 44

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                                     FORM A
              FILING SHEET FOR EASTERN CAPE JUDGMENT

                                                            ECJ NO:

PARTIES:

POLICE AND PRISONS CIVIL RIGHTS UNION AND 75 OTHERS

AND

MINISTER OF CORRECTIONAL SERVICES AND FIVE OTHERS

REFERENCE NUMBERS -
       Registrar:       603/05


DATE HEARD:          1 DECEMBER 2005

DATE DELIVERED: 12 JANUARY 2006

JUDGE(S): PLASKET J


LEGAL REPRESENTATIVES -
Appearances

:
       for the State/Applicant(s)/Appellant(s):   J GROGAN
       for the accused/respondent(s):        JW EKSTEEN SC & NJ SANDI



Instructing attorneys:
       Applicant(s)/Appellant(s):   WEELDON RUSHMERE & COLE
       Respondent(s):               MLONYENI & LESELE CO.
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IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION)
                                                            CASE NO:603/05
                                                      DATE ARGUED:1/12/05
                                                   DATE DELIVERED:12/1/06
                                                              REPORTABLE


In the matter between:


POLICE AND PRISONS CIVIL RIGHTS UNION
AND 75 OTHERS                                                     APPLICANTS


and


MINISTER OF CORRECTIONAL SERVICES
AND FIVE OTHERS                                              RESPONDENTS


Application to review and set aside the dismissal of the second to
seventy sixth applicants, brought in terms of Rule 53 of the Uniform
Rules – Jurisdiction of the High Court in labour related matters –
Whether the power to dismiss the dismissed applicants a public power
susceptible to judicial review, and whether it constitutes administrative
action, subject to review in terms of the Promotion of Administrative
Justice Act 3 of 2000 – Held that the power to dismiss in the
circumstances was such a power and that the PAJA applied – Held on
the facts that the decisions to dismiss had been tainted by
infringements   of   the   right   to   lawful   administrative    action   and
procedurally fair administrative action -- Costs where the successful
parties have acted in a manner deserving of censure and the respondent
had not had clean hands either – Each party ordered to bear their own
costs.
______________________________________________________________
_____________________________JUDGMENT_______________________
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PLASKET J:


[A] INTRODUCTION


[1] The first applicant is a trade union active in the South African Police
Service and the Department of Correctional Services (the Department). The
other applicants are members of the first applicant. They were employed as
correctional officers at the Middledrift Prison until their dismissals in early
January 2005 for refusing to work over the Christmas and New Year holiday
periods. In a nutshell, this application has been launched for the review of the
decisions taken by officials of the Department to dismiss the second to 76th
applicants.1


[2] Section 3(5)(g) of the Correctional Services Act 111 of 1998 empowers the
Commissioner of Correctional Services -- the second respondent – to
‘appoint, remunerate, promote, transfer, discipline or dismiss correctional
officials in accordance with this Act, the Labour Relations Act and the Public
Service Act’.2 Because they are part of the public service, the second to sixth
respondents are bound by the basic values that govern the public service,
contained in s 195(1) of the Constitution. These include: the promotion and
maintenance of a ‘high standard of professional ethics’; 3 the promotion of
‘efficient, economic and effective use of resources’;4 the accountability of
public administration;5 the cultivation of ‘good human-resource management’;6
and ‘broadly representative’ public administration ‘with employment and
personnel management practices based on ability, objectivity, fairness, and
the need to redress the imbalances of the past to achieve broad

                                                   th
1
  In this judgment, I shall refer to the second to 76 applicants – the individual applicants who
were dismissed – as ‘the applicants’. In places, however, the context may indicate that this
term also includes the first applicant.
2
  See too s 3(1), which provides that the Department ‘established by section 7(2) of the Public
Service Act, is part of the Public Service, established by section 197 of the Constitution’ and s
3(4) which provides that the Department ‘consists of the Commissioner, other correctional
officials appointed by the Commissioner in terms of this Act and other employees appointed in
terms of the Public Service Act’.
3
  Section 195(1)(a).
4
  Section 195(1)(b).
5
  Section 195(1)(f).
6
  Section195(1)(h).
                                           4


representation’.7 The purpose for which all powers and all functions of those
employed in the Department are to be aimed is set out in s 2 of the Act. This
section provides:
           ‘The purpose of the correctional system is to contribute to maintaining
           and protecting a just, peaceful and safe society by –
           (a) enforcing sentences of the courts in the manner prescribed by this
           Act;
           (b) detaining all prisoners in safe custody whilst ensuring their human
           dignity;
           (c) promoting the social responsibility and human development of all
           prisoners and persons subject to community corrections.’


[3] The Act’s long title sets out its purpose in more detail. It states that the Act
is intended to ‘provide for a correctional system; the establishment, functions
and control of the Department of Correctional Services; the custody of all
prisoners under conditions of human dignity; the rights and obligations of
sentenced prisoners; the rights and obligations of unsentenced prisoners; a
system of community corrections; release from prison and placement under
correctional supervision, on day parole and parole; a National Council for
Correctional Services; a Judicial Inspectorate; Independent Prison Visitors; an
internal service evaluation; officials of the Department; joint venture prisons;
penalties for offences; the repeal and amendment of certain laws; and matters
connected therewith’.


[4] In their Notice of Motion, the applicants, utilizing rule 53 of the High Court
Rules, applied to review and set aside the decision (a) of the fifth respondent
– the Head of the Correctional Centre, Middledrift -- to convict the second to
76th applicants of gross insubordination and to dismiss them summarily, (b) of
the sixth respondent – the Appeal Chairman – to confirm the guilt of these
applicants and to confirm their summary dismissal, and (c) of the third
respondent – the Deputy Regional Commissioner of Correctional Services –
to terminate the services of these applicants.


7
    Section 195(1)(i).
                                        5



[5] In addition, they seek a series of declaratory orders and a mandamus. In
the first instance, they seek declarators that the decisions of the functionaries
mentioned above ‘be declared unlawful, unconstitutional, void and without
legal force or effect’. They also seek orders declaring that the decisions were
‘biased, influenced by an error of law, and arbitrarily given’, were irrational,
that the procedure adopted by the fifth respondent was ‘unjust, unfair, in
violation of the disciplinary code of the Department of Correctional Services’
and was prejudicial to the applicants affected by it. They seek a mandamus to
the effect that the second respondent reinstate the affected applicants
forthwith ‘with full benefits and in terms of their contracts of employment’, as
well as the usual costs order in their favour.


[B] THE FACTS


[6] The facts are relatively straightforward and are not in dispute in any
material way. It is important, at the outset, to state that the service provided by
the Department has been designated an essential service in terms of s 71 of
the Labour Relations Act 66 of 1995. This means that no employee of the
Department may ‘take part in a strike … or in any conduct in contemplation or
furtherance of a strike …’8 and that labour disputes in the Department must be
dealt with in accordance with the provisions of s 74 of the Labour Relations
Act. That section requires disputes to be referred to a bargaining council that
has jurisdiction (or the Commission for Conciliation, Mediation and Arbitration,
if no such bargaining council is in existence).9 The bargaining council must
‘attempt to resolve the dispute through conciliation’10 and, if it cannot resolve
the dispute in this way, ‘any party to the dispute may request that the dispute
be resolved through arbitration by the [bargaining] council …’.11


[7] The build-up to the dismissal of the applicants commenced in April or May
2004 when the first applicant lodged a dispute against the Department

8
  Labour Relations Act, s 65(1)(d).
9
  Labour Relations Act, s 74(1).
10
   Labour Relations Act, s 74(3).
11
   Labour Relations Act, s 74(4).
                                       6


concerning the way in which correctional officers were required to perform
weekend duties. This dispute was referred to the relevant bargaining council,
in terms of s 74 of the Labour Relations Act.


[8] In about June 2004, however, and despite the reference to the bargaining
council, the Department began to experience difficulties with members of the
first applicant refusing to work over weekends. On 25 June 2004, the
Transvaal Provincial Division of the High Court granted an order in favour of
the Department interdicting the first applicant and its members from interfering
with the operation of the prisons at Nelspruit and Barberton. In the face of this
order, the first applicant passed a resolution -- on 1 July 2004 – to the effect
that its members would refuse to perform weekend duties in circumstances
where the numbers of correctional officers were reduced from the normal staff
complement.


[9] The Department sought and was granted an order, again in the Transvaal
Provincial Division of the High Court, interdicting the first applicant from
‘enticing and/or requesting any of its members to embark on any strike
relating to work of its members in the employment of the applicant’, and from
‘carrying into effect the resolution taken by the respondent at the Special
National Executive Committee meeting on the 1 July 2004’. In addition,
members of the first applicant were interdicted ‘from embarking or attempting
to embark on any strike whilst in the employment of the applicant’. Both the
first applicant and its members were interdicted from refusing ‘to discharge
week-end duties as resolved during the resolution dated the 1 July 2004’.
This interdict was in force during December 2004 and January 2005 when the
events leading to the dismissal of the second to 76th applicants occurred.


[10] In about October 2004 the first applicant and the Department entered into
an agreement which, inter alia, regulated the performance of overtime work.
This agreement was in force at the time of the events with which we are here
concerned.
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[11] The Department’s responses to the first applicant’s threats of disruptive
actions took the form of notifying its employees in the Eastern Cape, by
placing notices on all notice boards, that strikes as well as demonstrations,
picketing and other related disruptive actions were prohibited and unlawful
because the Department was as an essential service. In addition, correctional
officers at the Middledrift Prison were told at a morning parade that they could
be dismissed if they participated in strike action.


[12] On 17 December 2004, the first applicant sent a memorandum to the
Department in which it demanded, inter alia, that the Department ‘refrain from
cutting personnel over the week-end’ and issued an ultimatum that ‘the
employer respond to all the issues as raised above within seven days from
today 17 December 2004, failing which we shall intensify our action’.


[13] The seven-day period expired on 24 December 2004. On the following
day, about half of the applicants refused to work on Christmas Day and
Boxing Day. A week later, over the New Year week-end, the remaining
applicants similarly refused to work. It was these actions on their part that led
to their dismissal and the subsequent decisions now brought under review by
them.


[14] Between 29 December 2004 and 3 January 2005 each of the applicants
received a letter signed by the fifth respondent which said the following:
        ‘RE: CONTEMPLATION OF DISMISSAL FROM THE DEPARTMENT
        OF CORRECTIONAL SERVICES: YOURSELF
               1. This serves to inform you that the Department contemplates
                   to dismiss you from your services because of the following:
                      You have absented yourself from work without authority
                       from 05.01.01 to 05.01.02.12
                      Your unauthorised absence, which is a direct response to
                       a call by POPCRU to engage in an illegal, unprotected


12
  Obviously, about half of the letters refer to the dates 25 and 26 December 2004, while the
remainder refer to the period 1 and 2 January 2005.
                                          8


                     and prohibited strike, is a misconduct that can lead to
                     your dismissal.
                    Your conduct and actions compromised the Department’s
                     security measures and it is in breach of your contract of
                     employment        with   the   Department   of   Correctional
                     Services.
                    Your conduct and actions is in contravention of the DCS
                     code (clause 5.1A) in that you are disrupting the
                     operations of the Department.
                    Your unauthorised absence is also in contravention of the
                     DCS code (clause 3.1A) in that it amounts to gross
                     insubordination.
              2. In view of the above you are required to show cause why the
                 Department should not terminate your services. Please take
                 further note that failure to submit your representation within
                 48 hours from receipt of this letter may result in the
                 Department effecting your dismissal without any further
                 notice.
              3. Your representation should be submitted to the office of the
                 Head, Correctional Centre.’


[15] All of the applicants made written representations in which they claimed
that their absence from work was due to illness. By letter dated 3 January
2005, the fifth respondent informed all of the applicants of their summary
dismissal with effect from that day.


[16] The applicants then took their dismissals on appeal to the appeal tribunal
created by the Department’s disciplinary code and procedure. The appeal was
heard on 4 February 2005. It was argued that the appeal was premature
because no disciplinary enquiry had been held in terms of the disciplinary
code and procedure, that in any event, the applicants had not had a fair
hearing in the tribunal below and that they were entitled to a fair hearing and a
fair appeal, that they had received no reasons for the decision to dismiss them
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and so could not properly formulate grounds of appeal, that no record of the
disciplinary hearing, as required by the disciplinary code, had been provided
and that the dismissals were procedurally and substantively flawed and thus
of no effect.


[17] The sixth respondent rejected all of these submissions and decided to
proceed with the appeal on the merits. When this happened, the applicants’
representative withdrew from the hearing and the appeal proceeded without
any further involvement on the part of the applicants. Witnesses were then
called by the initiator – the person who presents the employer’s case. The
sixth respondent duly recommended that ‘the dismissal of the appellants be
upheld and confirmed’. By letter dated 28 April 2005, the applicants were
informed that the third respondent had confirmed their dismissal with effect
from 22 April 2005.


[18] This application was launched in May 2005 as an urgent application. An
interim order was applied for to suspend the dismissal of the applicants
pending the review in terms of rule 53. Although the application was opposed
at the interim stage, a settlement was reached in terms of which it was
agreed, inter alia, that the decisions under challenge would be suspended
forthwith pending the outcome of the review and that the applicants would be
suspended on full pay and benefits pending the finalization of the review.


[C] THE DEPARTMENT’S DISCIPLINARY CODE AND PROCEDURE, AND
THE PROCEDURE FOLLOWED


[19] A disciplinary code and disciplinary procedure have been agreed upon by
the Department, on the one hand, and the first applicant and other trade
unions, on the other. They are recorded in a resolution – resolution 1 of 2001
– of the Departmental Bargaining Council.
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[20] It is not in dispute that the code and the procedure, being part of a
collective agreement, are binding on the Department.13 It has also been
conceded by Mr Eksteen who appeared with Mr Sandi for the respondents,
that the proper procedure as stipulated in the collective agreement was not
adhered to, either in the tribunal of first instance or in the appellate tribunal.
Despite these concessions, it is necessary to set out the procedure that ought
to have been followed and the procedure that was followed in each of the
stages.


(a) Disciplinary Hearings


[21] Two of the stated purposes of the disciplinary code and procedure are the
first and the last of the list of purposes mentioned in clause 1 of the
disciplinary procedure. The first is that the code and procedure are to ‘ensure
that all disciplinary action against employees takes place in a fair manner
(consistent, uniform, timely, impartial and confidential)’, while the last states
they are intended to ‘prevent arbitrary or discriminatory actions by managers
towards employees’. The principles that are set out in clause 2 of the
disciplinary procedure are consistent with these purposes. The second listed
principle is that ‘[d]iscipline must be applied in a prompt, fair, consistent,
uniform, timely, impartial, confidential and progressive manner’, while the
fourth principle is that the code is necessary ‘for effective service delivery and
for the fair treatment of employees’ and that it ensures four things: a fair
hearing for employees, timeous notice of allegations of misconduct levelled
against employees; the provision of written reasons for decisions; and a right
to appeal against unfavourable decisions.


[22] The scope of the application of the code and procedure is all-embracing.
In terms of clause 3 of the disciplinary procedure, it applies to all of the
Department’s employees except the Commissioner. Clause 6 states:



13
  Labour Relations Act, s 23; MEC: Department of Finance, Economic Affairs and Tourism,
Northern Province v Mahumani (2004) 25 ILJ 2311 (SCA), para 3; Van Eyk v Minister of
Correctional Services and others (2005) 26 ILJ 1039 (EC), para 4.
                                             11


‘Discipline is a line-management function. The Commissioner shall delegate
powers to different levels of line-management for the application of discipline.’


[23] Clause 7 sets out the procedure to be followed. I shall mention the most
important of its provisions that are relevant to this matter.


[24] Clause 7.1 provides that each disciplinary hearing is preceded by an
investigation conducted by the alleged transgressor’s supervisor. The
investigation may be informal if the transgression is a minor one or formal if
the transgression is more serious. The alleged transgressor must be informed
of any formal investigation into his or her conduct. When an investigation has
been completed and a decision has been taken to discipline an employee, the
supervisor is required to complete an incident report, which specifies the date,
time, place and nature of the incident and the names of witnesses.14


[25] Clause 7.3 regulates the giving of notice to an employee who is to be
disciplined. It provides that he or she is entitled to reasonable notice of the
disciplinary hearing, of at least seven working days and that the notice must
be in writing.15 The notice must specify the alleged transgression – ‘it must
include a clear description of the offence’ -- as well as the date, time and
place of the hearing, and a statement of the alleged transgressor’s procedural
rights.16 The alleged transgressor is also entitled, at the same time, to be
furnished with a summary of the investigation report (in the event of a formal
investigation) and a copy of the statements made by any witnesses (if such
statements exist).17


[26] Clause 7.11 grants to every alleged transgressor the right to be
represented by a fellow employee, shop steward or union official of his or her
choice, and to be legally represented in certain circumstances, to ‘state
his/her side of the case and to submit evidence in his/her defence, or to
remain silent’, to call witnesses, to be present when witnesses testify and to

14
   Disciplinary Procedure, clause 7.2 and annexure A.
15
   Disciplinary Procedure, clause 7.3.1.
16
   Disciplinary Procedure, clause 7.3.2 and annexure B.
17
   Disciplinary Procedure, clause 7.3.4.
                                            12


cross-examine witnesses, to have the proceedings interpreted if necessary
and to appeal ‘against the verdict and/or sanction’ imposed by the presiding
officer.


[27] The procedure to be followed in the hearing is set out in clause 7.13. At
the commencement of the hearing, the presiding officer – who is described as
the chairman – ‘shall state the ground rules, read the charges and request the
alleged transgressor to plead’.18 The official who leads evidence on behalf of
the employer – known as the initiator – then leads his or her witnesses, who
may be cross-examined by the alleged transgressor.19 When the employer’s
case has been closed, the alleged transgressor may testify and call
witnesses. The initiator enjoys the right to cross-examine the alleged
transgressor and his or her witnesses.20 The chairperson may question
witnesses ‘for clarification only related to matters already raised’.21 When the
evidence has been led by both sides and the matter has been argued, the
chairperson ‘must come to a finding (guilty/not guilty) on the balance of
probabilities and must inform the initiator and the alleged transgressor
accordingly’.22 In the event of a finding of guilty, the transgressor must be
afforded an opportunity to lead evidence in mitigation, the initiator an
opportunity to lead evidence in aggravation and the chairperson ‘must
consider     the    presence      of   extenuating   circumstances’.23   Finally,   the
chairperson ‘must consider the evidence heard and come to a decision’.24


(b) Appeals


[28] Clause 7.16.1 sets out the grounds upon which a person may appeal
against a decision of a chairperson. This section reiterates that an employee
may appeal as of right. Two aspects of importance are, first, that the grounds
of appeal are limited to three grounds, namely that ‘the disciplinary measure is

18
   Disciplinary Procedure, clause 7.13.1.
19
   Disciplinary Procedure, clause 7.13.2.
20
   Disciplinary Procedure, clause 7.13.3.
21
   Disciplinary Procedure, clause 7.13.4.
22
   Disciplinary Procedure, clause 7.13.5.
23
   Disciplinary Procedure, clause 7.13.6.
24
   Disciplinary Procedure, clause 7.13.7.
                                              13


too strict in view of the circumstances’ (a ground curiously referred to as
‘substantive fairness’), that the chairperson had been prejudiced and that
‘gross procedural errors occurred during the disciplinary hearing or that a fair
procedure was not followed’. Secondly, clause 7.16.1.4 provides that the
employee may be permitted to lead further evidence on appeal if that
evidence ‘was not available at the time of the hearing and the employee was
not at fault in the failure to lead such evidence, or if the evidence could not
reasonably be obtained by him’.


[29] The procedure on appeal is set out in clause 7.16.4. It is, in essence, that
if new evidence is to be led, the appellant leads his or her witnesses and the
initiator has the right to cross-examine them. The initiator may then lead
witnesses but it is clear that he or she may only do so to rebut the new
evidence led on appeal by the appellant. The parties argue the appeal and the
chairperson decides whether to uphold the appeal or dismiss it. A
recommendation is made, in the event of an appeal being dismissed on the
merits, to the ‘delegated authority’ – obviously a reference to the official to
whom the power of dismissal has been delegated by the Commissioner --
who is empowered to either set aside the sanction imposed by the tribunal at
first instance, uphold the sanction imposed, impose a less severe sanction,
impose a more severe sanction or order a rehearing.25


[30] I have set out the provisions that govern disciplinary proceedings and
appeals in some detail because the provisions that I have highlighted illustrate
clearly that what was envisaged by the parties is a formal court-like procedure
in which the rights to lead witnesses and to cross-examine witnesses are
central.


(c) The Procedure Followed


[31] The procedure followed deviated from the prescribed procedure in a
number of ways, all of which were prejudicial to the applicants.


25
     Disciplinary Procedure, clause 7.16.6.
                                         14



[32] First, the applicants were never informed of a formal investigation into
their conduct, as they were entitled to be in terms of clause 7.1. Secondly,
they were given 48 hours within which to make representations as to why they
should not be dismissed, whereas clause 7.3.1 required the giving of at least
seven working days notice of the hearing. Thirdly, they were never informed
of the ‘date, time and venue of the hearing’, as they were entitled to be in
terms of clause 7.3.2 and neither did the notice take the form of annexure B,
as it was required to do, in terms of the same section. They were not informed
of their rights, which is a further requirement of clause 7.3.2. Fourthly, they
were not furnished with summaries of the investigation report or copies of
statements made by witnesses. Both are required in terms of clause 7.3.4
whenever there has been a formal investigation, as there should have been in
this case as it involved serious allegations of misconduct. (Note, however, that
when the applicants’ representative complained of this on appeal, the initiator
said that no investigation had been conducted and no statements had been
taken from witnesses.)


[33] The disciplinary procedure envisaged a right to an oral hearing, whereas
the   procedure   followed    involved    only     the   consideration   of   written
representations. Consequently, the right of the applicants to state their case
and submit evidence, in terms of clause 7.11.2, to call witnesses, in terms of
clause 7.11.3, and to cross-examine witnesses, in terms of clause 7.11.4,
were all violated. The result was that the trial-like procedure envisaged by the
disciplinary procedure was not applied at all and the two-stage procedure,
requiring evidence, argument and a decision on the merits before a decision
on sanction, was short-circuited because the applicants were only requested
to make representations on sanction, and that in the form of a rule nisi. When
all is said and done, not even a pretence was made at compliance with the
disciplinary procedure. It was ignored entirely.


[34] The appeal suffered from the same type of defects, due in large measure
to the fact that there had been no proper hearing in the tribunal of first
instance. Indeed, the initiator stated early in the hearing of the appeal: ‘As you
                                        15


are aware, Chair, these people have been dismissed without a formal
hearing.’ Later, when the points in limine taken by the applicants’
representative had been dismissed and he had withdrawn from the appeal,
the initiator stated: ‘We are going to lead evidence to prove that, under the
circumstances, the employer had no option but to dismiss them without a
hearing.’ This statement encapsulates the flaw in the appeal: there was no
record of the proceedings of the tribunal of first instance so the initiator had to
lead evidence, which the disciplinary procedure does not allow, save in
rebuttal, in order to create evidence upon which the appellate tribunal could
take a decision. When viewed in this way, the process can only be described
as bizarre, especially when it is borne in mind that the chairperson dismissed
a point in limine taken by the applicants’ representative that ‘the appeal
tribunal has been prematurely convened as no disciplinary enquiry has yet
been held’.


[D] THE ISSUES


[35] First, while it is not argued by the respondents that this court lacks
jurisdiction, it is argued that its jurisdiction is limited in labour matters to the
unfair labour practice jurisdiction of the Labour Court and, more particularly,
that the remedies that may be awarded are the remedies envisaged for unfair
labour practices, rather than public law remedies that flow from the review and
setting aside of invalid acts of public officials more generally. In the second
place, it is argued by the respondents that the decisions that are challenged
are not administrative decisions and consequently are not reviewable in terms
of s 6 of the Promotion of Administrative Justice Act 3 of 2000 (the PAJA).
Thirdly, if I find that the decisions in issue are indeed reviewable, either in
terms of the PAJA or in terms of s 1(c) of the Constitution, it will be necessary
to decide whether grounds exist for the review and setting aside of the
decisions and, if so, what other relief may be appropriate. Finally, I will have to
decide on an appropriate costs order. I turn now to address these issues.


(a) Jurisdiction
                                            16


[36] In terms of s 19(1) of the Supreme Court Act 59 of 1959, every superior
court has jurisdiction ‘over all persons residing or being in and in relation to all
causes arising and all offences triable within its area of jurisdiction …’. In
addition to this statutory basis for jurisdiction, the superior courts enjoyed an
inherent jurisdiction at common law -- in the words of Van Winsen, Cilliers and
Loots -- to ‘make orders, unlimited as to amount, in respect of matters that
come before them, subject to certain limitations imposed in some instances by
the common law, but more often by statute’.26 This inherent jurisdiction is now
entrenched in s 173 of the Constitution. What both s 19(1) of the Supreme
Court Act and the constitutionally protected inherent jurisdiction mean is that,
‘whereas inferior courts may do nothing that the law does not permit, superior
courts may do anything that the law does not forbid’.27


[37] In addition, s 169 of the Constitution provides that a High Court may
decide any constitutional matter except matters that are reserved for the
exclusive jurisdiction of the Constitutional Court or matters that have been
‘assigned by an Act of Parliament to another court of a status similar to a High
Court’, and ‘any other matter not assigned to another court by an Act of
Parliament’.


[38] Section 157 of the Labour Relations Act deals with the jurisdiction of the
Labour Court. To the extent relevant to this matter, the section provides:
       ‘(1) Subject to the Constitution and section 173, and except where this
       Act provides otherwise, the Labour Court has exclusive jurisdiction in
       respect of all matters that elsewhere in terms of this Act or in terms of
       any other law are to be determined by the Labour Court.
       (2) The Labour Court has concurrent jurisdiction with the High Court in
       respect of any alleged or threatened violation of any fundamental right
       entrenched in Chapter 2 of the Constitution of the Republic of South
       Africa, 1996, and arising from-
               (a)     employment and from labour relations;

26
   Herbstein and Van Winsen: The Civil Practice of the Supreme Court of South Africa (4 ed)
Cape Town, Juta and Co: 1997, 38.
27
   Van Winsen, Cilliers and Loots, op cit, 38.
                                             17


                (b)      any dispute over the constitutionality of any executive or
                administrative act or conduct, or any threatened executive or
                administrative act or conduct, by the State in its capacity as an
                employer; and
                (c)     the application of any law for the administration of which
                the Minister is responsible.’


[39] It is clear from the terms of s 157(1) and s 157(2) that they do not purport
to oust the jurisdiction of High Courts to determine the constitutionality of
conduct of organs of state in the field of employment. They do not, in other
words, limit the jurisdiction of High Courts that s 169 of the Constitution vests
in them. Instead, they vest jurisdiction concurrent with that of the High Courts
in the Labour Court in respect of employment-related alleged or threatened
violations of fundamental rights, including disputes about the constitutionality
of executive or administrative conduct of the State as an employer.


[40] That this is so appears from the judgment of Nugent AJA in Fedlife
Assurance Ltd v Wolfaard28 in which it was held that neither the Labour
Relations Act itself or the interim or final Constitutions (by entrenching a
fundamental right to fair labour practices) had the effect of ousting the
jurisdiction of a High Court to entertain a labour dispute in which a plaintiff
sued in terms of the common law for damages arising from breach of his
fixed-term employment contract by his employer, and that the remedies
potentially available to an aggrieved party were not restricted to the remedies
contemplated in chapter 8 of the Labour Relations Act.29

28
  2002 (1) SA 49 (SCA).
29
   The principles are applicable to determining whether a court’s jurisdiction has been ousted
may be summarized as follows: (a) The court retains its jurisdiction unless the statute in
question ousts it (Madrassa Anjuman Islamia v Johannesburg Municipality 1917 AD 718,
727); (b) There is a presumption against such an ouster (Lenz Township Co (Pty) Ltd v
Lorentz NO en andere 1961 (2) SA 450 (A), 455B); (c) It is not to be assumed that a statute
intends to oust the High Court’s jurisdiction (Groenewald v Minister of Finance 1927 TPD 679,
683-684); (d) An ouster of jurisdiction must be effected in the clearest of terms (Mhlongo v
MacDonald 1940 AD 299, 310); (e) The mere presence of an alternative procedure is not
enough upon which to conclude that the High Court’s jurisdiction has been ousted (Golube v
Oosthuizen and another 1955 (3) SA 1 (T), 4F-G). See too Johannesburg Municipal Council v
Maserovitz 1914 TPD 439, 446 in which Curlewis J held: ‘This Court has the inherent right, as
has been laid down in various cases, to take cognizance of an application against a public
body like a Town Council, where that body has come to a decision contrary to the
                                              18



[41] On the first issue, Nugent AJA interpreted s 157(1) of the Labour
Relations Act as follows:30
        ‘Furthermore s 157(1) does not purport to confer exclusive jurisdiction
        upon the Labour Court generally in relation to matters concerning the
        relationship between employer and employee. Some of the implications
        were recently discussed by Zondo JP in Langeveldt v Vryburg
        Transitional Local Council and others (2001) 22 ILJ 1116 (LAC) ([2001]
        5 BLLR 501). Its exclusive jurisdiction arises only in respect of “matters
        that elsewhere in terms of this Act or in terms of any law are to be
        determined by the Labour Court”. Various provisions of the 1995 Act
        identify particular disputes or issues that may arise between employers
        and employees and provide for such disputes and issues to be referred
        to the Labour Court for resolution, usually after attempts at conciliation
        have failed (see for example ss 9, 24(7), 26, 59, 63(4), 66(3), 68(1), 69
        etc). In my view, those are the “matters” that are contemplated by s
        157(1) and to which the Labour Court's exclusive jurisdiction is
        confined (though there may be some debate in particular cases as to
        their ambit: see, for example, Mondi Paper (a Division of Mondi Ltd) v
        Paper Printing Wood & Allied Workers' Union and others (1997) 18 ILJ
        84 (D); Coin Security Group (Pty) Ltd v SA National Union for Security
        Officers and Other Workers and others 1998 (1) SA 685 (C)).’


[42] On the issue of remedies, Nugent AJA held, in the first place, that the
‘clear purpose of the Legislature when it introduced a remedy against unfair
dismissal in 1979 was to supplement the common-law rights of an employee
whose employment might be lawfully terminated at the will of the employer’
and that it intended ‘to provide an additional right for an employee whose
employment might be terminated lawfully but in circumstances that were


fundamental principles of our law, namely by having refused an application and condemned a
person without giving him a hearing. That jurisdiction which the Court has, has not, in my
opinion, been ousted by the fact that the legislature has given the applicant a right to appeal
to a magistrate when his application is refused.’ See further Rose-Innes Judicial Review of
Administrative Tribunals in South Africa Cape Town, Juta and Co: 1963, 56-57.
30
   Para 25.
                                              19


nevertheless unfair’.31 He also held that, far from there being express or
implied provisions of the Act that pointed to a limitation of remedies, there
were, instead, provisions that pointed clearly in the opposite direction. 32 He
concluded:33
        ‘In my view chap 8 of the 1995 Act is not exhaustive of the rights and
        remedies that accrue to an employee upon the termination of a
        contract of employment. Whether approached from the perspective of
        the constitutional dispensation and the common law or merely from a
        construction of the 1995 Act itself I do not think the respondent has
        been deprived of the common-law right that he now seeks to enforce. A
        contract of employment for a fixed term is enforceable in accordance
        with its terms and an employer is liable for damages if it is breached on
        ordinary principles of the common law.’


[43] The central issue in Fredericks and others v MEC for Education and
Training, Eastern Cape and others34 was whether a challenge by employees
to decisions of the respondents concerning retrenchments, based on the
allegation that the fundamental rights of the employees to equality and to just
administrative action had been infringed, was justiciable in the High Court.
The court below had held that the High Court’s jurisdiction had been ousted.
O’Regan J held that the matter turned on the interpretation of s 169 of the
Constitution and s 157 of the Labour Relations Act. After an analysis of these
provisions, she concluded that the High Court’s jurisdiction had not been
ousted. She held:35
        ‘[40] As there is no general jurisdiction afforded to the Labour Court in
        employment matters, the jurisdiction of the High Court is not ousted by
        s 157(1) simply because a dispute is one that falls within the overall
        sphere of employment relations. The High Court's jurisdiction will only
        be ousted in respect of matters that “are to be determined” by the
        Labour Court in terms of the Act. The Concise Oxford English

31
   Para 13.
32
   Para 17.
33
   Para 22. See too Denel (Pty) Ltd v Vorster (2004) 25 ILJ 659, para 16.
34
   2002 (2) SA 693 (CC).
35
   Paras 40 and 41.
                                         20


       Dictionary (1990 edition) defines “determine” so as to include “to
       settle”, “to decide”, and “to fix”. Adopting this definition, a matter to be
       determined by the Labour Court as contemplated by s 157(1) means a
       matter that in terms of the Act is to be decided or settled by the Labour
       Court. I am fortified in this conclusion by the use of the word
       “determine” in s 19(1)(a) of the Supreme Court Act 59 of 1959 which
       provides that:
              “A Provincial or Local Division shall . . . have power --
              (i)     to hear and determine appeals from all inferior courts
              within its area of jurisdiction;
              (ii)    to review the proceedings of all such courts;
              (iii)   in its discretion, and at the instance of an interested
              person, to enquire into and determine any existing, future or
              contingent right or obligation, notwithstanding that such person
              cannot claim any relief consequential upon the determination.”
       [41] There is no express provision of the Act affording the Labour Court
       jurisdiction to determine disputes arising from an alleged infringement
       of constitutional rights by the State acting in its capacity as employer,
       other than s 157(2). That section provides that challenges based on
       constitutional rights arising from the State's conduct in its capacity as
       employer is a matter that may be determined by the Labour Court
       concurrently with the High Court. Whatever else its import, s 157(2)
       cannot be interpreted as ousting the jurisdiction of the High Court since
       it expressly provides for a concurrent jurisdiction.’


[44] From the above analysis I conclude that this court has jurisdiction to
determine the issues raised by the applicant. Since these issues include
allegations that fundamental rights had been violated, this court and the
Labour Court have concurrent jurisdiction in terms of s 157(2) of the Labour
Relations Act. I also conclude that in its jurisdiction to award remedies this
court is not restricted to the remedies and their limitations listed in s 193 and s
194 of the Labour Relations Act. If the PAJA applies, any one or more of the
remedies contemplated by s 8 of that Act may be awarded, if appropriate, and
if the decisions under challenge are reviewable in terms of s 1(c) of the
                                               21


Constitution, then any one or more of the remedies contemplated by s 172 of
the Constitution may be awarded.


(b) Are the Decisions Administrative Actions?


[45] It was contended by the applicants that the decisions they challenge are
administrative decisions and that, as a result, they are reviewable in terms of
s 6 of the PAJA. The respondents contend, however, that the decisions are
not administrative decisions because they do not involve the exercise of
public powers and so the provisions of the PAJA do not apply.


[46] Section 6(1) of the PAJA provides that ‘[a]ny person may institute
proceedings in a court or a tribunal for the judicial review of an administrative
action’. Section 6(2) then codifies the grounds of review.36 The PAJA only
applies to the review of administrative action as defined in s 1. That does not
mean that administrative action that is excluded from the Act’s limited
definition of administrative action37 is not reviewable:38 like all other exercises
of power by public officials and public bodies, such actions are reviewable for
compliance with the founding value of the rule of law, including its principle of
legality, entrenched in s 1(c) of the Constitution, at the very least.39



36
   Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and others 2004 (4) SA 490
(CC); 2004 (7) BCLR 687 (CC), para 25, in which O’Regan J held that the provisions of s 6
‘divulge a clear purpose to codify the grounds of judicial review of administrative action as
defined in PAJA’.
37
   See Grey’s Marine Hout Bay (Pty) Ltd and others v Minister of Public Works and others
2005 (6) SA 313 (SCA), para 21 in which Nugent JA said of the definition of administrative
action in the PAJA: ‘The cumbersome definition of that term in PAJA serves not so much to
attribute meaning to the term as to limit its meaning by surrounding it with a palisade of
qualifications.’ Hoexter The New Constitutional and Administrative Law (Vol 2: Administrative
Law) Cape Town, Juta and Co: 2002, 100 (hereafter referred to as Hoexter) says of the
definition: ‘As is readily apparent, the definition of administrative action in the Act is both
extremely narrow and highly convoluted. Indeed, one feels that the drafters could hardly have
made it narrower or more convoluted.’ She describes the definition, at 101, as ‘a strange and
unlikely cocktail of South African, Australian and German ingredients’.
38
   For instance, ‘any decision taken, or failure to take a decision, in terms of any provision of
the Promotion of Access to Information Act, 2000’ is excluded from the definition of
administrative action. So is ‘any decision taken, or failure to take a decision, in terms of
section 4(1)’ of the PAJA. Both are clear examples of what would otherwise be administrative
action and both types of decisions will be reviewable in terms of s 1(c) of the Constitution.
39
   Grey’s Marine Hout Bay (Pty) Ltd and others v Minister of Public Works and others supra,
para 20.
                                             22


[47] I turn now to the definition of administrative action in s 1 of the PAJA. It is
this:40
          ‘”administrative action” means any decision taken, or any failure to take
          a decision, by-
                 (a)    an organ of state, when-
                        (i)      exercising a power in terms of the Constitution or a
                        provincial constitution; or
                        (ii)     exercising a public power or performing a public
                        function in terms of any legislation; or
                 (b)    a natural or juristic person, other than an organ of state,
                 when exercising a public power or performing a public function
                 in terms of an empowering provision,
          which adversely affects the rights of any person and which has a direct,
          external legal effect, but does not include-
                 (aa)   the executive powers or functions of the National
                 Executive, including the powers or functions referred to in
                 sections 79 (1) and (4), 84 (2) (a), (b), (c), (d), (f), (g), (h), (i) and
                 (k), 85 (2) (b), (c), (d) and (e), 91 (2), (3), (4) and (5), 92 (3), 93,
                 97, 98, 99 and 100 of the Constitution;
                 (bb)   the executive powers or functions of the Provincial
                 Executive, including the powers or functions referred to in
                 sections 121 (1) and (2), 125 (2) (d), (e) and (f), 126, 127 (2),
                 132 (2), 133 (3) (b), 137, 138, 139 and 145 (1) of the
                 Constitution;
                 (cc)   the executive powers or functions of a municipal council;
                 (dd)   the legislative functions of Parliament, a provincial
                 legislature or a municipal council;


40
   In Grey’s Marine Hout Bay (Pty) Ltd and others v Minister of Environmental Affairs and
others supra, para 21, Nugent JA provided a ‘consolidated and abbreviated’ definition of
administrative action in s 1 of the PAJA as follows: ‘Administrative action means any decision
of an administrative nature made … under an empowering provision [and] taken … by an
organ of State, when exercising a power in terms of the Constitution or a provincial
constitution, or exercising a public power or performing a public function in terms of any
legislation, or [taken by] a natural or juristic person, other than an organ of State, when
exercising a public power or performing a public function in terms of an empowering
provision, which adversely affects the rights of any person and which has a direct, external
legal effect … .’
                                            23


                  (ee)   the judicial functions of a judicial officer of a court referred
                  to in section 166 of the Constitution or of a Special Tribunal
                  established under section 2 of the Special Investigating Units
                  and Special Tribunals Act, 1996 (Act 74 of 1996), and the
                  judicial functions of a traditional leader under customary law or
                  any other law;
                  (ff)   a decision to institute or continue a prosecution;
                  (gg)   a   decision   relating to    any aspect       regarding    the
                  nomination, selection or appointment of a judicial officer or any
                  other person, by the Judicial Service Commission in terms of
                  any law;
                  (hh)   any decision taken, or failure to take a decision, in terms
                  of any provision of the Promotion of Access to Information Act,
                  2000; or
                  (ii)   any decision taken, or failure to take a decision, in terms
                  of section 4 (1).’


[48] A decision for purposes of the PAJA is defined in s 1 to mean ‘any
decision of an administrative nature made, proposed to be made, or required
to be made, as the case may be, under an empowering provision’. It includes
a decision relating to the       ‘making, suspending, revoking or refusing to make
an order, award or determination’ and ‘doing or refusing to do any other act or
thing of an administrative nature’.


[49] The Bato Star case defined the relationship between the Constitution, the
PAJA and the common law, O’Regan J stating the position thus:41
          ‘In Pharmaceutical Manufacturers Association of SA and Another: In re
          Ex parte President of the Republic of South Africa and Others, the
          question of the relationship between the common-law grounds of
          review and the Constitution was considered by this Court. A unanimous
          Court held that under our new constitutional order the control of public
          power is always a constitutional matter. There are not two systems of


41
     Supra, para 22.
                                               24


        law regulating administrative action - the common law and the
        Constitution - but only one system of law grounded in the Constitution.
        The Courts' power to review administrative action no longer flows
        directly from the common law but from PAJA and the Constitution itself.
        The groundnorm of administrative law is now to be found in the first
        place not in the doctrine of ultra vires, nor in the doctrine of
        parliamentary sovereignty, nor in the common law itself, but in the
        principles of our Constitution. The common law informs the provisions
        of PAJA and the Constitution, and derives its force from the latter. The
        extent to which the common law remains relevant to administrative
        review will have to be developed on a case-by-case basis as the
        Courts interpret and apply the provisions of PAJA and the Constitution.’


[50] It is particularly important to bear in mind that, even though administrative
law may have been given a new visage on 27 April 1994, the common law
has not been abrogated and it informs (to the extent that it is in harmony with
the democratic constitutional ethos) the interpretation of the PAJA. 42 This is
not a controversial proposition: in the Constitutional Court’s first judgment, S v
Zuma and others43 Kentridge AJ made the point that legal principles that
applied prior to 27 April 1994 were not simply to be ignored as they ‘obviously
contain much of lasting value’. The same is true of the common-law rules
governing the judicial review of administrative action that have been
developed over centuries in England and in South Africa, often in
circumstances hostile to fundamental rights, accountability, openness and
other democratic values.44

42
   Two random examples of the influence of the common law on the drafting of the PAJA are
first, the ground of review that an administrative act may be set aside if the administrator who
took it ‘was biased or reasonably suspected of bias’, a formulation taken directly from BTR
Industries South Africa (Pty) Ltd and others v Metal and Allied Workers Union and another
1992 (3) SA 660 (A), and secondly, the ground of review that an administrative act may be set
aside if it was ‘materially influenced by an error of law’, a formulation taken directly from Hira
and another v Booysen and another 1992 (4) SA 69 (A). These cases resolved uncertainty as
to the proper test for bias and the reviewability of errors of law respectively. See too Hoexter,
91.
43
   1995 (2) SA 642 (CC); 1995 (4) BCLR 401 (CC), para 17.
44
   See President of the Republic of South Africa and others v South African Rugby Football
Union and others 2000 (1) SA 1 (CC); 1999 (10) BCLR 1059 (CC), para 133, in which the
court said: ‘Public administration, which is part of the executive arm of government, is subject
to a variety of constitutional controls. The Constitution is committed to establishing and
                                                25



[51] Part of that common-law heritage is a line of cases, exemplified by
Administrator, Transvaal and others v Zenzile and others,45 in which the rules
of procedural fairness were held to apply when public functionaries
considered dismissing employees employed by organs of state. The basis of
a court’s powers of intervention was expressly held to be that the functionary
who dismisses in such circumstances exercises a public power. Hoexter JA
stated:46
        ‘One is here concerned not with mere employment under a contract of
        service between two private individuals, but with a form of employment
        which invests the employee with a particular status which the law will
        protect. Here the employer and decision-maker is a public authority
        whose decision to dismiss involved the exercise of a public power. The
        element of public service injected by statute necessarily entails, so I
        consider, that the respondents were entitled to the benefit of the
        application of the principles of natural justice before they could be
        summarily dismissed for misconduct. Where an employee has this
        protection legal remedies are available to him to quash a dismissal not
        carried out in accordance with the principles of natural justice.’


[52] It was not contended on behalf of the respondents that the decisions
under challenge were not of an administrative nature47, that they did not
adversely affect rights, or that they did not have a direct, external legal

maintaining an efficient, equitable and ethical public administration which respects
fundamental rights and is accountable to the broader public. The importance of ensuring that
the administration observes fundamental rights and acts both ethically and accountably
should not be understated. In the past, the lives of the majority of South Africans were almost
entirely governed by labyrinthine administrative regulations which, amongst other things,
prohibited freedom of movement, controlled access to housing, education and jobs and which
were implemented by a bureaucracy hostile to fundamental rights or accountability. The new
Constitution envisages the role and obligations of government quite differently.’
45
   1991 (1) SA 21 (A).
46
   At 34B-D.
47
   On this element of the definition, see Grey’s Marine Hout Bay (Pty) and others v Minister of
Public Works and others supra, para 22, where Nugent JA held: ‘At the core of the definition
of administrative action is the idea of action (a decision) “of an administrative nature” taken by
a public body or functionary. Some pointers to what that encompasses are to be had from the
various qualifications that surround the definition but it also falls to be construed consistently,
wherever possible, with the meaning that has been attributed to administrative action as the
term is used in s 33 of the Constitution (from which PAJA originates) so as to avoid
constitutional invalidity.’ See too Hoexter, 101-102.
                                               26


effect.48 It was argued, however, that the decisions were not administrative
actions as defined because they did not constitute the exercise of public
power, and this was so because they did not affect the public as a whole.
Reliance was placed, in this respect, on the judgment of Cloete JA in Bullock
NO and others v Provincial Government, North West Province and another,49
in which it was held that a decision by the Premier of the North-West Province
to grant a servitude, in perpetuity, to one landowner over a portion of the
foreshore of Hartebeespoort Dam, to the exclusion of the public, constituted
the exercise of a public power because the dam was a ‘valuable recreational
resource available to the public at large’.


[53] In my view, however, the elusive concept of public power is not limited to
exercises of power that impact on the public at large. Indeed, many
administrative acts do not. The exercise of the power to arrest is a good
example of an administrative action that would only have a significant impact
on the arrestee50 and, perhaps, the complainant. Another example would be a
decision by the Amnesty Committee of the erstwhile Truth and Reconciliation
Commission to grant a person amnesty from the civil and criminal
consequences of his or her politically motivated crimes.51 In these instances
what makes the power involved a public power is the fact that it has been
vested in a public functionary who is required to exercise it in the public




48
   In Grey’s Marine Hout Bay (Pty) Ltd and others v Minister of Public Works and others supra,
para 23, Nugent JA interpreted these requirements of administrative action as follows: ‘While
PAJA’s definition purports to restrict administrative action to decisions that, as a fact,
“adversely affect the rights of any person”, I do not think that literal meaning could have been
intended. For administrative action to be characterised by its effect in particular cases (either
beneficial or adverse) seems to me to be paradoxical and also finds no support from the
construction that has until now been placed on s 33 of the Constitution. Moreover, that literal
construction would be inconsonant with s 3(1), which envisages that administrative action
might or might not affect rights adversely. The qualification, particularly when seen in
conjunction with the requirement that it must have a “direct and external legal effect”, was
probably intended rather to convey that administrative action is action that has the capacity to
affect rights, the two qualifications in tandem serving to emphasise that administrative action
impacts directly and immediately on individuals.’
49
   2004 (5) SA 262 (SCA), para 14.
50
    See generally, Plasket ‘Controlling the Power to Arrest Without Warrant Through the
Constitution’ (1998) 11 SACJ 173.
51
   See for example, Derby-Lewis and another v Chairman of the Committee on Amnesty of
the Truth and Reconciliation Commission and others 2001 (3) SA 1033 (C).
                                               27


interest, and not in his or her own private interest or at his or her own whim.52
This is articulated clearly in the dissenting judgment of Schreiner JA in
Mustapha and another v Receiver of Revenue, Lichtenburg and others,53 now
considered to be correct,54 in which he held that where a minister exercised a
statutory power having a ‘contractual aspect’ he acted ‘as a state official and
not as a private owner, who need listen to no representation and is entitled to
act as arbitrarily as he pleases, so long as he breaks no contract’. Instead, the
minister, because he received his powers from the statute, could only ‘act
within its limitations, express or implied’. This passage encapsulates the
essential difference between public and private power.


[54] In my view, the statutory basis of the power to employ and dismiss
correctional officers55, the subservience of the respondents to the Constitution
generally and s 195 in particular, the public character of the Department and
the pre-eminence of the public interest in the proper administration of prisons
and the attainment of the purposes specified in s 2 of the Correctional
Services Act all strengthen my view that the powers that are sought to be
reviewed in this matter are public powers as envisaged by the common law,


52
   It was the notion of public interest that led Goldstone J to hold that a decision of a
committee of the Johannesburg Stock Exchange – a private body – was reviewable, in
Dawnlaan Beleggings (Edms) Bpk v Johannesburg Stock Exchange and others 1983 (3) SA
344 (W), 364H-365A. I have not lost sight of the fact that he held that the public interest
element arose from the fact that the decisions of the JSE had the potential to ‘affect not only
its members or persons in contractual privity with it, but the general public and indeed the
whole economy’. Much the same conclusion was reached, in respect of the statutory power to
suspend a listing of a company’s shares in Johannesburg Stock Exchange and another v
Witwatersrand Nigel Ltd and another 1988 (3) SA 132 (A), 152E-I.
53
   1958 (3) SA 343 (A), 347D-G.
54
   See Logbro Properties CC v Bedderson NO and others 2003 (2) SA 460 (SCA), para 13.
55
   While the definition of administrative action in s 1 of the PAJA limits public powers and
public functions exercised or performed by organs of state to powers and functions ‘in terms
of any legislation’, public powers and public functions do not otherwise have to be sourced in
statute. The erstwhile common-law prerogative powers vested in the head of state are
obvious examples. See too such cases as Dawnlaan Beleggings (Edms) Bpk v Johannesburg
Stock Exchange and others supra; R v Panel on Take-Overs and Mergers: ex parte Datafin
PLC and another 1987 QB 815 (CA); Forbes v New South Wales Trotting Club Ltd
[1979/1980] 143 CLR 242 (HC). I agree with Brassey AJ, however, that a statutory source of
power is significant because ‘it places the existence of public power largely, if not completely,
beyond contention’. See Chirwa v Transnet Ltd and others WLD undated judgment (in an
application for leave to appeal) (case no. 03/01052) unreported, 7. This is in line with Craig’s
view that if a power is derived from statute, the body exercising that power is ‘presumptively
public’. See Craig ‘What is Public Power?’ in Corder and Maluwa (eds) Administrative Justice
in Southern Africa Cape Town, Department of Public Law, University of Cape Town: 1997, 25,
27.
                                            28


the Constitution and the PAJA. This conclusion is in harmony with the views
expressed by Woolf and Jowell in a discussion on the privatisation of
governmental functions. They say that a ‘private company selected to run a
prison, for example, although motivated by considerations of commercial profit
should be regarded, at least in relation to some of its activities, as subject to
public law because of the nature of the function it is performing. This is
because the prisoners, for whose custody and care it is responsible, are in the
prison in consequence of an order of the court, and the purpose and nature of
their detention is a matter of public concern and interest’.56


[55] Apart from the factors specific to the facts of this case that I have set out
above, I am, in any event, bound by – and, for what it is worth, agree with --
the more general proposition for which Zenzile is authority, namely that the
decision of a public authority to dismiss an employee is an exercise of public
power.


[56] Although the dismissal in Zenzile was set aside because the decision-
maker had failed to afford the affected employees a hearing, the finding that
the decision-maker was exercising public power necessarily meant that he
was required, in addition, to act lawfully and reasonably in the exercise of
those powers.57 Zenzile was not, as some have suggested, an artificial
extension of administrative law and an aberration – albeit a welcome one --
created by the circumstances of the time which should now be consigned to
the scrap-heap of history. It was a case upholding the general principle,
recognised and applied in this country at least since Central Road Board v
Meintjies,58 that one of the important roles that courts play in societies such as
ours, and in our legal tradition, is to ensure that when statutory powers (and
other public powers sourced in common law or in customary law) are given in
trust to public functionaries for the purpose of furthering the public interest,

56
   De Smith, Woolf and Jowell Judicial Review of Administrative Action (5 ed) London, Sweet
and Maxwell: 1995, para 3-031.
57
   A good example of the power to discipline employees in the public service being reviewed
for the lawfulness of the administrative action concerned is Hira and another v Booysen and
another 1992 (4) SA 69 (A), the leading case in South African law on the reviewability of
errors of law.
58
   (1855) 2 Searle 165.
                                                 29


those public functionaries do not abuse the trust reposed in them, remain
within the bounds of their empowerment and exercise their powers reasonably
and in a procedurally fair manner.59


[57] That principle has been applied to every type of administrative activity
over the years, whether it involved the administration’s ‘powers of
intervention, powers of compulsion, powers of inspection, powers of
decision’60 or any other powers and functions that the administration may
exercise or perform.61




59
   The position was set out as follows by Innes CJ over 100 years ago in the leading case of
Johannesburg Consolidated Investment Co v Johannesburg Town Council 1903 TS 111, 115:
‘Whenever a public body has a duty imposed upon it by statute, and disregards important
provisions of the statute, or is guilty of gross irregularity or clear illegality in the performance
of the duty, this Court may be asked to review the proceedings complained of and set aside
or correct them. … The non-performance or wrong performance of a statutory duty by which
third persons are injured or aggrieved is such a cause as falls within the ordinary jurisdiction
of the Court.’ This passage has been cited with approval many times, has had glosses added
to it and has been refined over the years as the law of judicial review and the grounds of
review have been developed by the courts to keep pace with the rise of the administrative
state. Section 24 of the interim Constitution and s 33 of the present Constitution represent the
high-water mark of this evolutionary process. There are good reasons why public authorities
are treated differently by the law to private individuals. Laws J analysed the position thus in R
v Somerset County Council, ex parte Fewings and others [1995] 1 All ER 513 (QB), 524e-g:
‘Public bodies and private persons are both subject to the rule of law; nothing could be more
elementary. But the principles which govern their relationships with the law are wholly
different. For private persons, the rule is that you may do anything you choose which the law
does not prohibit. It means that the freedoms of the private citizen are not conditional upon
some distinct and affirmative justification for which he must burrow in the law books. … But
for public bodies the rule is opposite, and so of another character altogether. It is that any
action to be taken must be justified by positive law. A public body has no heritage of legal
rights which it enjoys for its own sake; at every turn, all of its dealings constitute the fulfilment
of duties which it owes to others; indeed, it exists for no other purpose.’ This statement, says
Oliver, ‘encapsulates a movement in the law towards the position that public bodies do not
have interests of their own or residual, unreviewable freedoms and must justify their actions in
terms of the public interest, not their own interests’. See Oliver ‘The Underlying Values of
Public and Private Law’ in Taggart (ed) The Province of Administrative Law Oxford, Hart
Publishing: 1997, 215, 228-229.
60
   The phrase used has been taken from one of the earliest South African articles on
administrative law, Beinart ‘Administrative Law’ (1948) 11 THRHR 204, 212-213.
61
   See further Boulle, Harris and Hoexter Constitutional and Administrative Cape Town, Juta
and Co: 1989, 85, who say: ‘A feature of the modern state is that the administration is the
most active branch of the state system, and in terms of the extensive authority delegated to it
performs all of the functions which characterise contemporary government: formulating policy,
regulating, policing, providing services, settling disputes, acting entrepreneurially, consuming,
and controlling the economy.’
                                              30


[58] I am aware that, in the Labour Court, there is a line of reasoning that
Zenzile is no longer of application.62 This line of reasoning appears to take
two forms. The first is that because the Labour Relations Act has been
extended to virtually all employment relationships, it is no longer necessary for
the principles of administrative law to be applied in the field of employment
relationships in the public sector. The second is that it is impermissible for one
act to involve both labour law and administrative law: labour law and
administrative law are different and may not overlap.


[59] This first line of reasoning appears to assume that Zenzile has no
principled basis but was motivated purely by expediency. That, as I have
demonstrated above, is a fallacious assumption. Secondly, both lines are
based on an assumption that because the Constitution has entrenched a
fundamental right to fair labour practices, this right trumps every other right,
such as the right to just administrative action (the pre-eminence argument).
On this basis, it is argued that the Constitution itself has somehow impliedly
airbrushed Zenzile from our jurisprudence. I do not accept this line of
reasoning either. It is not based on principle but rather on a view that labour
law would be better off without any overlap with administrative law. That, I
would venture to suggest, is a matter that should be left for the legislature to
determine. It would have been easy enough for Parliament, when it enacted
the PAJA, to include in the long list of exclusions from the definition of
administrative action decisions taken by public officials to dismiss employees.
It chose not to.




62
  See for example, SA Police Union and another v National Commissioner of the SA Police
Service and another (2005) 26 ILJ 2403 (LC); Public Servants Association on behalf of
Haschke v MEC for Agriculture and others (2004) 25 ILJ 1750 (LC). I have also considered
Greyvenstein v Kommissaris van die SA Inkomstediens (2005) 26 ILJ 1395 (T) and Louw v
SA Rail Commuter Corporation Ltd and another (2005) 26 ILJ 1960 (W). Both are
distinguishable and it is not necessary for me to comment on their correctness. They are
distinguishable because Greyvenstein concerned, not the decision to dismiss, but the
decision to institute a disciplinary hearing against the applicant. The Louw matter is
distinguishable because the power to dismiss in that case was sourced in contract and
common law and not in statute, as in this case. The significance of this distinction arises from
the judgment of Streicher JA in Cape Metropolitan Council v Metro Inspection Services
Western Cape CC and others 2001 (3) SA 1013 (SCA).
                                              31


[60] Both lines of reasoning represent a parsimonious approach to
fundamental rights and an austere formalism that is at odds with a proper
approach to fundamental rights: they fail to give individuals the full measure of
their fundamental rights.63 There is nothing incongruous about individuals
having more legal protection rather than less, or of more than one
fundamental right applying to one act, or of more than one branch of law
applying to the same set of facts.64 This also does not necessarily mean that
there is a conflict between the PAJA and the Labour Relations Act which
would mean that the latter trumps the former in terms of s 210 of the Labour
Relations Act: in my view, the protections afforded by labour law and
administrative law are complementary and cumulative, not destructive of each
other simply because they are different. Once again, there is nothing
incongruous about this. In many of the cases dealing with the issue of
whether the High Court’s jurisdiction has been ousted, statutory provisions
created special remedies in particular fields but, despite that, the courts held
that their ordinary review jurisdiction had not been excluded.65


[61] The overlap of two or more branches of law is not unusual in our legal
system.66 Because our superior courts are based on the English model of

63
   See S v Zuma and others 1995 (2) SA 642 (CC); 1995 (4) BCLR 401 (CC), paras 14-15
and the cases cited therein.
64
   I accept that public employees enjoy greater protection than private employees and that this
is an anomaly. It is, however, an anomaly for Parliament, and not the courts, to remedy if it so
wishes.
65
   For a case dealing with whether the High Court’s ordinary, inherent, review jurisdiction was
ousted because of the special statutory review mechanism for challenging the taxation of bills
of costs created by s 81 of the Magistrates’ Courts Act 32 of 1944, see the judgment of
Schoeman J, for a full bench, in Van Wyk and others v Sheriff of Steynsburg ECD 9 October
2003 (case no.CA574/02) unreported.
66
    We no longer believe the myth that administrative law and contract cannot mix. See
Mureinik ‘Natural Justice for Students: the Case of the Undisciplined Contract’ (1985) 1
SAJHR 48; Harris and Hoexter ‘Administrative Law in Contractual Guise’ (1987) 104 SALJ
557; Hlophe ‘Natural Justice: Do Students Have Rights’ (1987) 104 SALJ 255; Plasket
‘Rattling the Chains of Sibanyoni’s Ghost: Contract and Natural Justice Revisited in the Ciskei
High Court’ (1999) 20 ILJ 2228; Hoexter ‘Contracts in Administrative Law: Life After
Formalism’ (2004) 121 SALJ 595. Zenzile’s case is a very clear example of the acceptance
that contract and administrative law can co-exist. See too Lunt v University of Cape Town and
another 1989 (2) SA 438 (C) and Logbro Properties CC v Bedderson NO and others 2003 (2)
SA 460 (SCA), para 7 in which Cameron JA held: ‘Even if the conditions constituted a
contract (a finding not in issue before us, and on which I express no opinion), its provisions
did not exhaust the province’s duties towards the tenderers. Principles of administrative
justice continued to govern that relationship, and the province in exercising its contractual
rights in the tender process was obliged to act lawfully, procedurally and fairly. In
consequence, some of its contractual rights – such as the entitlement to give no reasons –
                                           32


courts of general jurisdiction possessed of inherent jurisdiction, and because
our legal system is not, like some continental systems, based on the
existence of separate and distinct jurisdictions of specialist courts for private
law and public law matters, it does not matter much in South African law, at
least from a jurisdictional perspective, whether a matter is one of public law,
private law or involves both. When the distinction between labour law and
administrative law is elevated to a distinction of the order of importance
accorded to it in some of the Labour Court judgments, the result, in my view,
is a degree of formalism that rivals the old and discredited classification of
functions approach once used as a means of determining the intensity of
judicial review. In similar vein, the attempt to place administrative law and
labour law into neat pigeonholes runs the risk of elevating ‘what may be no
more than a convenient classification into a source of legal rules’, to borrow
the language of Schreiner JA in Pretoria North Town Council v A1 Electric Ice-
Cream Factory (Pty) Ltd.67


[62] It seems to me, however, that there are two further fundamental reasons
why the two lines of reasoning are wrong. The first is that s 157(2) of the
Labour Relations Act itself envisages that certain employment-related acts will
also be administrative actions, when it vests jurisdiction in the Labour Court
concurrent with the jurisdiction of the High Court. Section 157(2) extends the
jurisdiction of the Labour Court to determine employment-related cases in
which, inter alia, the fundamental right to just administrative action is infringed
or threatened by the State as employer. It does not vest unfair labour practice
jurisdiction in the High Court, but rather concurrent constitutional review
jurisdiction in the Labour Court. The pre-eminence argument loses sight of
this scheme.


[63] Secondly, the cases of Fedlife, Denel and Fredericks bind the Labour
Court as much as they bind provincial and local divisions of High Courts. They
recognise that one employment-related act may give rise to more than one


would necessarily yield before its public duties under the Constitution and any applicable
legislation.’
67
   1953 (3) SA 1 (A), 11C.
                                          33


cause of action. If any doubt existed, that doubt was put to rest by the
judgment of Nugent JA in United National Public Servants Association of
South Africa v Digomo NO and others,68 in which he stated:69
       ‘The remedies that the Labour Relations Act provides against conduct
       that constitutes an “unfair labour practice” are not exhaustive of the
       remedies that might be available to employees in the course of the
       employment relationship. Particular conduct by an employer might
       constitute both an “unfair labour practice” (against which the Act
       provides a specific remedy) and it also might give rise to other rights of
       action. The appellant’s claim in the present case was not that the
       conduct complained of constituted an “unfair labour practice” giving rise
       to the remedies provided for by the Labour Relations Act, but that it
       constituted administrative action that was unreasonable, unlawful and
       procedurally unfair. Its claim was to enforce the right of its members to
       fair administrative action – a right that has its source in the Constitution
       and that is protected by section 33 – which is clearly cognisable in the
       ordinary courts.’


[64] I can see no proper reason for a conclusion that Zenzile no longer binds
me. Indeed, as I have already indicated, I consider myself bound by it. I
conclude on the basis of Zenzile that the power to dismiss in this case was a
public power and that, all other elements of the definition of administrative
action being present, the decisions under challenge are subject to review in
terms of s 6(2) of the PAJA. If I am wrong in this respect, and the decisions
are not administrative decisions for purposes of the PAJA, they would
nonetheless be exercises of public power and thus be reviewable for
compliance with the founding constitutional value of the rule of law,
entrenched in s 1(c) of the Constitution.70 It is not necessary for me to decide
whether that form of review is identical in all respects to the form of review
provided by the PAJA.

68
   (2005) 26 ILJ 1957 (SCA).
69
   Para 4.
70
    Pharmaceutical Manufacturers Association of South Africa and another: In re ex parte
President of the Republic of South Africa and others 2000 (2) SA 674 (CC); 2000 (3) BCLR
241 (CC), paras 41, 51, 83-86.
                                        34



(c) The Merits


[65] I have set out above, and in detail, the procedure that the respondents
were duty-bound in law to follow in order to validly subject the applicants to
disciplinary measures. That procedure, being part of a binding collective
agreement, and being sourced in the first respondent’s statutory power to
dismiss employees of the Department, is an empowering provision for
purposes of the PAJA. In this case, the decision of the decision-maker at first
instance – the fifth respondent – is tainted by a number of reviewable
irregularities that I shall deal with. (There may be more grounds of review
available to the applicants, but it is not necessary for me to go further than
those that I shall mention below.)


(i) Lawfulness


[66] The first set of grounds of review relate to the lawfulness of the
administrative action taken against the applicants. At its most basic, and in
general terms, the right to lawful administrative action means that
‘administrative actions and decisions must be duly authorised by law, and that
any statutory requirements and preconditions that attach to the exercise of
power must be complied with’.71 Administrators may only exercise powers that
have been lawfully reposed in them, and when they exercise such powers
they are required to stay within the four corners of their empowerment. They
have no free hand to stray outside of the boundaries of their empowerment.
The fifth respondent only had power to discipline in terms of the prescribed
procedure. He had no power to abandon it and discipline employees in terms
of an ad hoc procedure that he decided was expedient in the circumstances.
By doing so he violated the fundamental rights of the applicants to lawful
administrative action because he was not authorised to take the




71
  Hoexter, 126. See too Baxter Administrative Law Cape Town, Juta and Co: 1984, 301
(hereafter referred to as Baxter).
                                              35


administrative action that he did. The ground of review contained in s
6(2)(a)(i) of the PAJA has thus been established.72


[67] Section 6(2)(b) of the PAJA provides that an administrative action is
reviewable on the ground that ‘a mandatory and material procedure or
condition prescribed by an empowering provision was not complied with’. The
scope of this ground of review has been defined as follows:73
        ‘This ground of review covers more than one aspect recognised by the
        common law. It recognises as grounds of review: first, non-compliance
        with mandatory formalities such as the promulgation of subordinate
        legislation, which is a necessary precondition for its validity; secondly,
        failures to apply mandatory procedural rules such as time limits for
        lodging claims for export incentives, for instance; and thirdly, non-
        compliance with prescribed preconditions – or jurisdictional facts –
        which serve as the trigger for the exercise of a discretionary power.’


[68] In other words, in order to be able lawfully, and hence validly, to take
disciplinary action against the applicants, the fifth respondent was required to
comply with the procedure agreed to between the parties and embodied in the
binding collective agreement. He failed to do this, not even attempting to
comply substantially with the terms of the disciplinary procedure. The law
required him to comply with the prescribed procedure: it was hence
mandatory and material. His failure to comply with this procedural
precondition of the power to discipline the applicants constituted a violation of
their right to lawful administrative action, rendering the fifth respondent’s
decision to dismiss a nullity. Looked at from a different angle, the fifth
respondent’s decision was a nullity because he had no authority to discipline
the applicants without, for instance, first giving them reasonable written notice
of the disciplinary hearing of at least seven working days, and a statement of

72
   On the scope of this ground of review, see Plasket The Fundamental Right to Just
Administrative Action: Judicial Review of Administrative Action in the Democratic South Africa
Rhodes University, unpublished PhD thesis:2002, 306. In the following discussion on the
grounds of review applicable in this matter, it is important to bear in mind that the grounds of
review tend to overlap and complement each other. See Johannesburg Stock Exchange and
another v Witwatersrand Nigel Ltd and another 1988 (3) SA 132 (A), 152E.
73
   Plasket, op cit, 307-308.
                                              36


the alleged transgressor’s procedural rights as well as a summary of the
investigation report (in the event of a formal investigation) and a copy of the
statements made by any witnesses (if such statements exist). 74 These
procedural preconditions for the exercise of his power to dismiss were entirely
absent.


[69] The same is true of the appeal procedure. The sixth respondent, as
chairperson of the appeal hearing, was robbed of jurisdiction to hear the
appeal because the preconditions for his jurisdiction were absent: a valid
disciplinary hearing at first instance had not been held and for this reason no
record of the evidence existed on which an appeal could be based. Indeed, he
then compounded the irregularity by allowing evidence to be led by the
initiator to create a record, when he had no jurisdiction to allow such a
procedure. If the purpose of the leading of evidence was to attempt to justify
the abandonment of the prescribed procedure at first instance, he had no
jurisdiction to condone that. His decision in the appeal was vitiated by these
material irregularities, and is invalid on the basis that the administrative action
taken by him – the recommendation that the applicants be dismissed – was
materially influenced by errors of law, as envisaged by s 6(2)(d) of the
PAJA.75


(ii) Procedural Fairness


[70] By failing to apply a disciplinary procedure that was agreed upon – and
was fair but different to the core, minimum procedural rights envisaged by s
3(2)(b) of the PAJA – the fifth respondent violated the applicants’ rights to
procedurally fair administrative action, as contemplated by s 6(2)(c) of the


74
   See Fredericks and another v Stellenbosch Divisional Council 1977 (3) SA 113 (C), 116C-
E, in which Diemont J held that the respondent had acted in ‘flagrant contempt of the law’ by
demolishing the applicants’ homes without giving the seven days notice prescribed by s 3B(2)
of the Prevention of Illegal Squatting Act 52 of 1951. See too Roberts v Chairman, Local
Road Transportation Board and another (1) 1980 (2) SA 472 (C), 476E-477H, in which
Friedman J held that the giving of 10 days notice, within which interested parties could object
to applications before the board, was a jurisdictional fact upon which the validity of any
subsequent decision on the application depended, and that, when the board had given less
than the required notice, its decision was a nullity.
75
   See Hira and another v Booysen and another 1992 (4) SA 69 (A).
                                                37


PAJA. This provision must be read with s 3, which defines with more precision
what the right to a fair hearing means.76 The structure of s 3 is this: s 3(1)
provides that administrative action that ‘materially and adversely affects the
rights or legitimate expectations of any persons must be procedurally fair’; s
3(2)(a) codifies the idea, at the heart of the right at common law, that
procedural fairness is situation-specific and what is fair is dependant on the
circumstances, while s 3(2)(b) provides the core, minimum content of the right
when fairness requires a hearing to be given; s 3(3) provides for discretionary
additions to the core, minimum requirements when fairness makes them
necessary; s 3(4) allows for a departure from the right to be heard as provided
by s 3(2), if such a departure is reasonable and justified; and s 3(5) – which is
applicable in this case – states that ‘[w]here an administrator is empowered by
an empowering provision to follow a procedure which is fair but different from
the provisions of subsection (2), the administrator may act in accordance with
that different procedure’.


[71] It may be suggested that the formulation of s 3(5) gives a decision-maker
a choice as to whether to apply the fair but different procedure or the core,
minimum procedure specified in s 3(2)(b). That interpretation would not, in my
view, be correct. The use of the word ‘may’ in s 3(5) authorises and permits
the utilisation of the fair but different procedure. An interpretation that would
allow for a decision-maker to choose between a procedure that provides for
extensive procedural rights, on the one hand, and the core, minimum rights to
a fair hearing, on the other, and thus deprive affected individuals of procedural
protections that they already had, could never have been intended and would
not be consistent with the constitutional promise of a fundamental right to just
administrative action. It would give the decision-maker a choice to comply with
the empowering provision that prescribes the procedure to be followed, or to
ignore it. I can see no warrant for such an interpretation.

76
   It must be borne in mind that the right to procedurally fair administrative action has two legs:
first, that a person has a right to a fair hearing, and secondly, that he or she has a right to an
unbiased hearing. See Baxter, 536 who says: ‘It is not enough for a public authority to use its
powers reasonably; it must also exercise them in a fair manner. This requirement finds its
expression in the celebrated principles of natural justice which dictate that persons who are
affected by administrative action should be afforded a fair and unbiased hearing before the
decision to act is taken.’
                                             38



[72] In similar circumstances, in Denel (Pty) Ltd v Vorster,77 Nugent JA held
that it did not matter whether a disciplinary procedure applied by an employer
was as acceptable as the one agreed to with employees because ‘through its
disciplinary code, as incorporated in the conditions of employment, the
appellant undertook to its employees that it would follow a specific route
before it terminated their employment and it was not open to the appellant
unilaterally to substitute something else’.78 This is also why s 3(4) has no
application. It allows for a departure from the core, minimum procedure in
those instances where no procedure is specified – which is usually the case –
and where, for instance, proper and acceptable grounds exist for a hearing to
be given after, rather than before, the administrative action is taken. It ‘seeks
to provide a formula for determining when the right to be heard must bow to a
value or end of greater importance in the circumstances’79 but is not licence to
opportunistically or expediently depart from agreed or prescribed procedures
that otherwise bind the decision-maker.


[73] Even in terms of the procedure imposed by the respondents, the fifth
respondent violated the rights of the applicants to procedurally fair
administrative action on at least one basis: the notice of 48 hours cannot, by
any stretch of the imagination, be said to be ‘adequate notice of the nature
and purpose of the proposed administrative action, as envisaged by s
3(2)(b)(i) of the PAJA, when it is considered that the purpose of this
requirement is to give proper effect to the actual opportunity to be heard. In
other words, this requirement does not serve an end in itself. Its purpose is to
allow the affected person a proper opportunity to consider his or her position
and prepare his or her defence.80 Similarly, the short period of notice cannot


77
   (2004) 25 ILJ 659 (SCA), para 15.
78
   Hoexter, at 239 says of s 3(5): ‘The reference to “any empowering provision” would seem to
broaden the scope of the exemption allowed here, since the definition of an empowering
provision includes agreements.’ That, of course, is the case in this matter, the empowering
provision containing the procedure being embodied in a collective agreement.
79
   Plasket, op cit, 439.
80
   See generally, Baxter, 544-545; Corder ‘The Content of the Audi Alteram Partem Rule in
South African Administrative Law’ (1980) 43 THRHR 156, 159-161. See too Heatherdale
Farms (Pty) Ltd and others v Deputy Minister of Agriculture and another 1980 (3) SA 476 (T),
486D-G.
                                            39


be said to be a ‘reasonable opportunity to make representations’, as
envisaged by s 3(2)(b)(ii) of the PAJA. The notice that the applicants were
given did not inform them of ‘any right of review or internal appeal’ as it was
required to do in terms of s 3(2)(b)(iv) of the PAJA, and it also failed to inform
them of their right to ‘request reasons in terms of section 5’ of the PAJA, as it
was required to in terms of s 3(2)(b)(v) of the PAJA.


(iii) Curing Irregularities by Appeal


[74] Because, whenever a right of internal appeal is created, a person has the
right to a fair hearing at first instance and a fair appeal, the law operates from
the presumption that a fair appeal cannot cure the irregularity of an unfair
hearing at first instance.81 In my view, this is a case in which the presumption
remains undisturbed. I say this for the following reasons: first, the appeal (as
envisaged by the disciplinary procedure) was not meant to be a complete
rehearing and was intended to be an appeal on the record, so it could not,
procedurally, cure the defects of the ‘hearing’ at first instance; secondly, the
appeal itself was shot through with irregularities and was itself a nullity on that
account, as I have concluded above; thirdly, the departure from the prescribed
procedure at first instance was so profound that it can in truth be said that
there was no defective hearing that could be cured on appeal; or, in the
alternative and fourthly, if it can be said that a hearing was indeed held, the
taint of that hearing, evidenced in particular by the sixth respondent’s
dismissal of the point in limine that the hearing below was irregular, carried
forward into the appeal.82


[d] The Result


[75] The effect of an administrative action that is taken without lawful authority
is that it is a nullity. The administrator simply had no power to do what he or
she purported to do and, consequently, no legal effects can flow from his or

81
  Baxter, 591.
82
  See Turner v Jockey Club of South Africa 1974 (3) SA 633 (A), 656C-658E; Moleko v Bantu
Affairs Administration Board (Vaal Triangle Area) and others 1975 (4) SA 918 (T), 926E-927F.
                                             40


her act.83 He or she has, in effect, as much power to perform the act as a
private individual. Hoexter says in this regard that the ‘logical concomitant’ of
the idea that ‘every incident of public power must be inferred from a lawful
empowering source’ is that ‘an action performed without lawful authority is
illegal’.84 As a result, the challenged decisions of the respondents are invalid
for want of compliance with the requirements of lawfulness.


[76] Because of the purpose of the requirements of procedural fairness and
the values that due observance of these requirements is designed to further –
accurate, rational and legitimate decision-making that can further the public
interest, and that serves as something of a safeguard against oppressive or
otherwise improper official decision-making85 – an insistence by the courts
that they be observed ‘is an end in its own right’.86 As a result, the rules of
procedural fairness ‘are considered to be so important that they are enforced
by the courts as a matter of policy, irrespective of the merits of the particular
case in question’.87 Flowing from this, administrative decisions taken in
violation of the rules of procedural fairness are invalid, irrespective of the
merits:88 the ‘path of the law’, we are told by Megarry J, ‘is strewn with
examples of open and shut cases which, somehow, were not; of
unanswerable charges which, in the event, were completely answered; of
inexplicable conduct which was fully explained; of fixed and unalterable
determinations that, by discussion, suffered a change’.89 On this basis,



83
   Baxter, 75-77 and 301.
84
   Hoexter, 127.
85
   Baxter, 538-540; Wade and Forsyth Administrative Law (8 ed) Oxford, Oxford University
Press: 2000, 435 who say: ‘Procedure is not a matter of secondary importance. As
governmental powers continually grow more drastic, it is only by procedural fairness that they
are rendered tolerable.’ See too O’Regan ‘Rules for Rule-Making: Administrative Law and
Subordinate Legislation’ 1993 Acta Juridica 157, 159.
86
   Baxter, 540.
87
   Baxter, 540.
88
   President of Bophuthatswana and another v Sefularo 1994 (4) SA 96 (BA), 101H-103G;
Traube and others v Administrator, Transvaal and others 1989 (1) SA 397 (W), 403D-E;
Rangani v Superintendent-General, Department of Health and Welfare, Northern Province
1999 (4) SA 385 (T), 390B-C; Bushula and others v Permanent Secretary, Department of
Welfare, Eastern Cape and another 2000 (2) SA 849 (E), 856I-857B; Minister of Safety and
Security and others v Vilikazi [2000] 3 All SA 95 (N), 101b-d.
89
   John v Rees and others; Martin and another v Davis and others; Rees and another v John
[1970] Ch 345, 402D-E. Megarry J then said, also at 402D-E: ‘Nor are those with any
knowledge of human nature who pause to think for a moment likely to underestimate the
                                            41


therefore, and for the reasons set out above, the decisions of the fifth
respondent, as presiding officer in the tribunal at first instance, and of the sixth
respondent, as chairperson of the appeal hearing, are nullities.


[77] It follows that the decision of the third respondent to give effect to the
findings and recommendations of the fifth and sixth respondents also cannot
stand, being dependant on their decisions for its validity. The result is that the
applicants are entitled to the core of the relief that they claim. (In my view,
they are not entitled to the declaratory relief that relates to the specifics of the
grounds of review.) I shall formulate the relief below, but now I turn to the
question of costs.


(e) Costs


[78] The applicants have been the beneficiaries of the fundamental rights
entrenched in our democratic Constitution, a Constitution which, in the words
of the preamble, is intended, inter alia, to ‘establish a society based on
democratic values, social justice and fundamental rights’, to ‘lay the
foundations for a democratic and open society’ and to ‘build a united and
democratic South Africa’. It is a Constitution based on the founding value of
the rule of law (as well as other founding values articulated in s 1).


[79] The conduct of the first applicant, which I have dealt with in some detail
when I set out the facts, reflects an arrogant and disgraceful contempt for the
courts empowered by the Constitution, the law that acquires its force from the
Constitution, the democratic order that is created by the Constitution, the
public interest that the Constitution is designed to further and the Constitution
itself. The first applicant’s conduct is of particular relevance because, being a
trade union of some significance, it is an important institution of civil society
afforded special recognition and protections by the Constitution and the
Labour Relations Act. It has shown scant regard for the responsibilities that go
hand in glove with that recognition and those protections. It and the remaining

feelings of resentment of those who find that a decision against them has been made without
their being afforded an opportunity to influence the course of events.’
                                              42


applicants in this case have treated the Department and its management with
a singular lack of respect, evidenced by devious double-dealing, bad faith and
downright dishonesty: while claiming to have a right to refuse to work
overtime, and while clearly engaged in concerted action in furtherance of a set
of demands which were being dealt with by way of arbitration, they all
spuriously claimed to have been ill over the Christmas period and the New
Year period respectively.


[80] It strikes me as ironic that the applicants, who have displayed a lack of
respect for the Constitution and its democratic processes and institutions –
and who, indeed, actively engaged in undermining those processes and
institutions – called in aid, when their lawless conduct resulted in their
dismissal, the self-same Constitution that their behaviour suggests they hold
in contempt.


[81] They have succeeded in this application, not because they have clean
hands, but because the Constitution is supreme and its fundamental rights
protect everyone, even the basest of individuals, from the abuse of
governmental power.90


[82] The respondents, however, are far from blameless. They acted with no
regard for the disciplinary code and procedure that they were bound to apply.
In so doing they acted cynically and in bad faith: they, as senior administrators
in the Department, must have known that what they were doing was not
permitted, yet they proceeded, not even attempting to comply with their clear
duties. The respondents are public officials, clothed with statutory powers that
they hold in trust on behalf of the public, and subject to statutory and
constitutional duties. For them to have approached this matter as they did was
not only unconstitutional but also unacceptable from the perspective of
political morality: the State and, self-evidently, the officers through which it


90
  S v Makwanyane and another 1995 (3) SA 391 (CC); 1995 (6) BCLR 665 (CC), para 137
(per Chaskalson P) and para 331 (per O’Regan J) who said: ‘It is a fundamental premise of
our Constitution that the rights in Chapter 3 [of the interim Constitution] are available to all
South Africans no matter how atrocious their conduct.’
                                             43


exercises its powers and performs its functions, are meant to serve as role-
models for the populace.91


[83] But for the fact that the respondents displayed a cynical disregard for the
Constitution and the law similar to that displayed by the applicants, a
disregard that cannot be tolerated in a constitutional state, I would have
considered withholding any remedy to which the applicants would otherwise
have been entitled. The applicants and the respondents all have dirty hands.
On the one hand, I consider it necessary in order to vindicate the Constitution
to grant the bulk of the relief sought by the applicants. On the other, in order
to mark my displeasure at the conduct of the applicants, I intend to deprive
the applicants of the costs that would otherwise have followed the result.


[E] THE ORDER


[84] For the reasons set out above, the following order is made:
        (a) It is declared that the decisions of the fifth respondent to convict the
        second to 76th applicants of gross insubordination and to dismiss them
        summarily, of the sixth respondent to confirm the guilt of the second to
        76th applicants and to confirm their summary dismissal and of the third
        respondent to terminate the services of the second to 76th applicants
        are inconsistent with the Constitution, are invalid and are hereby set
        aside.
        (b) The respondents are directed to reinstate the second to 76th
        applicants forthwith, with full benefits and in terms of their contracts of
        employment.
        (c) Each party shall bear their own costs.




91
  In S v Makwanyane and another supra, para 222, Langa J held: ’Implicit in the provisions
and tone of the Constitution are values of a more mature society, which relies on moral
persuasion rather than force; on example rather than coercion. In this new context, then, the
role of the State becomes clear. For good or for worse, the State is a role model for our
society.’ See too Ex parte Minister of Safety and Security and others: In re S v Walters and
another 2002 (4) SA 613 (CC); 2002 (7) BCLR 663 (CC), para 6.
                          44




______________________
C. PLASKET
JUDGE OF THE HIGH COURT

								
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