IN
THE COURT OF APPEAL OF SWAZILAND
APPEAL
CASE NO.2/00
In
the matter between:
SECRETARY
TO CABINET 1st APPELLANT
PRINCIPAL
SECRETARY 2nd APPELLANT
(PRIME
MINISTER'S OFFICE)
SWAZILAND
GOVERNMENT 3RD APPELLANT
VS
BEN
M. ZWANE RESPONDENT
CORAM: :
BROWDE J
A
:
STEYN J
A
:
BECK J
A
FOR
THE APPELLANT: : MS. V.D. WALT
FOR
THE RESPONDENTS: : MR. DUNSEITH
JUDGMENT
Steyn
J A;
Respondent
sought an order
in
the High Court declaring his interdiction by the Appellants unlawful
and consequently null and void. He also sought a similar declarator
in respect of an interdiction in terms of which his salary was
reduced by half. Consequential relief; viz, the refunding of all
2
the
deductions made from his salary in terms of the interdiction and
costs of suit were also claimed. The order sought was granted by the
High Court (Sapire CJ presiding) and it is the granting of this Order
which was the subject matter of this appeal.
Both
in the High Court and before us the Appellants raised a point in
limine, challenging the jurisdiction of the High Court to hear the
matter. In this regard the Appellants contended that by virtue of the
provisions of the Industrial Relations Act, 1 of 1996 which was in
force at the time the only Court which had jurisdiction to hear the
matter was the Industrial Court.
In
so far as it is relevant Section 5(1) of the Act reads as follows:
"The
(Industrial) Court shall have exclusive jurisdiction to hear,
determine and grant appropriate relief in respect of an application,
claim or complaint or infringement of the provisions of this Act, an
employment Act, a workmen's compensation Act, or any other
legislation which extends jurisdiction to the Court in respect of any
matter which may arise at common law between an employer and employee
in the course of employment, or between (collective bodies)"
The
question of the respective jurisdictions of the Industrial Court and
the High Court in terms of these provisions was the subject of a
considered but unreported judgment of this Court in NXUMALO AND
OTHERS V. ATTORNEY GENERAL AND OTHERS; APPEAL CASES 25,28,29 and 30
of 1996.
This
Court, per Tebbutt J
A,
(Kotze and Browde J
J
A
concurring) said the following at page 15 of the judgment:
3
"Sapire
A
C
J
found that the Industrial Court had jurisdiction "to the
exclusion of all other courts" to deal with "what may
loosely be referred to as "labour matters" inelegantly
defined in the section, where Labour Law would be applied. Broadly
speaking Labour Law is to be understood as the common law of master
and servant as expanded and otherwise modified by Industrial
Legislation.
For
the reasons set above, this, in my opinion, is not the position
created by the Industrial Relations Act. It confines the Industrial
Court's jurisdiction solely to those matters set out in the Act, to
those disputes which have run the gauntlet of the disputes procedure,
and to those issue arising from the other legislation specifically
set out in Section 5(1), Having regard to the principle that in order
to oust the jurisdiction of the ordinary courts, it must be clear
that the legislation intended to do so and that any enactment which
seeks to do so must be given a strict and restricted construction, it
is in my view clear that save for the specific provisions mentioned,
Section 5(1) does not disturb the common law of master and servant.
The
present claims by the appellants are ordinary common law claims made
by an employee against an employer for payment of wages allegedly
unlawfully withheld from him or her. The reason for the employer's
having done so may flow from a strike but that does not bring the
matters within the jurisdiction of the Industrial Court or make them
ones properly before the Court."
Ms.
van der Walt who appeared for the Appellants conceded, in my view
correctly, that the High Court was bound by the decision in Nxumalo's
case. She urged us, however, to find that it was wrongly decided and
that we should not follow it.
Counsel
could not point to any fallacious reasoning by the Court in its
judgment. Neither could she advance any convincing reasons why or
grounds upon which this Court should depart from the views expressed
in Nxumalo's case concerning the respective jurisdictions of the two
courts (the Industrial and the High Court) to hear matters involving
industrial
4
disputes.
As was pointed out by Mr. Dunseith the judgment was not only
well-reasoned but was also enriched by reliance on decisions in the
House of Lords in England, by previous judgments of this Court per
Isaacs J and Dunn J, as well as a judgment in the Botswana Court of
Appeal and decisions in other Commonwealth countries that had created
specialist courts to deal with industrial disputes.
I
am therefore of the view that not only should we not depart from the
decision in Nxumalo's case, but that it was correctly decided.
As
indicated above it was common cause that, should I hold as set out
above, this Court would be obliged to find on the facts in casu that
the court a quo was correct in holding, as it did, that it was the
appropriate Court to adjudicate upon the dispute.
I
should point out however that the Industrial Relations Act No.1 of
1996 has been repealed by the provisions of the Industrial Relations
Act No.1 of 2000. One of the changes that has been brought about in
the new Act is the deletion of the words "any matter properly
brought before it including..." As can be seen from the terms of
the Nxumalo judgment, it was infer alia the use of these words by the
legislature that motivated the court to decree as it did. It is not
necessary or advisable for this Court to comment on the effect of
this and other changes to the Act save to say that they will
undoubtedly have an impact on the jurisdiction of the High Court to
hear industrial disputes in matters falling under that Act. It was
common cause that the present appeal was not one that was to be
decided in terms of its provisions.
5
I
come to deal with what was referred to as "the merits" of
the matter. The court a quo granted the relief sought inter alia
because the appellants had not afforded the Respondent an opportunity
to be heard before interdicting him. Appellants challenged the
correctness of this decision. It was contended on their behalf that
the relevant legislative enactments did not in casu oblige the
authorised official who decreed the interdiction to grant the
respondent a hearing. In order to determine the validity of the
challenge I summarise the facts.
On
5th February the first Appellant addressed a letter to the Respondent
which concludes as follows: "In view of this gross misconduct on
your part, permission has been obtained from the Principal Secretary
of Public Service and Information to interdict you and you are hereby
interdicted from the performance of your duties in terms of &.O.
A929."
(The
misconduct complained of, in essence, was failure by the Respondent
to attend meetings with the Prime Minister.)
General
Order A929(1) reads as follows:
"If
a
Head of Department considers that an officer shall be interdicted
from the performance of his duties because of alleged misconduct, he
shall make a full report to the Principal Secretary, Ministry of
Public Service recommending the interdiction of the officer, and the
amount of salary (being not less than one half of the officer's
normal emoluments) which shall be paid to him during the period of
interdiction. After due consideration of the recommendation the
Principal Secretary shall direct accordingly."
6
On
11th February 1999 the second Appellant addressed a letter to the
Respondent requiring him to exculpate himself as to why disciplinary
action should not be taken against him. (The misconduct complained of
was the same as stated above.)
On
2nd March 2000 the Respondent, through his attorneys, responded to
the above letter in writing and demanded that the interdiction be
lifted. On his behalf a detailed explanation for his absences was
advanced.
On
24th March 1999 the second Appellant addressed the letter to the
Respondent commencing as follows:
"Further
to my letter of the 11th February 1999 I wish to inform you that your
interdiction is in terms of the Public Service Act, Act 34 of 1963(1)
Clause 39 subsection (3) of the Public Service Act, Act 34, 1963(1)
your emoluments will, from the 11th February 1999, be half the normal
emoluments until such time as the disciplinary proceedings have been
concluded."
The
following should be noted:
The
reference to the "Public Service Act" is a reference to the
Civil Service Board (General) Regulations, contained in Act 34 of
1963(1).
Regulation
39(1) reads as follows:
"If
the Prime Minister considers that the interest of the service
requires that an officer should cease forthwith to exercise the
powers and functions of his office, he may interdict him from the
exercise of those powers and functions, if disciplinary proceedings
are being taken or are about to be taken or if criminal proceedings
are instituted against him."
7
Regulation
39(3) reads as follows:
An
officer who is interdicted shall, subject to Regulation 38(4), 38(5)
(criminal charges) receive such emoluments, being not less than one
half of his normal emoluments as the Prime Minister thinks fit.
It
is apparent from the brief summary of the various attempts at
interdiction by the Appellants that they relied on different
enactments to validate their executive disciplinary actions. Prima
facie it would seem to me that there was only one interdiction that
should be considered. This is the first interdiction in terms of the
letter of the 5th February 1999. It was common cause that this
interdiction was null and void. The officer who purported to exercise
the power to interdict the Respondent was not authorised to do so.
Counsel for the Appellants was therefore obliged to rely on
subsequent interdiction(s), and on the enactments that purported to
authorise those disciplinary steps.
It
was her contention that Regulation 39(1) makes provision for the
cessation of an officer's exercise of the powers of his office (his
interdiction) forthwith. This would in her submission mean without
first hearing the person affected by the administrative decree such
as the Respondent in casu.
Ms.
van der Walt sought to distinguish the decision in MHLAULI V MINISTER
OF HOME AFFAIRS AND OTHERS 1992(3) SA 635(S.E.) relied on by the
Chief Justice on the ground that the statutory instrument in that
case did not empower the authorised officer to act "forthwith."
(See also MULLER AND OTHERS V CHAIRMAN,
8
MINISTERS'
COUNCIL, HOUSE OF REPRESENTATIVES, AND OTHERS 1992(2) SA 508©.
As
indicated above I am of the prima facie view that the only relevant
interdiction was that which was purported to have been exercised in
terms of General Order A929 which contains no power to act
"forthwith." However, in view of our decision which follows
hereunder, it is not necessary for us to decide whether any of the
subsequent attempts at interdiction superceded the first and were
properly authorised. I proceed therefore to determine whether the
statutory instruments in casu - including Regulation 39 - either
expressly or by implication exclude a "right to be heard."
In saying this, I rely on and adopt the approach of Corbett CJ in
ADMINSTRATOR TRANSVAAL AND OTHERS V TRAUB AND OTHERS 1989(4) SA 731
(A) at 748, (G - H), when the Court held as follows:
"The
maxim expresses a principle of natural justice which is part of our
law. The classic formulations of the principle state that when a
statute empowers a public official or body to give a decision
prejudicially affecting an individual in his liberty or property or
existing rights, the latter has a right to be heard before the
decision is taken ( or in some instances thereafter) unless the
statute expressly or by implication indicates the contrary."
In
Muller's case (supra) and in dealing with the implications of a
public service officer's suspension (in that case without pay) the
court, per Howie J, says the following:
"Such
suspension unquestionably constitutes a serious disruption of his
rights. The implications of being deprived of one's pay are obvious.
The implications of being barred from going to work and pursuing
one's chosen calling and being seen by the community round one to be
so barred, are not so immediately realised by the outside observer
and appear, with respect, perhaps to have been
9
underestimated
in the Swart and Jacobs cases. There are indeed substantial social
and personal implications inherent in that aspect of suspension.
These considerations weigh as heavily in South Africa as they do so
in other countries."
The
learned Judge goes on to say:-
"The
Swart and Jacobs cases concerned other statutes but those enactments
were not significantly different..." The Court then found that
those cases (Swart and Jacobs cases) were wrongly decided.
The
Court in the Mhlauli case (per van Rensburg J) agreed with the
judgment in the Muller case and held in casu that the Legislature did
not intend to deny a right to a hearing prior to suspension and that
the interests of fairness demanded a hearing before an officer is
suspended.
An
interdiction whether on full, half or no pay, does indeed have
serious implications for an employee so interdicted. The stigma and,
where relevant, the deprivation of all or some of his salary would
continue until either uplifted or until the employee is exonerated by
a disciplinary enquiry or at the end of criminal proceedings. There
are often lengthy delays between the interdiction and such enquiry or
proceedings
with
the ongoing resultant prejudice to the person affected by the
interdiction.
On
the other hand there could well be circumstances in which the conduct
of the employee complained of e.g. is:.
1. Of
such a nature as to require his immediate suspension pending an
investigation. Thus e.g. a case involving an allegation of theft or
fraud and where an investigation into the existence of documentary or
other evidence is required, it may well be that the employee
concerned may have to be suspended without a hearing pending such an
investigation. In
10
such
a case, however, such an employee may well, depending on the
circumstance be given a hearing after the interdiction. In any event
and even in such a case, if the disciplinary process is delayed
unreasonably and the prejudice sustained is not ameliorated by -
where possible - a transfer to some other suitable post - a hearing
should be afforded.
2. Is
of such a nature that his presence pending disciplinary proceedings
would be so prejudicial or disruptive as to merit his immediate
interdiction. Thus, for example, summary suspension with pay may not
be unfair if the employer has a reasonable apprehension that a
legitimate business interest or the workplace amity would be harmed
by the continued presence of the employee concerned pending the
determination of disciplinary proceedings. See LABOUR RELATIONS LAW;
3rd ED by D. du Toit, D. Woolfrey et al at 469 and Workplace Law by
John Grogan at p.87.
I
should emphasize, however, that affording a person a hearing does not
mean that he is entitled to a hearing in the sense in which it is
used in e.g. a court or quasi-judicial process. To afford a person
such a hearing with the full panoply of attributes of such a process
could well stultify the efficient functioning of disciplinary
proceedings.
Such
a hearing can be afforded in writing, it can be informal and
appropriately circumscribed. But it must be a genuine process
designed to give the person affected a proper opportunity to place
any evidence or submissions before the authority concerned as to why
he should not be interdicted or why his interdiction should not be
lifted.
11
It
was not suggested by Appellants' counsel that such an informal
opportunity to be heard was ever afforded the Respondent in respect
of his interdiction either before or after the event. Neither could
it be held that the alleged conduct of the Respondent was such that
his immediate interdiction without a hearing was justified. Indeed,
an examination of the record leaves one in considerable doubt
concerning the sustainability of the charges levelled at this
official.
As
indicated above, and in a letter written on his behalf by his
attorney and attached to his application, the Respondent set out in
great detail exactly what had occurred.
It
is clear, and is indeed conceded by the Respondent, that there were
serious professional differences of opinion between the Respondent
and the Prime Minister regarding the issue of parliamentary meetings
and how they were to be convened. The Respondent alleges however that
these were no basis for alleging misconduct on his part.
12
A
full exposition of the events, differences of views and areas of
difference of opinion were set out in this letter. Whilst in reply
the Appellants contested the correctness of these allegations, no
alternative version was submitted by or on behalf of the Appellants.
It
would seem to me that it was incumbent upon the appellants, if they
wished to rely on the degree or nature of the misconduct as a cause
for denying the Respondent a hearing, that they should have placed
such evidence before the Court so that a proper evaluation could be
made as to whether a summary interdiction was justified or not.
This
was certainly not done in this case. For the reasons aforestated, I
am therefore of the view that the interdiction of the Respondent
without affording him an opportunity to be heard as to why he should
not be interdicted was unlawful. It was therefore correctly set aside
by the court a quo. The consequential relief was also correctly
ordered.
For
these reasons the appeal is dismissed with costs.
J.H.
STEYN J A
I
AGREE:
J.
BROWDE
J A
I
AGREE:
C.
E.
L
BECK J
A
Delivered
on this 12
day
of December 2000.
