(e)
academic staff produce and publish quality research publications in
national and international reputable journals.
[19] As it appears from above , none of the respondents was appointed to teach or to do research by himself or herself. Those who
had something to do either with teaching or research, were required to provide an environment conducive to proper teaching or research.
Others were required to play a supervising role to staff members who were directly involved in teaching or research. But not a single
respondent was appointed to perform the function of teaching or research. Therefore, if the statutory definition is adhered to in
the strict sense, not a single respondent would qualify to be an academic employee.
[20] However, before us Mr. Brassey contended for an expanded meaning of the phrases “to teach” or “to do research”.
He criticised the court a quo for adopting a narrow meaning thereof. No Vice –Chancellor or his equivalent , so the argument
went, would accept that he was not an academic and none of the other respondents would have accepted this either. In my view, the
fallacy in this argument lies in the fact that it seeks to contradict the clear stance adopted by the respondents throughout the
proceedings, namely, that they were not academic employees hence s 34(2) did not find application to their appointments. It may be
so that some principals are appointed from the ranks of professors but that does not automatically make them, as principals, academic
employees as envisaged in the section.
[21] Although in their heads of argument the respondents contended that a purposive interpretation of the relevant legislation should
be adopted, in oral argument before us Mr. Brassey did not pursue the point when the court debated the issue with him. Instead he
contended that the functional approach should have been followed by the court a quo. He submitted that in terms of that approach
the phrase “academic employee” should be given its natural ordinary meaning which, it was argued, included the employees
who managed and supervised other employees who were directly involved in teaching or research. Whilst not expressing any firm opinion
on whether the contended meaning constitutes the ordinary meaning of the term in question, I hold the view that the issue of what
the ordinary meaning happens to be, is not the key issue in the present matter. The central issue remains : whether the application
of the definition to s 34(2) leads to an absurdity of the nature that could never have been contemplated by the Legislature. In deed in Canca v Mount Frere Municipality 1984 (2) SA 830 (Tk) Davies J, after reviewing authorities on the point, stated at 832 B-G:
“ The question whether a word in a particular section of a statute should be given its statutory definition or the ordinary meaning
has come up for decision in a number of cases… The principle which emerges is that the statutory definition should prevail
unless it appears that the Legislature intended otherwise and, in deciding whether the Legislature so intended, the court has generally
asked itself whether the application of the statutory definition would result in such injustice or incongruity or absurdity as to
lead to the conclusion that the Legislature could never have intended the statutory definition to apply”.
[22] The above approach was recently approved and reaffirmed by the Supreme Court of Appeal in Hoban v ABSA Bank Ltd t/a United Bank and Others [1999] 2 All SA 483 (SCA). In that case Howie JA (writing for the court) said at para[18]:
“[18] Finally, and most importantly, it is not enough to warrant departure from the defined meaning that the subject matter of the
rule or section under examination differs from the subject matter of provisions in which the defined meaning clearly does apply.
That is not the test. There is a line of cases including decisions of this Court, in which the true approach is stated. The inference
is compelling that none of them, was drawn to the court’s attention in either the First Consolidated case or in Rontgen matter.
They are collected in Canca v Mount Frere Municipality 1984 (2) SA 830 (Tk) at 832 B-C in a passage which in my opinion sets out
the position correctly.” See also ABP 4x4 Motor Dealers (Pty) Ltd v IGI Insurance Co Ltd 1999 (3) SA 924 (SCA)at paras [17]-[18].
[23] In the present matter it was argued on the appellant’s behalf that the application of the definition meaning would lead
to an absurdity. It was submitted that the absurdity in question lies in the exclusion of those responsible for managing and supervising
teachers and researchers from the meaning of the term academic employee. However, I do not agree that such exclusion leads to an
absurd conclusion. Even if one were to assume that the result is absurd, I am quite certain that it cannot constitute the absurdity
which could never have been intended by Parliament.
[24] In my view, it is clear from the definition itself that the Legislature has deliberately intended to restrict the meaning of
academic employee and that it was quite alive to the fact that the first part of the definition was indeed narrow hence the granting
of the power to councils to designate as academic employees, the employees who did not fit within that part of the definition. Academic
employees or academics, as they are popularly referred to, are terms that carry a certain popular meaning and in my opinion it can
be assumed that when Parliament passed the Higher Education Act it was aware of such popular and ordinary meaning. It would appear
that the Legislature decided that the term should not carry its ordinary meaning. This is made clear by the provisions of s 30 found
in the same chapter as s 34(2).The former section provides that the principal of a public higher education institution shall be responsible
for the management and administration of the institution. Obviously it cannot be said that a principal is appointed to teach or to
do research. Therefore, in terms of the Act he or she cannot be regarded as an academic employee unless duly designated as such by
the council because his or her primary functions are to manage and administer the institution. If the appointment of the principal
does not have to be preceded by consultation with the senate there is nothing absurd in applying the same procedure in respect of
appointments of the employees whose duties are mainly to assist the principal in managing and administering the institution. It is
also worth noting that the same principal is the chairperson of the very senate whose consultation is not required prior to his appointment
(s 26(4)(a)).
[25] Whether or not employees who were academics immediately before their appointment to administrative or managerial posts lose their
privileges as academics would not affect the interpretation of section 34(2). Even if such loss were to be taken as amounting to
an injustice, it certainly would not be an injustice that could not have been intended so as to justify the departure from the definition
meaning.Our courts have in the past declined to expand a statutory meaning even where the narrow meaning rendered the statute inoperative.
In Barkett v SA N ational Trust & Assurance Co Ltd 1951 (2) 353 (A) Centlivres CJ confirmed the said principle in the following terms at 363 E-G:
“ This Court, however, in a case where the literal meaning of a statute rendered it practically inoperative, refused to give an expanded
meaning to the words used by the Legislature.See Ex Parte Minister of Justice: In re Rex v Jacobson & Levy 1931 AD 466. In the
instant case there is, in my opinion, no justification for giving an expanded meaning to the words used by the Legislature: those
words are quite intelligible in their context and the fact that the Legislature may well have overlooked the rule of law that a master
is responsible for his servant’s negligence acting within the scope of employment affords no justification for a court of law
to supply the omission of the Legislature.”
This case has been applied in a number of decisions and this specific passage has recently been relied upon in Summit Industrial Corporation v Jade Transporter 1987 (2 ) SA 583 (A) at 597 B.
[26] In casu, to accept the interpretation contended for by the appellants would not only do violence to the language employed by
the Legislature but would also fly in the face of the principle in Barkett. It must be remembered that here we are dealing with a narrow interpretation which does not render the statute practically inoperative
and therefore there can be no justification whatsoever for the expanded meaning. The words deliberately chosen by the Legislature
cannot and should not be subverted in favour of what the Court considers to be the spirit of the law unless the preferred interpretation
is consistent with the clearly established intention of the Legislature whilst at the same time the definition meaning is inconflict
therewith. The principle that the language employed by the Legislature must be respected and effect thereto be given, has received
the stamp of approval from the Constitutional Court in S v Zuma and Others 1995 (2) SA 642 (CC). In a unanimous judgment in that case Kentridge AJ stated at 652I-653-B;
“ While we must always be conscious of the values underlying the Constitution, it is nonetheless our task to interpret a written instrument.
I am well aware of the fallacy of supposing that general language must have a single “objective” meaning. Nor is it easy
to avoid the influence of one’s personal intellectual and moral preconceptions. But it cannot be too strongly stressed that
the Constitution does not mean whatever we might wish it to mean. We must heed Lord Wilberforce’s reminder that even a constitution
is a legal instrument, the language of which must be respected. If the language used by the lawgiver is ignored in favour of a general
resort to “values” the result is not interpretation but divination.”
This dictum has been followed in many cases including a decision of the Supreme Court of Appeal in Standard Bank Investment Corp v Competition Commission 2000 (2) SA 797 (SCA) at para [18].
[27] To conclude this point, I must indicate that the section we are called upon to construe is located in the context of governance
of public higher education institutions. The entire chapter 4 is devoted to issues of governance. It sets out structures through
which such institutions are governed, namely , the council, the senate and the principal. The latter two structures being accountable
to the council. The council is given wide powers subject only to certain specific limitations in respect of basically matters that
directly affect students. For example, the council has the power to determine the language policy of the institution with the concurrence
of the senate; and academic functions including the studies, instruction, research and examination of students may not be amended
or repealed without the senate’s concurrence (s 27(2) and 32 (2)(b)). Moreover, s 37(4) stipulates that the senate’s
approval is required for determining entrance requirements, the number of students to be admitted, minimum requirements for re-admission
and exclusion of students who fail to meet requirements for re-admission . In respect of other matters a mere consultation is required
for the exercise of power by the council. Therefore, the primary intention of the Legislature in chapter 4 was to establish structures
through which public institutions are governed and also confer powers to such structures with some limitations, in varying degrees,
depending on the subject –matter to be dealt with. In my view, the narrow meaning of academic employee does not clash with
that intention. In the circumstances I hold that the court a quo was indeed correct in attaching the narrow interpretation to the
term. However, there is nothing in the Act which precludes councils from consulting senates before making important appointments
such as those we are dealing with herein. Indeed it is not only desirable to do so but such practice, could also enhance the level
of cooperation between the two structures. Nevertheless that is a matter of policy for the institutions themselves to decide and
not the courts of law.
The effect of termination notices
[28] The employment agreements concluded by the four respondents and the first appellant provided for termination of the said agreements
by one party issuing a three months’ notice to the other party. On 30 April 2001 and whilst the present application was pending
in the court a quo, the first appellant issued notices terminating the agreements. The said notices were supposed to take effect
at the end of July 2001. Meanwhile the matter was set down for hearing on 22 June 2001 and judgment was reserved. So, when the hearing
was held the notices had not become effective. The notices were served upon the respondents’ attorneys who, presumably, on
their instructions demanded that the appellants comply with the interim order granted on 8 March 2000 and which declared that respondents
were entitled to be remunerated in terms of the said agreements. Although the court a quo alluded to the fact that the respondents’
attorneys appeared to have contested the notices, the respondents did not raise any substantive challenge to the issuance of the
notices, which was done in terms of the agreements themselves. It therefore seems that the first appellant has competently issued
the notices and that in terms thereof the contracts terminated on 30 July 2001. Consequently, I am persuaded that the court a quo
erred in formulating its order in the manner it did which rendered the entire order confusing.
The fourth respondent’s case
[29] At the time the other respondents entered into written agreements with the first appellant in October 1999 and in terms of which
they were appointed to new posts, the fourth respondent did not conclude any new employment agreement nor was he appointed to a new
post. He retained his old post of a librarian on the same terms and conditions. He was merely drawn into the new management team
without any substantive changes. Quite clearly, therefore , the chairperson of the council erroneously included him when he issued
letters of suspension on 21 January 2000. The fourth respondent was entitled to challenge the validity of the decision to suspend
his post and since the appellants have failed to furnish reasons for the suspension, it had to be set aside. It is also not clear
from the record why the appellants sought to appeal against the whole judgment including the portion relating to the fourth respondent.
As a result the entire appeal against this respondent must fail.
Costs
[30] There remains the issue of costs. Insofar as the fourth respondent is concerned, the ordinary rule that costs follow the cause
should apply. In the case of the other respondents there has been partial success in their favour and also in the favour of the appellants.
This means each side has partially succeeded before us. Having given a careful consideration to the matter, I am of the opinion that
justice would be served if each party pays its appeal costs. However, I am not convinced that there is any basis for altering the
costs order awarded by the court a quo. Its decision on the interpretation issue has been confirmed on appeal. Although the order
pertaining to the declaration cannot be sustained in its original form, the appellants could not have escaped liability for costs
in the court below simply because notices terminating the contracts became effective after the date of hearing. The respondents would
still be entitled to their costs even if when judgment was handed down, the termination of the agreements was upheld.
[31] Accordingly the following order is made :
1.
The appeal against the fourth respondent is dismissed with costs.
2.
The appeal is allowed only to the limited extent that clarity is given on the status of the agreements between the first appellant
and the first, second, third and fifth respondents, for the period beyond 30 July 2001.
3.
In respect of the remaining parties , each party shall pay its own appeal costs.
4.
The order of the court a quo is set aside and the following order is substituted therefor:
(a)
The appellants’ decision dated 21 January 2000 and in terms of which the respondents’ appointments were suspended is hereby
declared null and void.
(b)
It is further declared that the employment contracts concluded by the first respondent and first, second, third and fifth applicants
during October 1999 were valid until terminated on 30 July 2001.
(c)
The counter-application is dismissed.
(d)
The first respondent is ordered to pay costs of the entire proceedings.
________________________
JAFTA AJA
I agree.
_______________________
NICHOLSON JA
.RTF of original document