IN THE LABOUR COURT OF SOUTH AFRICA 
HELD IN PORT ELIZABETH

Case no. P 317/2000
In the matter between:									

NICHOLAS KOCK						                    1ST Applicant
THE SOUTH AFRICAN DEMOCRATIC 
TEACHERS UNION (SADTU)  
                                                                                                          2nd Applicant
and											

DEPARTMENT OF EDUCATION, CULTURE & 
SPORT - PROVINCE OF THE EASTERN CAPE	                    1ST Respondent
MR N. PAULSEN						                    2ND Respondent
MS D. BLIGNAUT						                    3RD Respondent
COMMISSIONER WP SCHEEPERS N.O.		                    4TH Respondent
INDEPENDENT MEDIATION SERVICES OF 			
SOUTH AFRICA						                    5TH Respondent     

JUDGMENT

                                    NKABINDE AJ.					

Introduction

[1]         The first applicant, second and third respondents were in the employ of the first               respondent, the Department of Education, Culture and Sports, in the Eastern                   Cape Province.  They were employed as educators at Hillside Secondary                         School.  The second applicant is the South African Democratic Teachers                         Union (“SADTU”) which represented the first applicant in the arbitration                            proceedings and which , as will appear hereunder, was a party to the Education               Labour Relations Council.  For convenience, I shall refer to the first                                   applicant by his name, Mr Kock, to the second and third respondents                                collectively as “the respondents” and to the first respondent as “the                                   Department”.

[2]         The applicants sought an order in the following terms:

          “ 1. Declaring the agreement entered into between the firsts and the                                 second respondents on 9 September 1999 to be invalid and/or unlawful                    and/or unenforceable insofar as it affects the first applicant;
            2.  Declaring that all decisions taken as a consequence of the                                         agreement and in so far as such decisions affect the first                                            applicant to be null and void and that the original decisions                                        declaring the first applicant not to be an educator in excess of                                   the staff required at Hillside Secondary School stand.
             3. Costs of suits against the First Respondent; and 
             4. Costs of suits against the Second; Third; Fourth and Fifth                                           respondents only in so far as this application is unsuccessfully                                 opposed.”.

[3]         On February 2001 after considering the matter, I granted the order sought by                   the applicants in terms of paragraphs 1 and 2, above and ordered the second                  and third respondents to pay the costs of the application.  The reasons therefor               were reserved.  The reasons now follow.
The factual background

[4]          It is common cause that during 1998 the Department embarked on a                                redeployment exercise in terms of which teachers were identified as being                        either in excess of the requirements of a particular school ( and accordingly fell                under the redeployment exercise), alternatively, were categorized as falling                      within the requirements of the particular school (and accordingly were allowed                  to remain at that school ).  The redeployment exercise was premised on a                        lengthy consultative process conducted, for the most  part, in formal staff                         meetings.  With a view to regulate this consultative process, the Education                       Labour  Relations  Council (“the Council”), to which   SADTU, representing                       educators, and the department are parties, adopted a resolution known as                       Resolution 6 of 1998 (“the resolution”). The resolution, generally speaking,                       deals with the determination of which educators fell to be declared in excess.                   Of particular relevance are sections 5 and  6 of the resolution. Section 5                           provides for the rationalization of the particular school, i.e the determination                     of how many posts the particular institution should be allowed to                                       accommodate, while section 6 deals with the compiling of a list of surplus                         educators who cannot be accommodated in the posts which have been                            determined.

[5]         Paragraph 6 of the resolution records, inter alia, the following:
“6.2	The procedure for the determination of educators in excess shall be as follows:
  6.2.2	. . . 
  After considering paragraph 6.2.1 above the                                                       circuit/district manager together with principals shall identify                          the educators in excess, taking into account the following:-

                         (a)     the views of the educator— staff of the institution as                                                               expressed at a  formal staff meeting convened by the                                                              principal;
             (b)     the needs of the institution, . . . the number of classes,                                     the timetable and allocation of the learners to classes;
             (c)     the circuit/district manager shall take cognisance of the                                   fact that there is not  necessarily a direct relation                                              between a post identified as in excess and an educator                                    who will be declared in excess, as there may be more                                       than one post with substantially the same duties                                               attached to it;

                         (d)     if a decision still has to be taken regarding two or more                                                           educators’ competency for the same post, the principle of ‘last                                              in first out (LIFO) shall be applied. . .”.

[6]      The respondents and Mr Kock were educators at Hillside Secondary                                 School (“the School”).  Meetings  were held at the school in terms of the                           resolution with a view to determine who of the educators fell excess.  At the end              of a lengthy consultative  process it was agreed by the majority vote, that :--  
          (i)        the school would be divided into certain learning areas;
          (ii)       all educators would be linked  to subjects in which they had a                                            greater workload in 1998;
           (iii)     the criteria which would be used  to identify educators for                                                   redeployment would be -
                      (a)    subject                                                                                                                         (b)    majority of subject workload in 1998;
                      (c)    length of service.
 
[7]         When the consultative process came to an end, the respondents were declared                in excess while Mr Kock was excluded from the redeployment  list. One of the                  respondents, Mr N Paulsen, felt aggrieved that she was one of the educators                   identified as being in excess.  She then referred the matter for arbitration to                      the Council under the auspices of the Department. The arbitration proceedings                commenced but were adjourned for the parties to embark on settlement                           negotiations. An agreement, which gave rise to the present proceedings, was                   then concluded. The terms of the agreement read as follows : 
“1.      The declaration of the employer and one Ms C Blignaut in                    being excess is to be set aside.
  2.       In regard to the subjects Afrikaans, Mathematics,                                  Geography and Vocational Guidance, the post allocations                   are to be revisited in accordance with curriculum needs of                  the school as at the date of signature hereof.
  3.       In the selection process, the versatility of the educators are                to be considered to occupy the two posts identified, and                     shall be the sole criteria for such identification of the                           educators being:  Mr Kock

                  Mr I Hitzerth
                  Mr MN Paulsen
                  Ms C Blignaut”.

[8]      On 10 March 2000 the fourth respondent found that he did not have jurisdiction               to adjudicate on the validity of the agreement. Mr Kock and SADTU then                          approached this court for the relief referred to above.

[9]      I may mention at this stage that the fourth and fifth respondents did not oppose                the application.  The department filed a notice that it abided by the decision of                  the court save where an order of costs is sought against it.  In a letter dated 14                February 2001 and addressed to the State Attorney - Port Elizabeth, the                           applicants’ attorneys confirmed that  no order for costs would be sought against               the Department in view of the fact that it was not opposing the application.

Argument

[10]	The argument of Mr Kroon, on behalf of the applicants, was to the effect that in consequence of the agreement Mr Kock was divested of the security of his employment which he enjoyed after the aforementioned consultative process. He was declared as being in excess. Mr Kroon argued further that the agreement, concluded in Mr Kock’s absence,  is repugnant to the tenets of fairness which form  the foundation of  labour law, particularly those which apply in respect of an obligation to consult.

[11]	It was argued by Mr Benningfield, on behalf of the respondents, that on a proper construction of the agreements, Mr Kock need not have been given an opportunity to state his case as the agreement did not affect him. Although he argued, on one hand, that the resolution in question was not changed,  he conceded, on the other hand, that Mr Kock’s former position (i.e prior to the conclusion of the agreement) changed as a result of “the proper application” of the said resolution.  He conceded  further that, in considering the alleged appropriate way of applying the resolution, Mr Kock was not involved and/or afforded an opportunity to make representations.

Application of the law 

[12]     It appears from the contentions raised on behalf of the respondents that the                     respondents have somewhat  mischarecterized the issues in that they have                      confused the procedure with the merits. It is not necessary, for the purpose of                  this judgment, for this court to concern itself with what Mr Kock was going to say              had he been given an opportunity to present his case. What this court has to                    concern itself with is whether Mr Kock was, in accordance with the rules of                       natural justice, entitled to have been heard.  Hoexter JA stated, in                                     Administrator, Transvaal &  others v Zenzile and others (1991) 12 ILJ 259,                 that -
“The fact that an errant employee may have little or   nothing to    urge on his own defence is a factor alien to the inquiry whether    he is entitled to a prior hearing”.
                                       (At 273H)

He went on and referred to Wade, Administrative Law 6th edition where the learned author puts the matter as follows:
“Procedural objections are often raised by unmeritiorious parties.  Judges   may then be tempted to refuse relief on the ground that a fair hearing could have made no difference to the result.  But in principle it is vital that the procedure and the merits should be kept strictly apart, since otherwise the merits may be prejudged unfairly”.

[13]     As I have already mentioned above, the question for consideration is whether Mr             Kock was, in accordance with the precepts of natural justice and I may add,                     within the context of the Constitution of the Republic of South Africa, Act 108 of              1996(“the constitution”),  entitled to have been afforded an opportunity to present              his case before the conclusion of the agreement.

The Constitutional imperatives

[14]     In terms of the Constitution every person whose rights ( or legitimate                                 expectation) are affected or threatened is entitled to a procedurally lawful,                        reasonable and fair administrative action(s. 33(1) ).

A brief analysis of the traditional ‘natural justice’ 
  
[15]     The primary procedural safeguards in South African administrative law are                       expressed by the twin principles of natural justice: audi alteram partem (“the                     audi principle”) and nemo iudex in causa sua: that is, that a public official should              hear the other side, and that one should not be a judge in his own cause. As a                 general rule it may be said that the principle of natural justice apply whenever an             administrative act is quasi-judicial. An administrative act was considered to be                  quasi-judicial if it affects the rights, liberties (and perhaps, the privileges) of an                 individual. 

[16]     In the case of ‘purely administrative’ decisions the decision-maker acts entirely                 to his discretion( Wiechers Administrative Law 1985 at 124). As a result of this                 common law classification(which has found its historical origins in the need to                  make the English common law writs of certorari and prohibition applicable to                    acts categorized as quasi-judicial, see in this regard Wiechers, supra, at 122).                  The approach of the judiciary in South Africa to the question of procedural                        safeguards and administrative law has not been producing useful result                            because of its sterility: Where a decision of an administration does not affect                    rights, or legal rights, or  prejudicially affect the rights of persons because the                   aggrieved  person had no right in the first place, it has been held that the audi                  alterm partem rule was not applicable ( see: South African Defence and Aid                     Fund & Another v Minister of Justice 1967 (1) SA 263 (A); Laubscher v Nature,                Piet Retief 1958 (1) SA 546 A  reaffirmed in Administrateur Van Suidwes Afrika v             Pieters 1973 (1) SA 850 (A); Publication Control Board v Central News Agency                Ltd 1970 (3) SA 479 (A) at 488).Minister of Interior v Bechler 1948 (3) SA 409                  (A) at 451). In Down v Malan, NO. en Ander 1960(2) SA 734 (A) at 741 a quasi-               judicial decision was said to include one which affects the person’s interests.                    There are , of course, many variants in other cases dealing with this point.

[17]      A serious criticism been directed against the classification by authoritative                        writers(see: e.g Hlope’s and Baxter’s articles, infra) for its sterility, stagnation                    and obstruction to the development of the administrative law. L.G Baxter                          ‘Fairness and Natural Justice in England and South African Law’ (1979) 96                      SALJ 607 at 638 describes the common law natural justice as being — 
                                       “...little short of a miracle of judicial creativity when the fairness approach is                                                  employed...the duty to act fairly affords scope for the development of urgently                                              procedural safeguard and against arbitrary administrative action such as not                                                been available under the orthodox approach to natural justice; natural justice                                               unfortunately accumulated a mass of dead wood which held any development.”.

[18]      Schriener JA, as he then was, in Pretoria North Town Council v A.1 Electric Ice-              Cream Factory Pty Ltd 1953 (3) SA 1 (A) sounded a caveat that —
                               “ The classifications of discretions and functions under the headings of                                                         “administrative”, “quasi-judicial” and “judicial” has been canvassed in modern                                               judgments and juristic literature; there appears to be some difference of                                                       opinion, or of linguistic usage, as to the proper basis of classification when                                                   achieved...one must be careful not to elevate what may be no more than a                                                   convenient classification into a source of legal rules. What primarily has to be                                              considered...is the statutory provision in question, read in its proper context.” 
                                (At 11A–C ).

[19]       A notable and commendable exception in the judicial approach in South Africa                 is found in the statement by M.T Steyn J in Motaung v Mothiba NO 1975 (1) SA               618 (O) where the learned judge said – 

                               “Being rules of the common law, this much can safely be said of the principle of                                             natural justice, viz: that they have been a part of our system of law for a very long                                        time and that they are capable of further formulation, growth and practical                                                    application to meet the needs of a rapidly developing and expanding society which                                      is continually being subjected to an increasing degree of administrative and                                                 bureaucratic regulation and control.”
                                 (At 629D).

The approach in the English and South African Courts 

[20]       The English courts have escaped from the right-privilege distinction towards a                  more realistic and flexible approach to natural justice by invoking the concept                   of legitimate expectation. In Ridge v Baldwin [1964] AC 40 at 72ff Lord Reid                     disagreed with the view that the principle of natural justice applied only if the                    exercise of administrative powers affected the rights of the aggrieved parties.                   His speech was quoted with approval, approximately four years later, by Lord                   Denning MR in Schmidt & Another v Secretary of State for Home Affairs                           [1969]1 AllER 904 at 909 where the learned Judge said– 
                                 “The speeches in Ridge v Baldwin 1964 AC 40 show that an administrative body                                           may, in a proper case, be bound to give a person who was affected by that                                                  decision an opportunity of making representations. It all depends on whether he                                          has some right or interest, or I would add, some legitimate expectation of which it                                        not be fair to deprive him without hearing what he has to say.”

[21]        The above approach in the courts of England avoids the temptation of                              classifying functions, thereby avoiding the conceptualism which had to be                         exposed in Baldwin’s case and enables the courts to give effect to the                              inherent flexibility of natural justice which is based upon underlying principles                   of fairness. The feature of modern English administrative law is therefore that                  the classification of decisions into judicial, quasi-judicial and administrative no                  longer seems to have much relevance, if any, in this sphere.

[22]       In Everet v Minister of Interior 1981 (2) SA 453(C), Fagan J (with whom                            Lategan J concurred) commendably invoked the concept of ‘legitimate                             expectation’ to the South African law. The applicant, a British citizen by birth,                   had desired to become a permanent resident of South Africa. She had no                        intention of returning to England. She applied for an extention of her temporary                residence permit for one year, during which she intended to make further                         representations to the immigration authorities to be granted permanent                             residence. This application was granted, and her temporary permit was finally                  extended until 8 July 1980. On 10 June 1980 she was served with a letter in                     terms of which the Minister of Interior had, under the powers vested in him by                  section 8(2) of the Aliens Act of 1937,ordered that her temporary residence                      permit be withdrawn with immediate effect. She was ordered to leave the                         country on or before 11 June 1980. She then applied to the Supreme Court for                an order setting aside the notice purporting to withdraw her temporary                              residence permit on the ground, inter alia, that it was contrary to natural justice                 as she had not been afforded an opportunity of making representations. Fagan                J concluded that there had been a breach of the principles of natural justice.                    The Minister’s notice was therefore set aside. The decision in  Everet has                         established that the rules of natural justice require that an opportunity of being                 heard must be given before any decision affecting the legitimate expectation of                any individual is made. The decision has, however , been criticized for certain                  flaws by some writers. It will serve no purpose, for the purpose of this judgment,               to enter into criticism levelled against this. It suffices to say that our courts have               begun to give a greater recognition to the broader concept of natural justice.

[23]       The court was, in Castel NO v Metal & Allied Workers Union 1987 (4) SA 795                  (AD), unsuccessfully invited to adopt the approach in vogue in the courts in                      England. Being mindful of the criticism levelled at several of the court’s                             decisions on the point under discussion, Hefer JA declined the invitation                           because, he said, ‘the legitimate expectation’ approach had — 

                        “no room for its application here... unlike the English and Australian cases on which                                     counsel relied, nothing had happened before the application for authority was submitted                             and nothing happened thereafter which could have caused the applicant to entertain                                   such an expectation...” 

[24]       Fortunately, greater recognition is given by our courts to the broader concept of               the principle of natural justice. The traditional scope of the principles relating to                the observance of natural justice has been extended to decisions affecting a                    person who has no existing right, but merely a legitimate expectation (Everet’s                 case,supra; Langeni and Others v Minister of Health and Welfare and Others                   1988 (4)SA 93 (W); Mokoena and Others v Administrator, Transvaal 1988 (4)                  SA 912 (W).  An illustrative discussion of the topic also appears in the following               articles:(1987) 165 SALJ  “Legitimate Expectation and Natural Justice: English,                Austrialian and South African Law” by John Hlope, and (1979) 96 SALJ 607                     “Fairness and Natural Justice in E nglish and South African Law” by L. Baxter).

[25]        Against the backdrop of cases explored, I return to the issues raised in the                       instant case. It was Mr Kroon’s contention that Mr Kock’s right to the security of                his employment had been affected by the agreement in question and that                         failure to give him a hearing was contrary to the tenets of natural justice. It                        was not disputed, correctly in my view, that Mr Kock’s position or status was                     altered as a result of the agreement. Consequently, following the sentiments                    expressed in the abovementioned cases and the views of authoritative writers                  referred to above, it is manifest that the agreement affected Mr Kock’s rights or                interests. In my view, Mr Kock was entitled to expect to be given an opportunity                to make representations before the conclusion of the agreement. His right was                 affected. By this I am not proposing that a right sought to be taken away was                   the requirement for the observance of the tenets of natural justice, as was                        apparently, suggested in Mokoena’s case, supra, at 918 E.  When the                              Department failed to give Mr Kock an opportunity to make representation, it                      acted contrary to the tenets of natural justice because he was not given the                      elementary right to be heard.( See Bechler’s case at 451; Administrator,                           Transvaal & Others v Traub and Others 1989 (4) SA 731; (1989) 10 ILJ 823;                    Unilong Freight Distributors (Pty) Ltd v Musser (1998) ILJ 229 (SCA) at 238A).

Conclusion

[26]       For these reasons, I found that the principles of natural justice had not been                     observed. Failure by the Department and the respondents to apply the audi                      alteram partem rule has constituted a procedural impropriety vitiating the                          agreement in so far as it affected Mr Kock. Accordingly, the argument                               advanced on behalf of the respondents had to fail. 

_______________         
B.E NKABINDE
ACTING JUDGE OF THE LABOUR COURT OF SOUTH AFRICA      		

For the applicants:                               Mr P.N Kroon
For the respondents:                           Mr P.G Benningfield
Attorneys for the applicants:                KAPLAN BLUMBERG 
Attorneys for the respondents:            MICHAEL RANDELL INCORPORATED
Date of hearing:                                   27 February 2001
Date of judgment:                                30  March 2001