South Africa: North West High Court, Mafikeng

Louw v Ndou and Others (115/2001) [2002] ZANWHC 3 (24 January 2002)

NKABINDE J:

[1] The applicant, formerly an employee of the fourth respondent, the North West Housing Corporation which is a statutory body duly constituted in terms of the North West Housing Corporation Act 24 of 1982 (“the Corporation”) applied for an order to review and set aside a decision to dismiss him from his employment by the disciplinary enquiry held under the chairmanship of the first respondent who was appointed in terms of the provisions of the Public Service Act 103 of 1994 (“the Act”). The second respondent is the Acting Chairman of the Board of Directors of the Corporation. The third respondent is the MEC for Local Government and Housing, North West Provincial Government.

[2] In terms of the decision in issue the applicant was found guilty of three of the seven charges of misconduct in the execution of his duties. In his reasons for the findings the first respondent stated that all the charges against the applicant were brought in terms of the provisions of s. 20 of the Act.

[3] In order not to burden this judgment unnecessarily I do not deal in detail with all the charges. It suffices to state that the alternative charges to the first (main) charge with which the applicant was found guilty and sanctioned relates to the negligent or indolent conduct of the applicant in carrying out his duties in that he facilitated the entering into of a contract by the Corporation with a company called Technofin for the rental of 15 facsimile and photocopier machines, to be supplied by another company namely: K & N Minolta. The second charge upon which the applicant was also found guilty and sanctioned relates to the misconduct on his part in that he failed to refrain from favouring a relative, to wit his wife, in a work-related activity by facilitating the entering into of 15 contracts with the said Technofin for the rental of office machinery to the Corporation. The other charge (Count 4) on which the applicant was found guilty and sanctioned relates to the alleged fraudulent use by the applicant of the Corporation’s credit card for the payment of personal expenses incurred by himself. In imposing the appropriate sanction the first respondent took the three abovementioned offences together for the purpose of sentence and remarked, inter alia, that the applicant had compromised the relationship of trust, honesty and good faith that existed between himself and the Corporation.

[4] At the hearing of the disciplinary enquiry it was contented on behalf of the applicant that the Act and the regulations promulgated thereunder were repealed and as a result of such repeal the procedure regarding the resolution of disputes of misconduct was done away with. The first respondent however found that the repealed Act was applicable.

[5] The contentions above were further raised by Mr Pistor , on behalf of the applicant, at the hearing of this matter. He submitted further that the applicant had not been afforded a fair trial as envisaged in terms of s. 33 of the Constitution of the Republic of South Africa, 108 of 1996 (“the Constitution”).

Mr Sutherland, on behalf of the respondents, conceded, rightly, that the Act and regulations promulgated thereunder and under which the applicant was charged were not applicable to the employment relationship between the applicant and the Corporation and that in so far as the charges that were framed in terms of those regulation were concerned the respondents abandoned any reliance on them. Counsel submitted that procedural unfairness does not necessarily entail substantive unfairness. He argued further that the applicant was afforded a fair trial in that he obtained the service of a legal representative which would otherwise not have been the case under the Act. He submitted further that there was no failure of justice as no rights were denied.

[6] It is true that the applicant was afforded a benefit which he would not have been given under the Act. That, in my view, is not enough and does not advance the respondents’ case. The question remains whether the applicant was afforded a fair hearing or not. Another question is whether the tribunal was legally constituted or not. A full disclosure of a correct statutory provision and regulation under which the applicant was charged and expected to plead to was not made to the applicant. He was required to prepare for and attend the enquiry on very serious allegations against him based on non-existent statutory provisions and regulations. Evidence led to disprove the applicant’s innocence was in support of charges framed under such repealed legislation.

[7] The decision of the first respondent to terminate the employment of the applicant and recommendations to that effect are unquestionably proceedings of a disciplinary nature which may be reviewed by this Court.

[8] The pre-constitutional South African law for judicial reviews remains important in the constitutional era, at the very least as a point of departure. The Supreme Court of Appeal has taken the view in Commissioner of Customs and Excise v Container Logistics (Pty) Ltd 1999 (3) SA 771 (SCA) that common-law grounds for judicial review of administrative action continue to exist in terms of the interim constitution and presumably the final constitution under s. 33.

[9] A principle of a fair hearing, apart form the right to legal representation, is generally accepted as an essential aspect of cases before tribunals. The celebrated principles of natural justice which, in the words of Friedman JP in Yates v University of Bophuthatswana and Others 1994 (3) SA 815 at 835D, “have become reliable aphorisms in our legal lexicon”, provide that persons who are likely to be affected by administrative actions should be entitled and afforded a fair hearing before a decision is taken. In defining the principles of justice, which under our system of law and which cannot be defined exhaustively, Botha JA in Turner v Jockey Club of South Africa 1974 (3) SA 633 (A) at 646 D-E quoted with approval the remarks by Lord TURKER in Russel v Duke Norfolk and Others, (1949) All E.R. 109 where he said at p.118, that-

“The requirements of natural justice must depend on the circumstances of the case, the nature of the enquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with and so forth. Accordingly, I do not derive much assistance from the definition of natural justice which have been from time to time used, but, whatever standard is adopted, one essential is that the person concerned should have a reasonable opportunity of presenting his case.”.

[10] Applying the above principles to the instant case it seems to me that a denial of procedural justice would result where a person, charged with very serious offences, was called to attend an enquiry when the regulations and/or statutory provisions under which the tribunal is acting are non-existent and when some of the charges he pleaded to, was convicted of and sanctioned on were framed under such non-existent statutory provisions and/or regulations. Such a denial will exist as long as there is an infraction of the rules of procedure even when the decision on the merits are unassailable (see Yates, supra, at 836 A-B). Botha JA in Turner, supra, at 656A said that such a denial-

“is always presumed to be prejudicial to the party affected and is not capable of being remedied by remittal on the hearing of further evidence.”.

At 655H the learned Judge of Appeal quoted with approval a passage from the decision in England in Annamunthodo v Oilfields Workers’ Trade Union, (1961) 3 All E.R. 621 by Lord DENNING that -

“... If a domestic tribunal fails to act in accordance with natural justice, the person affected by their decision can always seeks redress in the courts. It is a prejudice to any man to be denied justice. He will not of course, be entitled to damages if he suffered none. But he can always ask for the decision against him to be set aside.”.

[11] I now turn to the constitutional legality of the administrative action in question. The question is whether the decision and the process used to arrive at such a decision were consistent with the Constitution. Section 33 of the Constitution provides, inter alia, that -

“(1) Everyone has the right to administrative action that is lawful, reasonable and procedurally fair.”.

[12] The courts have used this constitutional guarantee of procedural fairness to require greater protection to individuals whose rights were affected by such administrative actions, such as the applicant. It seems to follow that the hearing was thus procedurally unfair and inconsistent with the constitution.

[13] The concession on behalf of the respondents and the abandoning of charges framed under such statutory provisions and/or regulations have an impact on the “globular” sanction imposed. It follows therefore that the sanction cannot stand if the two charges upon which the convictions were based are abandoned.

[14] I conclude for these reasons, and without it being necessary to deal with the other issues raised, that the hearing of the disciplinary enquiry and the findings of the first respondent must be set aside. Accordingly an order is made in terms of paragraphs 1.1, 1.3, 2 and 3 of the Notice of Motion.

B.E. NKABINDE

JUDGE OF THE HIGH COURT

I agree

H.N. HENDLER

JUDGE OF THE HIGH COURT