---

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.

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_______________________

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 76^th 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 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 76^th 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.

[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 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 76^th 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.

[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 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 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.

[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: ‘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 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 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.

[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 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

[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;

(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

[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 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 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 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

[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;

(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 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

[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 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 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, 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, 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

[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.

[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 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 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.

(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 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 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 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.

[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 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 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, 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 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 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 76^th applicants of gross insubordination and to dismiss them summarily, of the sixth respondent to confirm the guilt of the second to 76^th applicants and to confirm their summary dismissal and of the third respondent to terminate the services of the second to 76^th applicants are inconsistent with the Constitution, are invalid and are hereby set aside.

(b) The respondents are directed to reinstate the second to 76^th applicants forthwith, with full benefits and in terms of their contracts of employment.

(c) Each party shall bear their own costs.

______________________

C. PLASKET

JUDGE OF THE HIGH COURT

---