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[2005] ZAGPHC 102
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Klein v Dainfern College and Another (33033/04) [2005] ZAGPHC 102; 2006 (3) SA 73 (T) (1 October 2005)
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TRANSVAAL PROVINCIAL DIVISION
CASE NO. 33033/04
In the matter between MARGARET KLEIN Applicant and DAINFERN COLLEGE First Respondent TREVOR ZWARTS Second Respondent
C.J. CLAASSEN J
INTRODUCTION
[1]
The applicant is a teacher and is employed by the first respondent as “Head of Department:
Mathematics”. The first respondent is a company established and registered in terms of section 21 of the Companies Act No.
61 of 1973. The second respondent is an attorney who was cited in his official capacity as chairperson of a disciplinary tribunal
convened by the first respondent. The second respondent abides the decision of this court.
[2] It is common cause that the applicant was employed as from 1 January 2000 See Annexure “MK1” attached to the founding affidavit. and that her contract of employment was amended See Annexure “MK3” attached to the founding affidavit. during the course of 2004. The amended contract of employment was signed by the first respondent’s representative, Mr. G.V. Johnstone, on 6 April 2004 and by the applicant on 14 June 2004. See answering affidavit paragraph 12.1 and Annexure “MK 3.4” attached to the founding affidavit. The amended contract of employment incorporates, in clause 2.2 thereof, certain amended “Conditions of Service for Full-time Academic Staff.” See Annexure “MK5” attached to the founding affidavit. In paragraph 4 of these conditions of service reference is made to certain policies and procedures that are applicable to all staff including the “College Disciplinary Procedure and Code”. See Annexure “MK6” attached to the founding affidavit. The conditions of service include further in paragraph 13.2 See Annexure “MK5.4” attached to the founding affidavit. thereof the following provision:
“2. Misconduct: Misconduct or behaviour which is in breach of these requirements and the College’s Code of Conduct will result in the application of appropriate disciplinary
action as per the College’s Disciplinary procedure.”
[3]
It is further common cause that the “Disciplinary Procedure and Code” forms part of
the applicant’s revised contract of employment with the first respondent. See paragraph 12.4 of the answering affidavit and Annexure “MK6” attached to the founding affidavit. In addition, it is also common cause that the applicant’s revised contract of employment includes, as an integral part thereof,
the “Code of Conduct for Staff and Educators.” See paragraph 12.5 of the answering affidavit and Annexure “GJ2” attached thereto.
RELIEF SOUGHT
[4]
The applicant approached this court on notice of motion seeking the following relief:
“1.
Reviewing and setting aside the decision of the second respondent on 13 August 2004
in terms of which he found the applicant guilty of “gross insolence” and imposed a sanction comprising a formal written
warning on the applicant.
2. Ordering and directing the first respondent to withdraw the said written warning to the applicant forthwith. 3. Costs of suit against the first respondent.”
[5]
The application is brought in terms of the provisions of Rule 53 of the Uniform Rules of the High
Court alternatively in terms of sections 6 and 7 of the Promotion of Administrative Justice Act No. 3 of 2000 (“PAJA”).
The application is, therefore, a judicial review of the decision of a domestic tribunal created by contract alternatively a judicial
review of an alleged administrative action taken by the respondents.
BACKGROUND FACTS
[6]
The facts giving rise to the disciplinary hearing of the applicant chaired by the second respondent
can be briefly set out. In this regard it is to be borne in mind that many of the facts are disputed by the first respondent. No
replying affidavit was filed by the applicant. Insofar as there are such disputes of fact, the first respondent’s version must
be preferred on the basis of the principles set out in Plascon-Evans Paints Ltd. v Van Riebeeck Paints (Pty) Ltd [1984] ZASCA 51; 1984 3 SA 623 (A) at page 634H – 635C, unless some inherent improbability in relation thereto can be demonstrated. See also South African Veterinary Council and Another v Szymanski 2003 4 SA 42 (SCA) at paragraphs 23 – 25. Applying these principles, it must be accepted that on 2 August 2004 the applicant stormed into Johnstone’s office in a rage
accusing him of not caring about his pupils. Her complaint concerned the change of the time table for science examinations which
were to be attended by her son who is also a pupil in the first respondent’s school. Johnstone attempted to explain to her
that he had contacted those pupils who missed their examinations and arranged alternative dates but she refused to listen to any
reason. Applicant admitted she was alarmed and upset. Because she was too emotional, angry and upset, she abruptly left his office
before Johnstone could fully address her complaints. Whilst walking down the corridor, she raised her voice and referred to Johnstone
as “the bastard” in the presence of Lynn Duncan and other staff members. See paragraph 16.7 of the answering affidavit as read with Annexure “MK15.12” attached to the founding affidavit.
[7] On 4 August 2004 applicant was handed a “Notice to attend a disciplinary hearing”. See Annexure “MK10” attached to the founding affidavit. It was addressed to the applicant and contained the following: “1. Details of disciplinary hearing
Please attend a disciplinary hearing concerning your alleged conduct, on Thursday 5th August 2004 at 15h00 in the High School Principal’s office at Dainfern College.
2.
Charge(s) against Employee
It is alleged that you have committed the following offence(s): 2.1. Gross insolence 3. Particulars of the charge(s)
On Monday 2 August 2004 you “stormed” into the Principal’s office and yelled at him and made false accusations without first enquiring and listening to his explanation. You
then left his office and in front of other staff called the principal a bastard.
4.
You are not suspended on full pay until the date of the hearing.”
The document also explained all the rights which the applicant had in terms of the Disciplinary Code.
[8] On 5 August 2004 a disciplinary hearing was held in Johnstone’s office chaired by the 2nd respondent. The applicant indicated to the chairperson that she did not have sufficient time to prepare for the hearing and asked for a postponement whereupon the hearing was postponed to Friday 13 August at 09h30. Thereafter an informal discussion ensued between Johnstone and the applicant and her representative Mr. Andy Stewart in an attempt to resolve the issue. No apology was forthcoming from the applicant as a result whereof Johnstone wrote a note to the applicant on Friday 6 August 2004 indicating to her that he had resolved “to proceed with the hearing at 09:30 a.m. next Friday.” He also asked her to indicate to him who she required to be present at the hearing. See Annexures “MK11” and “MK12” attached to the founding affidavit.
[9]
On 13 August 2004 the hearing resumed in Johnstone’s office. The proceedings commenced by
Mr. Stewart submitting to the 2nd respondent, as chairperson, a document containing certain preliminary points which inter alia referred to, (i) the informal discussions held on 5 August; (ii) a complaint that applicant had inadequate time in terms of the notice
to prepare for the hearing; (iii) a complaint that applicant needed further particulars to the charge; and (iv) a request for a postponement
of the hearing. See Annexure “MK14 to 14.4” attached to the founding affidavit. In particular, the written document contained the following:
“8.
My copy of the Disciplinary Procedure refers (at page 2, para 1) to a “table” of “those actions considered to be offences”, and the disciplinary action to be followed.
9.
The “table” is absent from my copy of the Procedure. My enquiries show that it appears to be absent generally from the Disciplinary Procedure, and it is not available to me. I do not know whether the table was in fact ever published.
10. I request, therefore that a complete, current copy of the Disciplinary Procedure, together with the missing “table”, be made available to me.” See also Annexure “MK14.2”, paragraphs 8-10 attached to the founding affidavit.
[10]
The record of the proceedings conducted before the 2nd respondent was recorded and subsequently transcribed. See Annexure “MK15.1 – 15.16” attached to the founding affidavit. It records that Stewart submitted the preliminary points on behalf of the applicant to the 2nd respondent. The 2nd respondent gave Johnstone, as complainant, an opportunity to respond thereto. Thereafter the 2nd respondent refused the application for postponement and ordered that the proceedings be continued. Stewart asked for a short adjournment
of 10 minutes and again persisted in the application for postponement which was once again refused, whereupon the applicant and Stewart
withdrew from the proceedings. Johnstone then made a statement to the 2nd respondent and called two witnesses i.e. his secretary Ms Deanne Moore and Ms Lynn Duncan who testified and answered to questions
posed by the 2nd respondent. Thereafter the 2nd respondent gave a reasoned judgment finding the applicant guilty of the charge against her. The record shows that the proceedings
were concluded by the following:
“Trevor Swartz: She refers to a “table”. Do you know if any such table exists?
Gordon Johnstone: No.
Trevor Swartz: I will deliberate and decide what the appropriate sanction is and I will provide you with a written sanction and I
will ask you to convey this to the accused.
Also what I’d like to direct please, is that a copy of the table is given to her.”
[11]
Thereafter certain correspondence passed between the applicant’s attorney and the 2nd respondent wherein a copy of the transcript of the hearing was requested.
[12] It was common cause between the parties that the Labour Court had no power to review the tribunal’s decision.
POINTS IN LIMINE
[13]
Mr. W. La Grange, for the 1st Respondent, submitted that the application is fatally flawed in that the
applicant is not entitled to a judicial review of a decision taken by a domestic tribunal which has been created by contract nor
does the decision constitute an administrative action entitling applicant to a judicial review in terms of the provisions of PAJA.
In developing his argument he submitted that the 1st respondent is a privately owned school and that the disciplinary hearing did not exercise any public function entitling the applicant
to a review thereof. He argued that the floodgates would be opened if the remedy of judicial review was to be extended to all spheres
of private contractual relationships. Since the advent of constitutionalism after 1994, so his argument went, the right to judicial
review has been limited to decisions made by organs of State or institutions established in contract which perform a public function
in making decisions. Mere master and servant relationships are not subject to judicial review. The applicant’s remedies lay
in the law of contract and not administrative law. For these contentions Mr La Grange relied upon the cases of Administrator, Transvaal, and Others v Zenzile and Others 1991 1 SA 21 (AD) at 34B-C; Administrator, Natal, and Another v Sibya and Another [1992] ZASCA 115; 1992 4 SA 532 (AD); Lamprecht and Another v McNeillie [1994] ZASCA 45; 1994 3 SA 665 (AD) at 671A-E; R v Criminal Injuries
Compensation Board, Ex parte Lain [1967] 2 All ER 770 at 778; Malloch v Aberdeen Corporation [1971] 2 All ER 1278 at 1293; Pharmaceutical Manufacturers Association of SA and Another: In Re ex Parte President of the Republic of South Africa and Others [2000] ZACC 1; 2000 2 SA 674 (CC) at paras. [41], [44] and [49]; Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Others [2004] ZACC 15; 2004 4 SA 490 (CC) at par [22] and Pennington v Friedgood and Others 2002 1 SA 251 (CPD) at paras. [19] – [39].
[14]
I am not persuaded that these authorities support Mr. La Grange’s contentions referred to above.
Where one deals with a domestic tribunal created by contract, the elementary principles of natural justice may still be applicable
despite the advent of the constitutional era. It has been stated as far back as 1942 in Jockey Club of South Africa and Others v Feldman 1942 AD 340 at 351 that Courts can interfere in the decision of a domestic tribunal which has disregarded its own rules or the fundamental principles
of fairness. What is to be regarded as “principles of natural justice” was examined in Marlin v Durban Turf Club and Others 1942 AD 122 at 125–6 where Tindall JA concluded that the expression:
“….. when applied to the procedure of tribunals such as those just mentioned, seems to me merely a compendious (but somewhat obscure) way of saying that such tribunals must observe
certain fundamental principles of fairness which underlie our system of law as well as the English law. Some of these principles
were stated, in relation to tribunals created by statute by Innes CJ in Dabner v South African Railways 1920 AD 583, in these terms:
‘Certain elementary principles, speaking generally, they must observe; they must hear the parties concerned; these parties must have due and proper opportunity of producing their evidence and stating their contentions and the statutory duties must be honestly and impartially discharged.’”.
[15]
In Turner v Jockey Club of South Africa 1974 3 SA 633 (AD) at 645H – 646B, Botha JA extended the principles of natural justice to domestic tribunals in the following manner:
“In the case of a statutory tribunal its obligation to observe the elementary principles of justice derives from the expressed or implied terms of the relevant enactment, while in the case of a tribunal created by contract, the obligation
derives from the express or implied terms of the agreement between the parties affected…. The test for determining whether
the fundamental principles of justice are to be implied as tacitly included in the agreement between the parties is the usual test
for implying a term in a contract as stated in Mullin (Pty) Ltd v Benade Ltd 1952 1 SA 211 (AD) at pp 214-5, and the authorities there cited. The test is, of course, always subject to the expressed terms of the agreement by which any or all of the fundamental principles of justice may be excluded or modified.”
[16]
Baxter, Administrative Law at 340 found two strains of judicial decisions on the scope of judicial review of private bodies. The one strain of decisions adopted
a more expansive approach to the question of review and were more readily willing to read into contractual agreements where a contracting
party is not on equal bargaining par with the other, implications that a fair hearing should be held before disciplinary action is
taken. In this regard he states as follows:
“No doubt the wider or more liberal approach to judicial review is based partly upon the realization that members of private
organizations often have little real choice over the terms of their agreements at all, including those relating to penal and disciplinary
provisions. It is submitted that this view is more realistic.”
[17]
In Theron en Andere v Ring van Wellington van die NG Sendingkerk in Suid-Afrika en andere 1976 2 SA 1 (AD) Jansen JA also adopted a more liberal approach to the judicial review of domestic tribunals. At 21G-H the following was said:
“Dat in die algemeen op die gronde deur die formele maatstaf behels in ‘n kontraktuele tribunaal se handeling van regssprekende aard ingegryp kan word, is duidelik: dit is ‘n noodwendige uitvloeisel van die toepassing van die grondbeginsels van kontrak, veral di
van goeie trou. M.i. is dit ook ‘n noodwendige uitvloeisel daarvan dat die uitgebreide formele maatstaf ook in die algemeen toegepas moet word.
Weliswaar sal daar dicta in ons regspraak voorkom wat met die moontlikheid van sodanige toepassing strydig skyn te wees.”
[18]
A compendium of grounds for review by a court of voluntary associations, has been listed as being: Excess
of power exercised by the tribunal; male fides; constitutional irregularity; violation of principles of natural justice, such as improper notice of the charge, lack of complying
with audi altram partem and bias and lack of applying its mind to the matter to be decided. See B.R. Bamford, Judicial Review of Domestic Tribunals, (1957) 4 Butterworths SA Law Review 12 – 23; Jamile v African Congregational Church 1971 3 SA 836 (D); Theron supra at p 10D-F.” The question in all instances is therefore to establish whether or not the contract incorporates the principles of natural justice.
In this regard it should be remembered that there is no difference between the principles held to be applicable in Turner’s case supra and the other Jockey Club cases and those applicable in reviews arising from decisions of tribunals established in terms of the employment contracts. See Roussouw v Suid-Afrikaanse Mediese Navorsingsraad 1990 3 SA 297 C at 307-309.
[19] Similarly in Taylor v Kurtsag NO and Others 2005 1 SA 362 (W) at 382B Malan J reaffirmed the principles in Theron’s case and found that the decisions of religious tribunals are subject to the same common law review jurisdiction as those of other voluntary organisations. Malan J quoted with approval the assertion of Rautenbach and Malherbe in Constitutional Law (4th Edition at 201-5, notes 174 and 195) that churches and trade unions alike are subject to administrative law because “they are founded on principles that are applicable to the application of general rules to individual cases in all unequal relationships”. See also JR de Ville “Judicial Review of Administrative Action in South Africa” p 51. [20] Subsequent to the advent of the constitutional era, this principle has not been abrogated. In Pennington supra at 263, Hodes AJ expressly approved this principle in paragraph [40] where the following is stated:
I am in agreement with the following words of Devinish, Govender and Hulme, Administrative Law and Justice in South Africa, at 25:
‘”Administrative action” is the conduct of public authorities and indeed private entities when they exercise public powers, perform public functions or are obliged to exercise authority in the public interest. This means that common-law review now only applies in a very narrow field in relation to private entities that are required in their domestic arrangements to observe the common-law principles of administrative law. This applies in relation to voluntary associations, such as sporting clubs and religious organisations’”.
[21]
In Pharmaceutical Manufacturers supra, Chaskalson P in par. [45] stated inter alia the following:
“That is not to say that the principles of common-law have ceased to be material to the development of public law. These well-established principles will continue to inform the content
of administrative law and other aspects of public law, and will contribute to their future development. But there has been a fundamental
change….. Whereas previously constitutional law formed part of and was developed consistently with the common law, the roles
have been reversed. The written Constitution articulates and gives effect to the governing principles of constitutional law”.
[22]
De Ville supra at 49-50 is of a similar view:
“Insofar as voluntary associations or domestic tribunals are concerned, their actions (insofar as these actions were of a coercive nature, for example, disciplinary proceedings) have in the past been held to be subject to administrative law principles. Whereas
some commentators have taken the view that the (coercive) actions of these associations would qualify as administrative action, others have argued that the actions of these bodies will generally
not so qualify as they do not exercise public powers or perform public functions. If the latter approach is adopted, the coercive actions of voluntary associations would nevertheless still be subject to review on the basis of common law administrative principles….
Because of the likely effect of section 39(2) of the Constitution, it matters little for purposes of determining the grounds of review
to which voluntary associations are subject, whether their (coercive) actions qualify as administrative action.”
[23]
I agree with Mr. Heher, for the applicant, that the cases relied upon by Mr. La Grange nowhere exclude
from the jurisdiction of the High Court the review of domestic tribunals established by contract, where, as part of the agreement,
the principles of natural justice are included. The rationale for the existence of judicial review of domestic tribunals is usually
the unequal bargaining position of members or employees. There is nothing in the Constitution which abrogates this common law principle.
There is only one system of law and it is shaped by the Constitution which is the supreme law. All law including common law derives
its force from the Constitution and is subject to Constitutional control. See Pharmaceuticals Manufacturers supra par [44]. 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 Constitution. See Bato Star Fishing supra at par [22]. In the present case, however, section 33 of the Constitution expressly deals with “administrative action”. I will deal
later with the definition of this term but suffice to say at this stage that administrative action is a term of art which has been
particularly defined by the Constitution and PAJA itself which does not necessarily exclude common law principles of administrative
law applicable to domestic tribunals established in terms of private contracts and agreements. De Ville supra referred to section 39(2) of the Constitution which enjoins courts, “when developing the common law” to “promote
the spirit, purport and objects of the Bill of Rights.” The object and the spirit of the Bill of Rights is inter alia to curtail excess of public power by organs of State and not private institutions. It is interesting in this regard to note that
the South African Law Commission (1992), rejected a submission that the definition of “organ” and “decision”
be extended to include the actions of voluntary associations within the scope of the proposed Bill. It was stated that the main aim
of the Bill was the extension of the grounds of review insofar as action taken in terms of legislation is concerned and not to affect
actions taken by private tribunals. See De Ville supra p 49, footnote 136.
[24]
If the spirit, purport and objects of the Bill of Rights is inter alia to curtail excessive public powers, all the more reason for courts to review a domestic tribunal which does exercise public functions
and powers. The extension of judicial review to domestic tribunals exercising public powers does not, however, mean that judicial
review is now limited to such instances. Such extension did not, in my view, extinguish the courts’ powers of judicial review
in instances where coercive actions of domestic tribunals not exercising public powers, are at stake. I agree with Mr. Heher that
it would be anomalous to grant citizens connected with a public school rights of judicial review and those, by chance involved in a private school, none, in circumstances where they are in an unequal bargaining position and subject to the coercive actions of private tribunals
similar to tribunals in public schools. No rational reason exists to exclude individuals from the protection of judicial review in
the case of coercive actions by private tribunals not exercising any public power. To my mind the Constitution makes no pronouncements
in respect of this branch of private administrative law. Thus, continuing to apply the principles of natural justice to the coercive
actions of private tribunals exercising no public powers will in no way be abhorrent to the spirit and purport of the Constitution.
[25]
I am therefore of the view that the principles of natural justice have not been excluded by the Constitution
as far as the coercive actions are concerned of domestic tribunals established by contract which impliedly or expressly include such
principles of justice.
DOES THE AGREEMENT INCLUDE OR EXCLUDE THE PRINCIPLES OF NATURAL JUSTICE?
[26]
The next question is then to establish whether or not the contract of employment of the applicant in
the present case expressly or impliedly includes the principles of natural justice. In my view the employment contract does include
these principles expressly. The disciplinary code See Annexure “MK6” attached to the founding affidavit. expressly forms part of the contract of employment. The relevant provisions which have a bearing on the question of the rules of
natural justice being applied or not, are as follows:
“The basis of labour relations is that of fairness being seen to be done. On that
basis two areas are addressed:
a.
Procedural fairness to ensure that the correct procedures were followed
according to the disciplinary code and grievance procedure as laid down
by the school.
b. Substantive fairness to ensure that the offence was proven and the punishment the correct decision according to the disciplinary code as laid down by the school ….. Essential Features: Discipline procedures seek to provide guidelines to both employer and employee where the employer is not satisfied with the performance or behaviour of the employee. The procedure provides opportunities for the individual to state his or her case fully and to enlist any support he or she might wish. No one who assists a fellow employee in an enquiry shall be victimised in any manner whatsoever as a result of his or her having advised or represented any employee.
The Disciplinary Procedure:
The disciplinary procedure allows for five levels of disciplinary action, namely:
a).
verbal warning/warnings.
b). written warning/warnings. c). disciplinary enquiry. d). dismissal
e).
appeal.
The Disciplinary Code:
The disciplinary code lays down those actions considered to be offences and the disciplinary action to be followed. These are provided on the table
overleaf.
…
Disciplinary Hearing:
The purpose of the disciplinary enquiry shall be: a). to hear all relevant evidence concerning the matter. b). to reach a just and balanced verdict.
……
An employee who is accused of misconduct or poor performance must be given a chance to account for his or her behaviour. The onus on proving the employee’s misconduct or poor performance lies with management. The employee must be given reasonable notice of the time and venue of the hearing (between 7 to 14 working days). The notice must also set out the essential details of the misconduct of which he or she is charged and inform the employee of his or her rights during the hearing. These rights are:
a).
To be fully informed of the charge against him/her.
b). To be represented during the proceedings by a fellow employee. c). To call witnesses. d). To cross-examine any witness. e). To present evidence in mitigation. f). To appeal to a higher authority.
g).
To be assisted by an interpreter if required.
The headmaster or a person designated by him shall preside over the disciplinary
enquiry.
On reaching a final decision the chairperson shall make known to the employee the decision. An accurate written record must be kept of all the proceedings of a disciplinary enquiry. Proceedings at a disciplinary hearing shall take place with due regard to the considerations of justice and fairness.” (Emphasis added)
Provisions are also made for appeal procedures.
[27]
It is quite apparent to me that the drafter of this Disciplinary Code had in mind the incorporation
of most or all of the rules of natural justice referred to above in par. [18]. The notions of procedural fairness and substantial
fairness, the right to be assisted in presenting one’s case, the right to have a just and balanced verdict, the right to have
a case proven against the accused by management and the rights to be informed fully of the charge against the accused, to call witnesses
and to cross-examine witnesses and that the proceedings should be in accordance with “the considerations of justice and fairness”,
are in my view all express indications of the intention to incorporate into the contract of employment the principles of natural
justice. In my view there can be no doubt about this conclusion.
[28] I am of the view that the applicant is entitled to have the decision of the 2nd respondent judicially reviewed in accordance with the common law principles of administrative law. I therefore reject the contentions of Mr. La Grange that the absence of the first and second respondents exercising a public function, is relevant.
DO THE PROVISIONS OF PAJA APPLY?
[29]
The next question to be decided is whether or not the provisions of PAJA apply. In my view they do not
apply. In my view, the decision of a domestic tribunal established in terms of a contract does not fall within the definition of
“administrative action” as contained in section 1 of PAJA. This definition reads as follows:
“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 affect……”
[30]
Sub-paragraph (a) above clearly relates only to organs of State and find no application to the present
case. Sub-paragraph (b) relates to a natural or juristic person who exercises a public power or public function in terms of an empowering
provision. One then has to look at what the definition is of “an empowering provision”. This term is defined in section
1 of PAJA as meaning “a law, a rule of common law, customary law, or an agreement, instrument or other document in terms of which an administrative action was purportedly taken”. The reference to “an agreement” is governed by the words “in terms of which an administrative
action was purportedly taken”. An agreement or contract is only relevant insofar as it permits of an “administrative
action”, which as shown above, refers to actions by an organ of state or natural or juristic persons performing public functions.
None of these apply to the present case as neither the first nor the second respondents performed any public function. I therefore
conclude that the review cannot be based upon the provisions of PAJA.
THE MERITS
[31]
It is then necessary to decide whether or not applicant has made out a case for judicial review on the
basis of a violation of any rules of natural justice.
[32] The applicant has raised a number of grounds for review. She has alleged that the 2nd respondent was biased, alternatively that she had reasonable grounds of suspecting the 2nd respondent of being biased against her. All of these allegations are denied and cannot be disposed of on the papers. However, purely based upon a perusal of the record See Annexure “MK15.1 – 15.16” attached to the founding affidavit. of the proceedings at the hearing. I am satisfied that no basis whatsoever has been established for concluding that 2nd respondent was biased against the interests of the applicant. [33] Applicant has also attempted to make out a case that she was afforded an inadequate period of time to prepare her case. She has relied on the provision that a period of 7 – 14 working days should be afforded an accused prior to the hearing being commenced with. In my view she was afforded this privilege. The first hearing commenced on the 5th of August during which the applicant requested a postponement in order to prepare her case. She was granted a postponement and the hearing was set down for the 13th of August 2004. She received the charge sheet on the 4th of August and thus was afforded in total a period of 9 days to prepare her case. In my view no breach of natural justice was established in this regard. [34] It was also contended that the 2nd respondent’s refusal to grant a further postponement constituted some kind of irregularity. It has been authoritatively laid down that no violation of natural justice occurs when a tribunal refuses to delay its inquiry. See Shadrach v Garment Workers’ Union of Cape Peninsula 1946 CPD 906 at 916. No case has been made out by the applicant in this regard either.
[35]
It is a principle of natural justice that the accused is entitled to have the charge clearly formulated
with sufficient particularity in such a manner as will leave him/her under no misapprehension as to the specific act or conduct proposed
to be investigated. See Fisher v SA Bookmakers’ Association 1940 WLD 88 at 91. The charge sheet must also clearly indicate the nature of the offence although it need not set out the same detail and precision
as is required in a criminal indictment. See De Vos v Die Ringskommissie van die NGK 1952 2 SA 83(O) at 97. Did the first and/or 2nd respondents comply with this provision of natural justice? In my view they did not. The applicant from the outset complained about
the description and nature of the offence. In the written document containing the applicant’s preliminary points, she specifically
stated that the disciplinary procedure refers to a “table” of the actions which would be considered offences. As indicated
above these were stated in the code to be “provided on the table overleaf”. Applicant expressly asked for such table
to be provided in order to establish what the nature of the offence of “gross insolence” comprises. It subsequently appeared
that the 2nd respondent, although rather belatedly, was also concerned with this table of offences. He in fact directed, ex post facto, that a copy thereof should be provided to the applicant. This was not done, presumably because no such table existed. Johnstone
was also not aware whether such table existed. Whether or not such a table was in existence at the time of the hearing is irrelevant.
The fact of the matter is that the disciplinary code which forms part of the contract of employment specifically required the offence
to be set out in a table. It therefore contemplated that the offence of “gross insolence” would have been defined in
a separate table setting out what kind of conduct would be regarded as such. Without reference to such a definition one would not
be able to establish the particular misconduct or offence for which the applicant was charged. That being the case I am of the view
that the applicant was materially prejudiced in not knowing the full extent and nature of the offence with which she was charged.
[36] The facts referred to in the previous paragraph were common cause and, therefore, not in dispute. The application can therefore be decided, as far as the merits are concerned, on this single issue. In my view this breach was material and led to the applicant suffering substantial prejudice. A denial of any of the fundamental principles of justice is always prejudicial. See Turner supra at 656A; Feldman supra at 359. Prejudice is also, in the present instance, to be found in the fact that the sanction of a formal written warning imposed on the applicant was intended to have and did in fact have a negative effect on her work record. See Blacker v University of Cape Town and Another 1993 4 SA 402 C at 407G. CONCLUSION
[37]
For the reasons set out above I have come to the conclusion that the applicant was successful in establishing
a case for the judicial review of the 2nd respondent’s decision taken on 13 August 2004. In my view costs should follow the result and I therefore make the following
order:
An order is granted in terms of paragraphs 1, 2 and 3 of the notice of motion.
DATED AT JOHANNESBURG ON THIS …. DAY OF OCTOBER 2005
____________________________
C.J. CLAASSEN JUDGE OF THE HIGH COURT Counsel for the applicant: Mr. J. Heher Attorneys for the applicant: MacIntosh, Cross and Farquharson Counsel for the First Respondent: Mr. W. La Grange Attorney for the First Respondent: Hack, Stupel and Ross The matter was argued on 25 August 2005 |