MEC, Department of Road & Transport, Eastern Cape and Other v Giyose (1251/06) [2007] ZAECHC 63; [2008] 5 BLLR 472 (E); (2008) 29 ILJ 272 (E) (6 September 2007)

FORM A

FILING SHEET FOR EASTERN CAPE JUDGMENT

ECJ NO: 187

PARTIES:

Member of the Executive Council, Depart of Roads &Transport, E Cape

And

Lithalelanga M Giyose

REFERENCE NUMBERS-

Registrar: 1251/06 Magistrate:

Supreme Court of Appeal/Constitutional Court: Eastern Cape Division

DATE DELIVERED: 06/09/07

JUDGE(S): Froneman J, Somyalo JP, Sandi J

LEGAL REPRESENTATIVES-

Appearances:

For the State/Applicant(s)/Appellant(s): Adv R Brooks

-For the accused/respondent((s): Adv P Zilwa

Instructing attorneys:

Applicant(s)/Appellant(s): Mlonyeni & Lesele Inc

Respondent(s): Malusi Co (EL)

Mili Attorneys (GHT)

CASE INFORMATION –

Nature of proceedings :

Topic:

Keywords:

IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION Case No. 1251/06

(Reportable)

In the matter between

MEMBER OF THE EXECUTIVE COUNCIL,

DEPARTMENT OF ROADS AND TRANSPORT,

EASTERN CAPE First Appellant

MARIE ANNANDALE DE VILLIERS, N.O. Second Appellant

and

LITHALELANGA MARSHARIAN GIYOSE Respondent

JUDGMENT

The right to a pre-transfer hearing for a public employee, recognised as a principle of administrative law pre-constitutionally, also gives expression to the fundamental right to fair labour practices under section 23 of the Constitution and accordingly the common law contract of employment should be developed to give recognition to the right as part of the common law contract of employment too. The right embraces both a procedural aspect (the hearing) and a substantive aspect (a rational and fair consideration of what the employee puts forward in the hearing).

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Froneman J.

Introduction

[1] This is an appeal, with her leave, against a judgment of Dambuza J where she set aside as unlawful the decision of the first appellant to transfer the respondent from her post in King William’s Town to Aliwal North. The broad issue at stake is whether the decision to transfer the respondent was arrived at in a procedurally fair and substantively rational manner. Included in that enquiry is the question whether the right to a procedurally fair and substantively rational decision should, in an employment dispute, be viewed as an employment rights dispute or as a dispute about the right to just administrative action, a question upon which there is not much clarity in our law at present.

[2] The conclusion reached in this judgment is that, on the facts, the decision to transfer the respondent was procedurally and substantively defective. On the question whether that conclusion should be reached from an employment law perspective or an administrative law perspective the conclusion is that it can be justified from either perspective, but that the coherence of employment law will be enhanced if purely employment disputes are adjudicated primarily as employment rights disputes. The reasoning is that this can be done by giving due and complementary regard to the different origins and contexts which led to the introduction and development of notions of fairness in, respectively, private and public employment relationships, and that those different contexts should continue to enrich the development of employment law. The result, in any event, is that the appeal must fail. Before, however, referring to the reasons for these findings in greater detail it is necessary, first, to set out the relevant facts pertaining to the matter.

Facts

[3] Since 2003 the respondent had been employed as Director of Traffic Safety at the Head Office of the Department of Roads and Transport of the province in King William’s Town. On 18 October 2005 she received a letter from the second appellant in the following terms:

“Dear Ms. Giyose,

TRANSFER FROM TRAFFIC SAFETY TO UKAHLAMBA DISTRICT: YOURSELF

In terms of the powers vested in him by Section 14 of the Public Service Act, 1994, as amended, read with III.D.1.(c) of the Public Service Regulations, 2001, the Executing Authority intends to transfer you from your present post of Director: Traffic Safety at Head Office to the post of District Manager in Ukhahlamba District, Aliwal North with immediate effect.

Before the transfer is implemented please indicate if you have any objection to such transfer and if so to furnish reasons for the objection. The Executing Authority will then consider your reasons with the operational needs of the department and will make his decision.

Your response is required to reach Mr.Reynolds before or on 01 November 2005 and it is trusted that you will view the action to the best interest of the department.

Yours faithfully,

….”

[4] The respondent replied on 1 November 2005 and objected to the transfer on a number of grounds:

“With regard to the intended transfer, I wish to state that I object to such transfer on the following grounds:-

I am not privy to the rationale behind the intended transfer, and my department has failed or neglected to explain such to me.

As part of the Senior Management Team of the Department, at no stage was I part or advised of a strategic discussion that culminated in such a decision in pursuit of the operational needs of the department.

Regular meetings are being held within our Chief Directorate which is responsible for, inter alia, Traffic Safety and District Coordination. At no stage did I come across an operational aspect which warranted such a change.

I report to the Chief Director who is responsible for both Traffic Safety and District Coordination. At no stage has he raised this even on a bilateral basis.

The Chief Director referred to in paragraph 4 supra and I have a signed and valid performance agreement. According to that process, there is no indication that the Department has doubts about my diligence, integrity and level of professionalism in my current

scope of work. May I add that I am still committed to delivering on the target set in terms of that contract.

When the post of District manager: Ukhahlamba was advertised, I was already working in this Department. The reason I did not apply for the post then, still apply to this very day.

The post of Director: Traffic Safety at Head Office is not being abolished. Why then am I being removed?

The post of District Manager: Ukhahlamba has been filled.

Notwithstanding the above, I am currently looking after my very sickly 80 year old mother who is bedridden. This transfer will have an adverse effect on her wellbeing, as there is nobody else available who can bath and clean her.

The intended transfer is to take “effect with immediate effect”, according to your letter. In the light of the foregoing grounds for objection, I am not in a position to concede to this transfer.

I trust that the above mentioned grounds for objection will be perceived in the spirit in which they are raised.”

[5] The respondent heard nothing further until she received another letter on 26 January 2006 from a Mr. Bekebu, the Acting Chief Director of the Department of Roads and Transport. Before dealing with the contents of this letter it is important to note that Mr. Bekebu was not personally involved until then with the proposed transfer of the respondent. Nowhere in the appellants’ papers is it stated exactly when the decision was finally taken to transfer the respondent, but Mr. Bekebu, who deposed to the main opposing affidavit filed on behalf of the appellants, stated that he was informed on 26 January 2006 that the first appellant had decided to transfer the respondent after considering the content of her letter dated 1 November 2005. Mr. Bekebu’s responsibility, in his own words, was “the implementation of the [respondent’s] transfer” once the first appellant “decided to transfer her”. When he wrote the letter on 26 January 2006 the first appellant had already taken the decision to transfer the respondent and the purpose of the meeting, again in Mr. Bekebu’s own words, “was to inform the [respondent] of the [first appellant’s] decision to transfer her”.

[6] The letter of 26 January 2006 invited the respondent to a meeting to discuss the issue of the transfer on 6 February 2006. She was unable to attend and on 9 February 2006 she was finally informed of the decision to transfer in the following terms:

“Dear Ms Giyose,

TRANSFER FROM TRAFFIC SAFETY TO UKHAHLAMBA DISTRICT: YOURSELF

Your letter dated 01 November 2005 responding to your proposed transfer to Ukhahlamba District, is acknowledged.

2. The department has taken cognizance of your letter and wishes to respond as follows:

▪ The transfer is not related to discipline or performance but it has been an employer initiative with an aim to expose and develop managers to different fields within the department.

▪ The department has undergone major restructuring which necessitates rotating managers to different work environments which will eventually enhance service delivery

▪ The strategy of the department has been widely discussed with all managers in the department and as provided in Part III.B.3 of Chapter 1 of the Public Service Regulations, 2001 as amended, it is the competency of the Head of the Department to promote efficient, economic and effective use of the resources in the implementation of the strategy;

▪ There is no doubt about the correctness of the Performance Agreement you have signed with your supervisor. However, as the SMS Handbook clearly defines the system in Section 6 of Chapter 4 that it needs to be integrated with all other organizational processes and systems and to focus on continuous improvement of performance;

▪ The point you have raised that the reason you did not apply for the post of District manager: Ukhahlamba District is not in dispute. However, as explained above and in the letter dated 18 October from the department, the transfer has culminated from the operational needs and implementation of the strategy of the department;

▪ The post of Director: Traffic Safety is indeed, not abolished as that of District Manager: Ukhahlamba is also not vacant but the transfer is a horizontal cross-transfer;

▪ The department has taken note of your personal matter of a sickly mother and deeply sympathises with you. In this regard, it is advised that you relocate with her as the resettlement policies allow and it is trusted that the town is equipped with medical facilities.

Having considered all your concerns which have been addressed above, the department has arrived at the decision to transfer you to Ukhahlamba District as a District manager in terms of Section 14 of the Public Service Act, 1994, as amended, as from 01 April 2006.”

[7] The respondent did not accept the decision to transfer her. By way of a letter dated 22 February 2006 her attorneys challenged the substantive grounds for the decision and asked the appellants for written reasons and motivation for the decision to transfer her; information on whether the decision to transfer her was discussed in any management meeting; and the minutes of any such a meeting. The eventual reply to this, on 15 March 2006, was in vague and general terms and, significantly, did not provide any information of management meetings, nor minutes of such meetings, where her transfer was discussed. The second respondent did, however, offer to meet the respondent and discuss the issues supposed to have been discussed on 6 February 2006.

[8] The respondent then launched an unsuccessful urgent application to prevent her transfer pending the finalisation of the application for review of the transfer decision. The main review application was heard by Dambuza J, who, as noted above, granted the application for the review and setting aside of the decision to transfer.

[9] In the respondent’s founding papers, used initially in the urgent application, she challenged the decision to transfer her on the basis that she was not afforded a fair hearing before the decision was taken; she disputed the substantive fairness and rationality of the decision; and she asserted that if the real reason for the decision was that it was a ‘cross-transfer’, then it was done improperly because such transfers could only take place with the consent of the parties involved.

In a supplementary affidavit she confirmed these grounds and added that despite a court order to do so the appellants failed to provide a record of proceedings in terms of the provisions of rule 53. The eventual explanation for this from the first appellant’s attorneys was that there was no record as the first appellant “acted within his sole discretion and did not consult with any person at arriving at his decision”.

[10] The appellant’s answering affidavit in the main review application was deposed to by Mr. Bekebu who was not, as noted earlier, personally involved in the decision to transfer the respondent, but was only involved in the implementation of that decision.

In summary the application for review was resisted on the grounds that the first respondent was empowered by section 14 of the Public Service Act 1(‘PSA’) to transfer the respondent ‘in the public interest’; that she was given an opportunity to respond to his intended decision to transfer her; that he considered her representations before finally making his decision; and that the decision was rational and in the public interest in that it was based on a rotation policy for senior management to gain experience and competence. The policy had been discussed at management meetings, was disclosed in a speech to the legislature and other people had also been transferred under the policy. The decision to transfer the respondent was not ‘administrative action’ and thus not reviewable under the Promotion of Administrative Justice Act 2 (‘PAJA’). The respondent had also failed to exhaust her internal remedies. The first respondent considered the documents annexed to the respondent’s founding affidavit before making the final decision to transfer her.

[11] In her replying affidavit the respondent denied the existence of the rotation policy relied on by the respondents and noted that no documentation in support of its existence was made available – neither the promised policy speech nor any minutes of the alleged meetings where the policy was discussed was produced. She also pointed out that all the transfers the appellants stated were done in terms of the alleged rotation policy occurred prior to 2005, when the policy is said to have come into operation. She gave particulars of what she had done to act in terms of the grievance procedure, namely that she lodged the grievance in early March 2006, but that by September 2006 nothing had been done in respect of it.

[12] Both an appeal and cross-appeal were lodged, but the cross-appeal was superfluous as it merely sought to support the order made by Dambuza J on further grounds, namely that the decision to transfer was also procedurally unfair.3 The appeal was directed at her findings that the decision to transfer the respondent was not shown to have been substantively fair, in that insufficient reasons were given and that the terms of the rotation policy were not established.

[13] Mr. Brooks, who appeared for the appellants, did not pursue any argument based on the contention of the appellants in the answering affidavit to the effect that the respondent should have pursued her internal remedies rather than come to court, or that the decision to transfer did not amount to administrative action. The former issue, the exhaustion of internal remedies, can be put to rest on the facts: the respondent cannot be blamed if her grievances were not dealt with internally. The latter issue, whether the decision to transfer amounts to administrative action, and the consequences flowing from a finding that it does, are somewhat more complex matters and need some further discussion.

The Law

[14] The first appellant has the competence to decide that the respondent should be transferred to another post in the department. The source of his authority to do this is section 14(1) of the PSA which provides that such a transfer may be effected “when the public interest so requires”. The respondent has not challenged his statutory competence to make a decision on the transfer, but only the allegedly improper exercise of that competence. I need not say much about whether a decision to transfer a public servant by another public official in terms of empowering national legislation in the public interest amounts to ‘administrative’ action under PAJA– in my view it is abundantly clear that it does. Accordingly I am of the view that Mr. Brooks’s concession to this effect was proper and fair. This establishes that the high court has jurisdiction to hear the matter by virtue of the alleged violation of the respondent’s fundamental right to just administrative action under the Constitution 4 even though the labour court has concurrent jurisdiction in respect of the alleged violation of that right in relation to employment relations in terms of the provisions of the Labour Relations Act 5 (‘LRA’). But does that mean that PAJA, which seeks to give expression to the fundamental right to just administrative action, 6 is the only gateway to challenge the first respondent’s decision to transfer the respondent?

[15] The Bill of Rights in the Constitution provides that everyone has the right both to administrative action that is lawful, reasonable and procedurally fair (what I referred to as the fundamental right to just administrative action) and the right to fair labour practices.7 PAJA has been enacted to give effect to the fundamental right to just administrative action, and the LRA, although not constitutionally mandated as PAJA was, also seeks to give effect to and regulate the fundamental right to fair labour practices.8 In employment matters these rights may overlap, giving rise to unresolved problems about the proper reach of their respective spheres of operation. 9

[16] The explanation for much of this lies in our history. Before the advent of constitutional democracy different aspects of employment law were governed by the common law contract of employment, employment legislation and administrative law respectively. The development of a fair and equitable law of employment occurred on different fronts. The right to fair labour practices never found expression, pre-Constitution, in the common law contract of employment. In private employment relationships it developed under the unfair labour practice jurisprudence of the erstwhile industrial court and was later given legislative clothing in terms of the Labour Relations Act of 1956.10 Fairness was introduced and developed in public employment relationships under the rules of natural justice in administrative law in cases such as Administrator, Transvaal and others v Zenzile and others,11 in respect of pre-dismissal hearings, and Hlongwa v Minister of Justice, Kwa-Zulu Government,12 in respect of pre-transfer hearings.

[17] Under the Constitution and present national legislation the compartmentalization of employment law continues to exist to the extent that the employment relationship is still governed to some extent by the common law contract of employment, to some extent by labour legislation, and to some extent by administrative law legislation, but in my view there is now an important difference between the present state of the law compared to pre- Constitution law. That difference lies in the fact that the values of the Constitution now underlie all law, be it public or private law, whether expressed in legislation or in the common law. This should imply, I would respectfully suggest, a convergence and harmonisation of underlying principles when the same set of facts arise for adjudication in an employment context, be it under the common law contract of employment, labour legislation or administrative law legislation.

[18] In an employment dispute the focal point for convergence and harmonisation would, I suggest, be an acceptance that legislation and the common law should be interpreted, developed and applied to give expression to the fundamental right to fair labour practices for the parties in an employment relationship. The question, in such an employment context, is not whether labour law principles, or administrative law principles, or common law principles govern, but how their possible overlap can best give expression to this fundamental right. By focusing on giving expression to the fundamental right to fair labour practices in the context of an employment dispute the importance, extent or ambit of the fundamental right to just administrative action need not be undermined at all.

[19] There are many advantages in concentrating on giving expression to the fundamental right to fair labour practices in the context of an employment dispute. The first is that it clarifies what the real issue in the case is, or ought to be. The second runs alongside the first: if the real dispute transcends or goes beyond mere employment issues, the application of the right to just administrative action might come to the fore; if the dispute does not reach that far, the focus on just administrative action becomes unnecessary without detracting in any way from its full application and importance as a fundamental right. Such an approach would avoid the “parsimonious approach and austere formalism that is at odds with a proper approach to fundamental rights”, in the words of Plasket J in Police and Civil Rights Union and others v Minister of Correctional Services and others. 13

[20] It seems logical that the interpretation and application of legislation and common law should converge and be in harmony as far as possible when they deal with the same fundamental right, in this instance the right to fair labour practices under section 23(1) of the Constitution. Is such a convergence and harmonisation possible? I think it is.

[21] The issue at stake in this matter provides a good illustration.

[22] The right to a pre-transfer hearing in public employment relationships is, in my judgment, by now settled law.14 The historical origin for recognition of that right is pre-constitutional administrative law rules of natural justice. Giving due regard to that origin does not preclude one from now recognizing that the right to a pre-transfer hearing may also give concrete expression to the fundamental right to fair labour practices, or, put another way, that the right to a pre-transfer hearing is one of the bundle of rights which make up the fundamental right to fair labour practices. Nor should recognition of its administrative law origin lead one to ignore the public context of its operation. The exercise of public power, even in employment relationships, may also have to answer to other constitutional values, such as accountability, responsiveness and openness.15 Those considerations may conceivably give rise to and account for differences in the content given to fair labour practice rights in public employment relationships, compared to those for private employment relationships.

[23] The historical origin of a right to pre-dismissal hearing under the provisions of the LRA lay, as noted above, in the development of an ‘unfair labour practice’ jurisprudence in the old industrial court, prior to this jurisprudence being translated into legislative existence and force under amendments to the 1956 Labour Relations Act.16 In turn this jurisprudence and legislation was the precursor to the fundamental right to fair labour practices now enshrined in the Bill of Rights in the Constitution. The LRA provides that dismissals of employees must be for a fair reason and in accordance with a fair procedure.17 Although the LRA does not deal expressly with disputes over transfers of employees, the dismissal of an employee for refusing a transfer was held to be procedurally unfair for the lack of consultation prior to transfer by the Labour Court in Gray Security Services (Western Cape) Pty Ltd v Cloete and another.18 Again there is no reason not to view these developments as instances of giving concrete form to the fundamental right to fair labour practices in the Bill of Rights.

[24] Development of the common law of employment points in the same direction. In Old Mutual v Gumbi19 the Supreme Court of Appeal held that the common law contract of employment has been developed in accordance with the Constitution to include the right to a pre-dismissal hearing. Jafta JA stated that “[it] is clear that coordinate rights [to a right to a hearing under the 1956 Labour Relations Act] are now protected by the common law: to the extent necessary, as developed under the constitutional imperative (s 39(2)) to harmonise the common law into the Bill of Rights (which itself includes the right to fair labour practices (s 23(1))”.20

He continued:

“Of importance is the fact that by extending the requirement of the audi alteram partem principle to employment relationships, our law promotes fairness and justice at the workplace …. In this context fairness must benefit both the employee and the employer. The process of determining the actual content of matters such as this involves the balancing of competing and sometimes conflicting interests of the employee, on the one hand, and the employer on the other. The facts of a particular case determine the weight to be attached to such interests on each side of the scale.”21

[25] The right to a fair pre-dismissal hearing in employment relationships is thus, by now, recognised as part of our common law both under administrative law and the common law contract of employment, as well as under the provisions of the LRA. These three historically disparate sources of employment law are now held together by the glue of the underlying fundamental constitutional right to fair labour practices in section 23(1) in the Bill of Rights. Their respective origins may still, however, inform and enrich the further development of the right, depending on the facts of each case, the nature of the employment relationship at stake and the remedies sought for its breach.

[26] The same history of compartmentalized development in different spheres of employment law also has to account for much of the present day jurisdictional difficulties in employment matters. The initial denial that the decision to transfer the respondent in this matter amounted to ‘administrative action’ and thus to deny the reviewability of the decision by the high court under PAJA, was a transparent attempt to exclude the jurisdiction of the high court, probably on the assumption that non-dismissal disputes about transfers would not be cognizable in the labour court either.22 That would effectively have denied any redress for the respondent.

[27] In the recent decision of Boxer Superstores Mthatha v Mbenya 23 Cameron JA pointed out that the exclusive jurisdiction of the labour court has been carefully circumscribed in recent years:

“Section 157(1) of the LRA provides that subject to the Constitution and to the Labour Appeal Court’s jurisdiction, and except where the LRA itself 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’. Despite the seeming breadth of this provision, it is now well established that –

….section 157 does not purport to confer exclusive jurisdiction on the labour court generally in relation to matters concerning the relationship between employer and employee….and ….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 LRA’s remedies against conduct that may constitute 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 may not only constitute an unfair labour practice (against which the LRA gives a specific remedy), but may also give rise to other rights of action: provided the employee’s claim as formulated does not purport to be one that falls within the exclusive jurisdiction of the labour court, the high court has jurisdiction even if the claim could also have been formulated as an unfair labour practice….;

an employee may therefore sue in the high court for a dismissal that constitutes a breach of contract giving rise to a claim for damages….;

similarly, an employee may sue in the high court for damages for a dismissal in breach of the employer’s own disciplinary code which forms part of the contract of employment between the parties…”

[28] The Boxer Superstorescase, Cameron JA acknowledged, 24 pushed the boundary a little further. Relying on the Gumbi case 25 - where a common law contractual claim to a pre-dismissal hearing was recognised – he held that a claim for a declarator to the effect that the breach of an employee’s employment contract by an employer was unlawful, could be brought in the high court. Dealing with an argument that in substance, if not in form, the dispute was about an unfair labour practice which fell within the labour court’s exclusive competence 26 he said this:

“This characterisation may be correct, so far as it goes, but it leaves out of account the fact that jurisdictional limitations often involve questions of form, and that the employee in this case, as already mentioned, formulated her claim carefully to exclude any recourse to fairness, relying solely on contractual unlawfulness. In Fedlife,27 Nugent AJA pointed out:

‘Whether a particular dispute falls within the terms of s.191 depends on what is in dispute, and the fact that an unlawful dismissal might also be unfair (at least as a matter of ordinary language) is irrelevant to that enquiry. A dispute falls within the terms of the section only if the “fairness” of the dismissal is the subject of the employee’s complaint. Where it is not, and the subject of the dispute is the lawfulness of the dismissal, then the fact that it might also be, and probably is, unfair, is quite coincidental for that is not what the employee’s complaint is about.’ ”.

[29] In Gumbithe recognition (as a developed part of the common law contract of employment) of a pre-dismissal right to a hearing was based on considerations of fairness arising inter alia from the constitutional right to fair labour practices.28 The issue in dispute in Gumbi concerned the procedural fairness of a dismissal.29 Gumbi and Boxer Superstores thus appear to be authority for the proposition that the common law contract of employment may be developed to bring it in line with the constitutional right to fair labour practices, but once a right is recognised in this manner the nature of its breach becomes a matter of contractual unlawfulness, not of legislative fairness under the LRA.

[30] The present case does not involve a dismissal. It involves the right to a pre-transfer hearing of a public employee. I have already stated that in my view it is settled law that a public employee has such a right.30 From what I have stated above it should be clear that in my judgment it is appropriate to state that this right also now forms part of our common law contract of employment in so far as the common law regulates individual public employment relationships. This development of the common law is mandated by section 39(2) of the Constitution,31 in order to bring it into conformity with the constitutional right to fair labour practices.32 The development includes not only a recognition of the right to a pre-transfer hearing, but also of the remedy it carries, namely reinstatement to the pre-transfer position. The high court has jurisdiction in such matters arising from the common law contract of employment, as well as under the provisions of PAJA.

[31] The right to a pre-transfer hearing requires “that the employee should be given an opportunity of meeting the case against him”. 33 The right is rendered nugatory not only by denying the employee the opportunity to meet the case against him or her, but also by not giving due consideration to the substance of the representations made to meet the case. Put another way, the right contains both a procedural and substantive aspect: a fair procedure as well as a fair reason for the outcome or result after giving the employee the opportunity ‘to meet the case’. Although the right to a hearing is usually seen as only a procedural right it is logical and fair that it must have a substantive purpose beyond mere procedure. That purpose lies in rational and fair consideration of the effect of the submissions of the employee on the employer’s proffered reason for the proposed dismissal or transfer, whatever the case may be.

[32] Acceptance of this development of the common law contract of employment brings in its wake some potential procedural difficulties. The present matter was brought in the form of a review under rule 53, a procedure not normally associated with the enforcement of contractual remedies. Recognition of a right to a pre-transfer hearing as part of the common law contract of employment, as a distinctive adjunct to its enforcement in a purely administrative law context, might have the result that the rule 53 procedure could be deemed inappropriate for its enforcement and thus deprive a public employee of the procedural advantages of the rule. In my view this need not be the case. Firstly, the use of the rule 53 procedure should not be treated as a procedural irregularity which vitiates proceedings for contractual enforcement of a pre-transfer hearing right. We have moved on, I hope, from such excessive formalism. If the issues are adequately raised and dealt with in such proceedings no substantive reason exists why they cannot be adjudicated in those proceedings. This case is an example of where it can be done. Secondly, even if rule 53 is not used, the employee could still gain access to the necessary documents which would have formed part of the ‘record’ under rule 53 by properly utilising the provisions of the Promotion of Access to Information Act,34 as decided in MEC for Roads and Public Works, EC and another v Intertrade Two (Pty) Ltd,35 and by utilising rule 35(12) in appropriate circumstances.

[33] It may be asked why the common law contract of employment should be developed in this manner, rather than simply treating the right to a pre-transfer hearing as part of administrative law. The main answer I have tried to give is that of consistency and conformity, by giving similar effect to the constitutional right to fair labour practices in individual employment relationships over a wide spectrum. I do not think this development of the common law contract of employment diminishes the constitutional right to just administrative action36 in any way. There is no reason why other insights in the proper exercise of public power may not still underlie and give content to constitutional fair labour practice rights so far as public employees is concerned. The exercise of public power in individual employment relationships is, however, not primarily concerned with democratic values of accountability, responsiveness and openness, or with the basic values and principles governing public administration. The exercise of that public power affects individuals at the first level as employees, not as concerned citizens. Conversely the exercise of that public power by the state organ as employer is at the first level also concentrated at employment concerns, not affairs of public administration. A consequence of this is that court scrutiny of the exercise of this specific form of public power would, at a practical level, primarily be concentrated on employment concerns and only secondarily on democratic and public administration concerns. Concentrating on the former may mean that constitutional separation of power constraints may have less of a role to play in determining the intensity of the court scrutiny in a purely employment context than it would have otherwise.

[34] A further effect of approaching this matter from the perspective of a common law contract of employment developed in conformity with constitutionally protected fair labour rights, rather than from an administrative law vantage point, is that the strictures of PAJA are avoided. In a purely employment context I consider that an advantage. With a contractual right to a pre-transfer hearing established as part of the common law one may go directly into the enquiry whether the right has been breached on the facts of the case and, if so, what remedy should follow.

[35] But even if I am wrong that such a right now forms part of a constitutionally developed common law contract of employment, I still consider Mr. Brooks’s concession that the first appellant’s decision to transfer the respondent did amount to administrative action as correct and proper. The matter then has to be approached by applying the provisions of PAJA to the facts of the case. The high court has jurisdiction to do that. The eventual outcome of the appeal will be the same.

Application of law to the facts

[36] Mr. Zilwa, counsel for the respondent, ably and persuasively argued that the decision to transfer should not be allowed to stand on the ground that the respondent did not, procedurally, have a fair and proper opportunity to meet the case against her. The first letter addressed to the respondent, giving her notice of the intended transfer, made no mention of the fact that her transfer was an implementation of a rotation policy that existed in her department. Accordingly she never had a proper opportunity to ‘meet the case’ against her. The actual decision to transfer her was made by the first appellant prior to the letter of 9 February 2006, which might be read as referring to that policy. In my view the submission is sound and although Dambuza J did not base her decision on procedural unfairness she could, with respect, also have done so.

[37] That finding is enough reason for the appeal to fail, but I nevertheless consider the ground upon which the application was granted by Dambuza J in the court below, namely that there was in any event no substantive reason for the decision to transfer the respondent, also to be correct. There is nothing in the papers to indicate that the first appellant considered the so-called rotation policy at all as the reason for the decision to transfer the respondent. The first mention of that policy only came after the decision had already been taken. No supporting documentation in the form of a copy of the alleged policy speech to the legislature, or the minutes of the meetings where the policy was allegedly discussed with management, ever materialised, despite explicit requests to produce them. The allegation that other persons were also transferred under the policy turned out to be probably false. The first appellant’s legal representatives stated on his behalf that he consulted with no one before he decided on the transfer and that there was thus no record evidencing his decision. That is a damning admission if true, because the inference of absolute arbitrariness then becomes irresistible. But it is unlikely to be true that the political head of the department would not act upon the advice of the senior officials in his department, and the fact of correspondence between officials and the respondent appears to bear this out.

[38] If the matter needs to be decided under the provisions of PAJA the conclusion remains the same; the decision was procedurally unfair37 and arbitrary.38

Conclusion

[39] I would dismiss the appeal with costs.

J.C.Froneman

Judge of the High Court.

I agree. It is so ordered.

C.M.Somyalo

Judge President of the Eastern Cape High Court.

I agree.

B.Sandi

1 Proclamation 103 of 1994.

2 Act 3 of 2000.

3 Municipal Council of Bulawayo v Bulawayo Waterworks Co Ltd 1915 AD 611 at 631-632; Sentrale Kunsmiskorporasie (Edms) Bpk v NKP Kunsmisverspreiders (Edms) Bpk 1970 (3) SA 367 (A) at 395H-396A.

4 Section 33(1) of the Constitution.

5 Section 157(2) of Act 66 of 1995.

6 Section 33(3) of the Constitution, read with the preamble to PAJA.

7 Section 23 (1) of the Constitution.

8 Section 1(a) of the LRA states one of the purposes of the Act to be “to give effect to and regulate the fundamental rights conferred by section 27 of the [interim] Constitution”. The interim Constitution did not have a mandatory clause for such legislation

similar to section 33(3) of the Constitution and Section 23 of the Constitution does not provide in mandatory terms for such legislation either.

9 Conflicting high court and labour court decisions in this regard were recently considered by the Supreme Court of Appeal in Transnet Ltd and others v Chirwa 2007(2) SA 198 (SCA), but unfortunately not resolved. The case concerned the alleged unlawful dismissal of a Transnet employee. A majority held that the provisions of PAJA did not apply, but divided on the reason why not. MthiyaneJA (with whom Jafta J concurred) found the reason to lie in the fact that the dismissal did not constitute ‘administrative action’ under PAJA, whilst Conradie JA held that the provisions of the LRA applied for institutional reasons, even though he considered the dismissal to constitute ‘administrative action’ under PAJA. The minority (Cameron JA, Mpati DP concurring) held that PAJA applied because the dismissal amounted to ‘administrative action’. The result is that the problems of overlap have not been authoritatively resolved. Some of them may be resolved in the Constitutional Court in Sidumo and another v Rustenburg Platinum Mines Ltd and others CCT 85/06, an application for leave to appeal from the Supreme Court of Appeal’s decision in Rustenburg Platinum Mines Ltd v CCMA [2006] SCA 115 (RSA), where argument has been heard, but judgment not yet delivered.

10

Act 28 of 1956. A discussion of the start of this development can be found in chapter 6 of Cameron, Cheadle and Thompson, The New Labour Relations Act, Juta & Co Ltd, 1989.

11 1991(1) SA 21 (A).

12 (1992) 13 ILJ 338 (D).

13 [2006] 2 All SA 175 (E); (2006) 27 ILJ 555 (E), para. [60].

14

See the Zenzile

and Hlongwa cases, para. [16] and notes 11 and 12 above.

15 The foundational values set out in section 1(d) of the Constitution, as well as the basic values and principles governing public administration in section 195 of the Constitution.

16 Para. [16], note 10 above.

17 Section 188(1).

18 (2000) 21 ILJ 940 (LC).

19 [2007] SCA 52 (RSA).

20 At para.[5].

21 At para.[7].

22

Compare Grogan, Workplace Law, 9th ed., at 276-277.

23 [2007] SCA 79 (RSA), at para. 6.

24 At para.[6].

25 Note 19 above.

26 By virtue of the provisions of section 191 of the LRA.

27 Fedlife Assurance Ltd v Wolfaardt 2002(1) SA 49 (SCA).

28 Gumbi , note 23 above, para.[5].

29 “In the present case Old Mutual had offered the employee a chance to defend himself against the allegations of misconduct which led to his dismissal. The employee did not take the opportunity. The crucial question is whether his absence from the hearing was, in the circumstances of the case, justified; or, differently put, whether fairness to both parties demands that his dismissal be set aside or not.”, Gumbi, above, para.[9].

30 Paras.[16] and [22] above.

31 Section 39(2) provides: “When interpreting any legislation, and when developing the common law or customary law, every court tribunal or forum must promote the spirit, purport and objects of the Bill of Rights.

32 Section 23(1) of the Constitution.

33 Slagment (Pty) Ltd v Building, Construction and Allied Workers’ Union and others 1995(1) SA 742 (A) at 755C.

34 Act 2 of 2000.

35 2006(5) SA 1 (SCA).

36 Section 33 of the Constitution.

37 Section 6(2)(c) of PAJA.

38 Section 6(2)(e)(vi).