Zondi and Others v Administrator of Natal and Others (304/89) [1991] ZASCA 35; 1991 (3) SA 583 (AD); [1991] 2 All SA 211 (A); (1991) 12 ILJ 497 (A) (26 March 1991)

Zondi and Others v Administrator of Natal and Others (304/89) [1991] ZASCA 35; 1991 (3) SA 583 (AD); [1991] 2 All SA 211 (A); (1991) 12 ILJ 497 (A) (26 March 1991)

The Supreme Court of Appeal held that the respondents failed to comply with the audi alteram partem rule in confirming the dismissals of the appellants. Although the initial opportunity to make representations was provided, subsequent developments introduced a new criterion for withdrawal of termination letters—returning to work by a specific deadline. The appellants, who reported for duty after the deadline due to late notification, were not afforded an opportunity to explain their non-compliance before their dismissals were confirmed. The absence of such an opportunity resulted in unfairness and inequality of treatment. The dismissals were therefore unlawful and null and void. Section...

Citation
[1991] ZASCA 35
Parties
Appellant: B Zondi; Appellant: M B Nkomo; Appellant: M S Gumede; Appellant: B M Nzimande; Appellant: J M Mkhize; Appellant: N T Hlophe; Appellant: B L Nzimande; Appellant: M M Kweyama; Respondent: Administrator of Natal; Respondent: Chief Superintendent of Roads, Merebank; Respondent: Provincial Secretary, Natal
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
26 March 1991
Case Number
304/89
Procedural Posture
Civil Appeal / Appeal From the Durban and Coast Local Division, Following an Urgent Application and Counter Application for Ejectment.
Outcome
Appeal allowed with costs, including costs of two counsel. The dismissals of the named appellants declared unlawful and null and void. Respondents ordered to pay costs, with additional costs attributable to NEHAWU's participation to be paid by NEHAWU.
Judges
M M Corbett, Joubert, Smalberger, F H Grosskopf, Goldstone
Legal Topics
Audi Alteram Partem, Unlawful Dismissal, Natural Justice, Public Service Act, Strike Action
Labour Law Administrative Law Audi Alteram Partem Unlawful Dismissal Natural Justice Public Service Act Strike Action

Case Brief

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Parties

B Zondi

Appellant

M B Nkomo

Appellant

M S Gumede

Appellant

B M Nzimande

Appellant

J M Mkhize

Appellant

N T Hlophe

Appellant

B L Nzimande

Appellant

M M Kweyama

Appellant

Administrator of Natal

Respondent

Chief Superintendent of Roads, Merebank

Respondent

Provincial Secretary, Natal

Respondent

Procedural Posture

Civil Appeal / Appeal From the Durban and Coast Local Division, Following an Urgent Application and Counter Application for Ejectment.

Legal Issues

  1. 1 Whether the dismissal of the appellants for failing to return to work by the stipulated deadline after a strike was lawful.
  2. 2 Whether the respondents complied with the audi alteram partem rule before confirming the dismissals.
  3. 3 Whether section 34 of the Public Service Act barred the proceedings.

Ratio Decidendi

The Supreme Court of Appeal held that the respondents failed to comply with the audi alteram partem rule in confirming the dismissals of the appellants. Although the initial opportunity to make representations was provided, subsequent developments introduced a new criterion for withdrawal of termination letters—returning to work by a specific deadline. The appellants, who reported for duty after the deadline due to late notification, were not afforded an opportunity to explain their non-compliance before their dismissals were confirmed. The absence of such an opportunity resulted in unfairness and inequality of treatment. The dismissals were therefore unlawful and null and void. Section...

Court Disposition

Appeal allowed with costs, including costs of two counsel. The dismissals of the named appellants declared unlawful and null and void. Respondents ordered to pay costs, with additional costs attributable to NEHAWU's participation to be paid by NEHAWU.

Orders

  • The purported dismissals of applicants B Zondi, M B Nkomo, M S Gumede, B M Nzimande, J M Mkhize, N T Hlophe, B L Nzimande, and M M Kweyama are declared unlawful and null and void.
  • Respondents are ordered to pay the aforesaid applicants' costs in regard to the application, jointly and severally, the one paying the other to be absolved, such costs to include the costs of two counsel.