DISTRIBUTABLE (39)
Judgment No S.C. 27\2002
Civil Appeal No 213\2001
(1) DIRECTOR OF
WORKS (2) CITY OF HARARE v MAXWELL NYASULU &
2 ORS
SUPREME COURT OF ZIMBABWE
CHIDYAUSIKU CJ, EBRAHIM
JA & ZIYAMBI JA
HARARE FEBRUARY 28 &
JUNE 20, 2002
P. Nherere, for the
appellant
A. Mugandiwa, for
the respondent
ZIYAMBI
JA: This is an appeal against a judgment of the High Court
setting aside a decision taken by the Appellant to transfer
the
respondents.
The
respondents are farm managers employed by the City of Harare on farms
owned by the City. The City carries out cattle rearing
projects on 3
farms, namely, Ingwe Farm, Crowborough Farm and Pension Farm.
Pasture on the farms is irrigated by partially treated
effluent
sludge. The goal of the City is to combine effective pollution
control with commercially viable farming operations. Farming
operations are controlled by the appellant. There is a farm manager
on each of the three farms, who is responsible for the day
to day
management of the farm. The farm managers report to the Farming
Manager who in turn reports to the appellant.
On the 8th December 1999, a letter of warning was served
on the 1st respondent by the Farming Manager. The first
paragraph of the letter read:
I
wish to warn you that your behaviour in respect of the following item
(marked X) is considered reprehensible/misconduct and has
been noted
in your file. Whilst no further action may be taken in this case,
any future recurrence of such behaviour may result
in a
recommendation for your dismissal from Councils service.
The items marked X were idleness, inefficiency/carelessness,
and failure to obey lawful instructions. The respondent
refused to sign not knowing what the signature of the document would
entail and what the consequences to him would be.
On the 15th March 2000, another letter was served on him.
In this letter the Farming Manager described as disrespectful, his
refusal to sign
the letter of warning when the cattle death rate
at Ingwe Farm is so high and concluded that:-
the
situation explained above shows a continuous and costly deterioration
in performance resulting from disregard of both written
and verbal
instructions, neglect of duty and over-reliance on some employees who
in turn fail to meet the expected performance standards.
He recommended:-
7.2.1 That
Mr Nyasulu be transferred to another farm in order to break the link
between himself and some trusted employees and also
to encourage an
innovative approach to duty in a different environment.
7.2.2 That Mr Nyasulus
performance be monitored more closely and if he does not improve his
attitude and performance, he be subjected
to very strong disciplinary
action.
The other two respondents received letters similar to annexure B.
In the letter to the 2nd respondent the conclusion
arrived at was:-
The
comparison between the two sets of 5-year production periods and the
high financial losses show a continuous deterioration in
the
commitment by the manager to his duties which should not be allowed
to go on indefinitely.
Paragraph 7.2 of the
recommendations provided:-
That Mr Bobo be monitored and stiffer disciplinary measures be
taken on him if his performance does not improve. (My
emphasis).
With regard to the 3rd respondent, the letter served on
him concluded as follows:-
The
information given above shows a serious neglect of duty by the
manager, resulting from disregard of written and verbal
instructions,
and leaving all the work to his subordinates.
The letter recommended that the 3rd respondent be
transferred to another farm where he will work with different
employees in a different environment and that he
be subjected to
very serious and close supervision with decisive and strong
disciplinary measures being instituted on him if he fails
to improve
his performance.
All the respondents
wrote their responses which are annexed to the founding affidavit.
In effect, they denied the allegations
made in the letter of warning
citing the reason for the increase in the mortality rate as lack of
adequate funding.
Nothing further was heard until the 2nd January 2001 when
the respondents received letters from the appellant advising them of
their transfer effective from the 9th January, 2001.
Aggrieved by the appellants decision, the respondents consulted
legal practitioners who entered into correspondence with the
appellants
officials in an effort to persuade them to reverse the
transfers on the grounds that they amounted to punitive measures
taken against
the respondents who were entitled to a hearing before
the decisions were made.
In a letter dated 8th
January 2001, addressed to the respondents legal practitioners,
the Chamber Secretary of the City of Harare wrote:-
On
the question of the warning letter we further concede that, in so far
as a warning is a penalty, it has to be founded on a finding
of
guilty, which in turn should be founded on an inquiry. I have
therefore advised the relevant department to consider revoking
same.
Notwithstanding the above, neither the letters of warning nor the
transfers were revoked and the respondents applied to the High
Court
for an order setting aside the transfers in question. The High Court
found in their favour and granted the order sought.
In
his grounds of appeal, the appellant took issue with the finding by
the trial court that the transfer was punitive. There was,
it was
alleged, no punishment at all and accordingly the respondents
rights, as protected by the principles of natural justice,
had not
been breached. In any event, so it was submitted, the decision to
transfer was no more than an administrative decision made
in terms of
Section 21 of SI 66/92, the collective bargaining agreement. To the
extent that no prejudice was suffered, the transfers
were legitimate.
Section
21 provides as follows:-
21. (1) A head of department
may permanently transfer an employee from his position or occupation
within his department
(a) which has equivalent rates of
pay, hours of work, type of work and terms and conditions of
employment without the consent of the
employee;
(b) which
is not equivalent within the meaning of paragraph (a), with the
consent of the employee.
(2) The employer may transfer an
employee from his position or occupation to another position or
occupation in another department
-
(a) for a period not exceeding
three months, without the consent of the employee; or
(b) for
a period in excess of three months, with the consent of the employee.
(3) An employee who has been
temporarily transferred in terms of subclause (2) shall, for the
duration of such transfer -
(a) receive pay and allowances no
less favourable than the pay and allowances which he received, or
would have received in his previous
department; and
(b) retain
his seniority in his previous department.
This argument was rejected by the learned Judge in the court a
quo. At page 127 of the record, the learned Judge said:-
I
cannot accede to this submission. The letters that were written to
the applicants contained, in the first part, fairly detailed
allegations of alleged negligent conduct and each of these letters
conclude their recommendations by suggesting that the action to
be
taken is one of transfer and further that the conduct of these
employees should be monitored on a strict basis. Thereafter, strong
disciplinary measures should be taken in the future.
There is no
doubt that the letters contain serious allegations of misconduct
against the respondents. The learned judge was in my
view justified
in reaching the conclusion that:-
even
if the penalty of transfer was not involved, I would have thought
that they still would have been justified in challenging
a mere
disciplinary measure in the form stated in the recommendation,
namely, that the applicants were to be monitored closely and,
that if
they did not improve their attitude and performance they were to be
subjected to strong disciplinary action. This was an
extremely
adverse finding likely to affect the applicants future prospects
in their careers and is one that should be taken after
a proper
enquiry if the rules of natural justice are to be complied with.
In any event, in a clear acknowledgement that there was an obligation
on the appellant to hold an enquiry and afford the respondents
an
opportunity to controvert the allegations against them before issuing
the letters of warning, it was conceded by the chamber secretary
of
the appellant that the warning was a disciplinary measure and ought
to have been founded on a finding of guilt which in turn should
be
founded on an enquiry. Since there had been no hearing it was
recommended that the appellant should revoke the warning. This
course the appellant unfortunately failed to adopt.
The
contention on behalf of the appellant that the transfers were wholly
unrelated to the adverse findings contained in the letters
of warning
and that the appellant had acted in terms of SI 66/92 was found by
the learned Judge, to have been an afterthought as
there was no
indication in the letter of transfer that it was being done in terms
of the said statutory instrument. He also found
that the letters of
warning as well as the events following it, give rise to the
unavoidable conclusion that the transfers were clearly
punitive and
were made upon the basis of the recommendations of the Farming
Manager as set out above.
I
am in respectful agreement with both conclusions reached by the
learned Judge. It is therefore my view that the learned judge was
correct in holding that the rules of natural justice had not been
complied with in that the respondents were not afforded a hearing
before the punitive measures of warnings and transfers were taken
against them.
The
respondents further contended that even if this court were to hold
that the appellant, in ordering the transfers, had acted in
terms of
SI 66/92, and was merely exercising an administrative function, they
had a legitimate expectation to be heard before the
decision to
transfer them was taken. The legitimate expectation doctrine has
been described as:-
sometimes expressed in terms of some substantive benefit or
advantage or privilege which the person concerned could reasonably
expect to acquire or retain and which it would be unfair to deny such
person without prior consultation or a prior hearing; and at
other
times in terms of a legitimate expectation to be accorded a hearing
before some decision adverse to the interests of the person
concerned
is taken
In practice the two forms of expectation may be
interrelated and even tend to merge.
Per Corbett
CJ in Administrator, Transvaal & Ors v Traub & Ors
1989 (4) SA 731 (A) at page 758; and, at page 761D-H:-
where
an adherence to the formula of 'liberty, property and existing
rights' would fail to provide a legal remedy, when the facts
cry out
for one; and would result in a decision which appeared to have been
arrived at by a procedure which was clearly unfair
being immune from
review. The law should in such cases be made to reach out and come to
the aid of persons prejudicially affected.
At the same time, whereas
the concepts of liberty, property and existing rights are reasonably
well defined, that of legitimate expectation
is not. Like public
policy, unless carefully handled it could become an unruly horse.
And, in working out, incrementally, on the
facts of each case, where
the doctrine of legitimate expectation applies and where it does not,
the courts will, no doubt, bear in
mind the need from time to time to
apply the curb. A reasonable balance must be maintained between the
need to protect the individual
from decisions unfairly arrived at by
public authority (and by certain domestic tribunals) and the contrary
desirability of avoiding
undue judicial interference in their
administration."
The doctrine, which is an extension of the principle of natural
justice, has been hailed in this jurisdiction. See Health
Professions Council v McGown 1994 (2) ZLR 329 (S); Taylor v
Min of Education & Anor 1996 (2) ZLR 772;
In
Taylors
case, supra,
this court applied the doctrine to unwilling transferees of the
public service. In so doing GUBBAY CJ quoted, with approval, the
following passage from Gemi
v Min of Justice, Transkei
1993 (2) SA 276 (TkG):-
Officials entrusted with public power must exercise such power
rationally and fairly. In order to act rationally and fairly
the
decision-maker would of necessity have to apply his mind properly to
all relevant aspects and circumstances pertaining to a decision
and
in order to do this he would in most instances be obliged to afford
the person affected by the decision a hearing prior to coming
to his
decision. Officials are not relieved of this duty except to the
extent that a departure from the rules of natural justice
is
expressly or impliedly sanctioned by the relevant enabling
legislation. In the absence of such statutory authorisation a
departure
from the rules of natural justice can only be justified in
circumstances where it is necessary to promote some value or end of
equal
or greater significance than natural justice or, to put it
differently, 'where circumstances are so exceptional as to justify
such
a departure'. (Per Leon J in Dhlamini v Minister of Education
and Training and Others 1984 (3) SA 255 (N) at 257H.) By
approaching the test in this manner a balance can be struck between:
'the
need to protect the individual from decisions unfairly arrived at by
a public authority (and by certain domestic tribunals)
and the
contrary desirability of avoiding undue judicial interference in the
administration'.
See also Kanonhuwa v
Cotton Company of Zimbabwe 1998 (1) ZLR 68(H).
Thus
it is from a standpoint of fairness and reasonableness that the
situation must be viewed and that necessarily entails, in the
context
of the present matter, that the views, wishes and personal
circumstances of the respondents ought to have been taken into
account before the decision to transfer them was made.
The
three respondents had lived and worked at the respective farms for
periods of 9,19 and 18 years, respectively. They had settled
on the
farms and, it was submitted on their behalf, the schooling of their
children would be affected by the transfer. It seems
to me, although
the matter does not turn on this point, that it could be argued that
they had a legitimate expectation to be consulted
and allowed to make
representations before the decision to transfer them was taken.
It
is no answer for the appellant to say, as was submitted in his heads
of argument, that the Applicants put their side of the
story and
that in fact the decision to transfer was made after due process.
The reference there is to the responses made by the
respondents in
protest against the letters of warning and recommendations for their
transfer made by the Farming Manager without
affording them an
opportunity to be heard. It is upon these recommendations that the
appellant was found by the court a
quo to have acted in
issuing the letters of transfer.
As
the learned judge remarked, even if the penalty of transfer had not
been imposed the appellants would have had an entitlement to
be heard
before the issue of the letters of warning.
It
is well established that the ability to make representations after
the decision has been made rarely cures the procedural defect
of a
prior fair hearing:-
"The
general rule is that once a decision has been reached in violation of
natural justice, even if it has not been implemented,
a subsequent
hearing will be no meaningful substitute. The prejudicial decision
taken will be set aside as procedurally invalid.
In this way the
human inclination to adhere to the decision is avoided."
See Taylor
v Minister Of Higher Education & Anor supra; Health
Professions Council v McGown supra.
Accordingly
it is my view that the learned Judge correctly found in favour of the
respondents and the appeal is therefore dismissed
with costs.
CHIDYAUSIKU CJ: I agree
EBRAHIM JA: I agree
Honey & Blanckenberg, appellant's legal practitioners
Wintertons,
respondent's legal practitioners