REPUBLIC OF SOUTH AFRICA

IN THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

Case number: 277/2001
Reportable

In the matter between:

PREMIER OF THE EASTERN CAPE PROVINCE AND
ANOTHER                                                                                  First Appellant
and
PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA         Second Appellant

and

BENJAMIN BONGANI SEKELENI                                                  Respondent

CORAM:
NIENABER, SCHUTZ, STREICHER, FARLAM et
CAMERON  JJA

HEARD:
14 MAY 2002

DELIVERED: 31 MAY 2002

SUMMARY:

Public Service – Transkei – Interpretation of section 15(1) and (2) of Public Service Act 43 of
1978 (Transkei), as amended.
_____________________________________________________________

JUDGMENT
_____________________________________________________________
FARLAM JA

[1] This is an appeal from a judgment of the full bench of the Transkei
Division (Zilwa AJ with Van Zyl and Maya JJ concurring), sitting as a court
of first instance, which declared that the retirement of the respondent, who is
a former Deputy Director General in the office of the Public Service
Commission of the former Republic of Transkei, was invalid and that he was
entitled to such emoluments and other benefits as would, but for the invalid
retirement, have flowed from his employment contract.  The court a quo also
ordered the appellants, the Premier of the Eastern Cape Province and the
President, to pay such emoluments and other benefits for a period of 12
calendar months, to be reckoned from 31 December 1992 (on which date the
respondent’s retirement, which was declared to be invalid, had purportedly
taken place).   The emoluments and benefits already received by him were to
be set off against the payments to which he was entitled.

[2] The respondent had applied in the court below in May 1999 for an
order declaring invalid a decision which he alleged had been taken by the
Minister of the Public Service Commission of the former Government of
Transkei to place him on compulsory retirement and to terminate his
employment in from the public service of the former Republic of Transkei
with effect from 31 December 1992, in terms of the provisions of section 15
of the Public Service Act 43 of 1978 (Transkei), as amended (to which I
shall refer in what follows as ‘the Act’).  The respondent also applied for a
declaration that he was entitled to such emoluments and other benefits as
would, but for his invalid retirement, have flowed from his employment
contract for the period reckoned from 31 December 1992, to his 65th
birthday, which occurred on 7 December 1997.
[3] Before the facts in this case are summarised it is appropriate to quote
the relevant legislative provisions.

[4] On 31 December 1992, the date of the respondent’s purported
retirement from the Transkeian Public Service, section 15(1) and (2) of the
Act, as substituted by section 4 of Decree 11 of 1989 (Transkei) and
amended by section 3(a) and (b) of Decree 14 of 1992 (Transkei), read as
follows:
‘15(1) Subject to the provisions of subsections (2) and (5) an officer (other than a
member of the services or an officer employed in the Intelligence Service) shall
retire from the public service on the day on which he attains the age of 60 years, if
that day is the first day of a month or, if that day is any later day, on the first day
of the month immediately following the month in which he attains the age of 60
years.
(2)
If it is in the public interest to retain an officer (not being a member of the
services or an officer employed in the Intelligence Service) in his post beyond the
age at which in accordance with subsection (1) he would otherwise retire, he may
be so retained from time to time, on the recommendation of the Commission and
subject to the approval of the Minister, for further periods which shall not, except
with the approval, by resolution, of the Military Council, exceed in the aggregate
twelve calendar months.’
[5] Section 15(5), as substituted by section 3(c) of Decree 14 of 1992,
read as follows:
‘(5)
An officer (other than a member of the services, an officer employed in
the Intelligence Service or an officer referred to in subsection (9)) may at any time
before or after attaining the age of fifty-five years give written notification to the

Director-General of his wish to retire from the public service and, subject in every
case to the recommendation of the Commission and the approval of the Minister,
such officer shall-
(a)
if such notification is received at least three calendar months prior
to the day on which he attains the age of fifty-five years, retire on
attaining that age if that day is the first day of a month or, if that
day is any later day, on the first day of the month following the
month in which he attains the said age; or
(b)
if such notification is given on any day after he attained the age of
fifty-five years, retire on the first day of the fourth month
following the month in which such notification is received.’

[6] The ‘Commission’ referred to in the section was the Transkeian
Public Service Commission and the Military Council was the body
established with effect from 30 December 1987 to take the place of the
Transkeian Parliament, which was dissolved following a successful coup
d’etat in December 1987:  see Matanzima and Another v President of the
Republic of Transkei and Another 1989(4) SA 989 (Tk) and Hintsho v
Minister of Public Service and Administration and Others 1996(2) SA 828
(Tk SC) at 836 H-837E.

[7] The respondent submitted in his founding affidavit that what he called
the decision to place him on compulsory retirement in terms of section 15 of
the Act was invalid.  He contended that the failure of the commission and of
the Minister to act in terms of section 15 of the Act deprived him of the
opportunity firstly to continue in the employ of the Government of Transkei
for a period of twelve months after his compulsory retirement and secondly
to place facts before the Military Council to enable it to resolve that he
should continue in the employ of the Government for more than 12 months.
He also stated that he knew of no impediment which would have prevented
him from continuing in the employ of the Government until 3 June 1994, on
which date his conditions of service would have been amended (in
consequence of the coming into operation on that date of the Public Service
Act, 1994, which was published in Proclamation 103 of 1994) so that the
retirement age then applicable in his case would have been 65 years.

[8] The appellants conceded that the Minister had made no decision as to
whether the respondent’s services should be retained after he reached the age
of 60 years and also that the commission had made no recommendation in
that regard.
[9] The court a quo held that subsections (1) and (2) of section 15 of the
Act should be interpreted so ‘as to blend them’.  Referring inter alia, to C
and J Clark v Inland Revenue Commissioners [1973] 2 All ER 513(Ch) at
520e-f and S v Marwane 1982(3) SA 717 (A) at 747G-748G the court a quo
held that the use of the expression ‘subject to the provisions of subsections
(2) and (5)’ at the commencement of section 15(1), indicated that subsection
(2) was, as it was put, the master clause and subsection (1) was reduced to a
position of subordination thereto.  It also held that ‘an officer cannot be
placed on compulsory retirement merely upon attainment of the age of 60

years without the machinery provided for in section 15(2) of the Act having
been exhausted.’
[10] In motivating this conclusion Zilwa AJ said:
‘I find myself being in respectful agreement with Madlanga J in Dlisani and
Mathwetha v Minister of Safety and Security and Another 1999(1) SA 1020(Tk)
that the Minister has to make a decision in the exercise of the discretion bestowed
upon him at the time the employee’s retirement is imminent, in terms of section
15(2) of the Act as to whether or not it is in the public interest to retain the
relevant employee’s services beyond the age of 60 years.  Since the employee
concerned clearly has an interest in such a decision justice dictates that he/she
should be afforded an opportunity to make representations prior to the making of
such decision by the Minister.  A duty to act and to exercise such discretion rests
on the Minister and he cannot validly take the attitude, that if the employee wishes
to be retained, it is his/her duty to set the process of getting the Minister to
exercise his discretion in terms of subsection (2) afoot by informing the Minister
of his/her wishes to be retained and tendering to make representations.
(See:  Shepherd Vuyisile Gantsho v Minister of Education and Others (Case no
211/91, an unreported judgment by Beck CJ delivered on 14 February 1992, and
the decisions quoted therein)).  The Gantsho judgment, a judgment of the then
General Division of the Supreme Court of Transkei, which was endorsed by the
erstwhile Transkei Appellate Division in that court’s unreported judgment in the
case of Stanford Velele Kuse v The Minister of Police and Others (Case No
1075/92), delivered on 22 February 1994), is to the effect that until the Minister
has applied his mind to the question of the public interest and has come to the
decision that the public interest does not require the employee’s services beyond
the said retirement age of 60, such employee cannot be compulsorily retired, even
though he/she is over 55.  In my view similar considerations should apply to the
Applicant in casu.’

[11] The court a quo rejected the respondent’s prayer that he was entitled
to emoluments and other benefits calculated on the basis that he continued in
post until his 65th birthday and held that he was merely entitled to such
emoluments and other benefits as would have flowed from his employment
contract for 12 months after his retirement, ie, until 31 December 1992.
[12] Mr Mbenenge, who appeared for the respondent, relied strongly on the
three earlier Transkei cases, viz Gantsho, Kuse and Dlisani, to which
reference was made in the extract from the judgment of the court a quo
given in paragraph [10] above.
[13] In my opinion the interpretation of section 15(1) and 15(2) of the Act
adopted by the court a quo, relying on the three earlier Transkeian cases
referred to, was wrong.  On the clear wording of these provisions the only
decision the minister can make, as was correctly submitted by Mr Kemp,

who appeared with Mr Msiwa on behalf of the appellants, is to negate the
effect of section 15(1) by extending the date of retirement if the commission
so recommends.  In doing so he does not change the retirement age : he
extends the date fixed in terms of section 15(1).  If he has failed to take such
a decision the remedy is not to set aside his decision (for there is no relevant
decision) but a mandamus to force him to decide the issue, or, possibly, to
seek damages based on the proposition that if he had decided the matter he
would have decided it in the respondent’s favour : for such a claim to
succeed proof would have been required that it was in the public interest for
his services to be retained beyond the prescribed retirement age.  There was
no need for the Minister to decide whether a person should retire at the age
of 60 years : section 15(1) provides in terms for public servants to retire
automatically at that age.

[13] It is clear that the expression ‘subject to’, with which section 15(1)
commences, means no more than if a decision to extend an official’s period
of service is taken under section 15(2), then such decision will override the
cut-off point in section 15(1): it does not mean that unless a decision is taken
under section 15(2), section 15(1) never comes into operation.  As Mr Kemp
correctly contended the expression ‘subject to’ has no a priori meaning (see
Pangbourne Properties Ltd v Gill & Ramsden (Pty) Ltd 1996(1) SA 1182(A)
at 1187J-1188A).  While it is often used in statutory contexts to establish
what is dominant and what is subservient its meaning in a statutory context
is not confined thereto and it frequently means no more than that a
qualification or limitation is introduced so that it can be read as meaning
‘except as curtailed by’:  cf Hawkins v Administration of South West Africa
1924 SWA 57 and Crook and Another v Minister of Home Affairs and
Another 2000(2) SA 385(T) at 389A-D.  This was clearly what is meant here

as is evident from the fact that section 15(1) is expressly made subject not
only to subsection (2) but also to subsection (5) which, as has been seen,
provides for early retirement.  It is thus clear that subsections (2) and (5)
contain exceptions to the general rule that one retires automatically at the
age of 60.
[14] In my view the approach upheld in the Dlisani case, that where the
Minister fails to take a decision as to whether or not the retention of an
employee’s services beyond the normal retirement age is in the public
interest he is to be regarded as having made a ‘negative’ decision, is
inconsistent with the decision of this Court in Minister van Onderwys en
Kultuur en Andere v Louw 1995(4) SA 383(A), to which Mr Kemp referred.
This case concerned the interpretation of section 72(1) of the Education
Affairs Act (House of Assembly) 70 of 1988, which was substantially the
same as section 15(8) of the Public Service Act 43 of 1978 (Transkei), and

which provided that a ‘person employed in a permanent capacity at a
departmental institution and who ... is absent from his service for a period of
more than 30 consecutive days without the consent of the Head of Education
... shall, unless the Minister directs otherwise, be deemed to have been
discharged on account of misconduct ...’  It was held that the section came
into operation if the employee without the consent of the Head of Education
was absent from his or her service for more than 30 consecutive days.
Whether these requirements were satisfied was objectively determinable.
The coming into operation of the deeming provision was not dependent upon
any decision and there was no room for a reliance on the audi alteram
partem rule.  There was in fact no decision that could be reviewed.  It was
argued that the deeming provision did not come into operation before the
Minister decided whether he was going to direct otherwise.  This submission
was held (at 389D) to be without substance.  This was because it was clear

that in the absence of a direction otherwise a discharge came into operation
without more.
[15] By parity of reasoning, as Mr Kemp submitted, in the present case, in
the absence of a decision by the Minister to approve the retention of his
services, the respondent’s period of service came to end at the end of the
month when he attained the retirement age and the Minister’s failure to
approve such retention was not a ‘decision’ that could be set aside on
review.
[16] It is true, as Mr Mbenenge contended, that section 15(1), unlike the
section considered in the Louw case, is not a deeming provision and is, in
terms, ‘subject to’ section 15(2) and section 15(5), but the essential ideas
conveyed by the two sets of the provisions are the same.  Both provided for
an automatic consequence (retirement at the end of the month when the
retirement age is attained and discharge at the end of a 30 day period of

absence without the requisite consent) in the absence of a ministerial
decision that such consequence should not come into operation.  The
position is in fact similar to that obtaining where a proviso has to be
interpreted.  It is well established that a proviso is not to be treated as what
has been described as an independent enacting clause but as being dependent
on the main enactment: see Mphosi v Central Board for Co-operative
Insurance Ltd 1974(4) SA 633(A) at 645C-H.  The same approach must
apply to other provisions which are in the nature of exceptions to a general
provision.
[17] I am also of the view that the Gantsho, Kuse and Dlisani decisions are
based on an inversion of the words of section 15(2).  Where the subsection
spoke of ministerial approval for the retention of an officer in his post if it
was in the public interest to do so, the court in the Kuse case said that until
the Minister came to the decision ‘that the public interest did not require’ the

officer’s services to be retained he could not be compulsorily retired even
though he was over the retirement age.
[18] I conclude that the decision in the Kuse case was clearly wrong on this
point.  This renders it unnecessary to consider the question as to what
position in the hierarchy of judicial precedent is occupied by decisions of the
one-time Transkeian Appellate Division.
[19] In the circumstances I am satisfied the respondent’s application to set
aside a decision that was never made should have been dismissed.
[20] I am also satisfied that his further prayer for payment of emoluments
and other benefits after the end of the month when he attained the statutorily
prescribed retirement age should in any event have been dismissed in its
entirety.  The only basis on which this relief could conceivably have been
given him, in the absence of an order setting aside a decision to place him on
retirement, would have been proof that it was in the public interest to retain

him in his post after the prescribed retirement age so that a failure before he
turned 60 to invite him to make representations as to whether he should be
so retained could be said to have caused him to suffer damages in the
respects he alleged.  (I deliberately use the word ‘conceivably’ because I am
not sure that even if such proof were forthcoming the respondent would
necessarily have been entitled to the relief sought.)  No such proof was
adduced.  The position would of course have been different if what was
required, before he could be placed on retirement, was a decision that it was
not in the public interest for him to retire but as I have already held such a
decision was not required in terms of the relevant section.
ORDER
[22] The following order is made:
1.
The appeal is allowed with costs including those occasioned by
the employment of two counsel.

2.
The order made by the court a quo is set aside and replaced by
the following:

‘The application is dismissed with costs, including those
occasioned by the employment of two counsel.’
......................
IG FARLAM
JUDGE OF APPEAL
CONCURRING:
NIENABER     JA
SCHUTZ         JA
STREICHER   JA
CAMERON     JA