Applause for Chief Justice Michael Corbett may be uneven, but he put in place a progessive approach to public employees’ rights
NOW that the tenure of Chief Justice Michael Corbett is drawing to a close, the retrospectives and potted reviews of his incumbency will doubtless come thick and fast in the press.
Of course, it has already been comprehensively done in a book edited by Ellison Kahn and published last year, but there will no doubt still be plenty of scope for superficial revisionism and the kind of lazy hindsight that owes more to political correctness than to any proper understanding of the advances made in our law over the past eight years.
Some irritating harbingers of these attitudes appeared in an article in a Sunday newspaper last week, where the writer juxtaposed Professor Hugh Corder’s perceptive insights into the Corbett court’s contribution to our administrative law against some rather crass quotes that Corbett was a “conservative jurist” who only “acquired a liberal aura” because of the repugnant attitudes to civil liberties often taken up in the Rabie court.
This is flapdoodle and a simplification of the callowest sort. While Corbett’s court has displayed some substantial weaknesses (most conspicuously in its determination to continue the emasculation of the right to free speech by protecting defamation plaintiffs from its inevitably rough consequences), in other areas it has been not merely liberal, but arguably progressive.
One such area is that of public sector employee rights. Most judicial systems in the world drag their heels on this one, and never more so than when the issue involves the protection of strikers.
In England, some public employees are entitled, in certain circumstances, to invoke the protections of administrative law, but, most often, they are forced to fall back on private law remedies.
The distinction is important because, if a decision to dismiss is set aside under administrative law, the employee is effectively reinstated from the date of the dismissal. The protection is absolute. Most private law remedies would give less than this, often simply some meagre financial compensation rather than reinstatement.
Other public employees in England are, astonishingly for the late 20th century, said to be employed “at the pleasure” of the Crown, and they have no recourse to law.
When Corbett took office in 1989, black public employees were almost all characterised, by some or other statute, as “temporary” and the courts were not quick in those days to protect them from their vulnerability to the caprices and prejudices of the apartheid bureaucracy.
This all changed within a year. Corbett himself set the pace with his judgment in the Traub case.
Dr Traub had had her application for a job with the Transvaal Hospital Services refused because she criticised the conditions at Baragwanath Hospital. Corbett, in a radical departure from the prevailing law, held that she had a “legitimate expectation” to that job, and he set aside the decision not to employ her.
Then, between 1990 and 1992 the Appellate Division decided a quartet of cases in favour of black “temporary” workers (Zenzile, Mokoponele, Sibiva and Ntozakhe).
In three cases, the workers had been dismissed for participating in illegal strikes. This was not only gross misconduct, but was also the kind of powerplay that was enormously threatening to the authorities at the time. In all three cases, however, the Appellate Division held that notwithstanding the illegal actions of the workers, and their “temporary” status, the authorities were obliged to deal fairly with them. In all the cases the workers had not been given a proper and fair hearing prior to dismissal, and in all three cases, the Appellate Division reinstated them for that reason.
In the other case, the workers had been retrenched from the employment of a Provincial Administration without a hearing, and on precisely the same basis, the Appellate Division set aside that decision as well.
As welcome as the affirmation of the workers’ right to a hearing was, the radical development in these cases was the Appellate Division’s reasoning that notwithstanding that these workers were employed under a contract, that contract was itself concluded in terms of a statute and therefore administrative law, not private law, governed the relationship.
It was this reasoning that enabled the Appellate Division to invoke the protections of administrative law in favour of the workers. This represents a more progressive position than that, for example, which prevails in England.
Corbett did not sit in any of these four cases. But the workers’ successes derive from principles of fairness that he adopted in Traub’s case. So while the applause may be uneven, his contribution ought not to be trivialised by ungenerous and generalised labelling.