MAMABOLO v RUSTENBURG REGIONAL LOCAL COUNCIL 2001

(1) SA 135 (SCA)

2001 (1) SA p135
 
Citation 2001 (1) SA 135 (SCA)
   
Case No 229/98
   
Court Supreme Court of Appeal
   
Judge Vivier JA , Marais JA and Mthiyane AJA
   
Heard September 4, 2000
   
Judgment September 26, 2000
   
Counsel M M Rip (with him L G Nkosi-Thomas) for the appellant (the heads of
  argument were drawn by L G Nkosi-Thomas).
R J Raath SC for the respondent.
 
Annotation Link to Case Annotations
s
 
 
F
Flynote : Sleutelwoorde
Review - When application for review to be brought - Delay in application - Court
raising issue mero motu - Not lightly to be done where respondent specifically
abstaining from doing so - Where Court nevertheless raising issue, applicant at least
to be given opportunity to supplement affidavits to deal specifically with G apparent
delay.
Appeal - To Supreme Court of Appeal - Record - Lodging of - Appellant failing to
lodge full record of proceedings sought to be set aside on review within prescribed
period - Supreme Court of Appeal Rule 8(3) - Whether appeal lapsed - Respondent
lodging full record in terms of Rule 53(1) (b) of Uniform Rules of Court - All
documents H necessary for consideration of appeal before Court - No prejudice to
respondent's conduct of its case on appeal - Rule thus not breached to such degree
as to lead to conclusion that appeal to be regarded as having lapsed or that appeal
falling to be dismissed or struck from roll. I
Employment law - Dismissal - Rules of natural justice - Employee given hearing after
decision to dismiss taken - Right to be heard after event seldom adequate substitute
for right to be heard before decision taken - Hearing held after decision taken
accepted as sufficient compliance with rules of natural justice when (a) sufficient
interval between taking decision and its implementation to allow for fair hearing; (b)
decision-maker J
2001 (1) SA p136
retaining sufficiently open mind to allow him- or herself to be persuaded that A
decision should be changed; and (c) affected individual not suffering prejudice.
Administrative law - Decision of functionary - Rules of natural justice - Dismissal of
employee - Employee given hearing after decision to dismiss taken - Right to be
heard after event seldom adequate substitute for right to be heard before decision
taken - Hearing held after decision taken accepted as sufficient compliance with rules
of natural justice when (a) sufficient interval between taking decision and its
implementation to allow for fair hearing; (b) decision-maker retaining sufficiently
open mind to allow him- or herself to be persuaded that decision should be changed;
and (c) affected individual not suffering prejudice.
Headnote : Kopnota

While it is open to a Court to raise mero motu the issue of delay on the part of an
applicant for review, it should not lightly do so where the respondent specifically
abstains from doing so as there might be good reasons, not known to the Court, for
the B respondent's so abstaining. Where a Court wishes to raise the point it should at
least give the applicant an opportunity to supplement her or his affidavits in order to
deal specifically with the apparent delay. (Paragraph [10] at 141G - H/I.)

In terms of the Rules of the Supreme Court of Appeal (SCA) an appeal lapses if an
appellant fails to lodge a proper record within the C prescribed period or within an
extended period (SCA Rule 8(3)). However, where, as in this instance, the appellant
had failed to file a full record of the proceedings sought to be set aside but the
respondent had done so in terms of Rule 53(1) (b) of the Uniform Rules of Court, the
Court held as follows: all the documents necessary for consideration of the appeal
were before it and it had not D been hampered in dealing with the matter by the
absence of other documents. No prejudice to the respondent in the conduct of its
case on appeal had been shown. There had, accordingly, not been such breach of the
Rules as to lead to the conclusion that the appeal ought to be regarded as having
lapsed or that it fell to be dismissed or struck from the roll. (Paragraph [7] at 140H -
J.)

The appellant had been appointed by the respondent council as an RDP director on
16 May 1995. His appointment was governed by E clause 6.2.7 of regulations
promulgated in terms of s 48(1) (a) of the Labour Relations Act 28 of 1956. Clause
6.2.7 provided for the appointment by the respondent of permanent employees on
probation for a fixed period not exceeding six months and provided, further, that if
an employee had successfully completed the probationary period the respondent
should confirm that employee's F appointment in writing; but that if the respondent,
on or before the date of completion of the probationary period, was of the opinion
that an employee was not fit for the post concerned, it could either (a) in writing and
stating the reasons therefor extend the probationary period once only for a fixed
period not exceeding six months or (b) give the employee at least one working
month's written notice of its intention to terminate her or his G employment. The
appellant's probationary period expired on 15 November 1995. The respondent
resolved on 28 November to extend it for a further six months. On 14 May 1996 the
respondent resolved not to confirm the appellant's appointment and gave him one
month's notice from 16 May of its intention to dismiss him.

The appellant challenged, inter alia , the validity of the extension of the probationary
period and the resolution to terminate H his services. It was argued with regard to
the first issue that because he had successfully completed his probationary period by
28 November 1995 the respondent had no longer been entitled to extend his
probation period and that, upon completion of the probationary period, he had
become a permanent employee notwithstanding the absence of confirmation in
writing. On the second issue it was the appellant's I case that the decision to
terminate his employment had been procedurally unfair because, when he had been
invited to make representations to the respondent's council meeting on 28 May
1996, the decision to dismiss him had already been taken. On 14 May 1996 he had
been informed by the mayor of the executive committee's recommendation that his
employment would not be confirmed J
2001 (1) SA p137

and was given a choice between addressing the council meeting on the issue before
it debated the recommendation or, if he required time to A prepare, he could do so on
28 May. He was informed that although the respondent was technically bound to
take a decision before his extended probationary period expired it would keep an
open mind. The appellant chose to address the respondent on 28 May.

Held , as to the validity of the extension of the probationary period, that the whole
basis of the appellant's B employment had been that he was required to serve a
probationary period of six months and that, at the end of that period, if the
respondent wished to appoint him, his permanent employment had to be confirmed
in writing. A failure to confirm such appointment or the mere expiry of the
probationary period would not mean that the appellant would automatically become
a permanent employee. (Paragraph [16] at 143A - B/C.) C

Held , further, as to the decision to terminate the appellant's services, that, although
it was true that a right to be heard after the event, when the decision had already
been taken, was seldom an adequate substitute for a right to be heard before the
decision was taken (para [20] at 144C - C/D), in certain instances a D Court could
accept as sufficient compliance with the rules of natural justice a hearing held after a
decision had been taken where (a) there had been a sufficient interval between the
taking of the decision and its implementation to allow for a fair hearing; (b) the
decision-maker retained a sufficiently open mind to allow him- or herself to be
persuaded that the decision should be changed; and (c) the affected individual had
not thereby suffered prejudice. (Paragraph [23] at 144I - J.) E

Held , further, that the decision to terminate the appellant's services had been taken
on 14 May and would have taken effect one month thereafter; the decision taken on
14 May had in substance been provisional and not final; the respondent's assurance
to the appellant that it would keep an open mind appeared to have been
demonstrated by its invitation to the appellant to address it on 28 May if he so
wished with a view to its reconsidering its F decision. (Paragraph [24] at 145A - B.)

Held , accordingly, that the termination of the appellant's employment had been
valid. (Paragraph [25] at 145B/C.) Appeal dismissed.

The decision of a Full Bench of the Transvaal Provincial Division in Rustenburg

Regional Local Council v Mamabolo confirmed but for different reasons. G
Cases Considered

Annotations:

Reported cases

Attorney-General, Eastern Cape v Blom and Others 1988 (4) SA 645 (A) : approved
but distinguished

Court v Standard Bank of SA Ltd; Court v Bester NO and Others 1995 (3) SA 123 (A)
: distinguished H
Harnaker v Minister of the Interior 1965 (1) SA 372 (C) : compared and dictum at
381A - C approved

Scott and Others v Hanekom and Others 1980 (3) SA 1182 (C) : considered

Setsokosane Busdiens (Edms) Bpk v Voorsitter, Nasionale Vervoerkommissie, en 'n

Ander 1986 (2) SA 57 (A) : I dictum at 86C - E applied

Wolgroeiers Afslaers (Edms) Bpk v Munisipaliteit van Kaapstad 1978 (1) SA 13 (A) :
dictum at 39C - D applied.
Rules Considered

Rules of Court

The Rules of the Supreme Court of Appeal, Rule 8(3): see Barrow The Supreme
Court Act 59 of 1959 and the Magistrates' Courts Act 32 of 1944 12th ed (1999) Part
A at 158. J
2001 (1) SA p138
Case Information

Appeal from a decision by a Full Bench of the Transvaal Provincial Division. The facts
appear from the judgment A of Mthiyane AJA.

M M Rip (with him L G Nkosi-Thomas ) for the appellant (the heads of argument
were drawn by L G Nkosi-Thomas ).

R J Raath SC for the respondent.

Apart from the authorities referred to in the judgment of the Court, counsel for the
parties referred to the following: B

Amalgamated Packaging Industries Ltd v Hutt and Another 1975 (4) SA 943 (A)

Bevray Investments (Edms) Bpk v Boland Bank Bpk en Andere 1993 (3) SA 597 (A) C

CIR v LP Syndicate Ltd 1928 TPD 199

Caroluskraal Farms (Edms) Bpk v Eerste Nasionale Bank 1994 (3) SA 407 (A)

Entabeni Hospital Ltd v Van der Linde; First National Bank of SA Ltd v Puckriah 1994
(2) SA 422 (N) D

Federal Convention, Namibia v Speaker, National Assembly of Namibia, and Others

1994 (1) SA 177 (Nm)

Fundstrust (Pty) Ltd (in Liquidation) v Van Deventer 1997 (1) SA 710 (A)

Minister of the Interior v Estate Roos 1956 (2) SA 266 (A)

Mkhwanazi v Minister of Agriculture and Forestry, KwaZulu 1990 (4) SA 763 (D) E

Muzondo v University of Zimbabwe 1981 (4) SA 755 (Z)

Ndamase v Fyfe-King NO 1939 EDL 259

Omega Africa Plastics (Pty) Ltd v Swisstool Manufacturing Co (Pty) Ltd 1978 (4) SA
675 (A) F

Principal Immigration Officer v Bhula 1931 AD 323

Radebe v Government of the Republic of South Africa and Others 1995 (3) SA 787
(N)

Randburg Town Council v Kerksay Investments (Pty) Ltd 1998 (1) SA 98 (A)

S v Botha 1966 (4) SA 635 (A) G

S v Prefabricated Housing Corporation (Pty) Ltd 1974 (1) SA 535 (A)

S v Tieties 1990 (2) SA 461 (A)

S v Weinberg 1979 (3) SA 89 (A)

S v Yolelo 1981 (1) SA 1002 (A)

Salmon v Duncombe (1886) 11 App Cas 627 H

Schoultz v Personeel-Advieskomitee van die Munisipale Raad van George 1983 (4)
SA 689 (C)

Soffianti v Mould 1956 (4) SA 150 (E)

Stadsraad van Pretoria v Monumentpark (Edms) Bpk 1996 (3) SA 1061 (T) I

Stellenbosch Farmers' Winery Ltd v Stellenvale Winery (Pty) Ltd 1957 (4) SA 234 (C)

Summit Industrial Corporation v Claimants Against the Fund Comprising the

Proceeds of the Sale of the MV Jade Transporter 1987 (2) SA 583 (A)

Tamarillo (Pty) Ltd v B N Aitken (Pty) Ltd 1982 (1) SA 398 (A) J
2001 (1) SA p139

University of Cape Town v Cape Bar Council 1986 (4) SA 903 (A) A

Western Johannesburg Rent Board and Another v Ursula Mansions (Pty) Ltd 1948 (3)
SA 353 (A)

Baxter Administrative Law at 552, 588 para (ii)

Erasmus Supreme Court Practice at B1 - 385 n 3

Kellaway Principles of Legal Interpretation at 164, 274 para 9 B

Steyn Die Uitleg van Wette 5th ed at 188 - 91.

 Cur adv vult.

Postea (September 26).

Judgment

Mthiyane AJA: C

[1] On 16 May 1995 the appellant was appointed by the respondent ('the council') as
an RDP director. The appointment was subject to a probationary period of six
months. That period expired on 15 November 1995, but on 28 November 1995 the
council resolved to extend it for a further six months. On 11 March 1996 the
appellant requested reasons for the extension and recorded (in a D memorandum
submitted to the council) that he was reserving 'his rights until such time as . . . [he
had] . . . had the opportunity of studying the [said] reasons'. In its response on 19
March 1996 the council recorded that the reasons had been discussed with him on 21
December 1995. The council nevertheless furnished the appellant E with the reasons
for the extension of his probation. On 14 May 1996 the council resolved not to
confirm the appellant's appointment but to dismiss him, giving him one month's
notice from 16 May 1996.

[2] The appellant's appointment was governed by clause 6.2.7 of reg R1828
promulgated on 28 October 1994 under Government Notice F 16047. The
promulgation was in terms of s 48(1) (a) of the Labour Relations Act 28 of 1956.
Clause 6.2.7 reads as follows:
    'The council may appoint a permanent employee on probation for a fixed period not exceeding six months,
subject to the following conditions: G
    6.2.7.1     If the council is of the opinion that such employee has successfully completed his probationary period,
the council shall confirm such employee's appointment in writing.
    6.2.7.2     If the council, on or before the date of completion of the probationary period of such employee, is of the
opinion that he is not fit for the post occupied by him, the council may - H
       6.2.7.2.1     in writing and stating the reasons therefor, extend the probationary period of such employee once only
for a fixed period not exceeding six months; or
       6.2.7.2.2     give such employee at least one working month's written notice that his services will be terminated on
a specific date: Provided that a fair procedure has been followed.' I

[3] On 23 August 1996 the appellant instituted review proceedings in the Transvaal
Provincial Division. He sought orders setting aside, first, the decision to place him on
probation for six months, secondly, the resolution to extend his probation for a
further six months and, thirdly, the resolution to terminate his services. J
2001 (1) SA p140

MTHIYANE AJA

[4] When the matter came before Kirk-Cohen J, the learned Judge A rejected the
argument that the appellant had not been appointed subject to a probationary period
of six months. In my view, the point was doomed to fail the moment it was made.
The appendix to the appellant's letter of appointment, the receipt of which he
acknowledged and accepted on 23 May 1995, contains the following: B
    '1. Your appointment as a permanent employee is subject to the successful completion of a probationary
period of six months, which may be extended for a further fixed period not exceeding six months.'

That was in accordance with a long-standing policy of the council to make all such
appointments probationary. Accordingly, the application for the first order was
correctly dismissed. C
[5] The learned Judge also rejected a contention that there had been undue delay in
reviewing the second resolution and that the application should be dismissed on that
ground alone insofar as it related to that resolution. He granted the appellant an
order setting aside both the resolution of the council to extend the D probationary
period, and the resolution to terminate his services. Leave was granted to the council
to appeal to the Full Bench. On appeal the Full Bench found in the council's favour,
on the sole ground that there had been an unreasonable delay on the part of the
appellant in bringing the review application. This appeal is against the judgment of
the Full Bench with special leave granted by this Court. E

[6] The issues debated in this appeal were whether there was an unreasonable delay
in bringing the review application; whether the council was entitled to extend the
appellant's probationary period for six months; and whether the appellant's
employment was validly terminated. We were also asked to deal with a preliminary
point taken F on behalf of the council, which is to the following effect: because the
appellant has without explanation omitted to file with the Registrar of this Court a
full record as required by the Rules of this Court, the appeal should be dismissed or
removed from the roll solely on that score. What has been omitted is the full record
of the proceedings G sought to be set aside, which was filed by the council pursuant
to Rule 53(1) (b) of the Uniform Rules of Court.

[7] I propose to dispose of the preliminary point first. It is true that in terms of the
Rules of this Court the appeal lapses if an appellant fails to lodge a proper record
within the prescribed period H or within an extended period. (SCA Rule 8(3); Court v
Standard Bank of SA Ltd; Court v Bester NO and Others 1995 (3) SA 123 (A) at
139G - H.) However, I do not think that in casu there has been such breach of the
Rules, as to lead to the conclusion that the appeal is to be regarded as having lapsed
or that it falls to be dismissed or struck from the roll. All the relevant and necessary I
documents for consideration of the appeal are before us and we have not been
hampered in dealing with the matter by the absence of the other documents. Nor
has any prejudice been shown to have been suffered by the council in the conduct of
its case on appeal. In my view the preliminary point should not be upheld. J
2001 (1) SA p141

MTHIYANE AJA

[8] I return to the main issues. First, the question of undue delay in instituting
review proceedings to set aside the resolution A extending the appellant's
probationary period. As I see it, this question had been overtaken by a rather more
fundamental question, namely whether the issue of whether or not the resolution
should stand had become moot and therefore no longer justiciable. By the time the
decision was taken to dismiss the appellant the extended probationary B period had
been served in full so that, viewed in isolation, the setting aside of the resolution
extending the period would have been an empty gesture devoid of any practical
significance. The claim to set aside that particular resolution had by then become
academic. Similarly, the contention that there had been unreasonable delay in
attacking that resolution had become equally academic and no longer C required
consideration by the Courts below. The legitimacy of the extension as an abstract
matter of law was not of course necessarily rendered entirely irrelevant thereby for it
might yet have had a bearing upon the legality of the third resolution dismissing the
appellant. Whether it did indeed have such a bearing is a question to which I shall
return. D
[9] As to undue delay in attacking the resolution of 14 May 1996 terminating the
appellant's services, it was not the council's case that there was a delay in the
launching of an application to set aside that resolution. The delay point in that
particular regard was raised by the Court a quo mero motu E and it found against the
appellant solely on the ground that there had been unreasonable delay. I am unable
to agree with either the finding or the manner in which it was reached.

[10] The appellant was notified on 14 May 1996 that his services were being
terminated on one month's notice from 16 May 1996. The review application was
launched on 23 August 1996, some two months and one week from the date on
which the termination of F service would take effect. That is not, in my view, a delay
of such magnitude that it called for an explanation from the appellant in anticipation
of delay being raised as a bar to his claim by either the council or the Court. The
council did not see fit to raise it and the affidavits filed are understandably silent in
that regard. While it is G open to a Court to raise the issue of delay mero motu , it
should not lightly do so where a respondent specifically abstains from doing so, for,
unbeknown to the Court, there may be good reasons why the respondent has so
abstained. There may even be reasons which neither party wishes to disclose to the
Court, for example, that there have been protracted settlement negotiations. Where,
despite H that, a Court wishes to raise the point, the least it should do is give an
applicant an opportunity to supplement the affidavits in order to deal specifically with
the apparent delay. Compare Scott and Others v Hanekom and Others 1980 (3) SA
1182 (C) at 1192E - 1194A. In my view, the conclusion to which the Court a quo
came cannot be justified. I

[11] I should add that, even if it had correctly found that the review proceedings had
been instituted after the lapse of a reasonable period of time, that was not
necessarily the end of the matter. The Court was obliged to consider whether the
delay should be condoned. See Wolgroeiers Afslaers (Edms) Bpk v Munisipaliteit van
Kaapstad 1978 (1) SA 13 (A) J
2001 (1) SA p142

MTHIYANE AJA

at 39C - D; Setsokosane Busdiens (Edms) Bpk v Voorsitter, Nasionale

Vervoerkommissie, en 'n Ander A 1986 (2) SA 57 (A) at 86C - E. There is no
indication in the judgment of the Court a quo that it did so. On any view of the
matter, its decision cannot be allowed to stand.

[12] In the Court of first instance Kirk-Cohen J concluded that the resolution
extending the probationary period was ultra vires . He considered that, once he set it
aside, as he intended to B do, it would follow inexorably that the resolution
terminating the appellant's services would also have to be set aside because it was
taken after the first probationary period had expired, and his reading of the relevant
regulation was that, in order to be intra vires , the forming of the opinion therein
described and the C decision to terminate the appellant's services had to be taken
before the expiry of that period. He therefore found it to be unnecessary to consider
whether or not the procedure followed was fair or not.

[13] In as much as I have concluded that the learned Judge should not have set
aside the resolution extending the probationary period, and that it has to be
regarded as being operative when the D decision to terminate the appellant's services
was taken on 14 May 1996, the basis for his conclusion falls away. As Corbett J (as
he then was) observed in Harnaker v Minister of the Interior 1965 (1) SA 372 (C) at
381A - C, the successful invocation of the delay principle in review proceedings
would in a sense 'validate' what would otherwise have been an ultra vires act and
therefore a E nullity. A fortiori is that so, in my opinion, where the delay has actually
rendered the validity or invalidity of the act moot. It is therefore necessary to
consider the merits of appellant's attack upon the third resolution. F

[14] The appellant argues that because he had by 28 November 1995 successfully
completed his probationary period, the Council was no longer entitled to extend the
probationary period. If the Council wished to extend his probation, so the argument
goes, it had to do so 'on or before the date of completion of the probationary period'.
At the completion of the probationary period, the appellant became a permanent
employee notwithstanding the absence of confirmation G thereof in writing. The
appellant seeks to overcome the absence in the regulations of any support for the
proposition that on completion of probation he automatically became a permanent
employee, by contending that he became an 'employee' under the Labour Relations
Act 66 of 1965 (LRA). H

[15] This argument is flawed. The whole basis of employment of the appellant was
that he was required to serve a probationary period of six months and that at the
end of that period, if the Council wished to appoint him, his permanent employment
had to be confirmed (in I writing). A failure to confirm such appointment or the mere
expiry of the probationary period would not mean that the appellant would
automatically become a permanent employee. It was never the appellant's case in
the Courts below that there was an implied confirmation by conduct of his
employment, nor was implied confirmation ever relied upon at any stage. J
2001 (1) SA p143

MTHIYANE AJA

[16] The argument advanced by the appellant carries within itself the seeds of its
own destruction. If the extension on 28 A November 1995 was invalid, he was then
no longer a permanent employee (in the absence of any confirmation either in
writing or at all) and an order setting aside the resolution terminating his services
would not have had the effect of securing his post. It would mean that, the council
having failed to avail itself of its right to extend the period B 'on or before the expiry
of the probationary period', but having declined to confirm him in his position, the
appellant was no longer an employee. The position contended for by counsel for the
appellant to the effect that the appellant should, in the absence of confirmation, be
considered to be an employee by virtue of the LRA is an afterthought. It was never
part of the appellant's case that such was C his status. None of the Courts below
considered the point and it is not open to the appellant to raise it at this stage,
especially when the proposition flies in the face of his case as presented in the
affidavits.

[17] There is yet another ground on which I consider that the appellant should fail on
this point. The resolution to extend the appellant's probation was taken on 28
November 1995. On 21 D December 1995 he was informed verbally of the reasons
for such extension. Apart from his belated request for reasons on 11 March 1996 the
appellant allowed the second probationary period to run its full course. If the
appellant did not subjectively acquiesce in the extension, at the very least he led the
council to believe that he had accepted the extension and it accordingly proceeded to
deal with him on E that basis. I do not believe that the appellant can now be heard to
contend the contrary. The attack upon the council's right to extend fails.

[18] I turn to the final aspect of whether the appellant's employment was validly
terminated. The appellant's complaint is that the resolution to terminate his
employment was '. . . procedurally F unfair . . .' and did not comply '. . . with the
rules of natural justice'.

[19] I shall assume in favour of the appellant that on 14 June 1996 he was a
permanent employee on probation. On 14 May 1996 the appellant was called to the
council's chamber where the mayor informed him that the executive committee
(exco) had recommended that G his permanent appointment not be confirmed and
that his services be terminated as from 16 May 1996. The mayor then invited the
appellant 'to address the council regarding the recommendations of exco before the
council debates on the matter'. The appellant was further informed that if he needed
more time to prepare his response he H could address the council with or without a
representative on 28 May 1996. The mayor informed the appellant that the council
was technically bound to take the decision on that day (ie 14 May 1996). (That was
because the council had been advised, rightly or wrongly, that a decision either
confirming or terminating his appointment had to be taken before the expiry of the
extended I probationary period.) He was, however, assured that the council would
keep an open mind on the matter and, if he chose to make his representations on 28
May 1996, the appellant was at liberty to do so, with or without a legal
representative, to request the council to review its decision. The appellant requested
time to study the recommendation J
2001 (1) SA p144

MTHIYANE AJA

and to address the council on 28 May 1996. He was thus excused from the chamber
and a resolution was adopted to the A effect that this permanent appointment not be
confirmed and that his services be terminated on one month's notice as from 16 May
1996.

[20] The appellant's main complaint seems to be that when he was invited to make
representations on 28 May 1996, a decision had already been taken to dismiss him.
As a general proposition the B expectation of procedural fairness gives rise to a duty
upon the decision-maker to afford the affected party an opportunity to be heard
before a decision is taken which adversely affects his rights, interests or legitimate
expectations and a failure to observe this rule would lead to invalidity. Baxter
Administrative Law 3rd ed C at 587. This Court has said that a right to be heard after
the event, when a decision has been taken, is seldom an adequate substitute for a
right to be heard before the decision is taken Attorney-General, Eastern Cape v Blom
and Others 1988 (4) SA 645 (A) at 668D.

[21] I am entirely in agreement with the dictum in the Blom case supra . However
this case stands on D a different footing. The decision taken on 14 May 1996 was in
substance provisional and not final. This was made clear to the appellant and that is
why he was invited to address the council on 28 May 1996, if he so wished. Besides,
the decision to consider the confirmation or termination of his appointment is not
something E that was suddenly sprung upon him; he knew that at the end of his
probationary period this issue would arise. He would have applied his mind to it and,
if so advised, would have even sought legal assistance.
 [22] On 28 May 1996 the appellant and his attorney were afforded an opportunity to
address the council on the issue. Instead of dealing with the merits of the
termination the attorney chose to F confine himself to technicalities. Significantly,
neither the appellant nor his attorney complain that they were not afforded an
opportunity to be heard, nor do they say that the opportunity afforded them was
insufficient. There is nothing on the record to show that had the attorney asked for
more time, this would not have been granted. In any event, the appellant was still in
employment and his termination would G have taken effect only on 13 June 1996.
Having declined the opportunity to address the council on the merits of his dismissal,
I do not think that it is open to the appellant to complain at this point that the rules
of natural justice were not complied with. H

[23] I also do not think that this is a case where a hearing was denied before the
decision was taken. Perhaps in form, but not in substance. In any event, I do not
think that the actions of the council offended the rules of natural justice. In certain
instances a Court may accept as sufficient compliance with the rules of natural
justice a hearing held after the decision has been taken, where I
    ' -     there is a sufficient interval between the taking of the decision and its implementation to allow for a fair
hearing;
    -     the decision-maker retains a sufficiently open mind to allow himself to be persuaded that he should change
his decision; and
    -     the affected individual has not thereby suffered prejudice'. J
2001 (1) SA p145

MTHIYANE AJA

Baxter ( op cit at 588). A

[24] In casu the decision to terminate the appellant's services was taken on 14 May
1996 and would have taken effect only on 13 June 1996. The mayor made it clear to
the appellant that the council was keeping an open mind on the issue. The council
appears to have demonstrated this open-mindedness by inviting the appellant to
address it on 28 May 1996 with a view to B reconsidering its decision.

[25] In my view there was a valid termination of the appellant's employment.

The appeal is accordingly dismissed with costs.

Vivier JA and Marais JA concurred. C

Appellant's Attorneys: Mohlaba & Moshoana Inc , Pretoria; N W Phalatsi ,

Bloemfontein. Respondent's Attorneys: Van Zyl, Le Roux & Hurter Inc , Pretoria;
Naudes , Bloemfontein. D