Where the Power to Dismiss or Discipline Resides in Statute
Perhaps the most consistent context for asserting judicial review protection for contracts in the public sector is the existence of the �statutory underpinnings' of the power to dismiss or discipline.
Where such power is located under statute as opposed to existing solely within the boundaries of the contract itself, decisions involving the exercise of that power will be amenable to judicial review. This is a principle which has been applied far and wide.The suggestion that judicial review would be granted if there is a �statutory underpinning’ to the employment relationship, is seen in the early decisions of the UK Courts. In Ex p Walsh,[294] for example, Lord Donaldson MR, after reviewing several cases emphasized that �it is the existence of these statutory provisions which injects the element of public law necessary...to attract the remedies of administrative law.’ A �sufficient statutory underpinning’ has been found in several cases,[295] but was denied in other cases.[296]
Interestingly, in South Africa, the necessary protection has been enshrined in the constitution. In Awumey v Fort Cox Agricultural College, relying on the earlier judgment of Zenzile, it was said:
.the College and its Board of Governors is a statutory institution which derives not only its power to contract from the enacting statute, but also its power to dismiss. That being the position, such power has to be exercised regularly and in accordance with the principles of natural justice, including the principle of audi alteram partem (see Administrator, Transvaal and Others v Zenzile and Others 1991 (1) SA 21 (A) and Administrator, Natal and Another v Sibiya and Another 1992 (4) SA 532...Accordingly, I find that there was a duty on the Interim Board to afford the applicant a hearing before his services were terminated and that its failure to do so resulted in an infringement of his right to procedurally fair administrative action, as entrenched in section 33 of the Constitution and given effect to in the Promotion of Administrative Justice Act.[297]
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