In June 2023 the Supreme Court of Appeal held, on a number of grounds, that no wrongfulness had been established by a teacher who took early retirement allegedly because she had been victimised, suffered clinical depression and consequently retired early. The plaintiff had failed at the time of the alleged victimisation to pursue the grievance procedures allowed to employees possible under her contract of employment and regulated by statutory instruments. The Education Department is responsible for teachers numbered in their thousands and wrongfulness for an omission on the part of the Department had not been established.

The judgment usefully summarises a number of the requirements to establish delictual wrongfulness by a public authority based on an omission:

• The common law and constitutional rights to equality, personal freedom and privacy entitle individuals to ‘mind their own business’.
• However, a public authority or functionary may have a duty to serve the interests of others.
• A public service must not have to act in the shadow of the chilling effect of the threat of litigation every time they happen to act negligently and there is a fear of limitless liability (this consideration should not be unduly exaggerated).
• The Constitution requires accountable government and positive actions to protect the rights in the Bill of Rights.
• This does not always translate into private law duties enforceable by an action for damages particularly if there are other appropriate remedies available.
• The application of the recognised legal principles must be applied to the particular facts and circumstances of each case.
• Interestingly the court applied a ‘proximity’ test in deciding whether the employee had a relationship with the Department so close, without more, to give rise to a duty on the part of the Department to act (proximity is applied in English law and is not built into SA law relating to wrongfulness).

The court held that public and legal policy considerations, and reasonableness, demand that, save in exceptional circumstances, it is proper and sufficient that a person wronged by a public authority must use the statutory and regulatory regime such as a grievance procedure and, if available, must not resort to a delictual claim for damages on the basis of an omission. This would advantage people who can afford damages litigation instead of the limited compensation allowed under the Labour Relations Act. Allowing such actions could lead to limitless liability or lawsuits for the departments concerned.

[MEC for Education, KwaZulu-Natal v Singh [2023] ZASCA 92 (9 June 2023)]