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[2013] ZASCA 2
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Provincial Commissioner, Gauteng South African Police Services and Another v Mnguni (890/11) [2013] ZASCA 2; [2013] 5 BLLR 421 (SCA); [2013] 2 All SA 262 (SCA); (2013) 34 ILJ 1107 (SCA) (22 February 2013)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 890/11
In the matter between:
Reportable
PROVINCIAL
COMMISSIONER, GAUTENG
SOUTH AFRICAN POLICE
SERVICE
.....................................................
First
Appellant
THE NATIONAL
COMMISSIONER:
SOUTH AFRICAN POLICE
SERVICE
................................................
Second
Appellant
and
MERRIMAN CYPRIAN
XOLANI MNGUNI
....................................................
Respondent
Neutral citation:
Provincial Commissioner, Gauteng: SAPS v Mnguni
(890/11)
[2013] ZASCA 2
(22 February 2013)
Coram:
MPATI P, LEWIS, MALAN and PETSE JJA and MBHA AJA
Heard:
13 November 2012
Delivered:
22 February 2013
Summary: Employment
law – dismissal of State employee – whether dismissal may
still be challenged in high court on common
law grounds.
______________________________________________________________________
ORDER
_____________________________________________________________________
On appeal
from:
North Gauteng High Court, Pretoria (Bam
AJ sitting as court of first instance):
(a) The appeal succeeds
with costs, which shall include the costs of two counsel.
(b) The order of the
court below is set aside and the following is substituted:
‘
The
application is dismissed with costs.’
_______________________________________________________________________
JUDGMENT
_____________________________________________________________________
MPATI P (LEWIS, MALAN
and PETSE JJA and MBHA AJA CONCURRING):
[1] During
November 2005 the respondent, who held the rank of inspector in the
South African Police Service (SAPS), stationed at
the Booysens Police
Station, Johannesburg (Booysens), was charged, together with five of
his colleagues, with five counts of misconduct.
It was alleged, in
respect of each count, that they had contravened regulation 20(z)
1
of the South African Police Service Discipline
Regulations
2
(the Regulations). The disciplinary tribunal found him
not guilty on counts 1, 4 and 5, but guilty on counts 2 and 3 despite
his
plea of not guilty. It had been alleged, in the latter two
counts, that the respondent had, on 13 August 2005 (count 2) and 15
July 2005 (count 3), received money from members of the community or
prisoners, at or near Booysens, to release prisoners unlawfully
from
police custody. Having found the respondent guilty, the disciplinary
tribunal imposed a sanction of dismissal from the police
service.
[2]
The respondent appealed against both the guilty verdict and the
sanction imposed on him, but the appeals authority, established
in
terms of regulation 17, dismissed his appeal on 11 August 2008. On 20
March 2009 he instituted review proceedings in the North
Gauteng High
Court, in terms of rule 53 of the Uniform Rules, seeking the
following relief:
‘
1.
Calling upon the respondents to show cause why the decision of the
first respondent [appeals authority] given on 11 August 2008,
confirming the outcome of the disciplinary hearing in terms of which
the applicant was found guilty on 15 January 2007 of a contravention
of regulation 20(z) of the [Regulations], and a sanction of dismissal
was imposed, should not be reviewed and corrected or set
aside, and
an order upholding the appeal be substituted for the decision of the
appeals authority, and
2.
. . .
3.
that the second and third respondents [the present appellants] pay
the costs of this application;
4.
further and/ or alternative relief.’
An amended notice of
motion was delivered on 27 May 2009 giving notice that the following
order would be sought at the hearing of
the matter:
‘
1.
That the decision of the First Respondent, dated 11 August 2008, to
dismiss the appeal of the Applicant against the finding of
guilty of
a contravention of Regulation 20(z) of the South African Police
Services Regulations and the imposition of the sanction
of Dismissal,
be reviewed and set aside;
2.
That the First Respondent’s decision be replaced with a finding
that the Appeal of the Applicant be upheld;
3.
Costs of the application;
4.
Further and/or alternative relief.’
The review application
was successful and the court a quo (Bam AJ) granted the following
order on 19 October 2010:
‘
1.
The applicant’s application for the review of the proceedings
before the disciplinary hearing and the confirmation thereof
on
appeal by the first respondent succeeds.
2.
The proceedings are reviewed and set aside.
3.
Respondent is ordered to pay the applicant’s costs.’
This appeal, with leave
of the court below, is against that order.
[3] In
his founding affidavit the respondent averred that Director K
Mohajane, in his capacity as chairperson of the appeals authority,
‘performed a quasi-judicial function and that his decision is
therefore subject to review’. The only ground of review
relied
upon was that the chairperson of the appeals authority ‘has
failed to apply his mind to the relevant issues and the
evidence led
at the disciplinary hearing and that the reasons for his decision to
dismiss [the] appeal are vague’. The issue
on appeal,
therefore, is whether the decision of the appeals authority was
reviewable in the high court and, if so, whether the
appeals
authority had committed any irregularity that was capable of being
reviewed.
[4]
One preliminary issue requires mention. It is clear from the order
sought by the respondent, before and after the delivery of
the
amended notice of motion, that no order was sought to set aside the
proceedings before the disciplinary tribunal. Assuming
that the
conclusions reached by the court below were unassailable, the correct
course, it would seem, would have been for the court
to set aside the
decision of the appeals authority and to refer the matter back to it,
to be heard by another presiding officer,
or, if it was appropriate
in its view, to substitute that decision with its own.
[5]
The evidence led in the disciplinary hearing to prove the charges of
misconduct levelled against the respondent may be summarised
as
follows. The main witness, Mr Clifford Njoni (Njoni), a Zimbabwean
citizen, testified that during February 2005 he met a man
called Alex
from the Special Assignment
3
investigative team after he had contacted them during
2004. He informed Alex that members of the police force at Booysens
were soliciting
bribes from persons who sought to secure the release
of detainees held there and that he wished to expose them by
capturing their
activities inside the police station by means of a
‘spy camera’. Njoni referred to the policemen involved as
‘the
raiding squad’. He called Alex between April and May
2005 after he had seen the raiding squad. Alex provided him with a
hidden
camera and an amount of R300 with the instructions that he
should enter Booysens, locate a detainee and thereafter offer a bribe
of R300 to the police to secure the release of the detainee. He
entered the police station but was unsuccessful in his bid to secure
the release of a detainee on that occasion.
[6] On
a second occasion, between July and August 2005, he managed to film a
transaction he negotiated with two of the respondent’s
colleagues, who were charged with him, which culminated in him
securing the release of a certain male detainee in exchange for
a
payment of R300. He was again successful on a subsequent occasion
when he negotiated with two other police officers, who were
also
charged with the respondent, for the release of a female detainee in
exchange for payment of R300. On a third occasion Njoni
filmed a
transaction in which the respondent was involved. Njoni testified
that upon his arrival at Booysens he went to the room
where detainees
were kept and saw a woman whom he knew as Nomhle – they
worshipped at the same church. He then requested
and obtained
permission from the respondent to speak to her. He told Nomhle that
he had come for her, that is, to secure her release.
Thereafter he
went outside and stood near the door, where he was approached by the
respondent, who enquired from him how he wished
to be assisted. Njoni
told the respondent that he had come for his sister for whom he had
brought money, being R300. The respondent
then instructed him to wait
outside. After a while the respondent approached him and instructed
him to hand over the money, which
he did, handing over a R100 note at
a time. As he was doing so the respondent uttered the words: ‘Put
more. Put more.’
After the full amount was handed over, the
respondent released Nomhle. Both Nomhle and Njoni went to where Alex
had been waiting
in a motor vehicle and Njoni handed the camera to
him. No receipt was provided on any one of the occasions when money
changed hands
between Njoni and the police officers.
[7]
Charles Johnson (Johnson), the area head of detectives in
Johannesburg, testified that on 7 September 2005 he received an
instruction
from the Area Commissioner that he should view a video
footage of a television broadcast that had been shown on Special
Assignment
during the previous evening. He was to view the video
footage in the presence of officers from Booysens. The purpose was to
identify
members who were shown on the footage to have been involved
in criminal activity, so that criminal and departmental
investigations
could be instituted. Johnson proceeded to Booysens
where he viewed the footage with two senior officers. He testified,
in short,
that the video footage showed persons handing money over to
police officers on various occasions and thereafter detainees were
released. One of them was a female. The police officers involved were
identified and Johnson subsequently conducted the necessary
investigations in accordance with his instructions.
[8]
According to Johnson an arrested person may not pay money to an
investigating or arresting officer, except in certain circumstances
such as, for example, where the suspect has been charged with a minor
offence in respect of which an admission of guilt fine may
be paid.
But, in terms of the SAPS Standing Orders, certain procedures must be
followed. In his evidence the respondent admitted
that he received R
300 from Njoni, but said the money (presumably paid as an admission
of guilt fine) was meant to secure the release
of a man who,
according to Njoni, had been charged with drinking (presumably in
public). The respondent said that because he could
not find a person
with the name and description given to him by Njoni he gave the money
back to Njoni. He also testified that his
superior, Superintendent
Maubane, allowed them to take money from arrested persons if paid at
their offices, which they were then
required to pay over at the
charge office later.
[9]
The video footage referred to above was viewed during the proceedings
before the disciplinary tribunal. It appears to have been
an edited
version of the recordings made by Njoni, with certain portions having
been left out.
[10]
As has been mentioned above, the disciplinary tribunal found the
respondent guilty on two of the charges levelled against him.
The
notice of appeal to the appeals authority contained the following
grounds of appeal in respect of the guilty verdict:
4
‘
1.
The presiding officer erred in finding that the [SAPS] proved on a
preponderance of probabilities that the appellants did indeed
commit
an act of corruption and therefore contravened [regulation] 20(z) of
the South African Police Service Disciplinary Regulations.
2.
The presiding officer further erred in accepting the evidence of the
witness Clifford Njoni notwithstanding material contradictions
in his
evidence.
3.
The presiding officer further erred in not taking into consideration
that the said witness had a motive to implicate the appellants
falsely.
4.
The presiding officer further erred in that the video footage was
accepted as correct notwithstanding the fact that the video
footage
which was relied upon was an edited version which could not be relied
upon.
.
. . .’
The two further grounds
were simply that the disciplinary tribunal should not have rejected
the defence versions, which were corroborated
by witnesses, and that
it should have found that the case against the respondent and his
colleagues had not been proved. It appears
that a document headed
‘SUPPLEMENTARY NOTICE OF APPEAL/ARGUMENT ON BEHALF OF THE
APPELLANTS’ was subsequently submitted
to the appeals tribunal.
[11]
In dismissing the appeal the appeals authority held, inter alia, that
the argument that there were material contradictions
in Njoni’s
evidence was vague as the respondent and his colleagues had failed to
point to any such contradictions; that they
had failed to specify
what motive Njoni had to falsely implicate them and that it could
find no reason why the disciplinary tribunal
should not have accepted
the evidence of the video footage. In this court it was argued, on
behalf of the respondent, that the
appeals authority made no
reference to the supplementary notice of appeal and therefore did not
apply its mind to the issues raised
in it. The court below observed,
correctly in my view, that the so-called supplementary notice of
appeal ‘contains argument
and does not comply with what is
required of a notice of appeal’. The court had no further
regard to the document, except
to point out that the appeals
authority had not replied to a question posed in it. In any event, on
a reading of Njoni’s
testimony one struggles to find any
contradictions at all.
[12]
Expanding on his only ground of review (quoted in para 3 above) the
respondent averred, inter alia, that Njoni was a single
witness who
approached Special Assignment with a grudge against the raiding
squad; that Njoni had a clear motive to falsely implicate
him and
members of the squad, which was to stop the police from arresting
illegal immigrants; that Njoni had himself entered the
country
illegally and had been arrested by the same squad; that he (Njoni)
and others had, without the knowledge of the police,
embarked upon a
trapping operation which started in April and ended in August 2005,
and that the video images were of little value
as it was common cause
that he had accepted the money that was given to him by Njoni. The
appeals tribunal, so the respondent continued,
should have considered
these factors and allowed his appeal. By failing to do so, he
concluded, the appeals tribunal ‘must
have failed properly to
apply [its] mind when considering the appeal’.
[13]
In his replying affidavit the respondent amplified his case in the
following terms:
‘
I
contend that I did not enjoy a fair disciplinary hearing because the
evidence presented by the employer in order to prove the
charges
against me consisted solely of an illegal and uncontrolled entrapment
operation conducted by an illegal immigrant, the
only witness
implicating me, whose declared motive was to stop the police from
“harassing illegal immigrants.
It
is contended that this amounted to an abuse of process and integrity
of the system of administration of justice.’
He accordingly contended
that Njoni’s evidence ‘should have been rejected as
unreliable and too dangerous to sustain
a conviction’.
[14]
In opposing the review application the appellants contended that the
criticisms raised by the respondent were not proper grounds
of
review, but appeal grounds and that the respondent was in any event
‘properly convicted’. In addition, the appellants
raised
four points
in limine
,
with which they persisted in this court. The first was that the court
below had no jurisdiction to entertain the dispute, because
an
employee who wishes to set aside his dismissal must, in terms of the
Labour Relations Act 66 of 1995 (LRA), refer the dismissal
to the
Commission for Conciliation, Mediation and Arbitration (CCMA) or
bargaining council having jurisdiction. The second was
that in order
to review and set aside the decision of the appeals authority the
respondent had to prove that the decision was administrative
action
as contemplated in the Promotion of Administrative Justice Act 3 of
2000 (PAJA). The appellants contended that the decision
was not
administrative action as contemplated in PAJA. The third point
in
limine
was that the review proceedings were
brought more than seven months after the appeals authority had made
known its decision, which
was outside the period of 180 days
prescribed in s 7(1) of PAJA.
5
The fourth was that it was not competent for the
respondent to seek to review the decision of the appeals authority
whilst the decision
of the disciplinary tribunal remained
unchallenged.
[15]
As to the first three points
in limine
the court below accepted the respondent’s
averment, in his founding affidavit, that the appeals authority had
performed a
quasi-judicial function, as well as his contention that
the review application was based on irregularities in the performance
of
that function. The court held that in formulating his case the
respondent ‘throughout based his complaint on the
quasi-judicial
functions of either the disciplinary tribunal and/or
the [appeals authority]’ and that ‘[t]here can be no
doubt that
the procedure before the disciplinary tribunal and the
[appeals authority], was “quasi-judicial process” falling
under
the provisions of rule 53 of the rules of court’. With
regard to the delay in launching the review proceedings, the court
below mentioned that the respondent’s explanation ‘centre[d]
on a pecuniary problem as a result of his dismissal .
. .’. It
found the explanation to be ‘reasonable and acceptable’
and that the delay was not unreasonable in the
circumstances.
[16]
In his replying affidavit the respondent had, of course, disavowed
any reliance on administrative action under PAJA and on
the fair
labour practice provisions of the LRA. Indeed, relying on the
decisions in
Chirwa v Transnet Ltd
[2007] ZACC 23
;
2008 (4) SA 367
(CC);
Gcaba v
Minister for Safety and
Security
2010 (1) SA 238
(CC) and
National
Director of Public Prosecutions v Tshavhungwa; Tshavhungwa v National
Director of Public Prosecutions
2011 (1) SA
141
(SCA), counsel for the respondent submitted in this court that
the latter’s dismissal did not constitute administrative
action.
It is for that reason that reliance on PAJA was disavowed.
That the dismissal of the respondent and the confirmation thereof by
the appeals authority did not constitute administrative action is
indeed common cause.
6
The question, however, is whether the respondent has a
separate, or residual, right to challenge the decision of the appeals
authority,
in the high court, on common law grounds of review.
[17]
In
Bato Star Fishing (Pty) Ltd v Minister of
Environmental Affairs
[2004] ZACC 15
;
2004 (4) SA 490
(CC)
the Constitutional Court (per O’Regan J) observed that ‘[t]he
extent to which the common law remains relevant
to administrative
review will have to be developed on a case-by-case basis as the
Courts interpret and apply the provisions of
PAJA and the
Constitution’.
7
But the court was there considering the relevance or
otherwise of common law grounds of review when a court deals with the
review
of administrative action. Four years earlier, and with
reference to a statement made by Hefer JA in
Commissioner
of Customs and Excise
v
Container
Logistics (Pty) Ltd; Commissioner of Customs and Excise v Rennies
Group Ltd t/
a
Renfreight
1999 (3) SA 771
(SCA), that judicial review under the
Constitution and under the common law are different concepts, the
Constitutional Court said
the following in
Pharmaceutical
Manufacturers Association of SA: In re Ex Parte President of the
Republic of
South Africa
[2000] ZACC 1
;
2000
(2) SA 674
(CC):
‘
The
control of public power by the Courts through judicial review is and
always has been a constitutional matter. Prior to the adoption
of the
interim Constitution this control was exercised by the courts through
the application of common-law constitutional principles.
Since the
adoption of the interim Constitution such control has been regulated
by the Constitution which contains express provisions
dealing with
these matters. The common-law principles that previously provided the
grounds for judicial review of public power
have been subsumed under
the Constitution and, insofar as they might continue to be relevant
to judicial review, they gain their
force from the Constitution. In
the judicial review of public power, the two are intertwined and do
not constitute separate concepts.’
8
[18]
Responding to a contention that common law grounds of review can be
relied upon by a litigant and, if this is done, the matter
must then
be treated as a common law matter and not a constitutional matter,
Chaskalson P, for a unanimous court, said:
‘
I
cannot accept this contention, which treats the common law as a body
of law separate and distinct from the Constitution. There
are not two
systems of law, each dealing with the same subject-matter, each
having similar requirements, each operating in its
own field with its
own highest Court. There is only one system of law. It is shaped by
the Constitution which is the supreme law,
and all law, including the
common law, derives its force from the Constitution and is subject to
constitutional control.’
9
The court’s
emphasis – in para 51 of the judgment – that judicial
review of the exercise of public power is inevitably
a constitutional
matter suggests, according to Professor Cora Hoexter, ‘a
greatly reduced role for common-law review, which
today is
essentially confined to the realm of private law’.
10
[19]
As I have mentioned above, the court below upheld the respondent’s
contention that the appeals authority had performed
a quasi-judicial
function and that its decision was therefore subject to review. The
classification of acts or decisions of functionaries
into judicial or
quasi-judicial on the one hand, and purely administrative on the
other, was used by our courts in order to determine
whether the
functionary was obliged, when exercising his or her powers, to
observe the rules of natural justice, particularly the
audi
alteram
partem
principle,
and therefore to determine the justiciability of those acts or
decisions.
11
This classification was jettisoned even before the dawn
of the new (constitutional) era
12
and has been characterised as a ‘flawed
exercise’.
13
The attempted invocation of the classification by the
respondent is of no assistance in resolving the issue in this appeal.
[20]
I agree with counsel for the appellants that what we are dealing with
here is quintessentially a labour issue. The Regulations
in terms of
which the disciplinary and appeal procedures that led to the
dismissal of the respondent were conducted were promulgated
by the
Minister for Safety and Security pursuant to the provisions of
s
24(1)
(f)
of the
South
African Police Service Act 68 of 1995
. The subsection empowers the
Minister to make regulations regarding ‘labour relations,
including matters regarding suspension,
dismissal and grievances’.
The Regulations are a product of an agreement reached between the
National Commissioner of SAPS,
as employer, and all the unions
admitted to the Safety and Security Sectoral Bargaining Council (reg
2). Their purpose is set out
in reg 3, and is, inter alia, to support
constructive labour relations in the police service, to ensure that
supervisors and employees
share a common understanding of misconduct
and discipline, to provide a user-friendly framework in the
application of discipline,
and to prevent possible arbitrary actions
by supervisors towards employees in the event of misconduct. Clearly,
therefore, the
disciplinary and appeal procedures that culminated in
the respondent’s dismissal, including the dismissal itself,
involve
employment relations, which are expressly regulated by s 23
of the Constitution
14
and s 185 of the LRA.
15
[21]
The dismissal meant that the respondent’s contract of
employment was terminated. Flowing from that three separate claims
could potentially have arisen: one for infringement of his right not
to be unfairly dismissed or subjected to unfair labour practices,
the
other being a common law right to insist upon performance of a
contract and the third, the respondent being a member of the
public
service, for infringement of his right to just administrative
action.
16
Reliance on the third, which could have been pursued in
either the High Court or the Labour Court, was, of course, disavowed.
The
potential common law claim, which could also have been pursued in
either the High Court or the Labour Court, was never in issue
at all.
Reliance on the first, a potential claim for infringement of the
rights created by s185 of the LRA, enforceable only in
the Labour
Court, was also disavowed.
17
[22]
In
Chirwa
the
appellant, Ms Chirwa, relying on the provisions of PAJA, sought an
order, in the High Court, setting aside her dismissal from
her
employment with Transnet. Skweyiya J, in whose judgment the majority
of the court concurred, said the following:
18
‘
The
reasoning employed by the Appellate Division in [
Administrator,
Transvaal v
Zenzile
1991
(1) SA 21(A)]
cannot be faulted save to point out that the judgment
was delivered in a particular context whereby State employees were
not able
to access processes aligned with natural justice principles
in the forum of the old
Labour Relations Act in
instances concerning
employment disputes. This, of course, has changed since the adoption
of the present Constitution and the LRA.
Section 185 of the LRA
confers the rights not to be unfairly dismissed or subjected to
unfair labour practices, both of which extend
to employees of the
State, including the employees of Transnet.
The
decisions in
Zenzile
and [
Administrator,
Natal v Sibiya
[1992] ZASCA 115
;
1992
(4) SA 532
(A)] were made in circumstances where public sector
employees were not accorded such rights in terms of the labour
legislation
applicable at the time. In the absence of such rights
being afforded to them there was, in my view, a judicial duty on the
judicial
officers to extend protection to State employees. As the
previous paragraph makes clear, the LRA has changed the content of
that
duty.’
In
Zenzile
the respondents (three public service employees), who
were employed temporarily in a full-time capacity and whose service
contracts
were terminable on 24 hours’ notice on either side,
were summarily dismissed on the grounds of alleged misconduct without
having been afforded any hearing. They had been part of a group of
130 employees who were dismissed following involvement in a
work-stoppage. In dismissing the appeal against an order setting
aside the dismissals this court held that the failure of the
appellants to apply the
audi
principle constituted a procedural impropriety vitiating
the decision to dismiss the respondents for alleged misconduct.
19
[23]
Sibiya
involved a
retrenchment rather than a dismissal. The two respondents were also
public service employees employed temporarily in
a full-time
capacity, whose contracts of employment were terminable on notice of
one month. They were members of a group of 29
workers who became
redundant. They were given the requisite one month’s notice and
their employment ended at the end of the
notice period. However, at
no stage were they given a hearing. This court, in dismissing the
appeal against an order setting aside
the dismissals, held that the
case was one ‘in which elementary fairness required that the
respondents should have been accorded
a hearing before the appellants
took their decision to dismiss [them]’.
20
In both
Zenzile
and
Sibiya
the dismissals,
as in the present matter,
21
involved the exercise of public power.
[24]
The essence of the sentiments expressed by Skweyiya J in
Chirwa
–
in the two paragraphs quoted above – is
that there is no longer any justification for the courts to come to
the assistance
of State employees in labour related matters, such as
dismissals, by invoking the common law principles of natural justice.
The
learned judge continued (at para 40):
‘
State
employees not only have all the benefits of the protection of the
LRA, but also have the right to approach the civil courts
for relief
under PAJA and are thus in a preferred position.’
Thus the
Constitutional Court, in
Chirwa
,
and this court, in
Makhanya
,
have both intimated that State employees are no longer able to
challenge decisions of their employer to dismiss them by way of
common law review. The judgment of the Constitutional Court in
Pharmaceutical Manufacturers
makes
it plain that the common law principles that previously provided the
grounds for judicial review of public power have largely
been
subsumed under the Constitution.
[25]
Mr Du Plessis, on behalf of the respondent, submitted in this court
that any functionary who is fulfilling a quasi-judicial
function must
be fair and the process, or proceedings, must be in accordance with
justice. I have held above that we are here concerned
with what is
quintessentially a labour issue. Fairness in labour practices is
guaranteed in s 23 of the Constitution and s 185
of the LRA, which
also assures every employee the right not to be unfairly dismissed.
Stripped of all excess, the respondent’s
complaint is
essentially one of unfair dismissal which ought to have been pursued
in the Labour Court, which has exclusive power
to enforce fair labour
practice rights.
22
It follows that the respondent’s claim for a
common law review, in the High Court, of the appeal tribunal’s
confirmation
of his dismissal was bad in law and falls to be
dismissed.
[26]
In the respondent’s heads of argument and before us Mr Du
Plessis raised a constitutional issue based on the supremacy
of the
constitution and the rule of law as provided for in s 1(c) of the
Constitution. He submitted that Njoni and the producers
of Special
Assignment operated with a hidden camera within the precinct of the
Booysens police station without the knowledge or
consent of the SAPS;
that they flouted the penal provisions of several statutes and that
they thereby violated the rule of law.
Therefore, so it was argued,
Njoni’s conduct was unlawful and whatever material he had
gathered for the television programme
was ‘valueless’ to
prove the commission of any offence in the disciplinary hearing. When
it was pointed out to him
that the constitutional issue was never
raised before the court below Mr Du Plessis contended that he was
raising a point of law
which he was entitled to do for the first time
on appeal.
[27]
It is indeed open to a party to raise a new point of law on appeal
for the first time, with the proviso that it does not result
in
unfairness to the other party; that it does not raise new factual
issues and does not cause prejudice.
23
In
Barkhuizen v Napier
[2007] ZACC 5
;
2007 (5) SA 323
(CC) Ngcobo J said the following (para
39):
‘
The
mere fact that a point of law is raised for the first time on appeal
is not in itself sufficient reason for refusing to consider
it. If
the point is covered by the pleadings, and if its consideration on
appeal involves no unfairness to the other party against
whom it is
directed, this Court may in the exercise of its discretion consider
the point. Unfairness may arise where, for example,
a party would not
have agreed on material facts, or on only those facts stated in the
agreed statement of facts had the party been
aware that there were
other legal issues involved’ and that ‘[i]t would
similarly be unfair to the other party if the
law point and all its
ramifications were not canvassed and investigated at trial’
.
24
In
objecting to the point of law being raised for the first time on
appeal counsel for the appellants submitted, firstly, that the
admissibility of Njoni’s evidence was never challenged before
the disciplinary tribunal. Secondly, counsel argued that whether
Njoni had flouted certain penal provisions of various statutes was a
factual enquiry which the court below was not called upon
to
consider.
[28] A
perusal of the papers in this matter reveals that the factual basis
upon which the respondent wishes to introduce the new
point of law is
glaringly absent from both his founding and replying affidavits,
which, together with the answering affidavit in
motion proceedings,
constitute the pleadings. The ramifications of the admissibility of
Njoni’s evidence were never canvassed
and investigated by the
disciplinary tribunal. Indeed, no objection to the evidence was ever
raised. As to whether he had flouted
penal provisions of certain
statutes Njoni might very easily have given a perfectly acceptable
explanation to negative that assertion
if it were contained in the
respondent’s papers before the court below. Clearly, a
consideration of the new point of law
would involve unfairness to the
appellants.
[29]
In the result, the following order is made:
(a) The appeal succeeds
with costs, which shall include the costs of two counsel.
(b) The order of the
court below is set aside and the following is substituted:
‘
The
application is dismissed with costs.’
___________________
L Mpati
President
APPEARANCES
For Appellants: G I
Hulley (with R Liphosa)
Instructed by:
The State Attorney,
Johannesburg
The State Attorney,
Bloemfontein
For Respondent: P J du
Plessis
Instructed by:
BDK Attorneys,
Johannesburg
Symington & De Kok,
Bloemfontein
1
The
sub-regulation reads: ‘An employee will be guilty of
misconduct if he or she, among other things, -
. . .
(z) commits any common
law or statutory offence.’
2
Published
in GN R643,
GG
28985, 3 July 2006.
3
‘
Special
Assignment’ is a television programme which usually reports on
investigations conducted by journalists on various
aspects of
societal interests.
4
The
respondent and his colleagues also appealed against the sanctions
imposed on them.
5
The
respondent’s appeal was dismissed on 11 August 2008 and the
review proceedings were instituted on 20 March 2009.
6
See,
eg,
Chirwa
,
paras 142 and 150;
Gcaba
, paras 64-67 and
Tshavhungwa
, para 22.
7
P
ara
22.
8
P
ara
33.
9
P
ara
44.
10
Administrative
Law in South Africa
2 ed (2012) at 117.
11
See
Administrator, Transvaal v Traub
[1989] ZASCA 90
;
1989 (4) SA 731
(A) at
762F-H.
12
See
Traub
, n 11 above, at 762H-763J;
South African Roads Board
v Johannesburg City Council
1991 (4) SA 1
(A) at 10F-11B.
13
Steenkamp
NO v Provincial Tender Board, Eastern Cape
2007 (3) SA 121
(CC)
para 90.
14
Section
23(1) provides that ‘[e]veryone has the right to fair labour
practices’.
15
Section
185 provides:
‘
Every employee
has the right not to be–
unfairly dismissed; and
subjected to unfair
labour practices.’
16
See
Makhanya v University of Zululand
2010 (1) SA 62
(SCA) paras
11, 12 and 37.
17
See
Makhanya
above, n 16, para 18 and sections 157(1) and (2) of
the LRA, which read:
Subject to the
Constitution and section 173, and except where
this Act
provides otherwise, the Labour Court has exclusive jurisdiction in
respect of all matters that elsewhere in terms of
this Act
or in terms of any other law are to be determined by the Labour
Court.
The Labour Court has
concurrent jurisdiction with the High Court in respect of any
alleged or threatened violation of any fundamental
right entrenched
in Chapter 2 of the Constitution of the Republic of South Africa,
1996, arising from–
employment and from
labour relations;
. . . .’
18
P
aras
38 and 39.
19
At
39A-B.
20
At
539F-G.
21
See
Chirwa v Transnet Ltd
[2007] ZACC 23
;
2008 (4) SA 367
(CC) para 138.
22
Makhanya
,
above, n 16, para 18.
23
See
Naude v Fraser
[1998] ZASCA 56
;
1998
(4) SA 539
(SCA) at 558A-E and the cases there cited. See also
Alexkor Ltd v
The
Richtersveld Community
[2003] ZACC 18
;
2004 (5) SA 460
(CC) para 44.
24
Footnotes
omitted.