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[2010] ZAGPPHC 20
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Mahumani v Member of the Executive Council: Finance Economic Affairs and Tourism, Limpopo (59276/2008) [2010] ZAGPPHC 20; (2010) 31 ILJ 2009 (NGP) (19 March 2010)
IN THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
Case Number 59276/2008
Date:
19/03/2010
In the matter between:
SCHOON GOODWILL
MAHUMANI APPLICANT
and
THE
MEMBER OF THE EXECUTIVE COUNCIL:
FINANCE,
ECONOMIC AFFAIRS AND TOURISM,
LIMPOPO
RESPONDENT
JUDGMENT
Hiemstra AJ
[1] The applicant seeks the permanent
stay and/or setting aside of disciplinary proceedings instituted
against him by officials
of the Limpopo Department of Finance,
Economic Affairs and Tourism, arising from allegations relating to
the loss of rhinoceroses
at the Andover Nature Reserve during
February 2002. He further seeks an order reinstating him to the post
of manager, which he
held prior to his suspension on 4 June 2002.
[2]
The Notice of Motion has two parts, A and B: The A part is for a stay
of the disciplinary proceedings mentioned above,
pending the
finaiisation the B part. The B part is for the relief described in
paragraph [1].
[3] The applicant approached this
court on 27 January 2009 as a matter of urgency for the relief sought
in the A part. The relief
was granted. There was a further
application for amendment of the citation of the respondent, which
was aiso granted
1
.
Factual background
[4] The applicant was the Reserve
Manager at the Andover Game Park. The respondent suspended the
applicant on 4 June 2002 on full
pay pending an investigation into
allegations of theft of five rhinoceroses. On 27 June 2002 the
applicant was served with a notice
to attend a disciplinary hearing,
which set out four allegations of misconduct relating to the
disappearance of five rhinoceroses
from the Andover Nature Reserve.
The hearing was scheduled for 5 July 2002.
[5] At the commencement of the hearing
the applicant applied to be legally represented. The chairperson
dismissed this application
on the ground that the Disciplinary Code
and Procedure of the Public Service Co-ordinating Bargaining Council
(PSCBC) did not provide
for legal representation. The applicant, not
content with this ruling, brought an application to this court for
the review of the
ruling. The review application succeeded and the
court declared that the applicant was entitled to legal
representation. The respondent
appealed against this judgment to the
Supreme Court of Appeal (SCA), and on 30 November 2004 the SCA
referred the matter back to
the chairman to exercise his discretion
to allow legal representation.
2
After
reconsidering the matter, the chairperson again declined to allow
legal representation.
[6] On 13 December 2005 the respondent
uplifted the applicant's suspension. The respondent ordered him to
report to a different
workplace and allocated new responsibilities to
him until further notice.
[7]
Nothing happened until 2 February 2006 when the applicant's attorney
wrote to the respondent requesting an investigation into
the matter
as the applicant had allegedly been suffering severe prejudice
because of the pending disciplinary proceedings. It was
alleged that
the applicant had not received bonuses or pay increases; remained on
the same salary scale since 2002 and had not
been considered for
promotion or performance bonuses. The respondent alleged that he had
in fact received salary increases.
[8] Subsequently, on a date that does
not appear from the papers, the applicant was arrested and charged in
the Regional Court of
Phalaborwa with the theft of the rhinoceroses.
He was acquitted on 26 October 2006 at the close of the State's case
in terms of
s 174 if the Criminal Procedure Act.
3
[9] On 7 February 2007, despite the
applicant's acquittal, the respondent issued a further notice to the
applicant to attend a disciplinary
hearing on the same charges. The
hearing was scheduled for 21 and 23 February 2007. The hearing did
not'take place, according to
the applicant, because of correspondence
between the applicant's attorney and the respondent.
[10] On 26 April 2007 the respondent
issued a third notice to the applicant to attend a disciplinary
hearing, which was scheduled
for 10 and 11 May 2007. Prior to the
hearing the parties agreed to reschedule the hearing for 16 - 19 July
2007. It was, however,
postponed to 8 August 2007. On that date the
hearing again did not proceed because the parties had entered into
negotiations.
[11] The hearing commenced on 31 March
2008. The applicant, through his attorney, requested the chairman to
dismiss the charges
due to the delay in finalising the matter. By
that time more than six years had elapsed since the applicant had
first been charged.
The chairman declined the application and the
hearing was again postponed.
[12]
The parties again engaged in settlement negotiations for several
months, but could not resolve the issues.
[13]
On 8 December 2008 the respondent issued a fourth notice to the
applicant to attend a disciplinary hearing, this time scheduled
for
27 - 30 January 2009.
[14]
The applicant then launched this application.
Jurisdiction of this court
[15] This matter
has a distinct labour law flavour, and based on several judgments of
the Constitutional Court, the SCA and the
Labour Court, the
respondent challenged the jurisdiction of this court to hear the
matter.
4
[16] The point of departure in
determining whether this court has jurisdiction is s 169 of the
Constitution, which provides as
follows: "A High Court may
decide -
(a) any constitutional matter
except a matter that -
(b)
any other matter not assigned to another court by an Act of
Parliament."
[17]
Despite the controversy around various judgments of the
Constitutional Court,
5
the SCA
6
and Labour Court
7
,
there is consensus that the jurisdiction of a court must be
determined according to the designation of the dispute as appears
from the pleadings or affidavits, as the case may be. Langa CJ said
in para [169] of his opinion in
Chirwa
the following:
"I must stress again that this
finding does not depend on the dismissal qualifying as
'administrative action' in terms of PAJA.
The determination of
whether the dismissal does constitute administrative action is part
of the merits of the claim, not a jurisdictional
requirement. The
finding, however, rests on the case as pleaded by Ms Chirwa. She
formlated her case on the basis of PAJA, and
a court must assess its
jurisdiction in the light of the pleadings. To hold otherwise would
mean that the correctness of an assertion
determines jurisdiction, a
proposition that this court has rejected. It would also have the
absurd practical result that whether
or not the High Court has
jurisdiction will depend on the answer to a question that the court
could only consider if it had that
jurisdiction in the first place.
Such a result is obviously untenable."
[18] Skweyiya J
adopted the same approach, but reached a different conclusion to that
of the Chief Justice as to the nature of the
right which Ms Chirwa
sought to enforce. He found that Ms Chirwa's claim was that her
dismissal had not been effected in accordance
with a fair procedure,
and that it was therefore a dispute envisaged by s 192 of the Labour
Relations Act (LRA) for which special
procedures are prescribed.
8
The applicant's case
[19] In deciding this case, I shall
adopt this approach and determine exactly what the complaint of the
applicant is. He said that
the respondent has infringed the following
of his rights:
(a)
The right to be tried within a reasonable time:
(b) His right to
fair labour practices;
(c)
His right to just administrative action.
The question is whether this court has
jurisdiction to decide whether one or more of these rights have been
infringed.
[20] Before
dealing with the applicant's contention that he had been deprived of
the right to be tried within a reasonable period,
I can immediately
dispose of the questions whether his claims that his right to fair
labour practices
9
and his right to administrative action that is lawful, reasonable and
procedurally fair
1
0
have been infringed, can be sustained.
Fair labour practices
[21] This court
has no jurisdiction to decide unfair labour practices. The Commission
for Conciliation, Mediation and Arbitration
(CCMA) and bargaining
councils have jurisdiction to determine certain unfair labour
practice disputes and the Labour Court has
jurisdiction to determine
certain other unfair labour practice disputes.
1
1
[22]
Whichever forum has jurisdiction, the claim of the applicant can in
any event not be sustained in any court. In seeking to
enforce his
right to fair labour practices by way of an interdict, the applicant
is seeking to bypass the dispute procedures of
the LRA. O'Regan J
said in
SANDU v Minister of Defence &
others'
1
2
:
"Where legislation is enacted
to give effect to a constitutional right, a litigant may not bypass
that legislation and rely
directly on the Constitution without
challenging that legislation as falling short of the constitutional
standard "
[23] The LRA prescribes extensive
procedures to enforce rights in terms of that Act. The applicant has
not followed those procedures.
In any event, s 186(2) of the LRA
contains a closed list of unfair labour practices and the applicant
has made no allegations that
the employer had committed one or more
of the unfair labour practices listed in that section.
[24]
The applicant's claim based on this ground therefore cannot
succeed.
Administrative action
[25]
The applicant's reliance on a violation of his right to
administrative action that is lawful, reasonable and procedurally
fair can also not be sustained. Although this court has jurisdiction
to review any administrative action, action taken by the State
as
employer does not constitute administrative action as defined in s 1
of the Promotion of Administrative Justice Act (PAJA).
1
3
It has no external legal effect. See in this regard
Chirwa,
Gcaba, Makhanya
and several
judgments referred to.
Right to be tried within a
reasonable time
[26] Cameron JA
said in
Boxer Superstores Mthatha and
another v
Mbenya
1
4
,
referring to O/d
Mutual Life
Assurance Co SA Ltd v Gumbf
1
5
:
"that the common-law contract of
employment has been developed in accordance with the Constitution to
include the right to
a pre-dismissal hearing. This means that every
employee now has a common-law contractual claim - not merely a
statutory unfair
labour practice right - to a pre-dismissal hearing.
Contractual claims are cognisable in the High Court. The fact that
they may
also be cognisable in the Labour Court through that court's
unfair labour practice jurisdiction does not detract from the High
Court's jurisdiction."
[27]
If an employee has a common law right to pre-dismissal hearing, as is
manifestly the case, then he is entitled to a proper
one. That may
well include the right to be tried within a reasonable time.
[28] Apart from
the common law right to be tried timeously, the applicant also relied
on the provisions of the Disciplinary Code
and Procedure of the
Public Service Coordinating Bargaining Council (PSCBC), which
provides time periods within which disciplinary
action has to be
taken. The code and procedures form part of a collective agreement.
1
6
S 24 of the LRA provides procedures for the enforcement of collective
agreements by the Commission for Conciliation, Mediation
and
Arbitration (CCMA) and bargaining councils. The fact that the CCMA
and bargaining councils have been given jurisdiction to
resolve
disputes arising from the interpretation and application of
collective agreements, however, does not oust the jurisdiction
of
this court. The CCMA and bargaining councils are not courts with
status similar to a High Court, as envisaged by s 169(a)(ii)
of the
Constitution
1
7
.
They are not even courts at all.
[29] This court therefore had
jurisdiction to decide whether the applicant's right to be tried
within a reasonable time has been
infringed.
[30]
I therefore find that this court has jurisdiction to decide the
applicant's case insofar as he relies on an infringement of
his right
to a fair pre-dismissal procedure.
The merits
[31] I now turn to the merits of
the application.
[32] Although
this court has jurisdiction to intervene in uncompleted disciplinary
proceedings, the court will do so only in extraordinary
circumstances, such as where the refusal will result in a grave
injustice. In
Van Wyk v Director of
Education and another
1
8
,
and
Van
Wyk v Midrand Town Council and others
1
9
the
court found on the facts that they were of the rare cases where
intervention was justified. In other cases the courts declined
to
intervene
2
0
.
In all cases where the court intervened, the employer was bound by
statutory prescripts to follow certain procedures. Landman
J declined
to intervene in a private sector disciplinary enquiry in
Moro-pane
v Gilbeys Distillers & Vintners (Pty) Ltd & another.
2
1
The PSCBC Disciplinary Code and
Procedure are quasi statutory prescripts.
[33] The applicant's main complaint is
the delay in finalising the disciplinary proceedings. This, however
disregards the fact that
the applicant and his legal representatives
are responsible for most of the delay. When legal representation was
not allowed, they
took the matter all the way to the SCA. Thereafter
the proceedings were delayed by settlement negotiations. It is,
however, true
that there were also periods of inactivity on the part
of the respondent that have not been satisfactorily explained. The
respondent,
for instance, claimed that it could not proceed with the
disciplinary hearing pending the outcome of the criminal proceedings.
According to the answering affidavit, that was because all the
documentation had been in possession of the SAPS. This is not
entirely
convincing. No reason has been proffered why at least copies
could not have been obtained from the SAPS. There is also the delay
between the outcome of the criminal proceedings on 26 October 2006
and the reconvening of the disciplinary hearing on 7 February
2007,
which has not been explained.
[34]
My view about the delays is, however, that both parties are to be
blamed for it. not only the respondent.
[35]
The applicant seeks a permanent stay of the disciplinary proceedings
so that he can return to his old position and continue
his
employment. Mr J. de Beer, appearing for the applicant, argued that
if the applicant is dismissed by the disciplinary chairperson
after
an unfair hearing, neither the Bargaining Council nor the Labour
Court will have jurisdiction to reinstate him. He bases
this
submission on s 193(2)(d) according to which reinstatement is not
competent if the dismissal is found to be unfair only because
a fair
procedure had not been followed.
[36] This submission is sheer
casuistry. The question whether he should be reinstated depends on
whether or not he is guilty of
the charges, and not whether the
dismissal had been procedurally unfair. If it is found that he is
guilty of the charges but that
the hearing had been procedurally
unfair, he would in any event not be entitled to reinstatement. He
could in that case be compensated
within the limits prescribed by s
193 of the LRA.
[37] Mr de Beer further submitted that
the applicant had no confidence in the Bargaining Council to give him
a fair hearing, should
he wish to challenge the findings of the
disciplinary chairman. He said that this court was far more competent
to decide the matter
It goes without saying that this submission
cannot be entertained. Litigants cannot select whichever forum they
perceive to be
the most competent. They may not bypass procedures
provided for by legislation, in this case the LRA.
The requirements of a permanent
interdict
[38] The applicant seeks a final
interdict. The requirements of a final interdict are: a clear right;
an injury actually committed
or reasonably apprehended; and the
absence of similar or adequate protection by any other ordinary
remedy. This application must
fail on all these requirements:
Clear right
[39] An employer has a right to charge
an employee in a disciplinary hearing. The delay in finalising the
proceedings does not in
itself create a clear right to the relief the
applicant seeks. It all depends on the reasons for the delay. There
are disputes
of fact as far as this is concerned, and this court is
not in a position to resolve those issues.
An injury actually committed or
reasonably apprehended
[40] The applicant has not been
dismissed. He was suspended on full pay. Therefore, no injury has
actually been committed. If it
turns out that he has suffered some
financial loss, he can sue the respondent for the recovery thereof.
[41] There is also no reasonable
apprehension of harm. It is simply not reasonable to presume that the
applicant would be found
guilty or that he would get no redress if he
is wrongly dismissed.
[42] There is no
reason to apprehend injury. The applicant has the procedures of the
LRA at his disposal. Labour issues are to be
dealt with in the
specialised fora and pursued through the purpose-built mechanisms
established by the LRA.
2
2
The absence of similar or adequate
protection by any other ordinary remedy
[43] The LRA provides adequate
remedies in the event of an unfair outcome of the disciplinary
hearing.
[44]
Had the applicant allowed the process to follow its course, it would
have been finalised years ago. Instead, he needlessly
challenged the
refusal to grant him legal representation, and attempted to
interdict these proceedings. He cannot use his
own delaying tactics
as a ground for interdicting the process.
Order
[45] The application is dismissed
with costs.
J.
Hiemstra AJ
1
T
he
citation of the respondent was amended from MEC: Finance. Economic
Affairs and Tourism: Limpopo Provincial Government to Head
of
Department of Economic Development and Tourism: Limpopo Provincial
Government The reason for this amendment does not appear
anywhere in
the papers and seems to be misconceived. In terms of
section 2(2)
of
the
State Liability Act, 20 of 1957
the member of the executive
council of a province may be cited as a nominal defendant or
respondent The applicant referred throughout
his papers to officials
of the respondent as "the respondent" and I shall for the
sake of brevity use the same nomenclature.
2
*
MEC: Department of Finance. Economic Affairs & Tourism, Northern
Province v Mahumani
(2004)
25 ILJ 2311 (SCA)
3
51
of 1977
4
Chirwa
v Transnet Ltd & others
(2008)
29 ILJ 73 (CCJ;
Fredericks
& others v MEC for Education & Training, Eastern Cape &
others
[2001] ZACC 6
;
2002
(2) SA 693
(CC); (2002) 23 ILJ 81 (CC): Gcaba
v
Minister for Safety and
Security
and Others
2010
(1) SA 238
(CC);
Makhanya
v University of Zululand
2010
(1) SA62 (SCA):
Boxer
Superstores Mthatha and Another v Mbenya
2007
(5) SA 450
(SCA);
Booysen
v SAPS
<5
another
(2009)
30 ILJ (LC);
Mohlaka
v Minister of Finance & others
(2009)
30 ILJ 622 (LC) and others.
5
Chriwa,
supra; Gcaoa, supra;
Fredericks
v MEC for Education and Training, Eastern Cape and others
supra
6
Makhanya
v University ofZululand
supra;
Boxer
Superstores Mthatha and Another v Mbenya
supra
7
Booysen
v SAPS & another
(2009)
30 ILJ (LC);
Mohlaka
v Minister of Finance &
otters
supra
8
At
387 para [S3]
9
S
23 of the Constitution
0
0
S
33 of the Constitution
1
1
S
191 of the LRA
2
2
2007
(5) SA 400
(CC) at para 51
3
3
3
of 2000
4
4
2007
(5) SA450 (SCA)
5
5
007]
SCA 52 (RSA) in paras [5] - [8], per Jafta JA
6
6
PSCBC
Resolution 1 of 2003
7
7
Fredericks
v MEC for Education and Training. Eastern Cape, and Others
[2001] ZACC 6
;
2002
(2) SA 693
(CC) paragraph [35] at 711E/F - F
8
8
1974
(1) SA 396
(N)
9
9
1991
(4) SA 185
(W)
0
0
Wahlhaus
& Others v Additional Magistrate, Johannesburg
<S
Another
1959
(3) SA 113
(A); /sma/7
&
Others v Additional Magistrate, Wynberg & Another
1963
(1) SA 1
(A
1
1
Supra
footnote 17
2
2
Gcaba
at
251 para [29]