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[2010] ZAGPPHC 211
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Nkosi v Pan African Language Board and Others (74720/09) [2010] ZAGPPHC 211 (2 December 2010)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(
NORTH GAUTENG HIGH COURT, PRETORIA)
CASE
NUMBER: 74720/09
DATE:
02/12/2010
In
the matter between
NTOMBENHLE
ROSEMARY
NKOSI
...................................................
Applicant
And
THE
PAN AFRICAN LANGUAGE
BOARD
.........................................
1st
RESPONDENT
PROF
S
NGUBANE
...............................................................................
2nd
RESPONDENT
PROF
Z T
MOTSA
.................................................................................
3rd
RESPONDENT
ADV
M MDLUDLU
…...........................................................................
4
th
RESPONDENT
PROF
A
LOTREIT
.................................................................................
5th
RESPONDENT
M
F
SADIKI
...........................................................................................
6th
RESPONDENT
G
T J
GUMEDE
....................................................................................
7th
RESPONDENT
P
S
SOBAHLE
.....................................................................................
8th
RESPONDENT
B
E
DRUCHEN
....................................................................................
9th
RESPONDENT
DR
E
MALETE
....................................................................................
10
th
RESPONDENT
PROF
M
MOJALEFA
.........................................................................
11
th
RESPONDENT
DR
M
YOYO
.........................................................................................
12
th
RESPONDENT
MINISTER
OF ARTS AND CULTURE
..............................................
13
th
RESPONDENT
JUDGMENT
TLHAPI
J
[1]
This is an application seeking the following relief:
"(a)
Declaring that the Board is/was not properly constituted in terms
of section 5(7) and section 6 of the Act when it
took the purported
decision to suspend the applicant.
(b)
Reviewing and setting aside the purported decision of the Board to
suspend the applicant.
(c)
Interdicting the Board from proceeding with the intended disciplinary
action against the applicant.
(d)
Uplifting the suspension of the applicant with immediate effect.
(e)
Costs of the application."
[2]
The application was opposed by the respondents. No confirmatory
affidavits in
respect
of the 3rd to the 12th respondents were attached to the answering
affidavit of the second respondent despite the latter
purporting to
depose on their behalf The matter was set down by the applicant on
the 30 March 2010 for hearing on the opposed roll
of the 8 November
2010. No practice note or heads of argument were filed on behalf of
the applicant. On the morning of the 8 November
2010 I was approached
by counsel for the applicant and counsels for the first to the
twelfth and the thirteenth respondents for
the matter to stand down
to 11H30 because the parties were engaged in discussions. When the
matter resumed counsel for the applicant
was absent and after two
adjournments I was informed that the said counsel had indicated that
he had not been properly briefed
to attend to the matter, the
applicant and her attorneys having approached him only on Friday the
5 November 2010.
Mr
Sambo, an attorney on behalf of the applicant was present and he
applied for a postponement of the matter. This was opposed by
the
respondents and I ruled that the matter be proceeded with. Mr Sambo
made representations on behalf of the applicant on the
issues raised
in the application.
[3]
The applicant was appointed on a fixed term contract as chief
executive officer of the first respondent. The contract was
to run
from 5 March 2007 to the 4 March 2012. A precautionary suspension of
the applicant was issued, (pending the outcome and
report of a
forensic investigation) on the 20 February 2009. On the 11 September
2009 the suspension was extended until the finalization
of the
disciplinary enquiry This application was launched on the 4 December
2009.
The
applicant contended that:
3.1
the current board was appointed in 2008 and that its first Board
Meeting, held on the 10 June 2008, was not presided over by
the Chief
Justice as stipulated in section 6(1) of Act 59 of 1995.(the Pan
African Language Board Act, hereinafter referred to
as the 'Act') but
by Dr Jokweni, the Chief Director National Language Services, Arts
and Culture,
3.2
The Board was inaugurated on the 10 June 2008. before the names of
the Board members were gazetted in terms of section 5(7)
of the Act,
that the members were not sworn into office by the Chief Justice as
contemplated by the Act. therefore the Board was
not properly
constituted under the Act, and that the Board conceded such fact in
its minutes dated the 19 and 20 February 2009
3.3
that on the 18 December 2008 the Board adopted a moratorium on inter
alia all suspensions, which moratorium would have expired
in June
2009
furthermore
that the Board acted ultra vires as discipline was a line function
and administrative in nature and in terms of the
Act, administrative
functions of the Board fell under her control; She was suspended for
suspending Advocate Feni, a senior legal
advisor.
3.4
if the adoption of such moratorium was valid, it was still in force
when she was suspended
3.5
that the Board had no power to suspend or to institute disciplinary
action against her in that it had acted ultra vires
[4]
The second respondent contended that:
4.1
the matter related to an unfair labour practice, that this court did
not have the required jurisdiction to adjudicate, because
the
applicant was obliged in terms of the Labour Relations Act 66 of
1995. to the refer the dispute to the CCMA or relevant Bargaining
Council.
4.2
that this application was bad in law in that the applicant had failed
to comply with the provisions of rule 53 of the Rule of
Court and
that no good cause existed for such non-compliance.
4.3
that the application lacked material facts and grounds to sustain a
judicial review and that it was not clear from the application
whether the review was instituted in terms of the Promotion of
Administrative Justice Act No.3 of 2000 (PAJA) or in terms of section
158 (1) (g) of the Labour Relations Act or the common law;
4.4
that applicant had inordinately delayed the launch of this
application:
4.5
that as and when this application was launched the applicant had
already referred the dispute to the CCMA and that the matter
was
settled on the basis
that
the applicant would remain suspended with full remuneration until the
disciplinary hearing had been concluded and. that the
issue of the
extension of applicants suspension had also been adjudicated upon by
the Labour Court: furthermore that the dispute
before the CCMA and
the Labour Court was based on the same cause of action and applicant
sought the same relief she was claiming
in those matters, in this
application.
[5]
The issues to be determined are that of (a) the legality of the
Board when the decision to suspend was taken and (b) that
the
decision to suspend be reviewed and the disciplinary action against
the applicant be interdicted.
Legality
of the Board
1.
section 5 (1) (a) of the Act provides:
'
The Minister after having followed the procedure provided for in
subsection (3) shall appoint no fewer than 11 and no more than
15
persons as members of the Board
2.
Section 5 (1) (b) of the Act provides:
The
chief executive officer shall be a member of the Board by virtue of
his or her office.
The
provisions of section 5(1) (a) are peremptory; all members of the
Board except for the chief executive officer are appointed
in
accordance with the procedure section 5 (3) of the Act which provides
that:
(a)
the Minister in conjunction with the Portfolio Committee appoints an
ad hoc committee responsible for inviting nominations from
the public
(b)
the Portfolio Committee in a consensus seeking manner with the ad hoc
committee shall shortlist and cause the individuals so
shortlisted to
be interviewed in a public and transparent manner
(c)
a final shortlist be presented to the Minister who in consultation
with the Portfolio Committee appoints members of the Board;
in terms
of section 5(5) of the Act a member shall be appointed for a term of
five years and; on the expiration of the terms be
eligible for
appointment for another term only: if the office becomes vacant
before expiration of the term another person may be
appointed subject
to the provisions of section 5 (1) (a) of the Act
3.
Section 5 (7) of the Act provides for the publication by the
Minister of the appointment of a member of the Board in the Gazette
by stating the date of appointment and in the case of a member
appointed to fill a vacancy on the Board also state the term of
office.
4.
Section 6 (1) of the Act provides that the Chief Justice shall
preside at the first meeting of the Board and that at such meeting
members of the Board are to elect one of their number to be
chairperson of the Board and another one to be deputy chairperson.
5.
Section 6 (2) of the Act provides that the first chairperson and
first deputy chair person shall hold office for a term of not
more
than two years after which an election shall be held annually.
6.
Section 6 (5) of the Act provides for the election of a new
chairperson or deputy chairperson in circumstances where such offices
have become vacant as occasioned by circumstances as provided for in
section 6(4) (a) to (e); the function for the election a new
chairperson and the process are conducted by the chief executive
officer 8 Section 10(1) and 10 (1) (a) of the Act provides that
the
Board shall at its first meeting or as soon as is practicable
thereafter appoint a chief executive officer who, in consultation
with the Minister appoint such staff necessary to assist with the
functions of the Board, and the chief executive officer is appointed
by the Board in accordance with the regulations made Minister in
terms of section 10(7) of the Act.
[6]
It was contended by the thirteenth respondent that the meeting
of the 10 June 2008 was the Board's 58th meeting and not
it's first
as averred by the applicant. Having regard to the above provisions,
the founding affidavit as at paragraph 12 , the
thirteenth
respondent's answering affidavit as at paragraph 18.1 and the
applicant's reply thereto, I find sufficient confirmation
that the
meeting of the 10 June 2008 was not the first respondent's first
Board meeting as envisaged by the Act. The applicant
does not dispute
the fact that the first respondent had been in existence since the
Act came into operation. In fact it had been
so for at least twelve
years before the applicant's appointment as chief executive officer.
The applicant does not explain what
prevailed before the meeting of
the 10 June 2008 regarding the situation of the Board and its
members. She had been in her position
since March 2007. She was only
suspended during February 2009. Having regard to the Act and the
purpose for which the first respondent
was established, the applicant
and the first respondent could only have fulfilled the functions for
which the first respondent
was established with the existence of the
Board. In order for me to find in favour of the applicant in respect
of the first prayer
I would have to find that the Board had not been
properly constituted since the 10 June 2008. This would result in the
absurd situation
of nullifying all the functions of the Board
including those of the applicant since that time. I am of the view
that this is not
what was intended by the applicant as gleanea from
this application and from the urgent application which was heard by
the Labour
Court after the suspension was extended (which application
was dismissed with costs). I am therefore not satisfied that the
applicant
has made out a case to support a finding that the Board had
not been properly constituted when a decision to suspend her was
taken.
Reviewing
and setting aside the decision to suspend
[7]
After the first letter of suspension was issued, applicant
referred a dispute of an unfair labour practice to the CCMA.
According to the Certificate of Outcome, annexure '1' the dispute
remained unresolved as at 2 April 2009 and the dispute was referred
to arbitration Thereafter and on the 8 June 2009, a settlement was
reached and this was followed by an application to the Labour
Court
in order to make the said settlement an award in terms of
section
142A
of the
Labour Relations Act 66of 1995
. The applicant does not
state whether this application was proceeded with, or abandoned or
what the outcome of the application
to the Labour Court was. It is
not clear whether the applicant re-referred the same dispute and why
this very same dispute was
placed on the arbitration roll of the CCMA
before it was truck off on the 21 August 2009 On the 11 September
2009 the suspension
was extended. The applicant approached the Labour
Court on an urgent basis and applicant sought the following relief
;'(a)
Declaring the extension of the suspension of the Applicant by the
Respondent
as
unlawful and unfair, (b) Declaring the extension of the suspension
of the Applicant by the Respondent to be substantively
and/or
procedurally unfair/'
[8]
Having regard to the founding affidavit, and as submitted on
behalf of the second and thirteenth respondents it is not
clear on
what basis the applicant deems this court to have jurisdiction to
review and set aside her suspension, for example, she
has not
demonstrated that the suspension constituted administrative action
and that it was determinable under PAJA and therefore
reviewable by
this court; she has not made out a case to show that the matter was
reviewable under the common law. It was evident
from her conduct
since suspension that she considered the dispute regarding her
suspension to be determinable under the LRA. She
also entered into a
settlement agreement as contemplated in the LRA. The precautionary
suspension and the extension of such suspension
being intertwined,
the suspensions cannot be adjudicated separately. In both instances
and as demonstrated above, applicant challenged
the procedural and
substantive fairness of her suspension by availing herself to the
dispute resolution procedures under the LRA.
Furthermore, the
applicant has not advanced reasons why the urgent application before
the Labour Court was dismissed with costs.
[9]
In Gcaba v Minister for Safety and Security and Others
2010 (1)
SA 238
(CC) at paragraph 75 Van Der Westhuizen J states:
"
In the event of the Court's jurisdiction being challenged at the
outset (in limine), the applicant s pleadings are the determining
factor They contain the legal basis of the claim under which the
applicant has chosen to invoke the court's competence. While the
pleadings-including in motion proceedings, not only the formal
terminology of the notice of motion, but also the contents of the
supporting affidavits-must be interpreted to establish what the legal
basis of the applicant's claim is......If however the pleadings
properly interpreted, establish that the applicant is asserting a
claim under the LRA, one that is to be determined exclusively
by the
Labour Court, the High Court would lack jurisdiction."
[10]
In my view, the thrust of applicant's complaint was rooted in the
alleged 'violation to the right to fair labour practices',
it being
the suspension and what the applicant believed to be an unreasonable
time frame within which the disciplinary action taken
against her was
expected to be finalised. In Gcaba supra the approach to be adopted
by this court was settled and at paragraph
70 it is stated: "
Section
157(1)
confirms that the Labour Court has exclusive jurisdiction over
any matter that the LRA prescribes should be determined by it."
The
LRA charts the process to be followed until such time that a dispute
is adjudicated by the Labour Court and this is so even
where an
unfair labour practice is alleged. I therefore conclude that the
applicant has failed to make out a case for the review
and setting
aside of her suspension.
[11]
In the premises the following order is made:
“
application
is dismissed with costs”
TLHAPI
V V
(JUDGE
OF THE HIGH COURT)
ATTORNEYS
FOR THE APPLICANTS : SAMBO-MLAHLEKI ATTORNEYS ATTORNEYS FOR "HE
RESPONDENT : MKETSU & ASSOCIATES INC