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[2011] ZAGPPHC 55
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Ngubane v Department of Co-operate Governance and Traditional Affairs and Another (35784/2010) [2011] ZAGPPHC 55; (2011) 32 ILJ 1881 (GNP) (7 April 2011)
NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT
(REPUBLIC
OF SOUTH AFRICA)
CASE
NO.: 35784/2010
DATE:
07/04/2011
In
the matter between:
SAMUKELO
NGUBANE
...............................................................................................
Applicant
V
THE
DEPARTMENT OF CO-OPERATE GOVERNANCE
AND
TRADITIONAL
AFFAIRS
.........................................................................
First
Respondent
THE
CHAIRPERSON OF THE DISCIPLINARY
HEARING
MR MPHO
MAKORO
................................................................
Second
Respondent
JUDGMENT
WEBSTER
J
1.
On 24 March, 2011, I confirmed an interim order granted by Tolmay J
with costs. I undertook to provide my reasons therefor in
due course.
Such reasons are set out below.
2.
This is the return date of a rule nisi.
3.
The applicant, an employee of the first respondent was summoned to
appear before a disciplinary committee of the first respondent
on 28
June, 2010. It appears from the papers that this was not his first
appearance, the matter having been postponed on three
(3) previous
occasions viz., 24, 25 and 26 March 2010 when he had been represented
by an Attorney. The matter was further postponed
to 8, 9 and 10 May,
2010. The disciplinary committee ultimately reconvened on 8 June,
2010: the matter was, however, again postponed
to 28 and 29 June,
2010.
4.
On 28 June, 2010, senior counsel representing the applicant moved for
a further postponement of the proceedings as the applicant
intended
to pursue the appeal process provided for in
section 74
of the
Promotion of Access to Information Act 2 of 2000
. The application was
refused but postponed to the next day. The applicant moved this
application on 28 June, 2010, for urgent relief
in the following
terms:
"
1. That a rule nisi be issued returnable on 3 August, 2010 at l0h00
where the respondents are called upon to appear and show
cause why an
order should not be granted in the following terms:
1.1
That the order made by the Second Respondent on Monday 28 June 2010
in the disciplinary hearing of the applicant, to the effect
that the
postponement sought by the applicant be refused and the proceedings
against him would re-commence on Tuesday 29 June 2010
at 09h00 be
reviewed and set aside.
1.2
That the disciplinary proceedings set down for 29 June 2010 at 09h00
be postponed sine die pending the outcome of the applicants
appeal in
terms of the
Promotion of Access to Information Act no 2 of2000
and
any other application that he may be advised to bring pursuant
thereto.
1.3
That the first respondent be ordered to pay the costs occasioned by
the postponement jointly with the second respondent insofar
as the
second respondent may oppose this application."
5.
The court has been advised by both counsel that the return date was
extended to today.
6.
The applicant avers that after the previous postponements he was
informed on 1 March, 2010 of the date of hearing of the matter.
This
was shortly after about 900 pages of documents were provided to him a
few days before the 28th June 2010. Various problems
arose from the
contents of the documents. Documents purported to have been written
by the same author differed; the signature of
the author appeared to
have been forged, a certain report was defective and incomplete, many
of the documents were either computer-generated
and bore no
signatures or they were signed by some person but not the applicant.
It has been further averred that the 900 pages
"...were a
nightmare to go through" for various reasons.
7.
The applicant deals further with the documents namely Annexures
"SN14" and nSN16". Both purport to be one and
the same
letter. The second page, of "SN16", however, differs
radically from that in WSN14". In "SN16"
an entire
paragraph itemising "Current projects already underway are as
follows" are omitted. The signatures on the two
letters differ
materially even to an untrained eye.
8
. The issue of the above documents was raised when the postponement
was sought. The second respondent, in his ruling, did not
allude to
them.
9.
The respondent raised the points in limine, namely (i) that the
application is now of academic interest, the respondent having
responded to the applicant's appeal in terms of PAJA; (ii) the
respondent having "furnished and made available all the relevant
documents in its possession and/or control which the applicant
requires for the purpose of the disciplinary enquiry"; and
(iii)
the application having "...been overtaken by material events".
10.
With regards to the merits, the respondent's case is that the
applicant failed to make out a case for the relief sought. When
the
matter was called up in court the respondent's counsel sought leave
to hand up what was termed supplementary heads of argument.
These
heads introduced a new angle, if I may so refer to them, to the issue
viz. that the "...order to grant or refuse a postponement
has no
external legal effect towards the applicant's rights during the
disciplinary hearing and as such, is not an administrative
action
subject to review under PAJA in the High Court.
11.
In the light of the view I take in this matter it will not be
necessary to examine and comment on each of the issues raised
in this
matter. It was common cause that there was no "summons" for
the lack of a better word, ever placed before the
Chairperson of the
disciplinary hearing at any stage of the proceedings. It was further
common cause that documents were pivotal
to the enquiry. What has
already been alluded to with regard to Annexures "SN14" and
"SN16" and especially
their glaring inconsistencies and the
contradiction that there were no further documents in the
respondent's possession and yet
a vast volume of documents were
subsequently delivered to the applicant subsequently were
sufficiently serious to cause great apprehension
in the applicant's
mind with regard to the fairness of the proposed proceedings.
12.
Annexures "SN14" and "SN16", by way of
illustration, would, in all probability, require evidence on (i)
the
authenticity of signatures thereto; (ii) the identity or identities
of the signatures; (iii) an explanation as to the incorporation
or
omission of information in one of the two letters. The observation or
ruling by the Chairperson that no documents that had not
been
discovered could be used or relied upon in the proceedings, could
have been of little or no comfort to the applicant as the
probability
that some of those documents not discovered may be vital in
presenting the respondent's case or refuting allegations
made against
him. Further, the production of a large volume of documents when it
had been alleged that none were available goes
to the core of the
appeal contemplated or already lodged by the applicant in terms of
PAJA.
13.
With regard to the points raised in limine, my views are as follows:
(I)
the applicant states clearly in his replying affidavit that "...until
such time as I have exhausted all my remedies, or
the first
respondent has finally decided to comply with the
relevant notices
to produce documents, the disciplinary hearing cannot proceed
(Paragraph 8.2 at page 231);
(ii)
the applicant further avers that he has instructed his attorneys to
institute the proceedings to stay the disciplinary inquiry;
and
consequently that there is no purpose in setting down the
disciplinary hearing until the said stay of proceedings has been
adjudicated upon and finalised.
14.I
am in agreement with what has been stated above. The applicant is
entitled to a hearing that is both procedurally and substantively
fair. That is a fundamental principle of PAJA.
15.
The respondent's submission that the applicant failed to make out a
case for the relief sought is based on the allegation that"...
a
party is not entitled to review a decision merely because such a
decision is not in such party's favour. I submit that there
should be
factual and legal basis upon which such a review is premised in order
to entitle a party such as the applicant [to] the
relief it seeks"
(Page 82 Paragraph 11). The answer to this is short: "(R)ules
are not an end in themselves to be observed
for their own sake. They
are provided to secure the inexpensive and expeditious completion of
litigation before the courts"
(Per van Winsen AJA in Federated
Trust Ltd v Botha 1978(3) SA 645 (A) at 654 C - D). It is
preposterous to argue that the applicant
should have proceeded with
the disciplinary inquiry and, if aggrieved at the conclusion thereof,
to raise all such points as he
has done thus far.
16.
I turn now to consider the "Supplementary Heads of Argument".
The fundamental point made in the argument is that this
matter falls
under the provisions of the Labour Relations Act and therefore the
court having sole jurisdiction in the matter is
the Labour Court in
terms of the provisions of section 157 of Act 66 of 1995. Whatever
the argument was intended in regard to this
point I can find nothing
in the papers to suggest that "If, however, the pleadings,
properly interpreted, establish that the
applicant is asserting a
claim under the Labour Relations Act, one that is to be determined
exclusively by the Labour Court, the
High Court would lack
jurisdiction" (Gcaba v Minister of Safety and Security 2010(1)
SA 238 at 263F). Respondent's counsel,
when invited to take the court
to the source for the basis of the submission was unable to do so.
17.
The second point is whether a proper case for the reviewing and
setting aside of the second respondent has been made. The applicant
has disclosed in that he has instructed those representing him to
pursue this - hence the order by Tolmay J. It will be premature
in my
view to comment on the merits of the appeal in terms of PAJA as set
out in paragraph 1.2 of the order referred to above.
18.The
issues in this matter were sufficiently serious for both parties to
make use of senior counsel. Whilst the matter is not
particularly
complex it is my considered view that the use of silk was justified.
19.It
is accordingly ordered that the costs of a silk be allowed.
G.
WEBSTER
JUDGE
IN THE HIGH COUR
Date
of hearing : 18 March 2010
Counsel
for the Applicant : Adv B Neukircher SC
Counsel
for the Respondents : Adv L Nkosi Thomas SC
Adv
N Manaka