About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2023
>>
[2023] ZAFSHC 365
|
|
Seruoe v Speaker, Free State Provincial Legislature and Other (3952/2022) [2023] ZAFSHC 365 (21 September 2023)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 3952/2022
Reportable: YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
MAROELE
SAMUEL SERUOE
Applicant
And
THE
SPEAKER, FREE STATE PROVINCIAL
First
Respondent
LEGISLATURE
M.
NGCOSANE
Second
Respondent
THE
SECRETARY, FREE STATE PROVINCIAL
Third
Respondent
LEGISLATURE
D.S.
QWELANE
Fourth
Respondent
CORAM:
MHLAMBI, J
et
DANISO, J
JUDGMENT
BY:
DANISO, J
HEARD
ON:
17 JULY 2023
DELIVERED
ON:
21 SEPTEMBER 2023
[1]
The applicant, launched these review proceedings as an employee of
the Free State
Legislature pursuant to disciplinary proceedings
instituted against him in his capacity as a director in the Strategy
and Risk
Management division for various acts of misconduct including
dishonesty, insolence and bringing his office into disrepute.
[2]
The review is predicated on the provisions of section 6(2)(b),
6(2)(f)(i) alternatively
section 6(2)(i)
of the
Promotion of
Administrative Justice Act 3 of 2000
(“PAJA”) and it is
directed at the decision of the first respondent (“the
Speaker”) and/or the third respondent
(“the Secretary”)
in terms of which the second and fourth respondents were respectively
appointed as chairperson and
initiator (“the disciplinary
panel”) of the applicant’s disciplinary inquiry in terms
of
section 4.1.
(c) of the first respondent’s Disciplinary
Policy and Procedure (“the Disciplinary Policy”).
[1]
[3]
Aggrieved by the appointment of the disciplinary panel, the applicant
launched an urgent application
in the labour court to stay the
disciplinary inquiry pending the outcome of the review application to
review and set aside the
impugned decision. The applicant was
ultimately dismissed.
[4]
It is the applicant’s contention that the impugned decision is
unlawful in that it was made
in contravention of
section 44
of the
Financial Management of Parliament and Provincial Legislatures Act
(“The Act”)
[2]
which
prohibits the Speaker as a member of parliament from being involved
in the process of procurement of goods and services from
external
service providers and without complying with the required procurement
processes as envisaged in Regulation 6 (11) (f)(ii)(aa)
of the Act as
no bidding processes were undertaken to ensure a fair, transparent
and cost effective appointment. The applicant
also seeks a
declaratory order that section 4.1(c) the Disciplinary Policy is
unlawful and invalid on the basis that it contradicts
the provisions
of section 44 of the Act.
[5]
On the other side, the respondent seeks the dismissal of the
application on
limine
grounds and on the merits. According to
the respondents, the applicant has not complied with the provisions
of section 5 and 7 (2)(a)
of PAJA by failing to lodge his application
and request reasons within ninety (90) days from the date on which he
became aware
of the impugned decision, he has also failed to exhaust
the internal remedies and the decision complained about is not an
administrative
action but a labour dispute which is actually pending
in the labour court thus not reviewable in terms of PAJA. The
applicant is
simply forum shopping in an attempt to re-litigate an
issue which must be finalized in the labour court.
[6]
With regard to the merits, the contention is that section 4(1)(c) of
the Disciplinary Policy clearly
states that it is the Secretary who
takes the decision to appoint a disciplinary panel, the role of the
Speaker is to approve the
appointment. The respondents state that
there is no conflict between section 4.1. (c) of the Disciplinary
Policy and section 44
of the Act, reason being that section 4.1. (c)
of the Disciplinary Policy deals with the employer’s
disciplinary code whilst
section 44 pertains to procurement of goods
and services through tender processes.
[7]
The applicant countered that there is no merit to the respondents’
in limine
objections. According to the applicant, he was not
obliged to request reasons because the reasons for the impugned
decision are
known. Regarding the alleged failure to exhaust all
internal remedies, it is the applicant’s case that he did apply
for the
recusal of the second respondent from the disciplinary
inquiry but his application was dismissed. No other internal remedies
were
available and the respondents have also not pointed out which
are those internal remedies the applicant ought to have exhausted;
furthermore, the impugned decision constitutes an administrative
action susceptible to review as the labour court has no jurisdiction
to determine the lawfulness of the decision to appoint a disciplinary
panel and the validity of its empowering provision.
[8]
I am in agreement with the applicant’s contentions. The
respondents’ reliance on section
5 of PAJA in substantiation of
its argument that the application is time barred is unsound as
section 5 of PAJA has nothing to
do with the late lodgement of review
proceedings. It essentially deals with an applicant’s right to
request reasons for the
impugned decision. The relevant subsection
states thus:
“
(1)
Any person whose rights have been materially and adversely affected
by administrative action
and who has not been given reasons for the
action may, within 90 days after the date on which that person became
aware of the action
or might reasonably have been expected to have
become aware of the action, request that the administrator concerned
furnish written
reasons for the action.”
(2)
The administrator to whom the request is made must, within 90 days
after receiving
the request, give that person adequate reasons in
writing for the administrative action.”
[9]
Furthermore, as correctly pointed out by the applicant, the
provisions of section 5 (1) are amenable
therefore requesting reasons
for the impugned decision is not a pre-requisite for judicial review
proceedings.
[10]
Much as section 7 (2) (a) directs that:
“
...no
court or tribunal shall review an administrative action in terms of
this Act unless any internal remedy provided for in any
other law has
first been exhausted.”
It
has been pointed out by the Constitutional Court in
Koyabe
and Others v Minister for Home Affairs and Others (Lawyers For Human
Rights as Amicus Curiae)
[3]
that the requirement to exhaust internal remedies is not an absolute
hindrance from approaching the court. The court may
condone the
non-exhaustion taking into consideration the facts of the matter, the
nature of administrative action at issue, the
availability,
effectiveness and adequacy of those internal remedies. It is for
the respondents to adduce those facts in this
matter, the respondents
have simply fleetingly averred that the applicant has not exhausted
internal remedies without stating which
internal remedies were
available to the applicant for the resolution of the dispute between
the parties.
[11]
Regarding the applicability of PAJA, section 1 of PAJA describes an
administrative action as:
“
any
decision taken, or any failure to take a decision, by-
(a)
an organ of state when-
(i)
exercising a power in terms of the
Constitution or a provincial constitution; or
(ii)
exercising a public power or performing
a public function in terms of any legislation...”
[12] It
is indisputable that the first respondent as the legislative
authority of the government is an organ of
state as contemplated in
section 239 of the Constitution.
[4]
The applicant challenges the validity of the empowering provision
including the decision making
process
which culminated in the appointment of the disciplinary panel which
conducted his disciplinary hearing. These grounds are provided
for in
section 6 (2) (b), 6 (2) (f) (i) and 6 (2) (i) of PAJA which
respectively provide that: a court or tribunal has the power
to
judicially review an administrative action if the administrator who
took it was not authorised to do so by the empowering provision
or if
a mandatory and material procedure or condition prescribed by an
empowering provision was not complied with or the action
itself
contravenes a law or is not authorised by the empowering provision.
Based on these reasons, I hold that the applicant is
in the correct
forum.
[13]
With regard to the merits of the application, I am not persuaded that
there is a conflict between section
4.1. (c) of the Disciplinary
Policy and section 44 of the Act. The relevant part of the
Disciplinary Policy provides:
“
The
Secretary to the Legislature may, in consultation with the Speaker,
appoint a Disciplinary Panel comprising of persons not in
the
employment of the Free State Legislature to hear disciplinary charges
brought against an employee.”
[14]
Section 44 of the Act bars members of parliament from serving on
tender committees. It provides:
“
No Member of
Parliament may-
(a)
be a member of a committee evaluating or approving tenders,
quotations, contracts or other bids for Parliament;
(b)
attend any meeting of such committee as an observer; or
(c)
participate in any other way in evaluating or approving
tenders, quotations, contracts or other bids for Parliament.”
[15]
It is trite that when interpreting legislation, the point of
departure is the provision itself, read in context
and having regard
to the purpose of the provision.
[5]
These are two distinct empowering provisions, section 4.1. (c) of the
Disciplinary Policy arises from an employer’s disciplinary
code
germane to a contract of employment. It serves to harmonize the
rights of an employer due to work performance from an employee
and to
protect an employee from arbitrary actions by setting out a guideline
concerning what constitutes acts of misconduct, the
disciplinary
procedures, the appointment of the disciplinary panel including the
related sanctions. The regulatory body is the
Labour Relations
Act,
[6]
whereas section 44 of
the Act regulates an organ of state’s financial management to
ensure a transparent, cost effective
and competitive tender process
relating to procurement of goods and services as envisaged in section
217 of the Constitution
[7]
and
the Act.
[16]
In view of the afore-going, I am unable to find any inconsistency
between section 4.1. (c) of the Disciplinary
Policy and section 44 of
the Act warranting an order to review and set aside the decision in
terms of which the disciplinary panel
of the applicant’s
erstwhile disciplinary inquiry was appointed including a declarator
invalidating the provision of section
4.1. (c) of the Disciplinary
Policy.
[17]
In the circumstances, the application fails.
I can find no
reason why costs should not follow the result.
[18]
The following
order is made:
ORDER
(1)
The application is dismissed.
(2)
The applicant shall pay the costs.
NS
DANISO, J
I
concur.
JJ
MHLAMBI, J
APPEARANCES:
Counsel
on behalf of Applicant:
Adv.
T. du Preez
Instructed
by:
Kramer
Weihmann INC.
BLOEMFONTEIN
Counsel
on behalf of Respondents:
Adv.
S. Motloung
Instructed
by:
Qwelane
Theron & van Niekerk
BLOEMFONTEIN
[1]
The copy of the Disciplinary Policy and Procedure is attached on the
applicant’s founding affidavit as Annexure “MSS2”.
[2]
Act
No, 10 of 2009.
[3]
2010
(4) SA
327
(CC) at 328I to 329A.
[4]
Act No, 108 of 1996.
[5]
Natal
Joint Municipal Pension Fund v Endumeni Municipality
[2012]
ZASCA
13
;
2012
(4) SA 593
(SCA) para 18.
[6]
Act No, 66 of 1995, schedule 8.
[7]
Section
217 provides that:
“
(1)
When an organ of state in the national, provincial or local sphere
of government, or any other institution identified in national
legislation, contracts for goods or services, it must do so in
accordance with the system which is fair, equitable, transparent,
competitive and cost effective.
(2)
Subsection (1) does not prevent the organs of state or institutions
referred to in that subsection from implementing a procurement
policy providing for - (a) categories of preference in the
allocation of contracts; and (b) the protection or advancement of
persons, or categories of persons, disadvantaged by unfair
discrimination.
(3)
National legislation must prescribe a framework within which the
policy referred to in subsection (2) must be implemented.”