Brief Summary

Administrative Law — Procedural fairness — Suspension of employees — Applicants, employed in the office of the Premier of KwaZulu-Natal, challenged their precautionary suspension and the findings of a forensic report, alleging lack of procedural fairness and violation of the audi alteram partem rule. They contended that they were not informed of the reasons for their suspension and that the extension of their suspension was unlawful. Respondents argued that the disciplinary process was ongoing and that the applicants had abandoned their claims. The court held that the applicants' suspension was lawful and that the procedural requirements were met, thus dismissing the application for review of the suspension and the forensic report.

Comprehensive Summary

Summary of Judgment

1. Introduction

This matter concerned an application in the KwaZulu-Natal Division of the High Court, Pietermaritzburg, in which two public servants sought judicial relief in relation to their precautionary suspensions and the status and consequences of a forensic investigation report.

The applicants were Ziphathe Mboneni Cibane (first applicant), who had been employed as Chief Financial Officer in the Office of the Premier of KwaZulu-Natal, and Nonhlanhla Pamela Hlongwa (second applicant), who had been employed as Senior Manager: Supply Chain Management in the same office. The principal respondents were the Premier of the Province of KwaZulu-Natal (first respondent) and the Director-General of the Office of the Premier (second respondent). Additional respondents included the MEC for Finance: KwaZulu-Natal (third respondent), Integrity Forensic Solutions (fourth respondent, the forensic investigator), the Deputy Director-General of the KwaZulu-Natal Treasury (Head of Investigation) (fifth respondent), and Advocate Joe Nxusani SC N.O. (sixth respondent).

The applicants were suspended on 17 January 2020, with the suspension later extended. They approached the High Court seeking, in substance, the review and setting aside of both the suspension decisions and the forensic report (and “adverse findings” within it). The application was opposed by the first and second respondents and also by the third, fourth, and fifth respondents. A separate interlocutory application to strike out portions of the applicants’ replying affidavit was brought by the fourth respondent under Rule 6(15), and was dealt with as part of the overall proceedings.

The dispute concerned whether the applicants could obtain High Court review relief in circumstances where labour processes were already underway, and whether the forensic report (and reliance on it) constituted reviewable administrative action or otherwise attracted procedural fairness requirements at the investigation stage.

2. Material Facts

It was common cause that both applicants were employed in the Office of the Premier and that they were placed on precautionary suspension in January 2020. The suspension was extended in March 2020. The applicants contended that they had not been afforded sufficient information and/or an opportunity to be heard prior to suspension, and further contended that the suspension exceeded the permissible period under the applicable disciplinary framework.

It also emerged from the papers that a forensic report had been compiled by the fourth respondent (Integrity Forensic Solutions) pursuant to an investigative mandate connected to KwaZulu-Natal Treasury and/or the Office of the Premier. The court recorded that a report had first been compiled in 2017, and that the applicants had not been consulted during the compilation process. The second respondent’s evidence was that the report was received later (the answering affidavit referred to receipt on 16 August 2018) and that further steps were taken before disciplinary processes were initiated, including addressing an alleged leak of a draft report to the media and obtaining legal opinion.

The applicants relied on the fact that the 60-day period (referred to as arising from the disciplinary code framework) had expired without them being permitted to return to work, and they criticised the legality of the suspension’s extension. The respondents’ case was that the suspension was precautionary, that disciplinary steps were ultimately instituted, and that delays were materially affected by COVID-19 lockdown conditions, with the period between 27 March 2020 and 18 August 2020 being treated (in substance) as interrupting the running of time.

As to parallel proceedings, the court accepted as established on the papers that the applicants had already challenged the suspension before the General Public Service Sector Bargaining Council, where an arbitration hearing commenced on 7 September 2020, the first applicant testified and was cross-examined, and the matter was adjourned. Those proceedings remained pending and had not been withdrawn. The respondents also asserted that an application to quash charges and to uplift the suspension was pending in the Labour Court.

The fourth respondent’s position on the investigative process included allegations that the applicants were not cooperative and that the first applicant was hostile, and that interviews did not proceed. The court treated evidentiary detail about document collection attempts and the investigative process as not necessary to resolve the determinative issues, save to the extent that it explained why the report was compiled without interviewing the applicants.

Criminal charges had also been laid, the applicants had appeared in court, and they were on bail, with the criminal trial not yet finalised.

3. Legal Issues

The court identified the central issues as follows.

First, whether the applicants’ precautionary suspensions could be set aside on the basis that the audi alteram partem principle had not been applied before suspension, and whether the disciplinary proceedings were required to be instituted within 60 days.

Second, whether the “adverse findings” in the forensic report, and any acceptance or reliance on them, could be reviewed and set aside on the basis that the applicants were not afforded an opportunity to be heard during the forensic investigation.

Third, whether the High Court should adjudicate these issues at all given the existence of pending proceedings in other fora, raising the plea of lis alibi pendens.

Fourth, whether the forensic report (as an investigative product) constituted administrative action reviewable under the Promotion of Administrative Justice Act 3 of 2000 (PAJA), or was otherwise susceptible to review at that stage.

Fifth, an interlocutory issue arose as to whether portions of the applicants’ replying affidavit should be struck out as scandalous, vexatious, or irrelevant in terms of Rule 6(15).

The dispute largely concerned the application of legal principles to established or accepted procedural facts (for example, the existence and status of parallel proceedings, the nature of the suspension, and the characterisation of the forensic report), together with an evaluative determination of whether High Court intervention was appropriate at that stage.

4. Court’s Reasoning

On the question of parallel proceedings, the court applied the principle underlying lis alibi pendens, emphasising that litigation should not proceed in multiple fora on the same dispute between the same parties, both to promote finality and to avoid potentially conflicting outcomes. Relying on the articulation of the doctrine in Caesarstone Sdot-Yam Ltd v World of Marble and Granite 2000 CC and Others 2013 (6) SA 499 (SCA), the court reasoned that the relief sought in relation to the suspension overlapped materially with the relief already being pursued in the Bargaining Council (and additionally in the Labour Court). Because those matters were still pending and had not been finalised or withdrawn, the court concluded that there was no basis for it to determine the suspension relief in the High Court.

In relation to whether the suspension and disciplinary steps constituted administrative action, the court accepted the respondents’ submission that disciplinary proceedings in an employment context are not administrative action for purposes of PAJA. It endorsed the distinction drawn in Gcaba v Minister of Safety and Security 2010 (1) SA 238 (CC) between the State acting as employer (typically engaging labour remedies) and the State exercising public power with direct external legal effect on members of the public.

As to the applicants’ core procedural complaint—lack of a pre-suspension hearing—the court accepted that the suspension was precautionary and referred to Long v South African Breweries (Pty) Ltd and Others (2019) 6 BLLR 515 (CC) as authority for the proposition that an employer is not required to afford an employee an opportunity to make representations before implementing a precautionary suspension.

On the 60-day issue and the impact of COVID-19, the court accepted that the extension of time was connected to the state of disaster and resulting disruptions. While noting that the terminology of dies non might not be technically correct, it held in substance that the period during which the courts did not function properly due to the disaster did not prejudice the applicants in a manner warranting High Court intervention at that stage.

The court then addressed the attempt to review and set aside the forensic report and its adverse findings. It reasoned that the fourth respondent had been contracted to conduct an investigation and compile a report, and that the report itself was not a “decision” constituting administrative action under PAJA. The court relied on Viking Pony Africa Pumps (Pty) Ltd t/a Tricom Africa v Hidro-Tech Systems (Pty) Ltd and Another 2011 (1) SA 327 (CC) for the proposition that the mere gathering of information and the investigative process generally do not constitute administrative action; rather, it is what the organ of state decides to do with the information that may potentially trigger PAJA.

Applying that principle, the court held that compiling the report (including making findings in it) did not itself adversely affect rights with direct external legal effect in the manner contemplated by PAJA. It followed that there was no basis to review and set aside the report at that stage. The court further reasoned that the applicants were already facing both disciplinary and criminal processes, and that those processes would afford them the opportunity to challenge and test the allegations and findings contained in the report. On this approach, any prejudice alleged to arise from the report could be addressed in those fora, rather than through premature High Court review of an investigative product.

The court further noted that the matter was decided on the papers and confirmed the applicability of the Plascon-Evans approach to factual disputes in motion proceedings, citing Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A).

Finally, on the fourth respondent’s Rule 6(15) application, the court accepted that the application to strike out had been served and was effectively unopposed, because the applicants filed no opposing affidavit, no notice of opposition, and no heads of argument on that issue. Given that posture, the court held that it was difficult to discern a sustainable basis to resist the strike-out application and concluded that the fourth respondent had made out a case for relief under Rule 6(15).

5. Outcome and Relief

The court dismissed the applicants’ main application in its entirety, with costs. The costs order included the costs of senior counsel where employed.

The court granted the fourth respondent’s application in terms of Rule 6(15) to strike out, and ordered the applicants, jointly and severally, to pay the fourth respondent’s costs in that interlocutory application.

No substantive relief was granted against the suspension decisions or the forensic report.

Cases Cited

National Director of Public Prosecutions and Others v Freedom Under Law 2014 (4) SA 298 (SCA) was referenced in argument.

Long v South African Breweries (Pty) Ltd and Others (2019) 6 BLLR 515 (CC) was applied on the question whether audi is required before a precautionary suspension.

Gcaba v Minister of Safety and Security 2010 (1) SA 238 (CC) was applied on the distinction between labour matters involving the State as employer and administrative action.

Caesarstone Sdot-Yam Ltd v World of Marble and Granite 2000 CC and Others 2013 (6) SA 499 (SCA) was applied on the requirements and policy basis of lis alibi pendens.

Viking Pony Africa Pumps (Pty) Ltd t/a Tricom Africa v Hidro-Tech Systems (Pty) Ltd and Another 2011 (1) SA 327 (CC) was applied on whether an investigation and detection of potential wrongdoing constitutes administrative action.

Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) was applied on motion proceedings and factual disputes.

Legislation Cited

The Constitution of the Republic of South Africa, 1996, section 33(1), was referenced in argument concerning lawful, reasonable, and procedurally fair administrative action.

The Promotion of Administrative Justice Act 3 of 2000 was central to the applicants’ characterisation of the review.

The Labour Relations Act 66 of 1995 was relied upon by the respondents as the appropriate framework for an unfair labour practice challenge.

The Public Service Act, 1994 was referred to in relation to the computation of days.

The Public Finance Management Act 1 of 1999 and Supply Chain Management Regulations were referred to as the substantive regulatory framework allegedly contravened (as recorded in the answering material and summarised by the court). The judgment also referred to “extensive contraventions of the Public Forensic Management Act” in describing the report’s contents.

Rules of Court Cited

Uniform Rule of Court 6(15) was applied in granting the fourth respondent’s strike-out relief.

Held

The High Court held that the applicants’ attempt to have their suspensions reviewed and set aside could not succeed because materially the same dispute was already being litigated in other fora, rendering the matter lis alibi pendens.

It held that the forensic report prepared by the fourth respondent was not, on its own, a PAJA-reviewable administrative action. The compilation of an investigative report pursuant to a mandate did not constitute administrative action with the direct external legal effect required for PAJA review at that stage.

It further held that the applicants would have a full opportunity to challenge the report’s contents in the ongoing disciplinary and criminal proceedings, and that it was premature to set aside the report or alleged adverse findings through High Court review.

It granted the fourth respondent’s unopposed Rule 6(15) strike-out application and awarded costs against the applicants.

LEGAL PRINCIPLES

The doctrine of lis alibi pendens operates to prevent the same dispute between the same parties from being litigated simultaneously in different fora, reflecting the policy that litigation should reach finality and that courts should avoid conflicting determinations on the same issues.

A precautionary suspension in an employment setting does not necessarily require that the employee be afforded an opportunity to make representations before the suspension is implemented; the court applied the principle stated in Long v South African Breweries (Pty) Ltd and Others (2019) 6 BLLR 515 (CC) to that effect.

In the context of the State as employer, conduct that has no direct consequences for other citizens typically does not constitute administrative action under PAJA; instead, such disputes ordinarily fall within the domain of labour law remedies, consistent with Gcaba v Minister of Safety and Security 2010 (1) SA 238 (CC).

An investigation and the production of an investigative report, without a determination that itself has direct external legal effect, generally does not amount to administrative action. The potentially reviewable act is ordinarily the subsequent decision taken by the relevant public authority based on the information uncovered, consistent with Viking Pony Africa Pumps (Pty) Ltd t/a Tricom Africa v Hidro-Tech Systems (Pty) Ltd and Another 2011 (1) SA 327 (CC).

In motion proceedings decided on affidavit evidence, factual disputes are resolved in accordance with the Plascon-Evans rule, as set out in Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A).

Relief under Uniform Rule 6(15) may be granted where affidavit material is scandalous, vexatious, or irrelevant, and where appropriate procedural steps have been taken; where such an application is effectively unopposed, a court may grant the strike-out relief and award costs accordingly.

Cibane and Another v Premier of the Province of Kwazulu-Natal and Others (7655/2020P) [2023] ZAKZPHC 27; (2023) 44 ILJ 1114 (KZP) (10 March 2023)