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2023
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[2023] ZAKZPHC 69
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Cibane and Another v Premier of the Province of KwaZulu-Natal and Others (7655/2020P) [2023] ZAKZPHC 69 (19 June 2023)
IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE NUMBER:
7655/2020P
In the matter between:
ZIPHATHE MBONENI
CIBANE
FIRST APPLICANT
NONHLANHLA PAMELA
HLONGWA
SECOND APPLICANT
and
PREMIER OF THE
PROVINCE OF KWAZULU-NATAL
FIRST RESPONDENT
DIRECTOR GENERAL OF
THE OFFICE OF THE
PREMIER OF THE
PROVINCE OF KWAZULU-NATAL
SECOND RESPONDENT
MEC FOR FINANCE
KWAZULU-NATAL
THIRD RESPONDENT
INTEGRITY FORENSIC
SOLUTIONS
FOURTH RESPONDENT
THE DEPUTY DIRECTOR
GENERAL OF THE
KWAZULU-NATAL TREASURY
(HEAD OF
INVESTIGATION)
FIFTH RESPONDENT
ADVOCATE
JOE NXUSANI SC N.O.
SIXTH RESPONDENT
JUDGMENT ON
APPLICATION FOR LEAVE TO APPEAL
P
C BEZUIDENHOUT J
:
[1]
Applicants are seeking leave to appeal against the dismissal of their
application
wherein they sought that their suspension be reviewed and
set aside, that the adverse findings, remarks and conclusions
contained
in the forensic report prepared by Fourth Respondent be
reviewed and set aside, that Second Respondent’s decision to
accept
the findings in the report and to implement the recommendation
be reviewed and set aside and that First and Second Respondents pay
the costs of the application. Together with this they seek
leave to appeal against the granting of the order in terms of
the
notice of motion of Fourth Respondent in terms of Rule 6(15) that
certain portions in the replying affidavit be struck out.
The
application is opposed by First and Second Respondent and Fourth
Respondent.
[2]
In Applicants heads of argument it was submitted that I misdirected
myself by not
following the decision in Msiza v Motau N.O. [2020]
ZAGPPHC 366 that Fourth Respondent ought to have listened to
Applicants before
making any adverse findings. However at the
commencement of argument Mr. Pammenter SC brought to the attention of
the Court,
to which the Court is indebted to him, that that matter
went on appeal TO the Full Court in the Gauteng Division Pretoria in
the
matter of the Presidential Authority of the South African Reserve
Bank v Msiza and Motau case number A294/2021 delivered on 2 May
2023
and in a majority decision it was found that both the principles of a
legality review and a review in terms of PAJA did not
apply.
The majority held that the
audi alterem partem
did not have to
be applied. He however submitted that it must be considered
what powers the investigator had. He submitted
that treasury
regulations applied and disciplinary proceedings were to be held.
It was confirmed in the report that it had
to institute these
proceedings. He submitted that once the report came out it was
distinguishable from the Viking Pony decision
and that I was bound by
the decision in Zululand District Municipality and Others v MEC:
Cooperative Governance and Traditional
Affairs KwaZulu-Natal and
Another [2022] ZAKZPHC 19 (6 May 2022) a judgment of Chili J in this
division.
[3]
He submitted that the report of Fourth Respondent failed to comply
with natural justice
and that Second Respondent adopted the report to
take action on. He submitted that there was no reason for a
cautionary suspension.
[4]
The Labour Court was not the correct court and that the relief which
was being sought
in these proceedings were different to that pending
in the Labour Court. Further that the suspension period could
not be
extended by Second Respondent but only by the Chair. The
state of emergency did not affect these powers nor the extension
of
the time limits. The matter before the Bargaining Council was
not
lis pen dens
and that leave to appeal should be granted to
the Supreme Court of Appeal.
[5]
Ms Gabriel SC on behalf of Fourth Respondent stated that Applicants
were public sector
employees, not municipal employees as in the
matter of the Zululand District Municipality nor were they members of
the South African
Defence Force and were not employed on a contract.
It was submitted that a review under PAJA was not possible nor was it
a review under the principle of legality. The disciplinary
process and the criminal proceedings have commenced and the decision
to take disciplinary steps and criminal charges, was made by Fourth
Respondent and the report of Fourth Respondent had no external
legal
effect.
[6]
Second and First Respondents submitted that it was
lis pen dens
as the matter was proceeding in the Labour Court and the relief which
was claimed there was the upliftment of the suspension the
same as in
this matter. That matter has not been taken further in the
Labour Court and Bargaining Council although evidence
had been led
there and should first be finalised. Further, that criminal
proceedings are pending. Applicants have been
granted bail and
therefore the application for leave to appeal should be dismissed.
In response Mr. Pammenter SC submitted
that
lis pen dens
did
not apply and that there was no fair administrative action.
[7]
The test in deciding whether to grant leave to appeal or not is set
out in section
17(1) of the Superior Courts Act and can be summarised
that there are reasonable prospects of success or some compelling
reason
for it to be heard or conflicting judgments. The test is
whether there would be reasonable prospects on appeal. See
Caracto (Pty) Ltd v Independent Advisory (Pty)
2020 (5) SA 35
(SCA)
and Smith v S
2012 (1) SACR 567
(SCA).
[8]
The prospect must not be remote but a reasonable chance of
succeeding. Can a
court of appeal reasonably arrive at a
different conclusion? Camacatsa and Others v African National
Congress and Another
(2021) ZSCA 31.
[9]
As appears from the Full Court judgment in Presidential Authority of
the South African
Reserve Bank v M P Msiza and Adv Matau SC it is
neither a review under PAJA nor is it a legality review. The
report by Fourth
Respondent was to establish if there was wrongdoing
by Applicants. It only compiled the report, which was handed to
Second
Respondent, who then took further action. As held in
paragraph 75 of the said judgment not affording Applicants an
opportunity
to respond was not irrational and thus passes the test
under the legality issue. However in this instance the issue is
further
that there is already litigation pending in the Bargaining
Counsel and the Labour Court relating to the suspension of First and
Second Respondents which they have abandoned and which must first be
finalised. The matter is further distinguishable in
that both
Applicants have been charged criminally and therefore are out on bail
at present and therefore this will also affect
the issue of their
suspension. Having now been criminally charged which is a
decision, not taken by any of Respondents herein,
the issue of their
suspension has to an extent in actual fact become academic.
[10]
The report was compiled by Fourth Respondent after obtaining
information from various people
to establish whether there had been
any wrongdoing on the part of Frist and Second Respondents.
Besides the fact that as
set out a failure not to afford them an
opportunity to respond does not make it a review under the principle
of legality in this
case Applicants were not interviewed because of
their aggressive attitude towards Fourth Respondent and its
investigators and also
their failure to cooperate with them.
Accordingly they were not merely ignored but due to their conduct
they were not interviewed.
Further they have the opportunity in
the labour matters in the Bargaining Council and the Labour Court to
set out their responses
and will even now in the criminal case have
such an opportunity.
[11]
The facts therefore are firstly distinguishable from that of the
Zululand District Municipality
case in that there the persons were
informed that they would get an opportunity to put their side of the
facts but then it was
never done. Further in the Msiza matter
the majority decision of the Full Court in my view is applicable and
not that of
the Zululand District Municipality case.
[12]
The further issue was the application that was brought by Fourth
Respondent that certain portions
of the replying affidavit be struck
out. As set out in the judgment there was no response thereto
by Applicants but merely
submissions made at the time of the
hearing. I cannot find that there are any prospects of another
court coming to a different
conclusion due to the manner it was dealt
with by Applicants as set out in my judgment.
[13]
Having considered the submissions made and also the cases referred to
I am of the view that there
is no reasonable prospect of another
court coming to a different conclusion in this matter.
Accordingly the following
order is made:
The application for leave
to appeal is refused with costs, such costs to include the costs of
senior counsel where applicable.
P C BEZUIDENHOUT J.
JUDGMENT
RESERVED:
2
JUNE 2023
JUDGMENT
HANDED DOWN:
19
JUNE 2023
COUNSEL
FOR 1
ST
& 2
ND
APPLICANTS:
C
J PAMMENTER SC
Instructed
by:
AP
SHANGASE AND ASSOCIATES
TEL:
083 779 1143
EMAIL:
philanie1234@gmail.com
c/o
THEMBA MKHIZE ATTORNEYS
TEL:
033-39403858
COUNSEL
FOR 1
ST
& 2
ND
RESPONDENTS:
N
GOVENDER
Instructed
by:
STATE
ATTORNEY
REF:
43/004548/20/C/P15
COUNSEL
FOR 4
TH
RESPONDENT:
A
A GABRIEL SC
Instructed by:
NORTON
ROSE FULBRIGHT SOUTH AFRICA INC
TEL:
031 5825616
EMAIL:
Purnel.gangiah@nortonrosefulbright.com
REF:
IFS43/SSK