Kutu v Minister, Department of Justice and Correctional Services (494 / 2021) [2021] ZAMPMBHC 23; [2021] 9 BLLR 958 (MM); (2021) 42 ILJ 2489 (MM) (5 July 2021)

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[2021] ZAMPMBHC 23
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Kutu v Minister, Department of Justice and Correctional Services (494 / 2021) [2021] ZAMPMBHC 23; [2021] 9 BLLR 958 (MM); (2021) 42 ILJ 2489 (MM) (5 July 2021)

THE
HIGH COURT OF SOUTH AFRICA
MPUMALANGA
DIVISION, MBOMBELA MAIN SEAT
CASE NO:
494 / 2021
In
the matter between:
PHUTI
PETER KUTU
APPLICANT
and
THE
MINISTER, DEPARTMENT OF JUSTICE
RESPONDENT
AND CORRECTIONAL
SERVICES
Coram:
RATSHIBVUMO AJ
Heard
:
21 JUNE 2021
Delivered
:
This judgment was handed down electronically by circulation to the
parties’ legal representatives by email and release
to SAFLII. The
date and time for hand-down is deemed to be 10H00 on 05 JULY 2021.
JUDGMENT
[1].
This matter came before me on unopposed
roll for 21 June 2021. It is a default judgment application following
an action for damages
in which the Respondent did not enter a notice
to defend. The action is based on malicious prosecution out of a
disciplinary hearing
which resulted in the Applicant’s dismissal.
An appeal against the dismissal was unsuccessful. The process was
then subjected to
an arbitration which resulted in a finding that the
Applicant’s dismissal was unfair. An arbitration award was granted
in favour
of the Applicant reinstating him and awarding him an
equivalent of 24 months’ salary in back-pay to be paid by the
Respondent.
[2].
Two issues form the basis of the action by
the Applicant. First is malicious prosecution of the disciplinary
hearing in that Ms. M
Sithole, the Assistant Master and an employee
of the Respondent, set the instigation of the disciplinary
proceedings in motion without
a reasonable or probable cause, and as
such acted with malice or
animo
injuriandi
.
[3].
The second issue is what the Applicant
calls, “consequential claim” emanating from the instruction given
by Mr. Mzwayine, the
Director, Employees Relations in the employ of
the Respondent; to the effect that the Applicant should not be
allowed entry at the
offices of the Department of Justice at the time
he was dismissed as an employee. As a result, he could not earn an
income with the
law firms that were willing to hire him. R500 000.00
is claimed from the consequential claim while R1 000 000.00
is
claimed in respect of the malicious prosecution. Both Ms. Sithole
and Mr. Mzwayine are not parties to this litigation as they have
not
been cited. Only the Respondent is cited as the employer of the two
based on vicarious liability it would seem.
[4].
On the day of the hearing, I asked counsel
for the Applicant to address me on whether this case does not fall
within the exclusive
jurisdiction of the Labour Court in accordance
with the Labour Relations Act, no. 66 of 1995 (the Act) and why there
was no evidence
proving the damages in the pleadings. Counsel for the
Applicant responded reading from the heads of argument which were
later made
available to me. In essence the response was to the effect
that the action is not based on labour issues that fall within the
Labour
Court’s jurisdiction, but malicious prosecution of the
disciplinary hearing. More on this, I was referred to the heads of
argument
which counsel submitted, contained the relevant authorities.
[5].
As for the second question, counsel
indicated that there would normally not be such evidence as he
expected to address the court on
judicial precedence on what damages
have been awarded for similar claims in the past.
Jurisdiction of
the High Court / Labour Court.
[6].
Section 158 of the Act provides,
“
158.
Powers of Labour Court
(1)
The Labour Court may -
(a)
make any appropriate order, including -
(i)
the grant of urgent interim relief;
(ii)
an interdict;
(iii)
an order directing the performance of any particular act which order,
when implemented, will remedy a wrong and
give effect to the primary
objects of
this Act
;
(iv)
a declaratory order;
(v)
an award of compensation in any circumstances contemplated in
this
Act
;
(vi)
an award of damages in any circumstances contemplated in
this Act
;
and
(vii)
an order for costs; [
Own underlining
].
[7].
Not only does the Labour Court have the
powers to review and set aside or modify any award granted by the
Arbitrator, but it can also
award damages and/or compensation in any
circumstances contemplated in the Act. The question before the court
is whether unfair dismissal
found by the Arbitrator in this case is
one of the circumstances contemplated in the Act. In this case, the
Arbitrator found that
the dismissal of the Applicant was unfair.
Whether the basis of such funding is malicious hearing as argued by
the Applicant in this
application or different reasoning; is not an
issue for consideration for now. What is to be considered is whether
the disciplinary
hearing and the subsequent dismissal is one of the
circumstances contemplated in the Act.
[8].
Counsel
for the Applicant submitted that this Court has jurisdiction to hear
the action brought against the Respondent as this is
an action for
damages based on malicious prosecution. The only authority submitted
in support of this view is
Mahlangu
v Minister of Police
.
[1]
In
Mahlangu
,
the plaintiff who was a member of the South African Police Services
(SAPS) was arrested on account of false charges instigated by
a
senior police officer. As a result of the pending criminal charge, he
was also suspended pending a disciplinary hearing. Both the
criminal
charges and the charges in a disciplinary hearing were withdrawn
without a trial or a hearing.
[9].
The victimised plaintiff found himself
against the wall in that though he was arrested and dragged into a
disciplinary hearing, there
was no relief to seek through the labour
avenues availed by the Act as there was no hearing and/or finding
made against him for him
to challenge. For reasons that he suffered
some indignity through his arrest and disciplinary charges which were
not proceeded with,
he felt that there should be some legal recourse
in the form of litigation in the High Court based on malicious
prosecution.
[10].
The question the court had to consider was
whether the disciplinary proceedings as envisaged by the South
African Police Service Disciplinary
Regulations fall within the ambit
of malicious proceedings as a cause of action, assuming that all the
elements of the delict were
present. The court concluded,
“
The
facts in the case before me are different. A formal charge of assault
with the intent to do grievous bodily harm was laid against
the
plaintiff at the Sunnyside police station. The plaintiff was then
charged departmentally with misconduct for having committed
"a
common law or statutory offence". These are serious allegations
of a criminal nature formulated as a charge in terms
of the
Regulations. This charge (assault with intent to do grievous bodily
harm) as an offence can, depending on the circumstances,
constitute
an
iniuria
where
not only the
fama
or
good name, but also the dignity of the person concerned are
infringed. It is therefore difficult to accept, from a principle
point
of view, that a plaintiff can suffer this kind of harm only
when he or she was an accused in criminal proceedings, but not also
in
disciplinary proceedings of this kind. I conclude that the
disciplinary proceedings instituted against the plaintiff on 28 July
2009,
as provided for in the South African Police Service Discipline
Regulations of 3 July 2006 (R643), fall within the ambit of malicious
proceedings as a cause of action. It is important to bear in mind
that not all disciplinary proceedings are of a similar nature.
It
should therefore be pointed out that I have attempted to apply the
law as it is found to be, or should be, in the case before
me,
without suggesting that it should necessarily also apply to all other
cases of disciplinary proceedings.”
[2]
[11].
Facts
of this case are clearly distinguishable. Fourie J may have had
circumstances of this case in mind when he concluded that his
approach should not necessarily apply to all other cases of
disciplinary proceedings.
[3]
In
casu
,
no criminal charges were laid against the Applicant and as such, he
was not arrested. Unlike
Mahlangu
,
he had full recourse of the labour avenues availed to him by the Act
and he used them. He faced a disciplinary hearing which ran
in course
and he was found guilty. He appealed and only scored success in an
arbitration which awarded him backdated salary payment
for 24 months.
[12].
The same facts that were placed before the
Arbitrator are now placed before this Court. As the old saying goes,
a rose by any other
name is still a rose, or at least smells like
one. Surely the Applicant wants damages that were not awarded by the
Arbitrator from
the same set of facts. I have no doubt that if the
Labour Court was to hear this litigation, it would be in a better
position to
decide if damages should have been awarded, if it is in a
position to award the same and whether the backdated salary payment
awarded
to the Plaintiff should be used to calculate the second claim
which is based on loss of or inability to generate income.
[13].
The
Applicant also submitted
Mandela
v Amsterdam
[4]
as his authority to support malicious prosecution claim based on a
disciplinary hearing proceedings. This judgment does not in support
the Applicant’s contention in that, as Fourie J observed
[5]
,
the appellant relied on malicious prosecution as a cause of action
with regard to internal disciplinary proceedings instituted against
him by the Department of Correctional Services. The issue was whether
the appellant’s claim had prescribed. Chetty J (Beshe J concurring)
had to determine the date upon which the appellant's cause of action
arose. When concluding that the claim did not prescribe, it
was not
necessary for the Court to also consider the question whether
malicious prosecution as a cause of action also includes the
institution of disciplinary proceedings.
[14].
Mandela
and
Mahlangu
bore similarities in that charges against them in disciplinary
hearings were withdrawn without a hearing thereby making the avenues
available through the Act, pointless to invoke. They are
distinguishable from this case where the Applicant went through the
whole
disciplinary hearing process and still has avenues of
approaching the Labour Court available to him. This is not one of
those circumstances
where the High Court has concurrent jurisdiction
with the Labour Court.
[6]
I
therefore conclude that this court lacks jurisdiction to hear this
matter. Even if I was wrong in this conclusion, the Applicant
has
another hurdle to cross as pointed out hereunder.
Evidence
to prove damages.
[15].
Covid-19 Directive no. 7 of this Division
dated 13 July 2020 provides,
“
There
shall be no judgment by default in damages claim matters without
evidence in whatever form having been tendered on both merits
and
quantum.”
[16].
To
illustrate the above in light of this case, in a letter sent to the
Director-General of the Respondent
[7]
,
the Applicant alleged that he incurred “loans and interests in the
amount of about R250 000.00 and [missed] an opportunity
to earn
an income of about R150 000.00 and had sustained general damages
(
contumelia
)
[of] R1 000 000.00…” One would have expected the
Applicant to, in compliance with this directive, to provide evidence
in support of these damages as opposed to a mere paragraph in which
he alleges he “believes an amount of R1 000 000.00
will
be fair and reasonable to compensate me for the harm suffered as a
result of these malicious proceedings” without breaking
this down
and providing supporting proof. The argument that the damages would
be argued based on
stare
decisis
cannot even help in circumstances where there is no precedence on
damages on malicious prosecution flowing from a disciplinary hearing.
[17].
In light of the above, I make the
following order:
17.1
The matter is hereby struck from the roll.
17.2
I make no order as to costs.
TV
RATSHIBVUMO
ACTING
JUDGE OF THE HIGH COURT
05 JULY 2021
DATE
HEARD
: 21 JUNE 2021
DATE
OF JUDGMENT:
: 05 JULY 2021
FOR THE
APPLICANT
: MR. DM MASHEGO
INSTRUCTED
BY
: DIMA MASHEGO ATTORNEYS
MBOMBELA
[1]
Case
no. 66326/2010 [2017] ZAGPPHC 13
per
Fourie J.
[2]
Mahlhangu
,
supra
,
at
paragraphs
26 and 30.
[3]
Mahlhangu
,
supra
,
at
para
30
[4]
Case
no. CA102/2010 [2010] ZAECGHC 72.
[5]
See
Mahlangu
supra
,
para 14.
[6]
See
Sec 157(2)
of the
Labour Relations Act, no. 66 of 1995
and
Baloyi
v Public Protector and Others
2021
(2) BCLR 101
(CC) which deal with limited circumstances where the
High Court has concurrent jurisdiction with the Labour Court.
[7]
See
a letter dated 09 December 2020 on p. 66, para 8 sent in compliance
with
sec 3
of Act no. 40 of 2002.