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[2017] ZAKZDHC 33
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Kwemaya v National Commissioner, Correctional Services and Others (13535/16) [2017] ZAKZDHC 33 (24 August 2017)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
LOCAL DIVISION, DURBAN
CASE
NO.: 13535/16
In
the matter between:
NOMFUNDO
TRUDY
KWEYAMA
APPLICANT
and
NATIONAL COMMISSIONER, CORRECTIONAL
SERVICES
1
ST
RESPONDENT
REGIONAL COMMISSIONER, CORRECTIONAL
SERVICES
2
ND
RESPONDENT
DIRECTOR DEPARTMENTAL INVESTIGATION
UNIT, CORRECTIONAL
SERVICES
3
RD
RESPONDENT
JUDGMENT
Delivered
on: THURSDAY, 24 AUGUST 2017
OLSEN
J
[1]
This is the return date of a rule nisi issued on 13 December 2016 at
the request of the applicant, Ms N T Kweyama. Three
respondents
are called upon to show cause why it should not be declared that the
third respondent lacked the “lawful authority”
to
institute a disciplinary enquiry that resulted in the imposition of a
sanction of dismissal of the applicant from her employment
by the
Department of Correctional Services. The respondents are also
called upon to show cause why this court should not
declare the
dismissal invalid, and set it aside.
[2]
The first respondent in these proceedings is the National
Commissioner of Correctional Services. The first respondent
must in terms of s 3(6) of the Correctional Services Act, 111 of 1998
(the “Act”), perform the functions of the Department
of
Correctional Services as prescribed in the Act. Section 3(5)
provides that the department is under the control of the
National
Commissioner who in terms of s 3(5)(g), must “appoint,
remunerate, promote, transfer, discipline or dismiss correctional
officials in accordance with this Act, the Labour Relations Act and
the Public Service Act”. The first respondent opposes
the
relief sought by the applicant.
[3]
The third respondent also opposes the relief sought by the
applicant. The citation of the third respondent is something
of
a muddle. In the headings employed in the papers the third
respondent is described as the “Director Departmental
Investigation Unit, Correctional Services”. Where cited
in the founding affidavit the third respondent is said to be
the
Director of the Special Investigations Unit established in terms of
ss 95A and 95B of the Act. Sections 95A and 95B of
the Act in
fact direct the creation of two units within the department, namely
an investigation unit and a so-called “enforcement”
unit,
the latter having the responsibility to institute disciplinary
proceedings and prosecute in them. (I will revert to
those two
sections a little later.) As it turns out, each of those units
has a director, and each of the directors has put
up an affidavit in
these proceedings. As the first and third respondents have
chosen to overlook the muddle, I must and will
do likewise.
Unless the context requires more precision, I will refer to the two
units and their directors as the third respondent.
[4]
The second respondent is the Regional Commissioner of Correctional
Services, KwaZulu-Natal. He has taken no part in these
proceedings. The applicant was employed as his administrative
secretary at the time of her dismissal. The applicant’s
interests at the material time appear to have been aligned with those
of the second respondent, the person to whom she reported
directly in
the course of her employment.
[5]
The first and third respondents have not only contested the validity
of the claim which the applicant seeks to make, but have
also
objected to the jurisdiction of this court on the basis that the
claim could only have been made under the Labour Relations
Act, 1995
(the “LRA”).
[6]
Citing
Makhanya v University
of Zululand
2010
(1) SA 62
(SCA), Mr Pillemer SC, who appears for the applicant,
argued that the first task in the course of adjudication in this case
is
to determine the issue as to whether this court has jurisdiction,
and to do so with respect to the claim as pleaded or made, without
regard to the question as to whether the claim is good or bad.
Mr Naidoo SC, who appears for the first and third respondents,
made
no objection to this approach. However I have determined that
it is more convenient first to consider the merits of
the applicant’s
claim, and then the question of jurisdiction. I do not think
that a finding that this court lacks jurisdiction
necessarily means
that, despite the fact that the merits of the dispute were argued at
length, this court should ignore them.
But I must commence with
an account of the facts.
The
Facts
[7]
In about February 2016 there were, according to the applicant,
certain “differences” between the first and second
respondents. Whatever might have caused them, the position is
that the Departmental Investigation Unit (one of the two entities
making up the third respondent) was about the business of
investigating the second respondent’s alleged involvement in
fraud
and the like connected with tenders. Mr R E J Mphamo, who
is the director of the unit, was personally involved in the
investigation
and, in the company of other investigators, attended on
the office of the second respondent on 4
th
February, 2016. At the time the office was under the
de
facto
control of the applicant in the absence of the second respondent who
had been suspended. The purpose of the visit was to
examine
certain documents supposed to be relevant to the investigation.
The applicant refused to allow the members of the
unit access to the
office and to the files. There is no dispute on the papers as
to the fact that the applicant impeded the
investigation on the day
in question. According to the first and third respondents the
result of that was that certain documents
went missing.
[8]
Following this event the applicant was suspended. She refused
to accept the suspension. On 16 March 2016 the second
respondent returned to work after the court had set aside his
suspension, and he uplifted the applicant’s suspension.
She was then charged with misconduct.
[9]
Three charges are reflected in the charge sheet served on the
applicant. None of them are perfectly drafted but only the
first one is of importance in the present case. It alleged that
the applicant had contravened Resolution 1 of 2006, which
is the
disciplinary code and procedure for the Department of Correctional
Services, in that she had obstructed the investigation
being
conducted by the Departmental Investigating Unit on 4 February 2016
by refusing to provide the files which the unit’s
officials
needed to obtain from the office under the control of the applicant,
resulting in them having to suspend their planned
operations for the
day. As framed the first charge made reference to paragraph (a)
of annexure “A” to Resolution
1 of 2006, which is to the
effect that an employee will be guilty of misconduct if she or he
“fails to comply with, or contravenes
an Act, regulation or
legal obligation”. Regulation 30(3) of the regulations
under the Act is to the effect that any
person who hinders or
obstructs or refuses to comply with the lawful instructions of
departmental inspectors, investigators and
auditors is guilty of an
offence.
[10] The applicant’s
disciplinary hearing was arranged and set down but she did not
attend. It got adjourned more than
once apparently in the hope
that she would relent and attend. On one of the occasions set
aside for the hearing she claims
not to have attended on the
instructions of the second respondent, and a letter supporting that
allegation is put up. Ultimately
the case was determined in the
applicant’s absence and a sanction of dismissal was the
outcome.
The
Applicant’s Claim
[11]
The first statement made in the applicant’s founding affidavit,
following the citation of the parties, reads as follows.
“
This
application is brought as what has become known as a legality
review.”
She
goes on to speak of the events described above as “what has
been done to me”, asserting that it was done in breach
of the
law and without lawful authority by persons (ie the third respondent)
acting beyond their lawful powers. It is claimed
that the third
respondent used powers conferred for a particular purpose to achieve
an ulterior purpose, namely to prove a point
against the second
respondent.
[12]
The applicant contends that the third respondent’s mandate is
to investigate theft, fraud, corruption and maladministration
by
correctional officials, and that the third respondent has the power
to institute disciplinary proceedings in respect of such
misconduct,
but not in respect of anything else; the point being made that there
was no accusation in the charges brought against
her that the
applicant was herself involved in any such corrupt or like
activities. She relies on ss 95A and 95B for these
contentions.
[13]
It is alleged that in terms of Resolution 1 of 2006 (a collective
agreement concluded in the Bargaining Council) discipline
is a line
management function, that the second respondent is the
de
facto
employer of the applicant, and that if the applicant is to be
disciplined, then it is the second respondent who has to “play
the central role”.
[14]
All the aforegoing having been said earlier in the founding
affidavit, the applicant then says the following regarding her
claim.
“
I
rely on the Constitution, the common law and on s 6(2)(a)(i), (ii),
(iii), (d), (e)(i), (ii), (iv), (v) and (vi) and (f)(i) of
the
Promotion of Administrative Justice Act, 2000 (PAJA).”
Nothing is said about what particular
provision of the Constitution, and what particular principle embodied
in the common law, is
implicated in the claim made by the applicant.
However in response to an answering affidavit which took the point
that this
matter belongs in the Labour Court, the applicant stated in
reply that she did not make a claim upon the basis of an unfair
labour
practice. In argument applicant’s counsel disclaimed any
reliance on any right vested in the applicant by reason of the LRA.
There is no attempt to make a case that the disciplinary procedure
followed was unfair in any respect. The applicant’s
case
is said to turn on an interpretation of sections 95A and 95B of the
Act. It is argued that because the charges against
her did not
fall within those sections, the decision to prosecute her, and her
prosecution, were made and conducted by persons
using powers they
derived from the two sections for a purpose not contemplated by the
legislation. In the result, there was
a violation of the
principle of legality, and that rendered the decision made in the
proceedings invalid.
The
Merits of the Legality Review
[15]
The applicant drew attention in her founding affidavit to the fact
that the disciplinary code, brought into operation by Resolution
1 of
2006, provides that “discipline is a line management function”,
and to the definition of the word “employer”
which means
“the head of department or any member of his/her department
designated to perform a specific action,
unless
the context indicates otherwise
.”
(My underlining.) As I understood the argument of counsel for the
applicant, this provision provides context in the construction
of ss
95A and 95B of the Act.
[16]
Unsurprisingly, counsel for the applicant did not argue in support of
the applicant’s contention in her founding affidavit
that,
given that the second respondent was her employer as defined, and
that discipline is a line management function, if she had
to be
disciplined, it was he who had to play the central role (which would
involve in particular, the decision to institute disciplinary
proceedings). If the applicant’s contention were correct,
it would mean that, given the second respondent’s alignment
with the applicant’s interests in the circumstances which
obtained at the time, she would have been in the fortunate position
of being immune from prosecution. The “context”
referred to in the definition of the word “employer”
is
the context “in this procedure”; which in my view conveys
a wider context than that provided by the document (ie
the code)
viewed in isolation. The code did not obstruct disciplinary
steps against the applicant otherwise than with the
participation or
support of the second respondent.
[17]
The applicant’s case is really founded on the proposition that
the exercise of public powers is regulated by the Constitution,
which
imposes a constraint that no power and no function may be exercised
or performed beyond what has been conferred by law upon
the actor
concerned. (See
Fedsure
Life Assurance v Greater Johannesburg TMC
[1998] ZACC 17
;
1999
(1) SA 374
(CC) at para 52.) The founding papers contained no
invitation to the first and third respondents to look anywhere but to
the provisions of s 95A and s 95B of the Act, read with Resolution 1
of 2006, in order to understand why the applicant asserts that
the
third respondent’s conduct with respect to the disciplinary
process was in breach of the law.
[18] Chapter XI of the Act is entitled
“Compliance Management”, and originally contained only s
95. The two sections
relevant to these proceedings were added
to the Chapter in 2008, and read as follows.
“
95A
Departmental Investigation Unit
The
National Commissioner must establish a unit to investigate theft,
fraud, corruption and maladministration by correctional officials.
95B
Code Enforcement
The
National Commissioner must establish a unit to institute disciplinary
proceedings and to prosecute in disciplinary matters resulting
from
any investigation contemplated in section 95A.”
[19]
These sections are actually aimed at directing the National
Commissioner to do something. They are not empowering sections.
In regarding them as such, the applicant has misread them.
[20]
The National Commissioner did establish the two units. The head
of the unit established under s 95A is called the “Director
Departmental Investigation Unit”. The head of the unit
established under s 95B is called the “Director Code
Enforcement”.
[21]
The assumption that the powers contemplated by s 95A and s 95B were
in fact given to the respective units is made by the applicant
and
the first and third respondents. The applicant makes the error
of assuming that the sections empower the units, whereas,
given the
precise wording of the sections, the first respondent must have
conferred the powers on the units. (Without having conferred
them,
the first respondent would have failed to comply with the sections.)
[22]
The list of particular offences which appears in s 95A is not
repeated in s 95B. The legislature could have provided
in s95B
that the Code Enforcement Unit could prosecute in disciplinary
matters “involving theft, fraud, corruption and
maladministration”.
Instead the authority to prosecute
and institute proceedings relates to “matters resulting”
from any investigation
contemplated in s 95A.
[23]
It is obvious, in my view, that an investigation under s 95A directed
at suspected theft, fraud, corruption and maladministration
may turn
up matters which should be the subject of disciplinary proceedings,
but which are not properly described as theft, fraud,
corruption or
maladministration. Such a disciplinary matter would “result”
from an investigation under s 95A.
It is sensible that such a
disciplinary matter might be dealt with under s 95B of the Act, given
that all the information with
regard to it would reside not with any
other general employee of the department, but with those who are
appointed to the two units.
Furthermore, the relationship between any
other misconduct uncovered in the course of an investigation by the
unit contemplated
by s 95A, and the theft, fraud, corruption or
maladministration it was investigating when it uncovered the
infraction, may
render it desirable if not necessary that control
over the disciplinary proceedings be maintained by the enforcement
unit.
In my view the change in wording between the two sections
signifies a legislative intent consistent with an appreciation of the
aforegoing.
[24]
On the papers before me it is indisputable that the applicant’s
conduct obstructed the investigation of fraud and the
like allegedly
involving the second respondent. That was in effect the subject
of the first charge made against her.
That charge clearly
resulted from the investigation underway in terms of s 95A, and
therefore fell within the provisions of s 95B.
To my mind the
facts of this case furnish a good example of why it is sensible and
logical that the scope of the prosecutorial
powers contemplated by s
95B should be wider than the scope of the investigatory mandate
contemplated by s 95A. On the plain
meaning of the words
employed in s 95B, it does contemplate a wider scope of action than
does s 95A.
[25]
I should add that there is no provision in either of the two sections
which would prevent the National Commissioner from authorising
the
two units, or one of them, to perform functions besides those
contemplated by the legislation. The applicant did not
make an
allegation that no such delegated power existed. Despite that,
the respondent did put up some pages from what appears
to be the
department’s code of delegations published on 2 August 2012.
They illustrate that at least the Director Departmental
Investigation
Unit was appointed to perform functions besides those set out in s
95A of the Act.
[26] I conclude that the applicant
failed to establish that the disciplinary proceedings were instituted
against her by a person
or unit whose power was confined in terms of
the Act to the list of offences appearing in s 95A of the Act; and
that the sanction
of dismissal was accordingly unlawful and invalid.
The issue as to whether that is the basis upon which I must dismiss
the application,
which I intend to do, depends on whether I have
jurisdiction to do so. I turn to that subject.
The
Jurisdictional Challenge
[27]
The applicant’s reliance on PAJA must be considered first.
In
Makhanya
v University of Zululand
(supra) at paragraphs 71 and 72, it was held that the proper approach
for a court confronted with a claim, and an objection that
the court
lacks jurisdiction to entertain the claim, is to accept that the
claim before the court is “a matter of fact”.
The
examples given are three-fold. If a claimant says that the
claim arises from the infringement of a right to enforce a
contract
then the court must deal with it accordingly. When the claimant
says the claim is to enforce a right created by
the
Labour Relations
Act then
that is the one before the court, as a matter of fact.
When the claim is said to be for the enforcement of a right derived
from the Constitution then that as a fact is the claim. The
question as to whether the claim is bad is besides the point.
The court went on to say that a claim which exists as a fact is not
capable of being converted into a claim of a different kind
by the
mere use of language; and a court cannot under the guise of
“characterising” a claim purport to convert
the claim
placed before the court into a claim of another kind.
[28]
I experience a practical difficulty in applying this principle,
or approaching the present matter in the light of what
was said in
Makhanya,
if, as I understood counsel for the applicant to argue, what the
learned Judge said in
Makhanya
means that one should reach an understanding about what a claim is by
having regard only to the label attached to it by the claimant;
and
not by looking to the elements of the cause of action pleaded by the
claimant in order correctly to label the claim where the
claimant
might have done so incorrectly. However, in my view the
judgment in
Gcaba
v Minister for Safety and Security
2010(1) SA 238 (CC) illustrates that
Makhanya
should not be read that way.
[29]
Gcaba
concerned a policeman who had applied for a position unsuccessfully.
He approached the High Court with an application to
review the
decision not to appoint him. The High Court decided that it
lacked jurisdiction to entertain the application because
it was an
employment matter. Before the Constitutional Court the
applicant contended that his claim was from inception one
which fell
under PAJA, as he sought to vindicate his right to just
administrative action. The respondents contended that
the
applicant’s claim was a labour matter which had to be
adjudicated through the “finely tuned mechanisms provided
for
in the LRA”. The court in
Gcaba
held that before addressing the issue of jurisdiction, and indeed in
order to address that question, the court had to decide whether
the
conduct complained of by Mr Gcaba was administrative action.
(See paragraph 63 of the judgment.) Having found that
it was
not, the court held (in paragraph 75 of the judgment) that where the
court’s jurisdiction is challenged
in
limine
at the outset, the
pleadings and, in motion proceedings, also the contents of the
supporting affidavits, must be interpreted “to
establish what
the legal basis of the applicant’s claim is”. If,
“properly interpreted”, that enquiry
establishes that the
applicant is asserting a claim within the exclusive jurisdiction of
the Labour Court, the High Court would
lack jurisdiction. On that
basis the decision of the High Court in
Gcaba
was found to have been correct.
[30]
It seems to me that I must follow the same approach as was followed
in
Gcaba
.
There (in paragraph 64 of the judgment) it was held that where a
grievance is raised by an employee relating to the conduct
of the
State as employer, and there are “few or no direct implications
or consequences for other citizens”, then the
conduct
complained of is not administrative action. Here, perhaps even
more than in the case of Mr Gcaba, the conduct of
the department in
which the applicant was employed carried no implications and
generated no consequences for anyone outside the
particular
relationship between the applicant (as employee) and her employer,
the State. The applicant wrongly pleads in
her papers that what
happened is governed by PAJA. She erroneously attaches the
lable “administrative action”
to the conduct she
complains of. For that reason, following
Gcaba
,
the conclusion must be that this court lacks jurisdiction if the
characterisation of the conduct of the State as administrative
action
is the only basis upon which the applicant asks the court to decide
her claim.
[31]
The fundamental point made by the applicant and pressed in argument
is that this is a legality review, and that this court
has
jurisdiction to entertain all legality reviews.
[32]
As I understand the argument for the applicant, it is that the High
Court entertains legality reviews upon the basis that it
always has
jurisdiction or power to declare invalid that which has been done
otherwise than in conformity with applicable law.
Legality review now
originates in s1 of the Constitution which provides that the Republic
of South Africa is founded, inter alia,
on the value of the supremacy
of the Constitution and the rule of law. (See
Affordable
Medicines Trust v Minister of Health
[2005] ZACC 3
;
2006
(3) SA 247
(CC) at paras 48 and 49.) However, as set out in
paragraph 21 of the judgment of Chaskalson CJ in
Minister
of Home Affairs v Nicro and Others
[2004] ZACC 10
;
2005
(3) SA 280
(CC), the fact that the legality principle infuses all our
law does not mean that it is a right enforceable on its own.
“
[21]
The values enunciated in s 1 of the Constitution are of fundamental
importance. They inform and give substance to all
the
provisions of the Constitution. They do not, however, give rise
to discreet and enforceable rights in themselves.
This is clear
not only from the language of s 1 itself, but also from the way the
Constitution is structured and in particular
the provisions of Ch 2
which contains the Bill of Rights.”
The
concurrent jurisdiction contemplated by s 157(2) of the LRA is
accordingly not engaged merely by reason of a party asserting
a
legality challenge. It is engaged only with respect to rights
entrenched in Chapter 2 of the Constitution.
[33]
The basis upon which the applicant has standing in this matter is
material. In
Giant Concerts
CC v Rinaldo Investments (Pty) Limited
2013
(3) BCLR 251
(CC) Cameron J dealt with the requirements to establish
own interest standing in a legality challenge. The following
appears
in paragraph 35 of the judgment.
“
Hence,
where a litigant acts solely in his or her own interest, there is no
broad or unqualified capacity to litigate against illegalities.
Something more must be shown.”
The
principal requirement to be fulfilled if that something more is to be
found to exist is that the illegality should directly
affect his or
her rights or interests, or potential rights or interests.
[34]
Quite obviously the applicant asserts so-called “own interest”
standing in these proceedings. She has no
discreet right to
engage a court on her own over the proposition which is central to
her case, that the institution of disciplinary
proceedings by the
third respondent in respect of misconduct other than theft, fraud,
corruption or maladministration is illegal.
What gives her
standing is that the proceedings which she claims to have been
illegally conducted first threatened and then extinguished
her right
to be in the employ of the Department of Correctional Services.
The applicant comes before court to vindicate employment
rights.
Given the provisions of s 23 of the Constitution, one would expect to
find the task of the protection of those rights
lodged in the
structures established by the
Labour Relations Act.
[35
]
In
Motor
Industry Staff Association v Macun N.O. and Others
2016 (5) SA 76
(SCA) the court considered an application which had
been made to the High Court for an order reviewing and setting aside
the extension
of the period of operation of a collective agreement.
It was said not to have been done lawfully. Citing paragraph 21
of the judgment in
Nicro
(supra)
Navsa JA stated the following in paragraph 21 of his own judgment.
“
One
cannot assert the ‘right’ to the principle of legality in
a vacuum. In essence, the complaint by the appellant
is that
the Minister, in purporting to extend the collective agreement to
non-parties, acted beyond the powers conferred upon him
in terms of
s
32
of the LRA. The protections, both procedural and substantive, that
exist in relation to collective bargaining are to be sourced
in the
LRA and not in the ‘principle of legality’.”
The
judgment accordingly endorsed the decision of the High Court that it
had no jurisdiction to entertain the case.
[36]
A little over two months later a similar question arose in the
Supreme Court of Appeal in
South
African Municipal Workers Union and Others v Mokgatla and Others
2016
(5) SA 89.
In
Mokgatla’s
case the issue was whether the High Court had jurisdiction to
determine a dispute concerning the expulsion of members of a trade
union allegedly in breach of the union’s constitution.
The court referred to paragraph 23 of the judgment in
Macun
,
and held that the question to be asked was whether the case engaged a
jurisdiction shared by the High Court and the Labour Court
because it
was premised on a violation of a right entrenched in Chapter 2 of the
Constitution, or whether it arises simply out
of the LRA. In
the latter case the High Court has no jurisdiction. Applying
that reasoning, the court in
Mokgatla
had the following to say in paragraph 14 on the subject of the
application of the principle set out in
Macun
.
“
In
relation to s 158(1)(g) the learned Judge found that the relevant
question in determining whether the Labour Court’s jurisdiction
was exclusive depended on whether it was a review of the exercise of
a power under the LRA. In other words, did the case
fall within
s 158(1)(g)? If so, the Labour Court’s jurisdiction was
exclusive. The same principle is applicable
here. If the
case falls within s 158(1)(e)i), as it does, then the jurisdiction of
the Labour Court is exclusive. The
decision in
Macun
is therefore decisive of the outcome of this appeal.
There
is no reason to differentiate between one ground of jurisdiction
under s 158(1) and another.
”
(My
emphasis)
[37]
This case falls directly under
s 158(1)(h)
of the
Labour Relations
Act. This
court is being asked to review a decision taken or an
act performed by the State in its capacity as employer. The
action
is the dismissal of the applicant. Applying the test set
out immediately above, the answer must be that this court is being
asked to exercise a power with respect to a matter within the
exclusive jurisdiction of the Labour Court; unless, because the case
is about a right entrenched in Chapter 2 of the Constitution, the
High and Labour courts would both have jurisdiction under s 157(2)
of
the LRA. The only non-labour Chapter 2 rights asserted by the
applicant are those protected by PAJA. I have already
found
that her case does not concern PAJA.
[38]
In the present matter applying the test which appears to emerge from
Macun
and
Mokgatla
results in a conclusion consistent with the decision in
Chirwa
v Transnet Limited and Others
[2007] ZACC 23
;
2008
(4) SA 367
(CC) as explained in
Gcaba
.
[39]
Especially in case I have misunderstood the breadth of the
propositions stated in
Macun
and
Mokgatla
,
I should examine the issue of jurisdiction from the other angles
debated in argument. Counsel for the first and third
respondents
relied in argument on the decision in
Steenkamp
v Edcon
2016 (3) SA 251
(CC).
Steenkamp
arose
out of the retrenchment of about 3000 employees by Edcon. It
was a large scale retrenchment. Section 189A of the
LRA
accordingly applied. Edcon issued notices of termination of
employment to its employees at a time when such conduct was
prohibited by s 189A of the LRA. The Labour Appeal Court
convened to decide proceedings instituted by Edcon in which it sought
a decision that two earlier judgments of that court incorrectly held
that dismissals non-compliant under s 189A were invalid.
The
Labour Appeal Court found in favour of Edcon.
[40]
In the Constitutional Court the majority judgment stressed the role
of the LRA as the instrument for realisation of rights
in terms of s
23 of the Constitution, and the fact that the provisions of the LRA
reflect a policy decision to exclude unlawful
or invalid dismissals
from the ambit of the control the LRA would exercise over labour
relations in South Africa. Paragraph
116 of the judgment is
instructive.
“
[116]
I think that the rationale for the policy decision to exclude
unlawful or invalid dismissals under the LRA was that
through the LRA
the legislature sought to create a dispensation that would be fair to
both employers and employees, having regard
to all the circumstances,
including the power imbalance between them. In this regard a
declaration of invalidity is based
on a “winner takes all”
approach. The fairness which forms the foundation of the LRA
has sufficient flexibility
built into it to enable a court or
arbitrator to do justice between employer and employee. For
example, where a dismissal
is unlawful by virtue of the employer
having failed to follow a prescribed procedure before dismissing an
employee and the dismissal
is declared invalid, in law the employee
is regarded as never having been dismissed and will be entitled to
all arrear wages from
the date of the purported dismissal to the date
of the order. Under the LRA a dismissal will be recognised as
having taken
place, irrespective of whether the dismissal is held to
have been automatically unfair or unfair because there was no fair
reason
for it, or because there was no compliance with a fair
procedure in effecting it.”
[41]
The court accordingly held that where the procedural requirements of
s 189 or s 189A of the LRA are not complied with in circumstances
where there is no acceptable reason, the result would be a dismissal
not effected in accordance with a fair procedure. It
is a
dismissal nevertheless. (See paragraph 125.)
[42]
The applicant in this case seeks to avoid the remedies and the
jurisdiction of the LRA and the Labour Court by focusing on
what she
regards as an illegal step in the procedure followed in order to
achieve the fairness required by s 23 of the Constitution
and the
LRA, arguing that the consequence of that alleged illegality is not
unfairness but invalidity. It is correct that
in
Edcon
the provision said to have been breached and leading to the alleged
illegality was one contained in the LRA itself, whereas here
it is
said to be contained in the Correctional Services Act. However
it seems to me that it makes no difference. The
alleged harm
complained of occurred in disciplinary proceedings governed by our
labour law. It is the applicant’s case
that the procedure
which ought to have been followed to discipline her is laid down in
the collective agreement imposed by our
labour law on her contract of
employment. Her real complaint is that her employer failed to
follow a prescribed procedure
before dismissing her (ie the example
given in paragraph 116 of
Edcon
).
She says the procedure was not followed because what happened is a
nullity; that being a consequence of the fact
that the decision to
prosecute was not made by an authorised person.
[43]
Given the labour regime imposed through the LRA in fulfilment of the
rights given in s 23 of the Constitution, the procedure
followed in
the present case cannot be both unlawful (i.e. a nullity susceptible
to a legality challenge) and unfair (i.e. susceptible
to the remedies
provided under the LRA) at the same time. The former is
premised on the proposition that it is legitimate
to find that the
applicant was never dismissed. The latter recognises the
dismissal as having taken place, but attempts,
in the absence of
reconciliation, to be fair to all parties in crafting a remedy.
As I understand
Edcon
,
it is the LRA, and the jurisdiction under it, which is engaged by
what has happened in this case.
[44]
Counsel for the applicant urged me in argument to follow the line
taken in
Solidarity
v SABC
2016 (6) SA 73
(LC). There the learned Judge in the Labour
Court was confronted with the question as to whether the Labour Court
could provide
remedies for “unlawful or invalid dismissals”,
in the light of the supposed fact that the Constitutional Court in
Edcon
had held that the LRA does not provide remedies for unlawful or
invalid dismissals. Counsel argued that the affirmative answer
given by the court in the
SABC
case illustrates that a legality challenge, or review of a decision
to dismiss, continues to exist, and that, given that the applicant
makes a legality challenge, jurisdiction to decide such cases must
also reside in the High Court.
[45]
I am in respectful disagreement with the understanding of the
judgment in
Edcon
conveyed by the Labour Court in the
SABC
case, namely that the LRA does not provide any remedies for unlawful
or invalid dismissals. I, with respect, prefer the
understanding of the majority judgment of Zondo J in
Edcon
conveyed in the minority judgment of Cameron J, where one sees the
following in paragraph 49 of the judgment in
Edcon
.
“
The judgment
of Zondo J, which I have had the pleasure of reading, finds that the
LRA does not expressly confer a right to be dismissed
lawfully.
It bolsters this conclusion through an exposition of the LRA’s
predecessors. It notes the removal of
a criminal sanction for
unauthorised conduct. It reasons that, since the LRA does not
expressly provide for a right to a
lawful dismissal, a litigant is
not entitled to a declaratory remedy when dismissed in breach of the
LRA’s provisions.
This approach narrows the entitlement
to a lawful dismissal.
It
infers from the absence of an express provision in the statute that
protection against unlawful conduct must be understood to
have been
absorbed into the statute’s fairness protections.
”
(My
emphasis.)
[46]
The applicant’s case is, despite her denial, that she has been
dismissed in breach of the LRA’s provisions.
Her right to
a disciplinary process derives from the imposition on the parties to
her employment contract of the disciplinary code
earlier referred
to. The code is a collective agreement the binding effect of
which flows from s 23 of the LRA. Its
purpose is to advance the
realisation of the right under s 185(a) of the LRA not to be unfairly
dismissed.
[47] In the circumstances I conclude
that this court has no jurisdiction to determine the present
application.
Conclusion
[48]
Counsel for the applicant argues that if the application is
unsuccessful the principle in
Biowatch
Trust
v Registrar, Genetic Resources, and Others
2009
(6) SA 232
(CC) should be applied to reach a conclusion that no
adverse costs order should be made. Counsel for the first and
third
respondents argues, correctly in my view, that costs should
follow the result. The applicant ignored the disciplinary process
designed
to afford her a fair hearing, and for an undisclosed reason
did not pursue relief under the LRA. I do not accept that a case
constructed
around a proper construction of ss 95A and 95B of the Act
truly raises “constitutional considerations relevant to the
adjudication”.
(See
Biowatch,
paragraph 25.)
I
make the following orders.
1.
The
rule nisi granted on 13
th
December 2016 is discharged.
2.
The
applicant is ordered to pay the costs of the application, including
the costs of Senior Counsel where employed, and including
any costs
which may have been reserved earlier.
________________
OLSEN
J
Date
of Hearing:
WEDNESDAY, 14 JUNE
2017
Date
of Judgment: :
THURSDAY, 24 AUGUST 2017
For
the Applicant :
MR M PILLEMER SC
Instructed by:
MHLANGA INCORPORATED
APPLICANT’S
ATTORNEYS
1003b SALMON GROVE
CHAMBERS
407 SMITH STREET
DURBAN
(Tel.: 031 –
305 7537)
c/o STOWELL &
COMPANY
295 PIETERMARITZ
STREET
PIETERMARITZBURG…3201
(Tel : 033 –
845 0500)
(Ref.: S
Norgot/MHL264/0013)
For
1
st
& 3
rd
Respondents : MR V M NAIDOO SC
Instructed by:
STATE ATTORNEY
1
ST
& 3
RD
RESPONDENTS’ ATTORNEYS
c/o CAJEE
SETSUBI CHETTY INC.
195 BOSHOFF STREET
PIETERMARITZBURG
(REF.: Mr
Essa)
(TEL.: 033 –
345 6719)