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[2016] ZAKZPHC 52
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Media 24 (Pty) Ltd and Others v Department of Public Works and Others (2186/2015) [2016] ZAKZPHC 52; [2016] 3 All SA 870 (KZP) (10 June 2016)
IN
THE KWAZULU-NATAL HIGH COURT, PIETERMARITZBURG
REPUBLIC
OF SOUTH AFRICA
Case
No: 2186/2015
DATE:
10 JUNE 2016
In
the matter between
MEDIA
24 (PTY)
LTD
.....................................................................................................
First
Applicant
TIMES
MEDIA GROUP
LIMITED
..........................................................................
Second
Applicant
M&G
MEDIA
LIMITED
..............................................................................................
Third
Applicant
And
THE
DEPARTMENT OF PUBLIC
WORKS
............................................................
First
Respondent
S
MAHADEO
............................................................................................................
Second
Respondent
R
DHANIRAM
............................................................................................................
Third
Respondent
NPT
HLENGWA
.......................................................................................................
Fourth
Respondent
BHPN
MLOTA
.............................................................................................................
Fifth
Respondent
AS
CHONCO
...............................................................................................................
Sixth
Respondent
TJ
WATSON
............................................................................................................
Seventh
Respondent
B
DLAMINI
...............................................................................................................
Eighth
Respondent
RE
NEL
........................................................................................................................
Ninth
Respondent
J
PARDESI
..................................................................................................................
Tenth
Respondent
BV
NGUBANE
.......................................................................................................
Eleventh
Respondent
DJ
RINDEL
..............................................................................................................
Twelfth
Respondent
N
GOVENDER
...................................................................................................
Thirteenth
Respondent
N
MFEKA
..........................................................................................................
Fourteenth
Respondent
J
GOLDSTONE
....................................................................................................
Fifteenth
Respondent
TS
KHUZWAYO
...................................................................................................
Sixteenth
Respondent
JF
NICHOLSON
..............................................................................................
Seventeenth
Respondent
J
NXUSANI
.........................................................................................................
Eighteenth
Respondent
Coram:
Koen J
Heard:
27 May 2016
Delivered:
10 June 2016
ORDER
(a)
The ruling of the Fourteenth Respondent of 19 November 2014, denying
media access to the
disciplinary enquiries in respect of the Third
and Seventh Respondents on the ground that the chairperson did not
have authority
to grant such access, is reviewed and set aside;
(b)
The rulings of the Seventeenth Respondent of 10 December 2014 and the
Fifteenth Respondent
of 20 November 2014 denying media access to the
disciplinary enquiries presided over by them on the grounds and the
facts advanced
in those rulings, are reviewed and set aside;
(c)
The Thirteenth and Sixteenth Respondents and the Eighteenth
Respondent (insofar as the disciplinary
enquiry in respect of the
Eleventh Respondent is concerned) who have not yet made their rulings
on media access, as well as the
Fourteenth, Fifteenth and Seventeenth
Respondents whose rulings were set aside in terms of paragraphs (a)
and (b) above, are directed
to issue rulings on media access to the
disciplinary proceedings over which they preside within 1 month of
the date of this order
being brought to their attention;
(d)
It is declared that where media access is allowed, the chairperson of
each disciplinary
enquiry always retains an overall discretion to
recall or vary the terms of earlier rulings made regarding such
access for good
cause shown, to ensure a fair hearing for the
employees. Good cause will however not arise from the mere assertion
of a generalised
right, vague prejudice or any other similar
contention, but must in all instances be fact specific and
established to the satisfaction
of the particular chairperson
concerned to be such that the interest of the media to report on the
proceedings and the right of
the public to be informed of what
transpires at the disciplinary proceedings by the media, necessarily
should yield thereto. No
exhaustive list of those instances can be
provided. The Applicants are directed to ensure that their reporters
abide by any interim
rulings that may be made by the chairpersons in
this regard from time to time.
(e)
The Second to Twelfth Respondents jointly and severally, one or more
paying the others to
be absolved, are directed to pay the costs of
this application such costs to include that consequent upon employing
senior counsel.
J
U D G M E N T
KOEN
J
[1]
The Applicants, three media houses responsible for the publication of
a number of
national, regional and community newspapers and magazines
and online titles, seek access to various disciplinary proceedings
instituted
by the First Respondent, the Department of Public Works,
against eleven of its employees, the second to twelfth
respondents,
[1]
to enable their
reporters to report to the public on those proceedings. Although
details of the charges to be proffered against
the employees by the
First Respondent were not disclosed in the application papers, it is
not disputed that the disciplinary proceedings
will inquire into the
lawfulness or otherwise of the employees’ involvement in the
processes resulting in, and where applicable
their approval of, the
R246 million upgrades to the private Nkandla residence of
President Jacob Zuma.
[2]
The upgrades to the President’s residence have received
considerable public
and media attention since it was first reported
on by the Third Applicant in December 2009. It subsequently also
formed the subject
of a report by the Public Protector,
[2]
whose report in turn has been the subject of litigation at all three
levels of our superior court judicial hierarchy, culminating
in the
decision of the Constitutional Court on 31 March 2016 in
Economic
Freedom Fighters v Speaker of the National Assembly and others;
Democratic Alliance v Speaker of the National Assembly
and others
.
[3]
[3]
The upgrades have also formed the subject of
inter alia
a
Special Investigating Unit report which ascribes the responsibility
for the unauthorised expenditure on the upgrades to employees
of the
First Respondent. This report was released publicly by the President
on 11 September 2014. It identifies the employees concerned
by name
and asserts that they:
‘
at
some stage or the other [as] members of the RBAC that approved
certain processes or appointments in respect of the Nkandla upgrades,
did not comply with the obligations imposed on them by the
aforementioned Codes of Conduct and that they are thus guilty of
misconduct.’.
The
details of the misconduct are that as members of the RBAC from time
to time they either approved a procurement strategy or the
appointment of a consultant, contractor or service provider where
this was not justifiable or ought not to have been granted.
[4]
The Nkandla debacle has also subsequently spawned ancillary
litigation which includes
an action against the architect on the
project, to recover certain alleged overspending or unauthorised
expenditure on some of
the upgrades on the project supervised by him.
That action remains pending although interlocutory applications for
access to documents
in the possession of the Department have been
considered in this division.
[5]
Numerous media reports have been published on the issue and the view
has been expressed,
rightly or not, that the employees are being made
‘scapegoats’. The public interest in the cost of the
upgrades from
public funds and any irregularities that may have
occurred in the process is, accordingly, enormous. The Applicants
maintain that
the disciplinary proceedings against the employees are
in respect of these very concerns of the public.
[6]
The Thirteenth to Eighteenth Respondents, all advocates practising in
Durban, are
the chairpersons, duly appointed by the First Respondent,
to conduct the various disciplinary enquiries on its behalf. The
Applicants
have asserted their rights to access and to report before
some of these chairpersons, and rulings have been issued by some.
(a)
The Thirteenth Respondent is the chairperson of the enquiry relating
to the Second and Fourth Respondents.
No ruling on any access by the
media to those enquiries has been made by her.
(b)
The Fourteenth Respondent is the chairperson of the enquiry relating
to the Third and Seventh Respondents.
He has ruled that he does not
have the authority to permit such access.
[4]
(c)
The Fifteenth Respondent is the chairperson of the enquiry relating
to the Fifth Respondent. He has
refused access on what the Applicants
termed ‘the merits’ of that request.
(d)
The Sixteenth Respondent is the chairperson of the enquiry relating
to the Sixth and Tenth Respondents.
No ruling on any access by the
media to those enquiries has been made by him.
(e)
The Seventeenth Respondent is the chairperson of the enquiry relating
to the Eighth and Ninth Respondents.
He has refused access on what
the Applicants termed ‘the merits’ of that request for
access.
(f)
The Eighteenth Respondent is the chairperson of the enquiry relating
to the Eleventh and Twelfth
Respondents. He has ruled in respect of
the proceedings regarding the Twelfth Respondent that the media is
entitled to access.
[5]
No ruling
on any access by the media to the enquiry in respect of the Eleventh
Respondent appears to have been made by him.
[7]
The application takes the form of an administrative review although
in parts, it also
claims a declaration of rights. The Applicants seek
to review the decisions of those chairpersons who have not issued
rulings,
those who issued rulings refusing media access to the
hearings either on the ground that they have no power to permit media
access
to the hearings, or on the merits that they did not believe
that the Applicants had made out a case for access. Simultaneously,
the Applicants however seek to uphold the ruling of the Eighteenth
Respondent who granted the application for media access in the
disciplinary hearing of the Twelfth Respondent, and further seek
directions to be taken into account when rulings on access are
made
by Chairpersons of such enquiries cited in this application.
[8]
Specifically, the material parts of the substantive relief claimed in
the Notice of
Motion are as follows:
‘
1.
…
2.
Upholding the ruling of Mr Nxusani
[6]
of 5 December 2014 granting media access in respect of the
disciplinary hearing of Mr Rindel
[7]
;
3.
Reviewing and setting aside the ruling of Chairperson Mfeka
[8]
of 19 November 2014, which denied media access on the ground that the
chairperson did not have authority to grant access;
4.
Reviewing and setting aside the rulings of Chairpersons Nicholson
[9]
of 10 December 2014 and Goldstone
[10]
of 20 November 2014 which denied media access on the merits; and
5.
Directing the Chairpersons who have not yet made their rulings on
media access as well as
those Chairpersons whose rulings were set
aside to make a ruling on media access within 10 days of the date of
this order and issuing
directions to be taken into account when such
rulings are made.
6.
Ordering the First Respondent together with any other respondent that
opposes the application
to pay the costs of this application.’
In
argument before me, Ms Gabriel SC, with her Ms Pudifin-Jones, for the
Applicants correctly in my view, abandoned the relief claimed
in
paragraph 2 of the Notice of Motion. The ruling by the Eighteenth
Applicant stands as a valid administrative action until
challenged.
[11]
There is no
counter application or any other challenge to it. It does not need
the imprimatur of this court to have legal validity.
[9]
Although the Notice of Motion simply refers to media access without
any qualification,
the Applicants in their founding affidavit
restrict the access claimed to the following:
(a)
Up to four (4) reporters at any one time from any of Media 24, Times
Media Group and M & G Media
Limited will be given access to
attend all sessions of the disciplinary hearings against each of the
employees;
(b)
That the access will be restricted to print media only and not
include broadcasting of the proceedings
whether by means of
television or radio;
(c)
The reporters may take notes of proceedings, including the use of
personal hand-held recording devices
to record parts of the
proceedings for purposes of writing and publishing articles in the
print media;
(d)
The reporters may use electronic devices to, for example, post online
stories or comment by way of Twitter
during the course of
proceedings; and
(e)
Photographs may be taken at and inside the venue, provided that once
proceedings are in session, no
photographs may be taken;
(f)
The chairperson of each disciplinary panel retains the overall
discretion to manage the proceedings
as he or she deems fit in a
manner that ensures a fair hearing for the employees, and the
Applicants shall abide by rulings made
by the chairpersons in this
regard.
[10]
The First Respondent abides by the decision of this Court. The
employees oppose the application. The
answering affidavit is deposed
to by the Second Respondent. The other employees have filed
confirmatory affidavits with the Twelfth
Respondent in addition
explaining why he initially consented to the media having access but
after the matter having been argued
and before the Eighteenth
Respondent issued his ruling, withdrawing such consent.
[12]
They agree however that it is necessary for this court to provide
certainty with regard to a chairperson’s authority to regulate
the proceedings before him (or her) and to rule on the competing
rights of privacy and the media’s right to freedom of
expression.
None of the Chairpersons of the disciplinary
enquiries, the Thirteenth to Eighteenth Respondents, opposes the
application.
[11]
The issues to be determined are as follows:
(a)
Are disciplinary proceedings between an employer such, as the First
Respondent and its individual employees
an entirely private matter,
which the media should not be allowed to report on as a matter of
principle?
(b)
Do the chairpersons presiding over these enquiries have the
power/authority to rule whether the disciplinary
proceedings they
conduct should be open to the media?
[13]
(c)
Does the constitutionally entrenched right of freedom of the press
outweigh the constitutional rights
of the employees to privacy,
dignity or any other rights to afford the Applicants the right of
access to the disciplinary hearings?
[14]
(d)
Allied to the issue in subparagraph (c) above, if the Applicants have
such a right, is it qualified
in any way and on what terms should the
relief claimed be granted?
[15]
These
issues will be dealt with below, not necessarily
seriatim
but
often conjointly as some overlap and cover common ground. Before
doing so it is however prudent to recount briefly the constitutional
framework within which this application is to be assessed and indeed
all legislation, private agreements and conduct must be considered.
[12]
Section 16 of the Constitution establishes the right to freedom of
expression. It provides that:
‘
(1)
Everyone has the right to freedom of expression, which includes:
(a)
freedom of the press and other media;
(b)
freedom to receive and impart information or ideas’.
[13]
Media organisations, like the Applicants, through their newspapers
and online publications, play a
very important role in realising
these section 16 rights for ordinary South Africans. In
Khumalo
and others v Holomisa
the
Constitutional Court remarked:
[16]
‘
[22]
The print, broadcast and electronic media
have a particular role in the protection of freedom of expression
in
our society. Every citizen has the right to freedom of the press and
the media and the right to receive information and ideas.
The media
are
key
agents
in ensuring that these aspects of the rights to freedom of
information are respected.
. . .
[24]
In a democratic society, then, the mass
media play a role of undeniable importance. They bear
an
obligation
to provide citizens both with information and with a platform for the
exchange of ideas which is crucial to the development
of a democratic
culture.
As primary agents of the dissemination of information and ideas, they
are, inevitably, extremely powerful institutions in
a democracy and
they have a constitutional duty to act with vigour, courage,
integrity and responsibility. The manner in
which the media
carry out their constitutional mandate will have a significant impact
on the development of our democratic society….’
[17]
(my underlining).
[14]
In
South
African National Defence Union v Minister of Defence and another
,
[18]
the Constitutional Court further said:
‘
Freedom
of expression lies at the heart of a democracy. It is valuable for
many reasons, including its instrumental function as
a guarantor of
democracy, its implicit recognition and protection of the moral
agency of individuals in our society and its facilitation
of the
search for truth by individuals and society generally. The
Constitution recognises that individuals in our society
need to be
able to hear, form and express opinions and views freely on a wide
range of matters.’
[15]
The right to freedom of expression is not one for the benefit of the
media, but rather for the benefit
of all citizens. The Supreme Court
of Appeal has put it as follows in
Midi
Television (Pty) Ltd t/a E TV v Director of Public Prosecutions
(Western Cape)
:
[19]
‘
It
is important to bear in mind that the constitutional promise of a
free press is not one made for the protection of the special
interests of the press… The constitutional promise is rather
made to serve the interest that all citizens have in the free
flow of
information, which is possible only if there is a free press. To
abridge the freedom of the press is to abridge the rights
of all
citizens and not merely the rights of the press itself.’
[16]
The principle of open justice – i.e. that justice must not only
be done but must be seen to be
done – is of equal importance.
In
S v Mamabolo (e tv and others intervening)
, the
Constitutional Court confirmed that:
‘
openness
seeks to ensure that the citizenry know what is happening … so
the people can discuss, endorse, criticize, applaud
or castigate the
conduct…
’
[20]
[17]
The principles of open justice and accountability permeate every
aspect of government conduct and all
organs of state, such as the
First Respondent.
[21]
Indeed,
that is what the Constitution requires. Section 195(1)(g) of the
Constitution sets out the basic values and principles
governing
public administration. It states:
‘
195
Basic Values and principles governing public administration
(1)
Public administration must be governed by the democratic values and
principles enshrined in the Constitution,
including the following
principles:
(a)
…
(b)
…
(c)
…
(d)
…
(e)
…
(f)
…
(g)
Transparency must be fostered by providing the public with timely,
accessible and accurate information.’
[18]
Section 38
[22]
of the
Public
Finance Management Act, 1 of 1999
also seeks to promote open and
transparent administration.
[19]
The Constitutional Court in the opening paragraph of its recent
decision in
Economic
Freedom Fighters v Speaker of the National Assembly and others;
Democratic Alliance v Speaker of the National Assembly
and others
[23]
succinctly encapsulated the effect of the application of the
aforesaid principles as follows:
‘…
constitutionalism,
accountability and the rule of law constitute the sharp and mighty
sword that stands ready to chop the ugly head
of impunity off its
stiffened neck.’
[20]
The employees however emphasize that their employment relationship
with the First Respondent is private
and confidential and no business
of outsiders. They emphasise that:
(a)
a disciplinary enquiry is a private contractual hearing akin to a
private commercial arbitration, where
the media is not entitled to
access;
(b)
in terms of the legislative and contractual arrangement which governs
the employment relationship between
the First Respondent and the
employees:
(i)
the discretion afforded to a chairperson at a disciplinary enquiry is
limited;
(ii)
the disciplinary code pursuant to which the employees are to be
disciplined does not expressly empower
the chairperson to grant
access or deal with the applicants' application; and
(iii)
a chairperson cannot infer the power to grant access to the media as
it does not affect the inherent fairness
of the proceedings between
the parties to that proceeding; and that
(c)
the issue of media access to disciplinary enquiries must be
determined as a matter of principle and
within the legislative and
contractual context of the employment relationship.
[21]
In view of those submissions it is necessary to deal firstly with the
contractual and employment relationship
between the State represented
by the First Respondent and the employees. That relationship is
governed by a Public Service Bargaining
Collective Agreement
promulgated in terms of section 23 of the Labour Relations Act, 66 of
1995 (‘LRA’).
[22]
It is trite law that Bargaining Council agreements should be adhered
to. In
Cusa
v Tao Wing Metal Industries and others
[24]
Ngcobo J said:
‘
Compliance
with a bargaining council agreement is crucial not only to the right
to bargain collectively through the forum constituted
by the
Bargaining Council but it is also crucial to the sanctity of
collective bargaining agreements.’
The
learned judge went on to say in respect of the duties of
commissioners at bargaining council level, that:
‘
...
Thus the LRA permits commissioners to “conduct the arbitration
in a manner that the commissioner considers appropriate”.
But
in doing so, the commissioner must be guided by at least three
considerations. The first is they must resolve the real dispute
between the parties. Second, they must do so expeditiously.
And, in resolving the labour dispute,
they
must act fairly
to all the parties as the LRA enjoins them to do.’
[25]
(my
underlining)
[23]
The bargaining council agreement governing the employment
relationship sets out the State's power to
discipline and the
disciplinary procedure to be followed in respect of disciplinary
enquiries, to give effect to the requirements
of clause 4 of schedule
8 in the Code of Good Practice of the LRA, which provides:
‘
4
Fair procedure
(1)
Normally, the employer should conduct an investigation to determine
whether there are grounds for
dismissal
. This does not
need to be a formal enquiry. The employer should notify the
employee
of the allegations using a form and language that the
employee
can reasonably understand. The
employee
should be allowed the opportunity to state a case in response to the
allegations. The
employee
should be entitled to a
reasonable time to prepare the response and to the assistance of a
trade union representative
or fellow
employee
.
After the enquiry, the employer should communicate the decision
taken, and preferably furnish the
employee
with written
notification of that decision.’
[24]
In
casu
,
the disciplinary proceedings against the employees are governed by
the ‘Disciplinary Code and Procedures for the Public
Services’
(‘the Code’) which was adopted by the Public Service
Co-ordinating Bargaining Council and came into
effect on the date on
which the Public Service Laws Amendment Act
[26]
came into effect, namely 1 July 1999. It governs disciplinary
proceedings between the First Respondent and its employees.
[25]
The Code stipulates the procedure
inter alia
in respect of the
appointment of chairpersons by the employer, legal representation,
and the leading of evidence. It also grants
certain powers to the
chairperson. It is however silent on whether the proceedings are to
be conducted in private or whether they
are open to the public. Nor
does it confer on the chairperson of a disciplinary enquiry the
express power to deal with an application
for media access. Nowhere
in the bargaining council agreement or the code is the chairperson
afforded a discretion to deal with
joinder applications by parties
other than the employer and employee.
[26]
The employees accordingly argue that the bargaining council agreement
cannot be construed so as to
imply a power for chairpersons to deal
with and grant access to the disciplinary enquiries, as sought by the
Applicants. They submit
that the powers of the chairperson at a
disciplinary enquiry are, subject to the constraints of the
bargaining council agreement,
similar to those of a commissioner at a
bargaining council as described by Ngcobo J above in
Cusa
.
They accept that the chairperson of a disciplinary enquiry by
necessary implication has the residual power to regulate the
proceedings
at those enquiries, but contend that such residual
discretion is constrained to disputes between the parties and relates
to fairness
between the parties and does not extend to the issue of
media access.
[27]
Like the Code, the Public Service Act,1994
[27]
also does not expressly provide chairpersons with a discretion to
allow media access. Sections 16B(1) and (3) of the Public Services
Act provide:
‘
(1)
Subject to subsection (2), when a chairperson of a
disciplinary hearing pronounces a sanction in respect of an
employee
found guilty of misconduct, the following persons shall give effect
to the sanction:
(a)
In the case of a head of department, the relevant executive
authority; and
(b)
in the case of any other employee, the relevant head of department.
…
(3)
The Minister shall by regulation make provision
for-
(a)
a power for chairpersons of disciplinary hearings to summon employees
and other persons as witnesses, to cause an oath
or affirmation to be
administered to them, to examine them, and to call for the production
of books, documents and other objects;
and
(b)
travel, subsistence and other costs and other fees for
witnesses at disciplinary hearings.’
I
was advised that the Minister has not published regulations
specifying the powers of the chairperson in terms of section 16B(3).
However, even if regulations were published these may not deal with
applications for access, so as not to be
ultra
vires
the enabling legislation.
[28]
The employees, with the reference to these provisions, however
contend that a chairperson’s only power in terms of the Public
Service Act, is as set out in section 16B(1) – namely to
pronounce a sanction in respect of an employee found guilty of
misconduct. That, the employees accepted, would necessarily imply all
things ancillary, necessary or incidental to that power, but
they
contend that it would not include the power to grant access to the
media.
[28]
The employees argue further that a disciplinary enquiry is designed
to be an investigation into whether
misconduct occurred and,
consequent upon that finding, whether the misconduct warrants the
termination of the employment relationship.
They argue that a
disciplinary enquiry is voluntary in that it can be dispensed with.
The investigation culminates in a decision
to dismiss or not, which
is a contractual power even despite the fact that the employer in
this matter is the State,
[29]
it remains the exercise of a contractual power and the decision is
binding on the employer. Subsequent to the dismissal, an aggrieved
employee may refer the dispute to a Bargaining Council or CCMA where
the hearing at the CCMA or Bargaining Council in respect of
the
dismissal subsequent to the disciplinary enquiry, is a hearing
de
novo
and
public.
[30]
[29]
Specifically, they proceed from the premise that a disciplinary
enquiry fits all of the hallmarks of
an arbitration as described by
Smalberger ADP in
Total
Support Management (Pty) Ltd and another v Diversified Health Systems
(South Africa) (Pty) Ltd and another
,
[31]
where, in reference to arbitrations in terms of the
Arbitration Act,
42 of 1965
he held that:
‘
Arbitration
does not fall within the purview of ‘administrative action’.
It arises through the exercise of private rather
than public powers.
This follows from arbitrations' distinctive attributes, with
particular emphasis on the following. First, the
arbitration proceeds
from an agreement between the parties who consented to a process by
which a decision is taken by the arbitrator
that is binding on the
parties. Second, the arbitration agreement provides for a process by
which the substantive rights of the
parties to arbitration are
determined. Third, the arbitrator is chosen, either by the parties,
or by a method to which they have
consented. Fourth, the arbitration
is a process by which rights of the parties are determined in an
impartial manner in respect
of a dispute between parties which is
formulated at the time the arbitrator is appointed.’
In
Lufuno
Mphaphuli & Associates (Pty) Ltd v Andrews and another
[32]
‘
[197]
Some of the advantages of arbitration lie in its flexibility, ... its
cost effectiveness, its privacy and
its speed (particularly as often
no appeal lies from an arbitrator's award, or lies only in an
accelerated form to an appellant
arbitral body). ...
[198]
The twin hallmarks of private arbitration are thus that it is based
on consent and that it is private, i.e.
a non-State process. It
must accordingly be distinguished from arbitration proceedings before
the Commissioner for Conciliation,
Mediation and Arbitration (CCMA)
in terms of the
Labour Relations Act, 66 of 1995
, which are neither
consensual, in that respondents do not have a choice as to whether to
participate in the proceedings, nor private.
Given these differences
the considerations which underlie the analysis of a review of such
proceedings are not directly applicable
to private arbitrations.’
[30]
They therefore argue that a disciplinary enquiry as stipulated by the
bargaining council agreement
between the parties is more closely akin
to that of a private arbitration and is distinguishable from a
hearing before the CCMA,
proceedings before a court or a tribunal. In
conclusion they submit that a disciplinary enquiry is not held before
an impartial
forum within the meaning of section 34 of the
Constitution, that the chairpersons are held beholden to the employer
who pays them
for their services, is designed to enable an employer
to determine contractually to dismiss or not, and it might be a
non-State
process.
[31]
The fundamental flaw in the employees approach set out above is
however that the applicable legislation,
the Code and employment
contract cannot be viewed in isolation. The proper approach to
interpreting legislation, Codes and contracts,
to the extent that the
issue might be one of interpretation, is against the relevant
background and the provisions of the Constitution.
As was said inter
alia in
Natal
Joint Municipal Pension Fund v Endumeni Municipality
:
[33]
‘
Interpretation
is the process of attributing meaning to the words used in a
document, be it legislation, some other statutory instrument,
or
contract, having regard to the context provided by reading the
particular provision or provisions in the light of the document
as a
whole and
the circumstances attendant
upon its coming into existence.
Whatever the nature of the document, consideration must be given
to the language used in the light of the ordinary rules of
grammar
and syntax
; the context in which the
provision appears; the apparent purpose to which it is directed and
the material known to those responsible
for its production.
….
The 'inevitable point of departure is the language of the provision
itself,
read in context and having
regard to the purpose of the provision and the background to the
preparation and production of the
document.’
(my
underlining)
[32]
The facts in
casu
concern an employment relationship where the State is the
employer.
[34]
The First
Respondent clearly is an organ of State as defined in section 239 of
the Constitution. The chairpersons it has appointed
simply represent
and step into the shoes of the Department, just as a member of senior
management deputized by the First Respondent
to preside over a
disciplinary, would still represent the First Respondent as a
department of the State. As a general rule disciplinary
disputes
relating to employees of the State might not attract public
attention, but that does not mean that because they might
be
regulated in terms of a contract, they are all private and
confidential and the media is not entitled to access. There are also
very important competing rights created by the Constitution.
[33]
Each case must be viewed against the background of the Constitutional
framework, the values enshrined
therein and on its own facts.
[34]
The parties to the Bargaining Council agreement and the formulation
of the Code must all have been
aware and must be taken to have been
aware of the Constitutional milieu against which they conducted their
negotiations and concluded
agreements, namely that effect must be
given to the provisions of the Constitution, specifically the
fundamental rights guaranteed
therein as well other legislation
enacted to give effect to those rights, for example the
Promotion of
Access to Information Act, 2 of 2000
.
[35]
The procurement process which the First Respondent applies must, in
terms of section 217 of the Constitution,
be one which ‘is
fair, equitable, transparent, competitive and cost effective.’
This can hardly be evaluated by the
general public if, for example as
has been suggested, some pressure is brought to bear on subordinates
in the position of the employees
by their employer or someone higher
in the Executive hierarchy to adopt and approve a project and
expenditure which flout the procurement
procedures they are supposed
to adhere to, unless reported on fully by the media. If the employees
operated devoid from such influence,
then the general public should
be allowed to hear why eleven employees, some of them occupying very
senior positions, collectively
all made themselves guilty, seemingly
in concert and apparently for no personal financial gain, of
transgressions of the Constitution
and procurement procedures they
were enjoined to observe, comply with and apply.
[36]
It is therefore perhaps hardly surprising that none of the
legislation, and neither the Code, refers
to the power of a
chairperson to direct that the media will have access to a particular
disciplinary enquiry conducted by or at
the behest of the First
Respondent. It is a power which the law necessarily implies and/or
which the Constitution sanctions where
appropriate. Where a
disciplinary enquiry takes the form of a structured hearing it is
simply an extension of conduct by an organ
of state. The issue is how
the First Respondent deals with the conduct of its employees where it
alleges that its employees acted
contrary to the terms of the
Constitution and procurement legislation, and whether the enquiry
into such conduct should be open
to the public for scrutiny. If it
should, then clearly the power to rule in favour of a suitable and
appropriate request for access
must be implied in the powers the
Department (or a representative chairperson appointed by it) has to
conduct the disciplinary
enquiry and regulate matters as to
procedure.
[37]
Plainly the discretion contained in that power is not totally
unfettered. It must be exercised with
due regard to important rights.
The issue is not only one of carte blanche reporting on how the First
Respondent deals with what
it contends are instances of abuse of
taxpayers’ funds by employees it had considered fit to entrust
with that important
task. Due regard must also be had to
considerations of fairness and preserving the privacy of employees
where real threats to that
specific right arises. For example, should
a particular defence raised by an employee involve a very personal
matter restricted
to his or her personal life which would not advance
the public’s right to be informed one iota, but simply serve to
embarrass
the employee, then reporting thereon should be disallowed.
In appropriate instances this might even take the form of the
chairperson
directing that the particular evidence should not
published. But the right to privacy will not protect the withholding
of evidence
of dishonesty, greed, undue influence whether by
superiors or any outside agency, or whatever other motivation might
have contributed
to an alleged dereliction of duty. The aforesaid
considerations do not constitute an exhaustive list but are merely
some examples
that come to mind. A complete list of every eventuality
that might or might not arise can never be predicted in advance. Each
instance
must be evaluated on its own facts, having regard to whether
what is complained of actually has a sound factual foundation and by
weighing up the competing rights and interests.
[38]
My aforesaid conclusion is consistent also with the general terms of
the Code and the disciplinary
procedure contemplated by it. Its terms
point to a clear objective of openness and transparency in the
disciplinary process. For
example clause 2.2 requires that
‘
Discipline must be applied in a
prompt, fair, consistent and progressive manner’
and
clause 2.8 states that the Code
‘
constitutes
a framework within which departmental policies may be developed to
address appropriate circumstances, provided such
policies do not
deviate from the provisions of the framework’.
The
question of media access is one such ‘appropriate
circumstance’, where the ‘framework’ of the Code
needs to be fleshed out with due regard to applicable Constitutional
and similar values and objectives.
[39]
Notwithstanding the Code being silent on the issue, the legal
position in my view is that a discretion
whether or not to grant
media access vests in the presiding chairperson.
[40]
In
Mail
& Guardian Ltd and others v Judicial Service Commission and
others; e.tv (Pty) Ltd and another v Judicial Service Commission
and
others
,
[35]
concerning the issue whether to review and set aside the refusal by
the Judicial Service Commission (‘JSC’) to permit
public
and media access to disciplinary proceedings against Judge President
Hlophe, Malan J held that where the rules governing
disciplinary
procedures are silent on media and public access, ‘it follows
that a discretion is given to the JSC’.
[36]
I am obviously alive to the distinguishing feature that the employees
are not judges whose conduct are being scrutinized, but the
case
nevertheless provides a valid analogy. Just as with a judge facing a
disciplinary enquiry for allegedly transgressing the
norms and
standard applicable to judicial office, the employees are also
accused of failing to comply with basic norms prescribed
for them to
comply with regards to procurement. The enquiries involve a hearing
with the leading of evidence and an opportunity
to test that
evidence, of the employees in a relationship similar to that of a
judge, where in the final analysis they are also
paid from State
funds. Openness and transparency demand that these issues not be
dealt with behind closed doors, as much as the
publicity might not be
welcomed by the employee, or for that matter witnesses who will be
required to give evidence, where the
import of their evidence (not
necessarily every word and feature of body language as with televised
proceedings) would be under
the magnifying glass of a concerned
citizenry. That is inherent consequence where one is a public servant
or any other public office
bearer.
[41]
Further, this discretion may be exercised lawfully by the
chairperson, independent of whether or not
consent was granted by the
person who is the subject of the proceedings or inquiry. In
Dotcom
Trading 121 (Pty) Ltd t/a Live Africa Network News v The Honourable
Mr Justice King NO and others
[37]
the Court permitted radio broadcasting of the Commission of Inquiry
into the Hansie Cronje cricket match-fixing scandal, notwithstanding
that:
‘
the
representatives of all the other parties, including Cronjé and
other members of the South African cricket team, who were
potential
witnesses at the hearing, conveyed that their clients would be
unsettled by live broadcasts or recordings of the proceedings
and
that they thus objected to the presence of the electronic media.’
[38]
I
fully concur with that view. If the exercise of the discretion based
on an evaluation of the competing rights (a point to which
I shall
turn shortly below) of the media and the public and that of the
employee (or for that matter any others such as witnesses)
require
that the media be granted access, then that careful weighing of
competing rights cannot be held to ransom of the consent
or otherwise
of the employee. The consent might be withheld for spurious reasons
or for the very reason that the general public
might fear, namely
some cover up of the true reasons for the unlawful conduct. Plainly,
the attitude of the employee to the media
being granted access must
not be ignored and if there are well founded proven circumstances
which might impair specific identified
rights of the employee, these
must be considered and weighed up against the rights of
inter alia
the media and public to access the hearings. But the employee’s
consent or absence thereof is not conclusive.
[42]
Accepting then that the chairpersons have the power to rule on and
permit media access in respect of
the disciplinary hearings before
them, the question becomes one as to how this discretion should be
exercised.
[43]
a body of jurisprudence has developed since 1996 which offers very
persuasive guidelines to assessing
claims to media access to
disciplinary proceedings. These relate to enquiries:
(a)
under the Magistrate’s Courts Act 32 of 1944;
(b)
before the Judicial Services Commission;
(c)
within the National Prosecuting Authority;
(d)
in respect of advocates before constituent bar councils of the
General Council of the Bar; and
(e)
Commissions generally.
[44]
Disciplinary proceedings of the Commission under the
Magistrates Act,
90 of 1993
.
Section 5(5)
of the
Magistrates Act stipulates
that,
where a magistrate has been accused of misconduct and on completion
of any investigation against the magistrate (in terms
of
section 6B)
and the magistrate is requested to appear in front of the commission
to answer to a charge, such meetings against magistrates are
required
to ‘… take place in camera unless the person presiding
at a meeting directs otherwise’ (in general
this is the case
for most meetings held by the commission). The default position is
therefore one of no access, subject to a discretion
allowing access.
The exercise of this discretion is subject to judicial oversight.
In
Moldenhauer
v Du Plessis and others
[39]
the Chief Magistrate of Pretoria brought an urgent application
against the decision of a committee of the Magistrates’
Commission
to hold a disciplinary hearing against him
in
camera
because he wanted the hearing to take place in public because a
one-sided picture regarding his professional conduct was being
painted in the press. Motata J in granting the relief claimed
stated:
‘
this
matter has evoked such public interest that the public is looking
forward to it being resolved in the open in a reasoned and
rational
manner’.
The
employees argue that this authority is distinguishable from the facts
in
casu
because disciplinary proceedings under the
Magistrates Act explicitly
make provision for the regulation of media access.
[40]
I disagree. Once it is accepted that the chairpersons have such a
discretion, which I have concluded they have, then the case is
instructive as to how such a discretion should be exercised when
dealing with matters of public interest and involving employment
relationships with the State.
[45]
Section 29(3)(a)
of the
Judicial Service Commission Act 9 of 1994
provides, in respect of disciplinary proceedings against Judges
before the Judicial Service Commission, that:
‘
Notwithstanding
subsection (1) [which essentially limits the participants in the
hearing of the parties concerned], the Tribunal
President may, if it
is in the public interest and
for
the purposes of transparency
,
determine that all or any part of the hearing of a Tribunal must be
held in public’.
(my
underlining)
In
e-tv
(Pty) Ltd and others v Judicial Services Commission and others
[41]
a number of media groups applied to review a decision of the JSC not
to allow the public and the media access to the hearing of
the
complaints against Judge President Hlophe of the Western Cape High
Court, relating to him having allegedly improperly sought
to
interfere in a pending case against President Zuma before the
Constitutional Court. The relevant JSC Rule at that time stated
that
the JSC was:
[42]
‘
entitled
to permit the media and the public … to attend any inquiry
unless good cause is shown for their exclusion.’
[46]
In upholding the review and granting the media access to the hearing,
Willis J held that the reasons
provided by the JSC for refusing to
permit the public access, namely that this was necessary to protect
the dignity and stature
of judicial offices, did not qualify as ‘good
cause’ and that there would be an erosion of public confidence
in the
judiciary if the hearing took place in private because it
was:
[43]
‘
precisely
the extraordinary nature of the hearing which makes it imperative
that the public has an informed sense not only of what
actually
happened, but also that consequent upon its findings as to the facts,
the JSC makes the decision that is both fair and
appropriate.’
The
employees argue that the position in relation to the Judicial Service
Commission proceedings is distinguishable because the
JSC has
inherent discretionary power and its proceedings are regulated by the
Constitution.
[44]
That fact
does not in my view detract from the principle established.
There
will be an erosion of public confidence in the public administration
if the hearing took place in private.
[47]
In
Mail
& Guardian Ltd and others v Judicial Service Commission and
others
,
[45]
also referred to earlier, the Court was faced with a review of a
subsequent refusal by the JSC to permit the public and media access
to further JSC disciplinary proceedings against Judge President
Hlophe. In assessing the exercise of the discretion in that case,
Malan J in granting access to the enquiry remarked that, although it
may be necessary to protect confidentiality during the early
period
of an investigation:
[46]
‘
This
case has long progressed beyond the stage of a preliminary
investigation… The identity of the judge involved is known
as
are the names of the complainants… The details of the
complaint and counter complaint are in the public domain:
not
only in the media but also in the form of affidavits in the various
court proceedings… The public deserves access to
the further
proceedings.’
In
my view, similar sentiments exist in respect of the enquiries into
the conduct of the employees in
casu.
[48]
Disciplinary proceedings before the National Prosecuting Authority
(‘the NPA’) may also
be open to the public and / or the
media in appropriate circumstances. In
Media24
Limited and others v National Director of Public Prosecutions;
Electronic Media Network Limited v National Director of Public
Prosecutions and another
,
[47]
two print media houses as well as the television programme
Carte
Blanche
sought access to the disciplinary enquiry of Ms Breytenbach, a senior
prosecutor who had been suspended by the NPA. In overturning
the original decision to refuse the media access, Tolmay J noted that
the disciplinary enquiry and the circumstances surrounding
it had
already enjoyed widespread coverage in the media, and rejected the
NPA’s argument that witnesses would chose not to
cooperate and
may refuse to testify, because that allegation was not substantiated.
He also rejected the NPA’s argument that
its proceedings were
‘private and internal’ arising in respect of an
employment relationship, stating:
‘
[34]
[t]he NPA is, in my view, no ordinary employer. The NPA is a public
institution established in
terms of the Constitution and has a
particular constitutional mandate:
…
[36]
the disciplinary proceedings in this matter cannot be described as
private or ordinary. Given the allegations of corruption,
mismanagement and political interference serious constitutional
issues arise, and the public’s right to be informed under
the
circumstances are undeniable.’
The
employees also sought to distinguish this authority from their
position, contending that disciplinary proceedings before the
NPA are
before an institution expressly recognized by the Constitution.
Disciplinary proceedings initiated by the First Respondent
are
however also proceedings initiated by a state institution and the
fact that the disciplinary proceedings are conducted by an
independent chairperson does not make them disciplinary proceedings
other than that of a State institution.
[49]
During 2014 the Johannesburg Bar Council granted access to two media
houses,
[48]
in respect of its
disciplinary inquiry into the conduct of an advocate, Mr Menzi
Simelane.
[49]
It weighed up Mr
Simelane’s constitutional right to have his dignity and privacy
respected and protected against the media’s
right to freedom of
expression, and held that:
[50]
‘
[25]
It is certainly in the public interest that the manner in which the
Society disciplines its members is not shrouded in secrecy
…
[26]
For an association that is committed to the maintenance of the rule
of law and the administration of justice, it is also in
the interests
of the Society that it be seen to hold its members to account.
To do this, the Society must act transparently
when it disciplines
its members.’
The
panel specifically remarked that:
[51]
‘
in
our view, the constitutional imperative of open justice is applicable
to disciplinary enquiries of the Bar Council’
In
assessing Mr Simelane’s contentions that the disciplinary
proceedings should be closed, the council concluded that:
(a)
Mr Simelane is well known in the public, as are the allegations
against him, which are in the public domain and a matter of
public
record;
(b)
There is considerable public interest in the Ginwala commission and
Mr Simelane’s evidence;
(c)
Mr Simelane’s allegation that open proceedings would violate
his constitutional rights to dignity and privacy could also
not be
sustained as:
‘
It
is not objectively reasonable for a member of the Society to feel
insulted by the press reporting on the proceedings of an enquiry
by
fellow advocates into his or her public conduct. If, in the
course of the reporting, the press were to publish defamatory
allegations concerning Mr Simelane, he would have the right to sue
for damages.’
[52
[50]
Regarding commissions of inquiry generally, in
Dotcom
Trading 121 (Pty) Ltd t/a Live Africa Network News v The Honourable
Mr Justice King NO and others
,
[53]
the Court permitted radio broadcasting of the proceedings of the
Commission into the ‘Hansie Cronje cricket match-fixing
scandal’, holding that the chairperson’s justification
for disallowing such access, namely that he did not wish witnesses
to
be inhibited in giving their testimony, was not substantiated, but in
any event was not a sufficient interest to outweigh the
importance of
freedom of expression.
[51]
In
Mail
& Guardian Media Ltd v Chipu NO and others
,
[54]
the Constitutional Court struck down
section 21(5)
of the
Refugees
Act, 130 of 1998
which imposed a blanket ban on access to Refugee
Appeal Board hearings. The Court held that while confidentiality of
asylum seeker
applications is important, a discretion to allow access
better balances the competing interests involved. Pending
Parliament’s
amendment of the
Refugees Act, the
Refugee Appeal
Board was ordered to consider applications for access on a
discretionary basis by taking into account whether such
access is in
the public interest.
[52]
The aforesaid precedents which I fully endorse, establish that public
interest favours that proceedings, including disciplinary
proceedings
generally, should be open, that whether or not particular a
proceeding should be open to the public requires a weighing
up of
competing rights, that it is not objectively reasonable for a person
to be insulted by the press reporting on proceedings
relating to
public conduct, that allegations that witnesses would be intimidated
or reluctant to testify, or any other grounds
offered in opposition
to a claim for access, must be substantiated to be sustained, and
that in general, where matters are already
in the public domain and
have already enjoyed widespread coverage in the media, the public
deserves
[55]
access to the
further proceedings. No constitutional right is absolute
[56]
and rights have to be balanced with each other in a facts based
setting.
[53]
The application of the above principles to the present facts
resoundingly favours media access and the public’s right
to be
informed of what transpires in the disciplinary proceedings which
have been instituted. The default position is that unless
there are
demonstrable Constitutional rights and other interests which are
properly substantiated and which outweigh the weighty
interest which
an open and democratic society assures and should assure to its
citizenry, access to the media should be allowed.
The Applicants, as
large established media organisations, which in our country comprise
a substantial part of ‘the fourth
estate’, have
Constitutional approval, and a mandate, to disseminate the truth and
to provide citizens with information in
the public interest. They are
duty bound, with vigour, courage, integrity and responsibility, to
report on the Nkandla upgrades
(including the disciplinary
proceedings in question) and, absent any cogent evidence of
irreparable harm, should not be prevented
from doing so.
[57]
[54]
As in the
Mail
& Guardian Ltd and Others v Judicial Service Commission and
others
,
[58]
the allegations which form the subject of the disciplinary
proceedings (including the identity of the employees who are accused
of alleged improper conduct) are already largely in the public
domain. The very public nature of the Nkandla upgrades demands that
the public are given the full facts in order to make informed
choices, including whether or not the disciplinary hearings
instigated
against the employees are properly founded.
[55]
The public interest is heightened by the fact that the disciplinary
proceedings concern the alleged wrongful expenditure of
public funds
by public servants acting in the public sphere. The employees are not
simply ordinary employees in a private context,
possibly wasting the
funds of their private employer, but state employees, like the
advocates employed by the NPA or a magistrate,
whose salaries are
paid by the tax payer. Ultimately, they are accountable to the tax
payer for their conduct and they must satisfy
taxpayers that they
have not been responsible for any misappropriation or unauthorised
spending of funds.
[56]
As against the aforesaid considerations favouring access to the
disciplinary proceedings one has to weigh the rights asserted
by the
employees and prejudice they claim will be occasioned to them by the
media reporting on the proceedings, to determine which
rights should
prevail and to what extent the rights that prevail might have to be
limited depending on what is reasonable and justifiable
in an open
and democratic society based on human dignity, and equality and
freedom. Regard must also be had to the nature of the
rights, the
importance of the purpose of any limitation, the nature and extent of
the limitation, the relation between the limitation
and its purpose
and whether there are less restrictive means to achieve the purpose.
[57]
A careful perusal of the answering affidavits reveals that the
employees do no more than assert a generalised ‘right
of
privacy’
[59]
and
obliquely the ‘right to fair labour practices’
[60]
and the ‘right to dignity’.
[61]
The allegations lack details and are unsubstantiated, and accordingly
are without foundation. Generally an employee does not have
the right
not to have his or her explanation of his conduct made public, where
the exercise of a public power is involved. The
right to privacy is
‘more intense the closer it moves to the intimate personal
sphere of the rights of human beings, and
less intense as it moves
away from that core’
[62]
.
This means that the right to privacy and also dignity ripple away and
become less immediate when they relate to matters over which
the
public at large have an interest. As was said in
Bernstein
v Bester NO
:
[63]
‘
As
a person moves into communal relations and activity such as business
and social interaction, the scope of personal space shrinks
accordingly.’
The
employees have not asserted that any portion of the proceedings
against them is confidential. To the extent that anything
confidential
might arise during the course of the proceedings, it can
be dealt with by appropriate rulings by the chairpersons at that
time.
The Applicants have undertaken to respect any ruling of the
chairpersons relating to closing the proceedings on any particular
issue.
[58]
It follows from what I have said above that the ruling of the
Fourteenth Respondent that he does not have the authority to
grant
access to the media contrary to the wishes of the First Respondent
and the employees in respect of the disciplinary proceedings
of the
Third and Seventh Respondents, falls to be reviewed and that decision
is set aside. The Fourteenth Respondent had seen the
enquiry as a
purely private matter between the employer and employee, that not all
information in the possession of the First Respondent
is required to
be made public
[64]
and that
the current jurisprudence available is distinguishable.
[65]
My finding is that he has such authority.
[59]
In the hearing before the Fourteenth Respondent, as in this
application,
‘…
the
employees [have] not given facts or specifics as to how the presence
of the press may inhibit their giving of truthful evidence
in these
proceedings’.
The
Fourteenth Respondent concluded that:
‘
I
am of the view that this is a consideration that should not be
lightly rejected. Should the employees seek to be whistle-blowers
on
corruption and expose higher officials within the Department, I would
not be in support of granting of access where the presence
of the
press may make this difficult for the employees or make them fearful
in doing so.’
[60]
Those are not entirely irrelevant considerations. The difficulty
however is that at the moment they remain purely speculative,
without
a proper factual foundation and are unsubstantiated. To exclude media
access on such speculative grounds is irrational.
If, and should the
fear of an impairment of these rights arise in separate enquiries, it
will be necessary for the individual chairpersons
to assess whether
they are
bona fide
and genuine and whether they have a proper factual foundation, and
then they must weigh up the considerations at play, and if necessary
issue such ruling as to non-publication or possibly even excluding
the media from part of the proceedings, in the interests of
justice,
as may be dictated by the circumstances to arrive at a just and fair
conclusion. But a decision to exclude the media completely
from the
hearings should not be taken lightly.
[61]
Before the Fifteenth Respondent, in respect of the enquiry concerning
the Fifth Respondent, the employees contended that their
‘constitutional rights to dignity, safety and security of the
person, and fair hearing will be infringed by the presence
of the
media at the hearings’. Reference was also made to the right to
privacy. No details were however supplied in substantiation
of any
such anticipated infringement.
[62]
It is not quite clear whether the Fifteenth Respondent was persuaded
by these arguments.
[66]
In my
view they remained unsubstantiated. The employees however further
contended that:
‘
By
virtue of the fact that multiple internal hearings are being
conducted, evidence disclosed in the media may impact on the other
proceedings and the nature of reporting may distort the evidence led
in one enquiry and, by virtue of that distortion, lead to
complications in other enquiries.’
[63]
The Fifteenth Respondent’s final conclusion in that respect was
that:
‘
In
my view the chairperson must seek to reconcile the fundamental rights
at issue with his or her obligation that the proceedings
are fair. By
allowing the media to report on evidence in individual disciplinary
enquiries, that reporting may, as a consequence
of that reporting,
have an effect on other disciplinary enquiries occurring
simultanteously.’
[64]
No details were provided as to how other disciplinary enquiries
occurring simultaneously could be affected. If anything, it
is
strange that the employees are not all charged in one enquiry,
because by having separate enquiries it is possible for one employee
to blame another employee whose enquiry proceeds before another
chairperson without the First Respondent possibly being able to
offer
any thing in rebuttal in the first mentioned enquiry other than
evidence from a reluctant co-accused in another enquiry.
In the
absence of evidence as to how these other enquiries may be affected,
this ground advanced by the employees also remains
speculative and
without any foundation and certainly do not outweigh the right of the
media and public. To exclude the media from
the enquiry on that basis
is irrational.
[65]
The Fifteenth Respondent’s ruling disallowing access to the
media accordingly also falls to be reviewed and it is set
aside.
[66]
The Seventeenth Respondent ruled in respect of the disciplinary
enquiries relating to the Eighth and Ninth Respondents that
the form
and procedure to be adopted at a disciplinary hearing are determined
by the employer provided it is fair.
[67]
The ruling continued that ‘the cross pollination of evidence is
a real risk, which needs careful management so as not to
diminish the
weight of neither the employer, nor the employee’s evidence’.
It concluded that ‘the limitation
of not having reporters
present will not thwart the reporting of the hearings because the
Applicants may still interview the witnesses
after they testified if
they so wish, and/or report on the findings of the disciplinary
enquiry’, and further that ‘media
presence at the trial
may quell the employees’ rights to a disciplinary hearing that
is both procedurally and substantively
fair’.
[67]
Again there is no evidential basis laid for concluding that there is
a real risk of cross pollination (whatever exactly that
may
encompass
[68]
) of evidence,
that the weight of evidence will be diminished (if anything it might
be enhanced by the fact that it is given in
an open forum which will
be reported on, as opposed to being largely untested behind closed
doors), and in what actual respects
it is contended that the hearing
will be rendered procedurally and substantively unfair.
[68]
It is also not an answer to the question as to whether media access
should be granted to the actual disciplinary hearings to
say that
these witnesses could be interviewed again outside the hearing.
Witnesses need not agree to an interview, their version
during an
interview is not tested by cross examination, and unless they are all
interviewed, a skewed version of what evidence
has been adduced
before the disciplinary enquiries will emerge, to the detriment of
either the First Respondent or the employees,
but certainly to the
detriment of the general public to be informed to the fullest extent
possible. For these reasons the ruling
by the Seventeenth Respondent
likewise falls to be reviewed and set aside.
[69]
Stripped to their essentials, the disciplinary enquiries concern
allegations that public servants collectively have breached
legislation governing their employment. These are ‘matters of
public interest’.
[69]
The
First Respondent is obliged to comply with the Constitution, the
Public Service Act and the regulations promulgated thereunder,
the
Public Finance Management Act and
various other legislation that
ensure a high standard of professionalism, efficiency, economic and
effective use of public resources
and the provision of public
services. The public is entitled to be informed as to whether the
employees have complied with their
various obligations.
[70]
As regards the form of the order claimed, it seems to me that
directing that all the rulings regarding media access are to
be made
within 10 days might be unduly short, particularly where dates for
argument might still have to be arranged, argument has
to be heard
and reflected upon, before considered rulings are then made. Plainly
also however, the finalisation of the disciplinary
enquiries have
been delayed. They need to be finalized now with expedition. I am of
the view that my direction should be that any
outstanding rulings and
rulings required to be made because earlier rulings have been set
aside by this judgment, be made within
1 month of the date of this
order being brought to the attention of the chairpersons concerned.
That should allow a reasonable
time within which to do so.
[71]
I do not intend to make any separate detailed directions as requested
in paragraph 5 of the Notice of Motion, save for those
set out in my
order. The relevant considerations and directions which I
believe should govern and guide the exercise of a
chairperson’s
discretion when faced with an application for media access where the
State is the employer, where the allegations
relate to alleged
financial mismanagement of state funds and where the matter is of
public interest (such as the Nkandla debacle)
hopefully appear from
this judgment. Suffice it to summarize the position by stating that
in the context of the facts in this matter,
the chairpersons,
notwithstanding the private contractual employment relationship
between the State and each employer, should generally
incline in
favour of allowing access to the media, unless there are
substantiated and established exceptional or personal individual
circumstances present (not just general claims or speculation), which
outweigh the public interest and the right of the public
to be
appraised of how the upgrades came to be approved and financed from
the public purse.
[72]
As regards the costs of this application, the Applicants have been
substantially successful. They ask to be awarded the costs
of the
application and in view of ‘the importance of the case and the
nature of the proceedings’ argue that such costs
should include
the costs consequent upon the employment of two counsel.
[73]
Mr Broster for the employees did not advance any specific arguments
on the issue of costs.
[74]
I have given consideration as to whether the issues arising were not
of such a novel constitutional nature and of significance,
to
particularly the employees, that this is not an instance where the
parties should bear their own respective costs notwithstanding
the
employees’ lack of success. It however seems to me, having
reflected carefully on the question, that although the issue
might be
novel in the context of the facts that it arises, namely employment
with the First Respondent and for an alleged dereliction
of duties in
regard to the Nkandla upgrades, that a sufficiently established body
of judicial precedent has developed in regard
to media access to
enquiries where there is considerable public interest, that it would
be unfair against the Applicants, even
though the expectation might
be that they are financially stronger, not to be awarded their party
and party costs. Although the
right they pursued might bring more
financial reward from them being able to report on the enquiries, it
is a right which they
also pursued on behalf of the public. In the
exercise of my discretion on costs it seems fair that they should
receive their costs.
[75]
I am however not persuaded that the award should include the costs of
two counsel. Although not a simple matter, it is also
not unduly
complex and the guiding legal principles are readily available. The
employees, who probably had the more difficult argument
to advance,
were well represented by one counsel only. My award of costs
therefore extends to the costs of one counsel, namely
senior counsel
only.
[76]
The order I grant is therefore as follows:
(a)
The ruling of the Fourteenth Respondent of 19 November 2014, denying
media access to the disciplinary enquiries in respect of
the Third
and Seventh Respondents on the ground that the chairperson did not
have authority to grant such access, is reviewed and
set aside;
(b)
The rulings of the Seventeenth Respondent of 10 December 2014 and the
Fifteenth Respondent of 20 November 2014 denying media
access to the
disciplinary enquiries presided over by them on the grounds and the
facts advanced in those rulings, are reviewed
and set aside;
(c)
The Thirteenth and Sixteenth Respondents and the Eighteenth
Respondent (insofar as the disciplinary enquiry in respect of the
Eleventh Respondent is concerned) who have not yet made their rulings
on media access, as well as the Fourteenth, Fifteenth and
Seventeenth
Respondents whose rulings were set aside in terms of paragraphs (a)
and (b) above, are directed to issue rulings on
media access to the
disciplinary proceedings over which they preside within 1 month of
the date of this order being brought to
their attention;
(d)
It is declared that where media access is allowed, the chairperson of
each disciplinary enquiry always retains an overall discretion
to
recall or vary the terms of earlier rulings made regarding such
access for good cause shown, to ensure a fair hearing for the
employees. Good cause will however not arise from the mere assertion
of a generalised right, vague prejudice or any other similar
contention, but must in all instances be fact specific and
established to the satisfaction of the particular chairperson
concerned
to be such that the interest of the media to report on the
proceedings and the right of the public to be informed of what
transpires
at the disciplinary proceedings by the media, necessarily
should yield thereto. No exhaustive list of those instances can be
provided.
The Applicants are directed to ensure that their reporters
abide by any interim rulings that may be made by the chairpersons in
this regard from time to time.
(e)
The Second to Twelfth Respondents jointly and severally, one or more
paying the others to be absolved, are directed to pay the
costs of
this application such costs to include that consequent upon employing
senior counsel.
Koen
J
APPLICANTS’
COUNSEL: ADV A A GABRIEL SC with
ADV
S PUDIFIN-JONES
INSTRUCTED
BY : WILLEM DE KLERK ATTORNEYS
C/O
BJ NICHOLSON ATTORNEY
Tel.:
033 396 4791
FIRST
RESPONDENT’S COUNSEL: ADV L NAIDOO
INSTRUCTED
BY: STATE ATTORNEY
Tel.:
031 3652554
SECOND
TO TWELTH RESPONDENTS COUNSEL: ADV J P BROSTER
INSTRUCTED
BY: C/O TOMLINSON MNGUNI JAMES ATTORNEYS
Tel.:
031 341900
Ref.:
PR Hobden/sd/23001114
[1]
Hereinafter
referred to as ‘the employees’.
[2]
The
Public Protector’s report, titled ‘Secure in Comfort’
followed after complaints to her office between December
2011 and
2012. Her report was published on 19 March 2014.
[3]
[2016]
ZACC 11
(reported as
2016 (5) BCLR 618
(CC);
2016 (3) SA 580
(CC)).
The judgment confirmed
inter
alia
that ‘the remedial action taken by the Public Protector
against President Jacob Gedleyihlekisa Zuma in terms of section
182(1) of the Constitution is binding’ (see point 3 of the
order in the
Economic
Freedom Fighters
judgment). Paragraph 10.9.1.4 of the Public Protector’s report
concluded that ‘as the President tacitly accepted
the
implementation of all measures at his residence and was unduly
benefitted… a reasonable part of the expenditure towards
the
installations that were not identified as security measures …should
be borne by him and his family.’
[4]
That
was the only ruling to that effect, counsel conceding that the
reference in paragraph 89.1 of the founding affidavit to ‘two
rulings that the chairpersons are not authorized to rule on media
access …’ being erroneous.
[5]
In
granting the application for media access in the disciplinary
hearing of the Twelfth Respondent holding that it was ‘both
appropriate and just for the print media to be granted access to the
proceedings and to report thereupon in the printed and electronic
media.’
[6]
The
Eighteenth Respondent.
[7]
The
Twelfth Respondent.
[8]
The
Fourteenth Respondent.
[9]
The
Seventeenth Respondent.
[10]
The
Fifteenth Respondent.
[11]
See
Oudekraal
Estates (Pty) Ltd v City of Cape Town and others
2004 (6) SA 222
(SCA) per Howie P and Nugent JA paras 36 – 40.
[12]
The
Twelfth Respondent ascribes the retraction of his consent to having
obtained legal advice to that effect.
[13]
Put
differently, does the Chairperson have a discretion to grant media
access to the disciplinary hearings? The employees maintain
that
they don’t.
[14]
Put
differently, should the Chairperson’s discretion be exercised
in favour of granting access to the media? The Applicants
maintain
that they do, whereas the employees maintain that their rights to
privacy, dignity and the confidentiality of their
employment
contracts prevail.
[15]
Some
of the restrictions on the access accepted by the Applicants have
already been referred to earlier.
[16]
[2002] ZACC 12
;
2002
(5) SA 401
(CC) see paras 22 – 24.
[17]
See
too Democratic Alliance v African National Congress and another
2015
(2) SA 232
(CC) at para 122, and South African National Defence
Union v Minister of Defence and another
[1999] ZACC 7
;
1999 (4) SA 469
(CC) para 7.
[18]
SA
National Defence Union v Minister of Defence n17 para 7.
[19]
[2007] ZASCA 56
;
2007
(5) SA 540
(SCA) para 6.
[20]
2001
(3) SA 404
(CC) para 29. The principle applies equally to the
Executive in any constitutional democracy such as ours which
subscribes to
the values of openness and transparency.
[21]
The
Media
24 (Pty) Ltd and another v Menzi Simelane and another
(the ‘Simelane Ruling’ written by Mr Sias Reynecke, SC;
Mr Daniel Berger, SC and Mr Dali Mpofu as the chairpersons
of the
disciplinary hearing), dealt with below, at para 29 stated: ‘in
our view, the constitutional imperative of open
justice is
applicable to disciplinary enquiries of the Bar Council.’
[22]
Section 38 of the PFMA provides:
‘
38
General responsibilities of accounting officers
(1)
The accounting officer for a department, trading entity or
constitutional institution-
(a)
must ensure that that department, trading entity or constitutional
institution has and maintains-
(i)
effective, efficient and transparent systems of financial and risk
management and internal control;
(ii)
a system of internal audit under the control and direction of an
audit committee complying with and operating in accordance
with
regulations and instructions prescribed in terms of sections 76 and
77;
(iii)an
appropriate procurement and provisioning system which is fair,
equitable, transparent, competitive and cost-effective;
(iv)
a system for properly evaluating all major capital projects prior to
a final decision on the project;
(b)
is responsible for the effective, efficient, economical and
transparent use of the resources of the department, trading entity
or constitutional institution;
(c)
must take effective and appropriate steps to-
(i)
collect all money due to the department, trading entity or
constitutional institution;
(ii)
prevent unauthorised, irregular and fruitless and wasteful
expenditure and losses resulting from criminal conduct; and
(iii)
manage available working capital efficiently and economically;
(d)
is responsible for the management, including the safeguarding and
the maintenance of the assets, and for the management of
the
liabilities, of the department, trading entity or constitutional
institution;
(e)
must comply with any tax, levy, duty, pension and audit commitments
as may be required by legislation;
(f)
must settle all contractual obligations and pay all money owing,
including intergovernmental claims, within the prescribed
or agreed
period;
(g)
on discovery of any unauthorised, irregular or fruitless and
wasteful expenditure, must immediately report, in writing,
particulars of the expenditure to the relevant treasury and in the
case of irregular expenditure involving the procurement of goods
or
services, also to the relevant tender board;
(h)
must take effective and appropriate disciplinary steps against any
official in the service of the department, trading entity
or
constitutional institution who-
(i)
contravenes or fails to comply with a provision of this Act;
(ii)
commits an act which undermines the financial management and
internal control system of the department, trading entity or
constitutional institution; or
(iii)
makes or permits an unauthorised expenditure, irregular expenditure
or fruitless and wasteful expenditure;
(i)
when transferring funds in terms of the annual
Division of Revenue
Act, must
ensure that the provisions of that Act are complied with;
(j)
before transferring any funds (other than grants in terms of the
annual
Division of Revenue Act or
to a constitutional institution)
to an entity within or outside government, must obtain a written
assurance from the entity that
that entity implements effective,
efficient and transparent financial management and internal control
systems, or, if such written
assurance is not or cannot be given,
render the transfer of the funds subject to conditions and remedial
measures requiring the
entity to establish and implement effective,
efficient and transparent financial management and internal control
systems;
(k)
must enforce compliance with any prescribed conditions if the
department, trading entity or constitutional institution gives
financial assistance to any entity or person;
(l)
must take into account all relevant financial considerations,
including issues of propriety, regularity and value for money,
when
policy proposals affecting the accounting officer's responsibilities
are considered, and when necessary, bring those considerations
to
the attention of the responsible executive authority;
(m)
must promptly consult and seek the prior written consent of the
National Treasury on any new entity which the department or
constitutional institution intends to establish or in the
establishment of which it took the initiative; and
(n)
must comply, and ensure compliance by the department, trading entity
or constitutional institution, with the provisions of
this Act.
(2)
An accounting officer may not commit a department, trading entity
or constitutional institution to any liability for which
money has
not been appropriated.’
[23]
See
n3 para 1.
[24]
[2008] ZACC 15
;
2009
(2) SA 204
(CC);
2009 (1) BCLR 1
(CC) para 56.
[25]
Cusa
v Tao Wing Metal
n23 para 65.
[26]
No
86 of 1998.
[27]
See
Proclamation 103 published in
GG
15791 of 3 June 1994.
[28]
It
is unnecessary to express any view on that aspect in this judgment.
[29]
Cape
Metropolitan Council v Metro Inspection Services (Western Cape) CC
and Others
2001 (3) SA 1013
(SCA).
[30]
Sidumo
and another v Rustenburg Platinum Mines Ltd and others
2008 (2) SA
24
(CC), para 18.
[31]
[2002]
ZACA 14 para 24.
[32]
2009
(4) SA 529
(CC) per O'Regan ADCJ para 197 – 198.
[33]
2012
(4) SA 593
(SCA) para 18.
[34]
This
judgment will accordingly deal with that position only and the
principles dealt with herein might not necessarily apply to
an
employment relationship between an individual and a private
employer, and not an organ of state.
[35]
2010
(6) BCLR 615
(GSJ).
[36]
Mail
& Guardian v JSC n32 para 15.
[37]
[2000]
4 All SA 128
(C);
2000 (4) SA 973
(C) para 6.
[38]
In
Multichoice (Proprietary) Limited and others v National Prosecuting
Authority and another, In Re; S v Pistorius, In Re; Media
24 Limited
and others v Director of Public Prosecutions North Gauteng and
others
2014 (1) SACR 589
(GP) in which Mlambo JP granted the
electronic, broadcast and print media access to the Oscar Pistorius
criminal trial, despite
Pistorius remaining ‘steadfastly
opposed to the relief sought by the applicants. He is opposed to any
form of coverage
sought by the applicants.’
[39]
2002
(5) SA 781
(T) at 795F.
[40]
Section
5(5) of the Magistrates Act, 90 of 1998.
[41]
2010
(1) SA 537
(GSJ).
[42]
See
n38 at 543D.
[43]
See
n 38 at 547F-G.
[44]
See
section 178(6) of the Constitution.
[45]
See
n33.
[46]
See
n33 para 12.
[47]
[2012]
JOL 29172
(GNP).
[48]
The
First and Second Applicants in this application.
[49]
No
disrespect is intended by referring to the first name of Mr
Simelane. It is done purely for recognition purposes.
[50]
See
Simelane Ruling n21 at paras 25 – 26.
[51]
See
Simelane Ruling n21 at para 29.
[52]
Simelane
Ruling n21 para 36.
[53]
See
n35.
[54]
2013
(6) SA 367
(CC).
[55]
In
Mistry
v Interim Medical and Dental Council of South Africa and others
1998 (4) SA 1127
(CC) Sachs J held: ‘[27]… The more
public the undertaking and the more closely regulated, the more
attenuated would
the right to privacy be and the less intense any
possible invasion.’
[56]
In
Bernstein
and others v Bester and others NNO
[1996] ZACC 2
;
1996 (2) SA 751
(CC) at para 67 Ackermann J held: ‘The
relevance of such an integrated approach to the interpretation of
the right to privacy
is that this process of creating context cannot
be confined to any one sphere, and specifically not to abstract
individualistic
approach. The truism that no right is to be
considered absolute implies that from the outset of interpretation
each right is
always already limited by every other right accruing
to another citizen. In the context of privacy this would mean that
it is
only the inner sanctum of a person, such as his/her family
life, sexual preference and home environment, which is shielded from
erosion by conflicting rights of the community’…
And
then in para 77: ‘This inviolable core is left behind once an
individual enters into relationships with persons outside
this
closest intimate sphere; the individual’s activities then
acquire a social dimension and the right of privacy in this
context
becomes subject to limitation.’
[57]
Khumalo
v Holomisa n16 para 22.
[58]
See
n33.
[59]
Section
14 of the Constitution provides that: ‘Everyone has the right
to privacy, which includes the right not to have –
(a) their
person or home searched; (b) their property searched; (c) their
possessions seized; (d) the privacy of their communications
infringed.’
[60]
The
applicable portion of section 23 of the Constitution provides that:
‘(1) Everyone has the right to fair labour practices
…’
The right to fair labour practices has been codified in the
Labour
Relations Act, specifically
the definition of an ‘unfair
labour practice’ as set out in
section 186(2)
, none of which
are implicated by the application for access by the media.
[61]
Section
10 of the Constitution provides: ‘Everyone has inherent
dignity and the right to have their dignity respected and
protected.’
[62]
Investigating
Directorate: Serious Economic Offences v Hyundai Motor Distributors
(Pty) Limited
[2000] ZACC 12
;
2001 (1) SA 545
(CC).
[63]
See
n54 at 789A.
[64]
He
found with reference to inter alia the provisions of the
Protection
of Personal Information Act 4 of 2013
, which is yet to commence,
section 16
of the
Labour Relations Act 66 of 1995
regarding
Disclosure of Information and the right to privacy in section 14 of
the Constitution that an employer has a duty to
protect the personal
information of employees. That is no doubt so, but it is not an
absolute right and must yield insofar as
reasonable and justifiable.
[65]
He
distinguished the Breytenbach (
Media24
v NPA
see n45) matter on the basis that the employee had supported the
media application for access, and the Simelane Ruling (see n21)
council matter as not being legal authority binding upon him. These
are relevant observations, but they do not in my view make
the
principle established having regard to the greater public interest
inapplicable.
[66]
In
fairness to him he does state in the concluding paragraph of his
ruling that ‘In my view, the reasons set out above justify
the
prohibition on the attendance of reporters at the disciplinary
enquiry’. It is not clear whether the aforesaid refers
to the
argument referred to in the next paragraph of the text of this
judgment, or also to these Constitutional rights to which
the
employees alluded. To the extent that it includes those right, in
the absence of details as to how the rights would be impaired,
they
must yield to the greater rights asserted in the interest of the
public.
[67]
Slagment
(Pty) Ltd v BCAWU and others
(1994) 12 BLLR 1
(AD).
[68]
In
the ruling by the Eighteenth Respondent in respect of the enquiry
regarding the Twelfth Respondent this aspect was also referred
to
and explained in more detail as follows: ‘Mr Rindel will be a
witness in all the other disciplinary hearings scheduled
against
some eleven other employees. If his version were reported he could
be cross-examined on what he said before.’ That
would not in
my view constitute prejudice that should be countenanced. No
prejudice will be occasioned unless the version testified
to is
deviated from, otherwise consistent evidence in a prior hearing will
simply remain that of an inadmissible prior consistent
statement.
Employees and government departments should not shy away from an
honest and open discussion about alleged financial
and other
mismanagement.
[69]
Media24
Ltd v NPA n45.