Brief Summary

Labour Law — Disciplinary proceedings — Right to appeal — Applicant sought mandamus for written reasons and transcribed records of disciplinary enquiry following dismissal from trade union position — Applicant failed to demonstrate entitlement to transcribed records under union constitution — Court found it lacked jurisdiction to hear the matter as Labour Court has exclusive jurisdiction over such disputes — Application dismissed.

Comprehensive Summary

Summary of Judgment

1. Introduction

The proceedings were an application in the Northern Cape High Court (Kimberley) for mandamus-type relief compelling the respondents to provide information arising from an internal trade union disciplinary process. The applicant, Mr Rivonia Morwakgosi, sought an order directing the National Union of Mine Workers (NUM), together with its President and General Secretary, to furnish him with written reasons for his dismissal and the transcribed record of a disciplinary enquiry held on 7 August 2012. The applicant also sought costs on a punitive scale.

The procedural history, as reflected in the judgment, was that after the disciplinary process and the applicant’s attempts (through correspondence) to obtain reasons and/or the transcript, the applicant launched the present High Court application on 2 April 2013. In response, the respondents raised, among other points, jurisdictional objections and denied any obligation to provide the transcript, while furnishing the applicant with written reasons during the course of the litigation.

The general subject-matter of the dispute concerned an office-bearer’s removal from office within a trade union context, and whether the applicant was entitled (and in the High Court) to compel production of disciplinary materials said to be necessary to pursue internal appeal remedies and/or further labour litigation.

2. Material Facts

The applicant had been an employee of De Beers Consolidated Mines (Pty) Ltd since 16 October 1985. He was seconded to NUM as a Regional Chairperson (Northern Cape), while remaining employed by De Beers. A disciplinary enquiry was convened at NUM’s head office in Johannesburg on 7 August 2012, where the applicant faced two charges.

It was common cause (on the judgment’s narration) that count 1 related to alleged fraud alternatively theft, concerning a petrol claim of R901.00, and that the applicant was exonerated on that charge. It was also accepted that on count 2 he was accused and found guilty of gross dishonesty, which led to his being relieved of his duties as Regional Chairperson with effect from 14 September 2012, a decision confirmed on 6 October 2012.

It further appeared to be undisputed that the applicant’s employment relationship with De Beers ended thereafter, with termination effective 31 October 2012, and that he was unemployed at the time of the application.

The applicant relied on clause 28.1 of NUM’s constitution, which provides for a right of appeal to be lodged within seven days of notice of an adverse decision. The applicant stated that on 6 October 2012 he wrote to NUM indicating his intention to appeal and requested copies of the transcribed record of the disciplinary enquiry. On 9 October 2012, the applicant’s attorneys wrote to the General Secretary indicating an intention to appeal but stating that it was difficult to formulate grounds without the disciplinary report and/or the transcribed record.

A key chronological feature the court relied upon was the passage of time: the application was launched on 2 April 2013, approximately six months after the attorneys’ letter of 9 October 2012, and the judgment records no steps taken by the applicant between those dates to enforce an internal appeal or otherwise pursue the matter.

After service of the application, the respondents’ attorneys sent a letter dated 12 April 2013 asserting, among other things, that the High Court lacked jurisdiction and that the respondents were not obliged to provide a transcript. Importantly, they attached written reasons given by the chairperson of the disciplinary hearing (running to 28 pages). The court treated it as significant that, despite being furnished with written reasons during the litigation, the applicant did not note an appeal in terms of clause 28 thereafter and persisted with the application insisting that the absence of a transcript prevented him from exercising appeal rights.

3. Legal Issues

The central legal questions the court was required to determine were whether the applicant was entitled to the relief sought (particularly the transcript) and whether the application should succeed in compelling NUM and its office-bearers to provide the disciplinary materials.

The dispute involved a mixture of application of law to fact and jurisdictional characterisation. On the one hand, the respondents raised the High Court’s jurisdiction in light of the Labour Relations Act 66 of 1995 (LRA), contending that the dispute fell within the labour-law architecture. On the other hand, the applicant invoked section 32(1)(b) of the Constitution (access to information held by another person required for the exercise or protection of rights) to justify access to the transcript.

A further issue was whether the applicant had identified any source of entitlement (in NUM’s constitution or otherwise) to compel provision of a transcribed record, and whether alternative mechanisms (such as statutory access-to-information procedures or labour-court review procedures) were available and should have been used.

4. Court’s Reasoning

The court considered the applicant’s stated basis for needing the transcript, namely that he required it to formulate grounds of appeal under NUM’s constitution. The judgment observed that, on the applicant’s own attorneys’ wording, either the written reasons and/or the transcript would have enabled him to formulate grounds of appeal. Once the respondents provided the applicant with the written reasons (a detailed document), the court regarded it as expected that the applicant would then proceed with an internal appeal. The applicant’s failure to do so, and his persistence with the High Court application, counted against the necessity and appropriateness of the relief sought.

In assessing the asserted entitlement to a transcript, the court noted that the applicant did not identify any provision in NUM’s constitution conferring a right to receive a transcribed record of the disciplinary proceedings. The applicant relied only on clause 28 as the basis for his right to appeal, but clause 28 did not, on its terms, create a right to the transcript. Instead, clause 28.4 provides that the appeal body determines the procedure for the appeal. The court reasoned that nothing prevented the applicant from filing his appeal (within the internal framework) and raising any request for a transcript or procedural directions before the appeal body, which was empowered to regulate procedure.

The court then dealt with the applicant’s attempt to rely directly on section 32(1)(b) of the Constitution. It accepted the principle, drawn from constitutional jurisprudence, that a litigant generally may not circumvent legislation enacted to give effect to a constitutional right by relying directly on the constitutional provision. The judgment identified the Promotion of Access to Information Act 2 of 2000 (PAIA) as the national legislation enacted to give effect to the section 32 right of access to information held by another person. The court emphasised that the applicant did not rely on PAIA in his papers and did not seek relief excusing compliance with PAIA’s procedures. This weakened the applicant’s direct constitutional reliance as a foundation for the High Court’s intervention.

The court further considered the applicant’s shifting articulation of purpose for the transcript. While the founding papers framed the need as one related to an internal appeal, the replying affidavit mentioned the transcript as enabling an approach to the Labour Court, and the heads of argument later suggested it was needed for a review application. The court referred to Rule 7A of the Labour Court Rules, which provides for the dispatch of the record in review proceedings, and for an order compelling compliance if the record is not produced. Against that background, the court found it illogical to approach the High Court to obtain a transcript for Labour Court review purposes when the Labour Court’s own procedures provide mechanisms to obtain the record.

On jurisdiction, the respondents’ contention was that the Labour Court had exclusive jurisdiction under section 157(1) of the LRA and that disputes implicating section 4 of the LRA (trade union members’ rights to participate in lawful activities and hold office subject to the union constitution) are channelled through labour dispute-resolution structures. The court discussed the Constitutional Court’s clarification in Gcaba v Minister for Safety and Security 2010 (1) SA 238 (CC) regarding the boundaries between High Court and Labour Court jurisdiction, and the principle that quintessential labour disputes should be dealt with in the appropriate labour forums.

However, the court ultimately stated that, on the view it took of the matter, it was not necessary to determine whether the High Court had jurisdiction. It dismissed the application on the substantive analysis that the applicant had not demonstrated an entitlement to the transcript under the union constitution, had been provided with written reasons (which the court regarded as sufficient for appeal purposes given the applicant’s own correspondence), and had not utilised the appropriate mechanisms for accessing information (PAIA and/or Labour Court procedures) if the record was required for further labour litigation.

On costs, the respondents sought punitive costs to mark the court’s displeasure, pointing to the fact that the applicant persisted despite being warned. The court was not persuaded that the threshold for punitive costs was met. It took into account that the applicant sought, albeit unsuccessfully, to assert a constitutional right. The court accordingly applied the ordinary principle that costs follow the result on a party-and-party scale.

5. Outcome and Relief

The final decision was that the application was dismissed.

The court refused the mandamus relief sought to compel production of the disciplinary transcript (and, in context, the application did not succeed despite written reasons having been furnished during the litigation). The court ordered the applicant to pay the respondents’ costs on the party-and-party scale, rejecting the request for punitive costs.

Cases Cited

Moropane v Gilbeys Distillers and Vintners (Pty) Ltd and Another (1998) 19 ILJ 635 (LC).

Walhaus and Others v Additional Magistrate, Johannesburg and Another 1959 (3) SA 113 (A).

Ndlovu v Transnet Ltd t/a Portnet (1997) 18 UKH 1031 (IC); (1997) 7 BLLR 887 (LC).

Mhlambi v Matjhabeng Municipality and Another 2003 (5) SA 89 (O).

Mkhwanazi v Plasser Railway Machinery (SA) (Pty) Ltd (1993) 14 ILJ 237 (IC).

MEC For Education, KwaZulu-Natal, and Others v Pillay [2007] ZACC 21; 2008 (1) SA 474 (CC).

Gcaba v Minister for Safety and Security 2010 (1) SA 238 (CC).

Legislation Cited

Constitution of the Republic of South Africa, 1996 (in particular section 32(1)(b)).

Labour Relations Act 66 of 1995 (in particular sections 4(2) and 157).

Promotion of Access to Information Act 2 of 2000.

Rules of Court Cited

Rules for the Conduct of Proceedings in the Labour Court, Rule 7A.

Held

The court held that the application for an order compelling NUM and its office-bearers to provide a transcribed record of the disciplinary enquiry (and related relief) could not succeed on the papers and applicable legal framework. The applicant did not identify a constitutional or contractual (union-constitutional) entitlement to the transcript, and clause 28 of NUM’s constitution regulated appeals without conferring a transcript right, while empowering the appeal body to determine appeal procedure.

The court further held that direct reliance on section 32(1)(b) of the Constitution was misplaced where PAIA is the legislation enacted to give effect to that right, and the applicant did not pursue PAIA-based relief. To the extent the transcript was said to be required for a Labour Court review, the court held that Rule 7A provides a procedure for obtaining the record within Labour Court proceedings.

The application was dismissed, with costs awarded against the applicant on the party-and-party scale.

LEGAL PRINCIPLES

A litigant ordinarily may not bypass legislation enacted to give effect to a constitutional right by relying directly on the constitutional provision, particularly where the legislation is designed to structure and regulate the exercise of the right. In the access-to-information context, PAIA is the primary vehicle giving effect to section 32 rights where information held by another person is sought for the exercise or protection of rights.

Where an internal disciplinary and appeal framework is created by a constitution or similar instrument, the existence and content of any entitlement (such as access to a transcript) must be located in the applicable instrument or governing law. The mere existence of an appeal right does not, without more, establish a free-standing right to a transcribed record; procedural regulation may be reserved to the appeal body, and a party may be expected to invoke internal appeal procedures and seek appropriate procedural directions within that framework.

In labour-related disputes, and particularly where Labour Court procedures provide a mechanism to obtain a record for review (as under Rule 7A), it is generally inappropriate to seek parallel relief in the High Court to secure the same material for Labour Court proceedings, because the Labour Court’s procedural framework itself provides the route for compelling production of the record.

On costs, even where litigation is avoidable, a punitive costs order is not automatic; a court may decline such an order where the litigant’s pursuit of relief is framed as an attempt (albeit unsuccessful) to vindicate constitutional rights, and may instead award costs on the ordinary party-and-party basis following success.

Morwakgosi v National Union of Mine Workers and Others (495/13) [2013] ZANCHC 43 (8 November 2013)