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[2012] ZAGPPHC 355
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Mosidi v Minister of Justice and Constitutional Development and Another (60444/2012) [2012] ZAGPPHC 355 (7 December 2012)
NOT
REPORTABLE
IN THE NORTH GAUTENG HIGH COURT,
PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
CASE
No. 60444/2012
DATE:07/12/2012
In
the matter of:
ALETTA
MOIPONE
MOSIDI
......................................................................
Applicant
and
MINISTER
OF JUSTICE AND CONSTITUTIONAL
DEVELOPMENT
..........................................................................................
First
Respondent
DIRECTOR-GENERAL
: DEPARTMENT OF JUSTICE
AND
CONSTITUTIONAL
DEVELOPMENT
...........................................
Second
Respondent
JUDGMENT
Van
der Byl AJ:-
[1]
The Applicant, an attorney of this Court holding the position of
State Attorney in Pretoria, is presently suspended from duty
pending
the finalization of disciplinary proceedings instituted against her
by her employer, the Department of Justice and Constitutional
Development.
[2]
In the pending disciplinary proceedings she is faced with 10 charges
which all emanate from the execution of her duties as State
Attorney
and which appear, on the face of it, to be of a serious nature.
[3]
The disciplinary proceedings were scheduled for hearing on 12 June
2012, but was, because of an administrative error in the
notice in
which it was scheduled, on 12 June 2012 rescheduled for hearing on 12
July 2012. On this occasion the Applicant was granted
permission by
the chairperson to be represented by a legal representative of her
own choice, whereafter the matter was postponed
to 22 October 2012 as
the employer intended to submit an amended chargesheet.
[4]
After the amended chargesheet was made available to the Applicant she
on 31 August 2012, through her attorney of record, addressed
a
request to the Second Respondent, the Director-General : Justice and
Constitutional Development, for “financial assistance
for her
legal fees" on the grounds thereof -
(a)
that she, as an individual, is unable to fund her legal
representation;
(b)
that she is in any event entitled to the same representation as her
employer, consisting of a senior practitioner and an assistant,
senior and junior counsel and various senior officials from the
Department.
[5]
As is apparent from a letter dated 11 September 2012 the Applicant
was informed by the attorney of record of the Respondents
that her
request was refused and that the disciplinary proceedings will go
ahead on 22 October 2012.
[6]
A request, as is apparent from a letter dated 11 October 2012, for
reasons for the decision to refuse the Applicant financial
assistance
was also refused, primarily, because the Respondents were of the view
that the decision “is not of an administrative
nature”
and that, apart from an alleged unfair advantage, no basis has been
advanced upon which she is entitled to such assistance.
[7]
The Applicant, thereupon, launched this application on 18 October
2012 claiming, in addition to the usual order of costs -
(a)
an order reviewing and setting aside the Second Respondent’s
decision refusing “to provide the Applicant with financial
assistance to fund her legal costs occurred in the disciplinary
proceedings
(b)
an order in terms of which the one or the other of the Respondents is
ordered to pay to the Applicant the amount necessary to
provide for
the reasonable expenses to be incurred by her legal representatives,
including senior counsel, for the preparation
of and conducting of
the disciplinary proceedings instituted against her, alternatively,
an order in terms of which the matter
is referred back to the First
or Second Respondent for reconsideration of the request for financial
assistance;
(c)
an order compelling the one or the other of the Respondents to
authorize and approve the appointment of an attorney and counsel
to
act on her behalf in the disciplinary proceedings.
[8]
On 22 October 2012 the disciplinary proceedings were postponed to 19
November 2012, but did not proceed on that date in consequence
of a
court order granted by Pretorius J on 20 November 2012 interdicting
the Respondents from proceeding with the disciplinary
proceedings
until such time as this application has been finally adjudicated
upon.
[9]
Various contentions are raised in the papers and submissions made in
this Court on the question whether or not -
(a)
the Applicant can indeed afford legal representation;
(b)
the decision of the Second Respondent constitutes “administrative
action” as defined in section 1 of the Promotion
of
Administrative Justice Act, 2000 (Act 3 of 2000), and, if so, the
Second Respondent acted procedurally unfair, in bad faith
or
arbitrarily or capriciously or, for not having furnished reasons,
improperly in contravention of section 5 of that Act or is
so
unreasonable that no reasonable person could have so exercised such a
discretion.
[10]
In my view the real issue in this matter lies, as a matter of law, in
the one or the other of two questions, namely -
(a)
whether the Applicant, as an employee, is in law entitled to legal
representation in disciplinary proceedings;
(b)
if so, is there any legal principle by virtue of which an employee
can be ordered to pay, wholly or partially, for the legal
representation obtained by an employee to act on his or her behalf in
disciplinary proceedings instituted by the employer, or to
obtain,
and pay for, any such legal representation?
[11]
In Cuppan v Cape Display Supply Chain Services
1995 (4) SA 175
(D)
the learned Judge (Page J) held, on the question whether or not an
employee has in law a right to legal representation, at
180G as
follows:
“
It
appears to be settled law that where a hearing takes place before a
tribunal other than a court of law, there is no general right
to
legal representation; and where the relationship between the parties
is governed by contract, the right of the person being
subjected to
an enquiry arising out of that contract to be legally represented at
such enquiry must depend upon the terms of the
contract itself (See:
Dabner v SA Railways & Harbours
1920 AD 583
at 598-9; Embling v
Headmaster, St Andrews C College (Grahamstown) & another
1991 (4)
SA
458
(E); (1991) 12 ILJ 277 (E); and, in particular, Lamprecht &
another v McNeillie
[1994] ZASCA 82
;
1994 (3) SA 655
(A); (1994) 15 ILJ 998 (A).”.
[12]
It does not appear to be the contention that the Applicant has, as is
also apparent, as indicated to me by counsel, from the
disciplinary
code applicable to officers in the employ of the State, a general
right to legal representation by virtue of her conditions
of
employment or any other contractual right.
[13]This
brings me to the real question to be decided in this matter, namely,
whether
the
Applicant is in law entitled to claim an order that the Respondents
be ordered to provide financially for the Applicant’s
legal
representation.
[14]
I know of no authority (and my attention was not directed to any
authority) in terms of which, as a general proposition, an
employer
is in law obliged to ensure that an employee charged in disciplinary
proceedings is, at the expense of the employer, legally
represented.
[15]
Mr Cilliers SC who appeared on behalf of the Applicant, however,
submitted -
(a)
that I should consider granting an order, as a matter of fairness
towards the Applicant, directing the Respondents to provide
for the
Applicant’s legal representation, bearing in mind,
particularly, that the Department has appointed a legal team to
represent it at the disciplinary proceedings;
(b)
that I, before delivering judgment, should consider requesting the
Respondents to provide me with information as to the authority
by
virtue of which they appointed their own legal team.
[16]
I find myself not in a position to adhere to any of these
propositions.
[17]
The Respondents’ authorization to have appointed its own legal
team was not challenged by the Applicant in the papers
so that they
were not called upon to deal in the papers with such authorization.
Should it happen that they do not have such authorization,
the
expenses incurred in respect of such appointment will in all
probability constitute unauthorized expenses envisaged in the
Public
Finance Management Act, 1999 (Act 1 of 1999), which can be or should
be dealt with under the provisions of that Act (see,
eg., Chapter 10
of that Act dealing with financial misconduct). I am accordingly not
inclined, as requested by Mr. Cilliers SC,
to request the Respondents
to provide me with information regarding their authorization to
appoint legal representatives in disciplinary
proceedings to act on
their behalf.
[18]
The fact that the Respondents indeed appointed their own legal team
cannot be regarded as proof that the Respondents do have
the
authority to provide the Applicant with legal representation at State
expense.
[19]
As a matter of fact it is the Respondents’ explicit contention
that they are “not authorised by any regulation
to give
financial assistance to the Applicant for the purposes requested’
(record pp. 217, paras 9 and 10).
[20]
In terms of section 213 of the Constitution money may be withdrawn
from the National Revenue Fund only in terms of an appropriation
by
an Act of Parliament or as a direct charge against the Fund when it
is provided in the Constitution or in an Act of Parliament.
[21]
I am accordingly unpersuaded that I can in the circumstances grant an
order directing the Respondents to make some provision
for any legal
representation for the Applicant.
[22]
This leaves me with two further issues to consider, namely -
(a)
to consider, as requested by Mr. Cilliers SC, granting an order
directing the Respondents not to schedule the disciplinary
proceedings for hearing until such time as the Applicant has been
able to raise sufficient funds to pay for her legal representation;
and
(b)
to consider whether or not an order of costs should be granted
against the Applicant.
[23]
As to the first of these issues, it is a matter that has not been
properly canvassed on the papers, particularly, the failure
of the
Applicant to have provided sufficient information regarding her
financial position. I can only express the hope that the
Respondents
will, if provided by the Applicant of the means at her disposal to
provide for her legal representation, in all fairness
to the
Applicant, take such steps as are reasonably possible so as to afford
her a reasonable opportunity to raise the necessary
funds before the
proceedings are scheduled for hearing.
[24]
As to the question of costs, differing contentions were raised on
behalf of the parties. On the one hand it was submitted by
Mr. Pelser
SC who, together with Ms Matlejoane, appeared on behalf of the
Respondents, that she made in her papers certain derogatory
remarks
in relation to te conduct of the Respondents. On the other hand Mr.
Cilliers SC submitted that this application was triggered
by the fact
that the Respondents unnecessarily refused to provide her with
reasons for their refusal to make any provision for
legal
representation at State expense. Had they done so and indicated to
her that there is no authorization for granting such a
request, she
would in all likelihood not have launched this application or could
have challenged the Respondents' authorization
to have appointed
their legal team.
[25]
I prefer to consider the question of costs on the principles
enunciated in Biowatch Trust v Registrar, Genetic Resources
2009 (6)
SA 232
(CC) at245C~247E, para [21] to [25] in which the
Constitutional Court, as in previous judgements in that Court,
confirmed the general
rule that in constitutional litigation an
unsuccessful litigant in proceedings against the State ought not to
be ordered to pay
costs.
[26]
This rule is based on the rationale that an award of costs might have
a chilling effect on litigants who might wish to vindicate
their
constitutional rights. An exception is, however, acknowledged to this
general rule where, for instance, if litigation is
frivolous or
vexatious or in any other way manifestly inappropriate.
[27]
I am unpersuaded that the litigation in this matter frivolous or
vexatious or in any other way manifestly inappropriate.
[28]
In these circumstances I do not consider it to be in accordance with
the dictates of justice to saddle the first respondent
with the
burden of paying the costs.
[29]
In the result I make the following order:
1.
THAT the application be dismissed.
2.
THAT no order be made as to costs.
P
C VAN DER BYL
ACTING
JUDGE OF THE HIGH COURT
ON
BEHALF OF THE APPLICANT: ADV J G CILLIERS SC
On
the instructions of: GEYSER & COETZEE ATTORNEYS
c/o
PIET VAN ZYL ATTORNEYS 145 Walter Beckett Street Arcadia
PRETORIA
Ref:
WW Coetzee/WD819
Tel
: 012 663 5247
ON
BEHALF OF THE RESPONDENTS:cADV Q PELSER SC
ADV
B MATLEJOANE
On
the instructions of:MPOYANA LEDWABA INC
130
Main Street
Nieu
Muckleneuk
PRETORIA
Ref:
Mr Ledwaba/MM/MLM (012) 346 4093/4348
DATE
OF HEARING: 5 DECEMBER 2012
JUDGMENT
DELIVERED ON:7 DECEMBER 2012