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[2009] ZAGPJHC 27
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Majake v Commission for Gender Equality and Others (09/14527) [2009] ZAGPJHC 27; 2010 (1) SA 87 (GSJ; (2009) 30 ILJ 2349 (GSJ)) (12 June 2009)
IN THE SOUTH GAUTENG HIGH COURT
(JOHANNESBURG)
CASE NUMBER: 09/14527
In the
matter between:
MAKGATHATSO
CHARLOTTE
CHANA
MAJAKE Applicant
and
THE
COMMISSION FOR GENDER EQUALITY 1
st
Respondent
NOMBONISA
GASA N.O. 2
nd
Respondent
MFANOZELWE
SHOZI N.O. 3
rd
Respondent
DR
YVETTE ABRAHAMSE N.O. 4
th
Respondent
JANINE
HICKS N.O. 5
th
Respondent
REV
BAFANA KHUMALO N.O. 6
th
Respondent
BOOGIE
KHUTSOANE N.O. 7
th
Respondent
NDILEKA
LOYILANE N.O. 8
th
Respondent
DR
TEBOHO MAITSE N.O. 9
th
Respondent
KENOSI
MERUTI N.O. 10
th
Respondent
ROSIDA
SHABODIEN N.O. 11
th
Respondent
DR
ANDRE KEET N.O. 12
th
Respondent
JUDGMENT
MOKGOATLHENG
J
INTRODUCTION
(1) In this urgent application, the applicant seeks an order to be
reinstated to her position with retrospective effect, as the
first
respondent’s Chief Executive Officer on the same terms and
conditions applicable to her appointment prior to her dismissal
on
the 25 March 2009.
(2) The applicant seeks interim relief pending the final
determination of an application to be instituted to review and set
aside
the respondents decision in terminating her appointment.
THE APPLICANT’S CAUSE OF ACTION
(3) The applicant’s claim is founded on various causes of
action. Firstly, the applicant alleges that the decision made by
the
second to twelve respondents who constitute the first respondent’s
“
Plenary”,
to terminate her employment as the
former’s Chief Executive Officer, was unconstitutional,
unlawful, and invalid in that
such conduct constituted:
(a) unlawful administrative action;
(b) a breach of the principle of legality; and
(c) a breach of her contract of employment.
(4) Secondly, the applicant alleges that when the first respondent’s
“
Plenary
” purportedly made the decision to
terminate her employment:
(a) it was not properly constituted consequently, its decision was
invalid as it had no legal authority;
(b) even if it had the legal authority, when it rescinded its prior
decision to hold a disciplinary enquiry, it was
functus officio;
(c) pursuant to the precepts of the
audi alteram partem
principle it was obliged to afford her a hearing before rescinding
its prior decision; and
(d) in initially having decided to subject her to a disciplinary
enquiry, she had a legitimate expectation it would afford her
a
pre-dismissal hearing.
(5) Jurisdiction and urgency are contested issues in this application
consequently, an analysis of a resumé of the facts
is
essential in order to determine whether the applicant’s causes
of action are located within the purview of the
the
Labour
Relations Act 66 of 1995
“The LRA” or section 33 of the
Constitution of the Republic of South Africa Act 108 of 1996 “The
Constitution,”
or within the terms of the applicant’s
contract of employment.
THE SALIENT FACTS
(6) The applicant was appointed as Chief Executive Officer of the
first respondent in April 2002 in terms of
section 7(1)(a) of
the Commission on Gender Equality Act 39 of 1996
(“
the
CGE Act”)
.
(7) On 26 April 2008 following certain allegations, the applicant was
suspended from her position by the “
Plenary
” as
the first respondent’s Chief Executive Officer.
(8) The
“Plenary
” established a Commission of
Enquiry (“
The Commission
”) consisting of three
persons, to investigate the allegations against the applicant.
(9)
“The Commission
” and the “
Plenary
”
advised the applicant that the deliberations of the former were not
to be construed as and neither were they tantamount
to a disciplinary
enquiry.
(10) On 12 February 2009 “
The Commission
” issued a
confidential report recommending that disciplinary proceedings be
instituted against the applicant.
(11) The “
Plenary
” adopted the recommendations and
charged the applicant with misconduct. Adv Sesi Baloyi was appointed
to preside over the
disciplinary enquiry.
(12) At the disciplinary enquiry the first respondent suggested that
the evidence adduced at “
The Commission
” be
admitted against the applicant, and the format of the disciplinary
enquiry be for the presentation of legal argument
and submissions.
(13) On 13 March 2009 applicant’s legal representative objected
to the procedure proposed by the first respondent. The objection
was
upheld and the disciplinary enquiry was postponed to 18 May 2009 to
enable the first respondent to amend the charge sheet.
(14) On 25 April 2009 the “
The Plenary
” consisting
of seven Commissioners aborted the disciplinary enquiry and summarily
dismissed the applicant from her position
as the first respondent’s
Chief Executive Officer.
THE ISSUES
(15) The applicant contends that, “
The
“
Plenary’s
”
decision in terminating her employment was unlawful and invalid
because it was inconsistent with “
The Constitution
”
and the principle of legality.
(16) The respondents contend that, the applicant’s dismissal
was lawful and valid in that, the “
The Plenary’s
”
decision in aborting the disciplinary enquiry and summarily
terminating her employment, was based on “
The Commission’s
”
finding that:
“
(a) there had been an irretrievable breakdown in the trust
relationship between the applicant and the first respondent; and
(b) as a result of such irretrievable breakdown, it would be
extremely difficult for the applicant to continue discharging her
duties
and responsibilities as the Chief Executive Officer of the
first respondent.”
(17) Mr Unterhalter on the applicant’s behalf, argued that the
characterization of the applicant’s cause of action
was
predicated upon the violation of her right to lawful, reasonable and
procedurally fair administrative action entrenched in
section
33 of ”The Constitution,”
and also on a breach of
the terms of her contract of employment. He submitted that the
applicant in expressly eschewing any reliance
on
section 23 of
“The Constitution”
or the prescriptions of
Schedule 8 and 9 of
“
the LRA
”,
places her claim within the ambit of this Court’s jurisdiction.
In support of this contention, he relied on the decision in
Fredericks v MEC for Education and Training, Eastern Cape
[2001] ZACC 6
;
2002
(2) SA 693
(CC).
(18) Mr Brassey on the respondents behalf, argued that the essence of
the applicant’s claim properly construed, concerned
her
dismissal from her employment and was therefore a labour dispute
located within the rubric of incapacity and justiciable only
within
the institutions constituted by “
the LRA
”.
In support of this contention he relied on the decision in
Chirwa
v Transnet Ltd
[2007] ZACC 23
;
2008 (4) SA 367
(SCA).
JURISDICTION
(19) Despite a veritable Thesaurus on the jurisdictional issue
exhaustively ventilated in the Constitutional Court’s decisions
of
Fredericks and Chirwa supra,
the vagaries of
litigation
have again conspired that this Court should again
determine whether it has jurisdiction in matters “
arising
from an employment sphere where there has been a violation of a
constitutional right and ascertain whether the Legislature
in
sections 157(1)&(2) of “the LRA”
has ousted the jurisdiction of this court.”
(20) In my view since
Fredericks supra and Fedlife Assurance
Limited v Wolfaardt
2002 (1) SA 49
(SCA)
the question whether
this court has jurisdiction to adjudicate claims predicated upon
section
33 of ”The Constitution”
or
a breach of the terms of an employment contract has been settled. In
an attempt to finally lay the jurisdictional ghost to rest
I again
restate and adumbrate the legal position as enunciated by the
Constitutional Court and the Supreme Court of Appeal respectively.
(21) It is trite that the curtailment of a court’s jurisdiction
“is, in the absence of an express provision or clear
implication to the contrary, not to be presumed.”
See Schermbrucker v Klindt N.O. 1965 (4) 450 (A.D.) at 455.
(22) “
The Constitution
” draws a distinction
between employment practices and administrative action and subjects
these distinct species of juridical
acts to different forms of
regulation and enforcement within specified statutory regimes.
(23) A High Court derives its jurisdiction from
Section 169 of
”The Constitution”
which provides:
“A High Court may decide any constitutional matter, except
a matter that is within the exclusive jurisdiction of the
Constitutional
Court or a matter that is assigned by an Act of
Parliament to another court of a status similar to a High Court.”
(24) The Labour Court derives its jurisdiction from
Section 157
of “The LRA”
which provides
:
(1)
“Subject to the Constitution and except where this Act
provides otherwise, the Labour Court has exclusive jurisdiction in
respect of all matters that elsewhere in terms of this Act or in
terms of any other law are to be determined by the Labour Court.”
(2) The Labour Court has concurrent jurisdiction with the High
Court in respect of any alleged or threatened violation of any
fundamental
right entrenched in Chapter 2 of the Constitution of the
Republic of South Africa, 1996, and arising from –
(a) employment and from labour relations;
(b) any dispute over the constitutionality of any executive or
administrative act or conduct, or any threatened executive or
administrative
act or conduct, by the State in its capacity as an
employer…..”
(25) I agree with Skweyiya J’s interpretation of
section
157
in
Chirwa supra.
“
It
is apparent from the provisions of
section 157(1) that it does
not confer exclusive jurisdiction upon the Labour Court generally in
relation to matters concerning
the relationship between employer and
employee. It seems implicit from the provisions of this section that
the jurisdiction of
the High Court is not ousted simply because a
dispute is one that falls within the overall sphere of employment
relations. The
jurisdiction of the High Court will only be ousted in
respect of matters that, in the words of section 157(1) ‘are to
be
determined by the Labour Court.’
This is evident from
section 157(2), which contemplates concurrent jurisdiction in
constitutional matters arising from employment
and labour
relations………..
“
the concurrent jurisdiction provided for in section 157 (2)
of
the L.R.A is meant to extend the jurisdiction of the Labour Court
to
employment matters that
implicate constitutional
rights.
(my under
underlining)
However, this cannot be seen as derogating from the jurisdiction
of the High Court in constitutional matters, assigned to it by
section 169 of the Constitution unless it can be shown that a
particular matter falls into the exclusive jurisdiction of the Labour
Court.”
(26) O’Regan J in
Fredericks supra
has finally
dispelled any contrary construction of
sections 157(1)and(2)
by holding
that
properly construed the sections do not oust
the jurisdiction of the High Court:
“……
.. section 157(1) had to be interpreted in
light of section 169 of the Constitution. That section permits
constitutional matters
to be assigned to courts other than the High
Court, but they must be courts of equal status. The Commission for
Conciliation, Mediation
and Arbitration (CCMA) is not a court of
equal status and the review of CCMA decisions is not a substitute for
considering a matter
afresh. Section 157(1) of the LRA must, insofar
as it concerns constitutional matters, be read to refer only to
matters assigned
for initial consideration by the Labour Court.
It is quite clear that the overall scheme of the
Labour Relations
Act does
not confer a general jurisdiction on the Labour Court to
deal with all disputes arising from employment….as there is no
general jurisdiction afforded to the Labour Court in employment
matters,
The jurisdiction of a High Court is not ousted by
section 157(1)
simply because a dispute is one that falls within the overall sphere
of employment relations”……..absent a specific
provision conferring jurisdiction of a constitutional matter on the
Labour Court, the High Court enjoyed concurrent jurisdiction
to
decide constitutional matters, including administrative action
claims.”
(27) The Constitutional Court’s decision in
Chirwa supra
did not overrule its earlier decision in
Fredericks supra
that
the High Court has concurrent jurisdiction to adjudicate
“constitutional matters, including administrative action
claims.
(28) Mr Brassey argued that it was irrelevant whether the
applicant’s appointment was effected in terms of
section
7(1)(a)
of
“
the CGE
” or whether
there was an implied term to a pre-dismissal hearing in her contract
of employment, what was critical was that
the procedural fairness or
not of the applicant’s dismissal was located within the
institutions created by “
the LRA
” I demur
for the following enumerated reasons.
(29) In my view the conclusion that this Court has jurisdiction to
entertain a claim arising from a breach of the terms of a contract
of
employment is settled. An employee’s right of entitlement to a
pre-dismissal hearing is established in law. The right
derives from
the common law or statute and may be implied from a contract of
employment or parties may for certainty expressly
incorporate it in a
contract of employment.
(30) The right to a pre-dismissal hearing was developed under the
constitutional imperative encapsulated in
section 39(2) of “The
Constitution
”
to harmonize the common law with
the Bill of Rights. The right extended the requirement of the
audi
alteram partem
principle and engenders justice and fairness in
the employment sphere.
(31) In
Old Mutual Life Assurance Co of SA Ltd v Gumbi 2007 (5)
SCA A 552 at 554B-555E
it was held:
“
The right to a pre-dismissal hearing imposes upon employers
nothing more than an obligation to afford employees the opportunity
of being heard before employment is terminated by means of a
dismissal.”
(32) A cause of action based on a contractual breach is justiciable
in the High Court (
See Fedlife Assurance Limited v Wolfaardt
2002 (1) SA 49
(SCA).
In
Transman (Pty) Ltd v Graham
Dick
case number 147/08
an unreported
judgment of the Supreme Court of Appeal handed down on the 31 March
2009, it was confirmed that every employee has
a right to a
pre-dismissal hearing.
STATUTORY JURISDICTIONAL FRAMEWORK
(33)
Section 157(1)of “the LRA”
does not prevent any person relying upon
the Basic
Condition of Employment Act 75 of 1997 “the BCEA”
from establishing that a basic condition of employment constitutes a
term of a contract of employment in any proceedings in a civil
court.
(34)
Section 77(1) of
“
the
BCEA
” provides:
”
subject to the constitution and the jurisdiction of the
Labour Appeal Court, and except where this Act provides otherwise,
the Labour
Court has exclusive jurisdiction in respect of all matters
in this Act except on offences specified in sections 43, 44, 46, 48,
90 and 92.”
(35)
Section 77(3) of “the BCEA”
provides:
“
The Labour Court has concurrent jurisdiction with the civil
courts to hear and determine any matter concerning a contract of
employment,
irrespective of whether any basic condition of
employment constitutes a term of that contract.”
(my
underlining)
(36) The construction
of sections 77(1) and (3) of “the
BCEA”
and sections
157(1) and (2) of the
“LRA”
is similar in import. In my view it is
axiomatic that “
the BCEA
”
confers
concurrent jurisdiction on any civil court including the High Court
to adjudicate matters relating to and concerning contracts
of
employment.
See University of the North v Franks and Others (2002) 23ILJ
1252 (LAC), Langeveldt v Vryburg Transitional Local Council and
Others
(2001) 22 ILJ 1116 (LAC
)
.
(37) The judgment in
Fedlife supra
has since been
endorsed and extended by the Supreme Court of Appeal in three recent
judgments,
Old Mutual Life Assurance Co SA Ltd v Gumbi
2007
(5) SA 552
(SCA) ([2007]
4 All SA 866)
; Boxer Superstores
Mthatha and Another v Mbenya
2007 (5) SA 450
(SCA)
; and
Makhanya v University of Zululand (218/08)
[2009] ZASCA 69
,
(a judgment handed down on the 29 May 2009).
(38) In
Boxer Super Stores supra
,
the court
ruled that all common-law contracts of employment contain an implied
provision entitling an employee to a fair pre-dismissal
procedure.
(39) The compendium of the above decisions conclusively demonstrate
that this court has the requisite jurisdiction to entertain
claims
arising from
section 33 of the Constitution
and from a
breach of a contract of employment
See also Nonzamo Cleaning Services Co-Operative v Appie and
Others
2009 (3) SA 276
, (CKHC) at 290C-D (a full bench decision)
URGENCY
(40) I now turn to consider the question of urgency. Mr Unterhalter
argued that the applicant has demonstrated that this application
is
urgent because she founds urgency on the fact that her unlawful
dismissal has infringed her constitutional right to procedurally
fair, reasonable and lawful administrative action with the
consequential precipitation of:
(a) reputational harm;
(b) financial prejudice; and
(c) emotional stress.
(41) Mr Brassey argued that urgency has not been proved because
applicant’s reputation cannot be vindicated by securing an
order for interim reinstatement, reputational harm has already
occurred.
In any event, counsel contended, applicant’s suspension will
not be reversed, and this, more than the ultimate dismissal,
is what
creates the potential damage to her reputation.
(42) Counsel argued that the applicant’s reputation has not
been harmed since the termination of her employment was not
predicated on misconduct, but on her incompatibility and a breakdown
of the employer/employee trust relationship between her and
the first
respondent.
(43) Counsel contended that it is impermissible for the applicant to
seek remuneration
pendente lite
in this court when she can
secure final relief in the appropriate institutions of “
the
LRA.”
In any event, the interim remuneration applicant
seeks creates no basis for interim relief in the Labour Court where
natural hardship
or loss of income is not regarded as a ground for
urgency.
(44) Sachs J in
Masetlha v President of the Republic of South
Africa and Another
[2007] ZACC 20
;
2008 (1) SA 566
(CC)
stated:
“The
Constitution
”
…….presupposes
that public power will be exercised in a manner that is not arbitrary
and not unduly disrespectful
of the dignity of those adversely
affected by its exercise………
“………
.Fairness to an incumbent about to
be relieved of a high profile position in public life presupposes the
display of appropriate
concern for the reputational consequences.
People live not by bread alone; indeed, in the case of career
functionaries, reputation
and bread are often inseparable.”
(45) In my view the perceived threat to, or the possible violation of
the applicant’s constitutional right to dignity and
to lawful,
reasonable and procedurally fair administrative action, and her
consequent summary dismissal without being afforded
a hearing founds
and justifies urgency in this application. The perceived violation of
applicant’s constitutional right to
dignity is a constant and
enduring phenomenon until the matter is resolved. The applicant’s
constitutional right to human
dignity, the right to lawful,
reasonable and procedurally fair administrative action renders the
application urgent.
WHETHER APPLICANT’S DISMISSAL CONSTITUTES ADMINISTRATIVE
ACTION
(46) The applicant’s dismissal arises from her employment
relationship. The seminal question is whether applicant’s
dismissal is premised on the exercise of a statutory or contractual
power by the first respondent to justify the inference that
her
dismissal constituted administrative action.
(47)
Section 1
of the
Promotion of Administrative Justice Act 3
of 2000
“PAJA”
defines administrative action as
follows:
“
Any decision taken, or any failure to take a decision, by-
an organ of State, when –
exercising a power in terms of the Constitution or a provincial
constitution; or
exercising a public power or performing a public function in
terms of any legislation; or
(b) a natural or juristic person, other than an organ of state,
when exercising a public power or performing a public function in
terms of an empowering provision, which adversely affects the rights
of any person and which has a direct, external legal effect.”
(48) The question whether the exercise of public power constitutes
administrative action must be determined with reference to
section
33 of “The Constitution.”
The application of
“
PAJA”
is triggered once it is
determined that the conduct in question constitutes administrative
action under the section.
(49) To constitute administrative action under “
PAJA,
”
the termination of applicant’s contract of employment must have
occurred in terms of a statutory authority and not in terms
of the
contract of employment
per se.
I now turn to consider the
source informing the applicant’s dismissal.
(50) The applicant was appointed as the first respondent’s
Chief Executive Officer in terms of
section 7(1)(a) CGE Act
by
the “
Plenary
” in consultation with the Minister of
Finance.
(51) The first respondent is a public entity created by statute and
operates under statutory authority. The first respondent’s
power to appoint the applicant predicates a correlative power to
dismiss. The first respondent’s decision to dismiss necessarily
involves the exercise of public power. The power to dismiss is
sourced in a statutory provision.
See Masetlha supra at paragraph [63]
(52) Because the power to appoint is statutory and is not an
incidentalia
arising from the contract of employment it is
implicit that the correlative power to dismiss is also statutory
consequently, applicant’s
dismissal amounts to administrative
action as envisaged by
section 33 of
“
The
Constitution
”
and renders the “
Plenary’s
”
decision susceptible to administrative review under “
PAJA
”.
(53) The first respondent is a
Chapter 9
constitutional organ
and in terms of
section 181 (2) of “The Constitution”
it is subject only to the Constitution and the law. The first
respondent is enjoined to be impartial and to exercise its powers
and
perform its functions without fear, favour or prejudice.
THE DOCTRINE OF LEGALITY
(54) In order to establish whether there is merit in the respondents
contention that the applicant’s dismissal was lawful,
and
whether “
The Commission’s
” findings
justified her dismissal based on her incapacity or incompatibility
and the loss of trust between her and the first
respondent, it is
apposite to restate the legal principles governing this exigency.
(55) Our constitutional democracy is founded on the
‘(s)upremacy
of the Constitution and the rule of law’
. “
The
Constitution
” declares that the ‘
Constitution
is the supreme law of the Republic, law or conduct inconsistent with
it is invalid.’
(56) It is a requirement of the rule of law that in order to pass
constitutional muster the exercise of public power must not
be
arbitrary or inconsistent with the rule of law. The rule of law is a
source of constraint on the exercise of public power.
(57) The exercise of public power must comply with
“The
Constitution”
and the doctrine of legality. The
doctrine of legality entails that the first respondent as a
Chapter
9
institution
‘is constrained by the principle that it
may exercise no power and perform no function beyond that conferred
upon it by law’
.
(58) Since the inception of our constitutional democratic order
predicted on the rule of law, all courts, quasi-judicial tribunals
and tribunals have to conduct their proceedings in a manner
consistent with “
The Constitution
” and
“
notions of basic justice and fairness”
(59) The first respondent has a constitutional duty to secure and
ensure the enforcement of the applicant’s constitutional
right
to lawful reasonable and procedurally fair administrative action.
THE FIRST RESPONDENT’S DISCIPLINARY CODE AND PROCEDURES
(60) Part 2, Section
9.1 and 9.6
of the
Principle,
Policies, Rules and Regulations for the Staff of the Commission on
Gender Equality “(PPRR)”promulgated and
published
in Government Gazette vol. 503 No. 29922 of the 31 May 2007
which
regulates and governs internal relationships between “
the
Plenary
”, Commissioners and staff, decrees that the former
shall deal fairly, professionally and equitably with staff members.
(61)
Section 1
of the first respondent’s disciplinary
code and procedures states that a disciplinary code is necessary for
the fair treatment
of staff and ensures that members of staff shall
have a fair hearing in a formal or informal hearing.
(62) It is patent that the provisions in the first respondent’s
disciplinary code and procedures form part of the applicant’s
contract of employment, and entitles her to procedural fairness in a
pre-dismissal hearing.
LEGITIMATE EXPECTATION
(63) The applicant contends that she had a legitimate expectation
that she would be subjected to a pre-dismissal hearing before
the
“
Plenary
” could make a decision to terminate her
employment as first respondent’s Chief Executive Officer.
(64) The principle of legitimate expectation is premised on the duty
of an administrative body to act fairly when making an administrative
decision which adversely affects an individual, such body must
observe the principles of natural justice.
(65) In
Administrator, Transvaal, and Others v Traub and Others
[1989] ZASCA 90
;
1989 (4) SA 731
(A)
it was held:
“
when a statute empowers a public official or body to give
a decision prejudicially affecting an individual in his or her
liberty
or property or existing rights, the latter has a right to be
heard before the decision is taken unless the statute expressly or
by
implication states the contrary.
”
(66) A public organ which derives its authority from a statute to
conclude a contract and a correlative authority to terminate
such
contract from such public power, has a statutory obligation to afford
a contracting party a pre-dismissal hearing in accordance
with the
precepts of the
audi alteram partem
rule.
(67) The “
Plenary’s”
conduct in unilaterally
aborting the disciplinary enquiry in order to effect the applicant’s
summary dismissal is a gross
manifestation of arbitrary conduct which
negates the first respondent’s obligation and duty as a
Chapter
9
institution to act and conduct itself within the purview of
“
The Constitution”
and the principle
of legality. Consequently, the termination of the applicant’s
employment is inconsistent with “
The Constitution
”
and the principle of the rule of law and is therefore invalid.
WAS THE “
PLENARY
”
QUORATE
(68) Mr Unterhalter argued that when the “
Plenary
”
decided to summarily terminate the applicant’s employment it
was not quorate consequently, its decision was a nullity.
Mr Brassey
argued in contradistinction that the “
Plenary
” was
quorate and its decisions was valid because the “
Plenary’s
”
decisions are made by a simple majority.
(69)
Section 5.3 of the CGE Act
provides:
“
The quorum for any meeting of the Commission shall be a
majority of the total number of members appointed in terms of section
3.2.
(70)
Clause 4.2 of the PPRR
provides:
“
4.2“Plenary” consists of all the Commissioners
with two-thirds constituting a quorum;
4.3All decisions taken at a session of “Plenary” that
did not have a quorum shall be referred to a quorate session for
ratification before they become binding
(71)
Clause 4.2
on which Mr Unterhalter relied for his
proposition that the “
Plenary’s
” decision
was a nullity due to a lack of a quorum is a regulation. It is trite
that a regulation cannot trump a statute
because it is subordinate
legislation. Consequently, a majority of the appointed Commissioners,
that is, 51% present at a meeting
constitutes a quorum.
See Surmon Fishing (Pty) v Compass Trawling (Pty) Ltd
[2008] ZASCA 142
;
2009 (2)
SA 196
SCA.
(72)
It is immaterial whether the decision to terminate
applicant’s employment was made by 63% of the Commissioners
present, it
is
de jure
the “
Plenary’s
”
decision and was validly made.
(73) In any event, even if I am wrong in reaching this conclusion,
”the
Plenary’s
” decision although
unlawful as contended by Mr Unterhalter, is not
per se void
ab initio
. The paradox is that this purported invalid
administrative action has legal consequences until reviewed and set
aside.
See Oudekraal Estate (Pty) Ltd v City of Cape Town and Others
2004 (6) SA 222
(SCA) in para [26] at 242A.
(74) The review of the “
Plenary’s
” decision
as envisaged in
Oudekraal Estate supra
would be an
exercise in futility, a
brutum fulmen
in view of this Court’s
conclusion that the “
Plenary’s
” decision to
abort the disciplinary enquiry and summarily terminate applicant’s
employment without affording her a
pre-dismissal hearing was
inconsistent with “
The Constitution
” and
was consequently unlawful and invalid.
WAS THE “
PLENARY
”
FUNCTUS OFFICIO?
(75) Mr Unterhalter contended that the “
Plenary’s”
decision in reneging from its prior decision to subject applicant to
a disciplinary enquiry was invalid because the “
Plenary”
did not have the legal authority to make that decision as it was
functus officio.
(76) The “
Plenary”
in revisiting its prior
decision to subject the applicant to a disciplinary enquiry, has not
shown that when it exercised its
power to make the decision it
laboured under a
bona fide
but mistaken belief that such prior
decision was permissible in law and that it has subsequently
transpired that such prior decision
was in fact erroneously based
upon an error of law or fact.
See Baxter Administrative Law 1
st
Edition page 373.
(77) The doctrine of
functus officio
is predicated on the
principle of administrative certainty consequently, the applicant was
entitled to be heard pursuant the dictates
of the
audi alterem
partem
principle before the “
Plenary”
abrogated its prior decision to subject her to a disciplinary enquiry
and instead unilaterally and summarily dismiss her. Consequently,
the
“
Plenary’s”
subsequent decision is a nullity
due to lack of engagement with the applicant before making such
decision.
WHETHER IT IS COMPETENT FOR THE APPPLICANT TO SEEK A MANDATORY
INTERDICT
(78) Mr Brassey contended that it was impermissible for the applicant
to seek mandatory relief by way of an interim interdict to
reinstate
her in her former employment in the form of specific performance.
(79) Counsel argued, that it was impermissible for the applicant to
seek an interim interdict for mandatory positive relief
pendite
lite
because she was effectively requesting this court to
anticipate a final finding, alternatively the effect of the mandatory
interdict
order in the context was the same as a specific performance
for the payment of a debt.
(80) Mr Brassey urged me to exercise the court’s discretion in
favour of the respondents having regard to:
(a) the extent of the breakdown of trust;
(b) the nature of the contract;
(c) the constant danger of contractual disputes; and
(d) the court’s inability to supervise and prevent disputes.
(81) Counsel submitted that it was impermissible to grant an
interdict or declaratory order having the effect of enforcing an
employment contract because normally, the only remedy open to an
employee was damages under the common law, alternatively,
compensation
under “
the LRA
”. In support of
this proposition he referred to the case of
Theron v Minister
of Correctional Services and Another (2008) 29 ILJ 1275 (LC)
.
(82)
R.H.Christie, The law of Contract in South Africa 4th
Edition at page 613
states:
“
An order for specific performance of a contract of
employment, will, in the exercise of a court’s discretion, not
normally
be granted. The tendency to regard it as a rule of law that
specific performance of such contract would never be granted was
corrected
in National Union of Textile Workers v Stag Packings (Pty)
Ltd
1982 (4) SA 151
(T) but the reasons why the courts have not
granted such an order remain as valid as ever, provided it is
remembered that in every
case the court has a discretion.”
(83) Although the first respondent alleges that there has been a
breakdown in trust, and consequently incompatibility, that alone
does
not constitute sufficient ground to justify a unilateral termination
of the applicant’s contract of employment because
the applicant
on the first respondent’s version was not counseled before the
termination of her employment as required by
law.
(84) It must however be said that an irretrievable breach of trust
will be relevant for purposes of a remedy where a litigant
seeks
specific performance. The ordinary remedies for breach of contract
are either reinstatement, damages or payment of benefits
for the
remaining period of the contract of employment.
(85) The manner in which the applicant’s employment was
summarily terminated is not characterized by hall marks infused
with
“
notions of basic justice and fairness”
and indeed
if one may opine, the “
Plenary’s
” conduct
offends the notion of ones sense of justice and fairness. The
termination of the applicant’s employment is
inconsistent with
“
The Constitution
” and the principle of
legality.
(86) Bereft of any embellishment, the relief sought by the applicant
is to be reinstated as the Chief Executive Officer of the
first
respondent. Given the underlying contract of employment, it is open
to the applicant to claim specific performance in the
form of
reinstatement, payment of her salary, and the benefits that attach to
her post.
(87)
The contract of employment was terminated
unlawfully, the applicant is entitled to reinstatement as a matter of
contract. Although
reinstatement is a discretionary remedy in
employment law it is awarded here because of the infringement of the
applicants
section 10
constitutional right to dignity and
section 33
right to lawful, reasonable and procedurally fair
administrative action.
(88) In exercising my discretion and because of the reasons I have
advanced, in my view this is an appropriate case to order
reinstatement.
THE REQUIREMENTS OF AN INTERIM INTERDICT
PRIMA FACIE
RIGHT
(89) The applicant’s
prima facie
right upon which the
applicant relies is founded on the failure to afford the applicant a
pre-dismissal disciplinary hearing, the
infringement of her
constitutional right to procedurally fair, reasonable and lawful
administrative action and the unlawfulness
of the “
Plenary’s”
conduct in having failed to comply with the terms of her contract
of employment.
Irreparable Harm
(90) The applicant has demonstrated that her constitutional right to
her
dignity has been violated, and has suffered irreparable
reputational and financial harm.
Alternative remedy
(91) The applicant has no alternative remedy. The
CCMA
cannot
be the
proper forum to challenge the violation of her
section 33
constitutional right to fair, reasonable and lawful administrative
action.
Balance of Convenience
(92) The prejudice the applicant has suffered and continues to suffer
because of the violation of her
section 33
constitutional
right outweighs any prejudice, if any, that the respondents would
suffer. The applicant’s dismissal is unlawful
consequently if
interim relief is not granted she would incur severe reputational
impairment to her credibility in the public domain.
IS IT COMPETENT TO GRANT FINAL RELIEF
(93) In view of the urgency of the matter and time constraints,
subsequent to hearing full argument and after considering same,
I
issued an order reinstating the applicant. I reserved the reasons
underpinning such order with the caveat that counsel should
furnish
Supplementary Heads Of Argument addressing the issue, whether, it was
competent for the court to grant a final order in
this matter since
the applicant sought interim interdictory relief.
(94) The rationale predicating the Court’s view was that the
applicant could only be reinstated as first respondent’s
Chief
Executive Officer if it was determined that the termination of her
employment was unlawful. If such determination is made
it renders
the applicant’s prayer to be given leave to institute review
proceedings to set aside or declare her dismissal
invalid superfluous
and academic.
THE REQUIREMENTS OF A FINAL ORDER
(95) Although the applicant seeks interim relief, she is entitled to
final relief if she can establish a clear right as opposed
to a
prima
facie
right. If the applicant is to be granted a final order she
has to establish not only a clear right, but also an injury actually
committed, and the absence of an alternative remedy.
(96) In this matter there is no dispute on the papers that the
applicant has been dismissed from her employment, and has suffered
harm, or that she has no alternative remedy. The only dispute relates
to the legal issues pertaining to such dismissal. In my view,
having
proved that her dismissal was unlawful, the applicant has established
a clear right to secure a final order.
(97)
In National Gambling Board v Premier, KwaZulu-Natal
[2001] ZACC 8
;
2002
(2) SA 715
(CC) at para 52,
it was held:
“
[52] Ordinarily, an interim interdict is appropriate when
the facts which establish a right to a final order are in dispute. It
has been held in some cases that an interim interdict is not
appropriate when the facts relating to a final order are not in
dispute.
In such a case the court will proceed to decide the legal
issue pertaining to the main dispute. It will then issue or refuse a
final order. In other cases it has been held that there may be
circumstances in which the court will issue an interim interdict
even
if the facts pertaining to the main dispute are not in dispute.”
(98) In
Fourie v Olivier en Ander
1971 (3) SA 274
(T)
it was held:
“
where a legal issue is dispositive of a matter, the court
seized
with the application for interim relief should finally decide the
matter and should not leave same for a trial court or the court
hearing the application for final relief to determine same.”
(99) In this matter all questions of law requiring detailed argument
were
raised and fully ventilated. Although the court was approached on
urgency this court has had ample time for mature reflection and
the consideration of legal argument by two eminent senior
counsel.
(100) I am of the firm considered view that on the common cause facts
the applicant can only be reinstated to her position as Chief
Executive Officer of the first respondent only if it is established
that her dismissal was unlawful.
(101) I completely agree with Southwood J who was confronted with an
analogous situation
in Mzilikazi and Another v The South
African
Reserve Bank
an unreported case of the North
Gauteng High
Court
case number 50711/08 handed down on 19 February
2008
that:
“
Notwithstanding the formulation of the relief in the Notice
of
Motion and the formulation of the causa in the founding affidavit
the parties agreed that the relevant facts are before this court,
that
there are no real disputes of fact and that if the court were to
uphold the applicants contentions regarding ultra vires and/or the
Regulation 22D review, the court should simply grant a final order
declaring the notice invalid. That is obviously the real relief
which
the applicants seek in this application. In my view that is the
appropriate course for this court to follow. If the court were to
find
that the notice is invalid on either ground it would serve no
useful
purpose to grant interim relief –
See Fourie v
Olivier 1971 (3) 274
(T) at 284G-285H.”
The parties accept that
this court
“
can issue a
final order as a matter of jurisdictional competence even though a
final order was not sought in the application. However that such
final order can only be made provided that court is satisfied that
a
clear right has been demonstrated for such relief.”
(102) I am of the firm view that the applicant request in seeking
leave to institute an application for an order reviewing and
setting
aside or declaring invalid the decision of the first respondent’s
“Plenary” in
terminating her appointment as Chief Executive Officer, would be
inconsistent with the principles of
res judicata,
and
would
be
superfluous, academic and an unnecessary waste of costs.
(103) The right of the respondents to appeal such final order are and
remain unfettered, consequently no prejudice or potential
prejudice
would be suffered by the respondents as a result of such final order.
THE ORDER
(104)In the premises the following order is made:
The applicant is reinstated with retrospective effect to her
position as Chief Executive Officer of the first respondent on
the
terms and conditions applicable to her appointment prior to 25
March 2009;
The first respondent is ordered to pay the costs of the
applicant’s costs and the costs consequent upon the
employment
of two counsel.
Signed at Johannesburg on the 12 June 2009.
________________________
MOKGOATLHENG J
JUDGE OF THE HIGH COURT
DATE OF HEARING: 17 APRIL 2009
DATE OF JUDGMENT: 12
JUNE 2009
COUNSEL FOR THE APPLICANT: D UNTERHALTER SC
ASSISTED BY: A G GOTZ
INSTRUCTED BY: IRENE ROME ATTORNEYS c/o H MILLER ACKERMANN &
BRONSTEIN
TELEPHONE NUMBER: (011) 483-0144
COUNSEL FOR THE RESPONDENTS: M BRASSEY SC
ASSISTED BY: M.VAN AS
INSTRUCTED BY: LEPPAN BEECH INC
TELEPHONE NUMBER: (011) 250-5190