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[2008] ZAWCHC 306
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Mortimer v Municipality of Stellenbosch and Another (18243/2003) [2008] ZAWCHC 306 (27 November 2008)
NOT
REPORTABLE
OF
INTEREST TO OTHER JUDGES
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE
NO
:
18243/2003
In
the matter between:
NIMROD
LLEWELLYN MORTIMER
APPLICANT
versus
MUNICIPALITY
OF STELLENBOSCH
1
st
RESPONDENT
JAN
THEROiN, NO
2
nd
RESPONDENT
JUDGMENT
26,
27
NOVEMBER 2008
Jurisdiction
of High Court and Labour Court - when concurrent in respect of
interdicts and declaratory orders - interpretation of
section 151 of
Labour Relations Act and application of decisions in
Fredericks
and
Chirwa
â
when
court will intervene in incomplete proceedings of subordinate
tribunal.
GAUNTLETT,
A J:
The
issues
Two
fundamental matters are raised by this application, argued yesterday.
The first involves, again, the respective jurisdictions
of the High
Court and the Labour Court, in the light in particular of recent
Constitutional Court and Supreme Court of Appeal rulings
in that
respect. The second relates to the circumstances in which a court
will intervene, by way of interdict or declaratory order,
in the
unterminated proceedings of another body, in this case, a
disciplinary inquiry.
The
applicant is the Director; Corporate Services of the first
respondent, a municipal council. The second respondent is an
independent
attorney specialising in labour matters, engaged as the
chairman of a disciplinary inquiry ("the inquiry") into the
conduct
of the applicant as an employee of the first respondent.
In
the early evening of Monday, 3 November 2008, the applicant procured
an urgent interim order from this court suspending the inquiry,
pending the return day of an application for final relief. The
initial order appears thereafter to have been adjusted and expanded,
evidently following discussion between the parties and agreement
between them relating to a timeframe. The ultimate order was made
in
these terms:
1.
Dat die dissiplinere verkoor van die applikant voor die tweede
respondent opgeskort word hangende die keerdag van die bevel
nisi in
die volgende paragraaf.
2.
Dat
'
n
bevel nisi uitgereik word met keerdag op Woensdag 26 November 2008,
wat eerste respondent aanse om redes
f
indien enige
t
in hierdie Hof aan te voer waarom die votgende bevel nie gemaak sal
word nie:-
2.1
dat die dissiplinere verhoor van die appiikant voor die tweede
respondent onbepaald uitgestel word; in die aiternatief tot 1.1
[sic]
hierbo.
2.2
dat gemeide dissiplinere verhoor uitgestel word tot *n datum wat
gereel word tussen die regsverteenwoordigers van die partye,
tnaar
nie minder as agt weke vanaf datum hiervan nie, op die voigende
voorwaardes:-
2.2.1
dat die eerste respondent die volledige lys van inligting en
dokumente waarna verwys word in Aanhangsel NLM4 blootle en beskikbaar
stel binne 14 dae hiervan;
2.2.2
dat die appiikant binne 14 dae na sodanige blootlegging *n versoek om
nadere besonderhede tot die klagstaat mag rig;
2.2.3
dat die eerste respondent binne 14 dae op sodanige
versoek reageer; en
2.2.4
dat die appiikant se skorsing uit diens van die eerste respondent,
met voile betaling, verleng word tot en met afhandeling
van die
dissiplinere verhoor.
Four
notices of intended amendments to this relief have followed, the last
- handed up at the commencement of oral argument -seeking
an order
declaring the inquiry null and void
ab
initio,
and
setting aside certain procedural rulings by the second respondent to
date, and in the alternative, a postponement as before,
but now on
the following conditions:
"2.1
dat eerste respondent die volledige lys van inligting en
dokumente aangevra... blootle en beskikbaar stel...
2.2 dat
die applikant geregtig sal wees om binne 14 dae na sodanige
blootlegging *n versoek tot nadere besonderhede tot eerste
respondent se klagstaat aan eerste respondent te mag rig;
2.3 dat
eerste respondent binne 14 dae nadat hy sodanige versoek tot n ad
ere besonderhede ontvang het, volledige daarop moet
antwoord;
2.4 dat
die dissiplinere verboor van applikant voor tweede respondent, of
enige under voorsittende beampte wai eerste respondent
mag aanwys,
heropen word...
2.5 dal
applikant se skorsing uit die diens van eerste respondent, met voile
betating
r
verleng word tot en met die finale afhandeling van die dissiplinere
verhoor;
Thus
in short, the applicant seeks final relief in the form of a
declaratory order of invalidity in relation to the disciplinary
inquiry conducted to date, alternatively a final mandatory interdict
in the respects specified.
The
latest amendment, it was explained in argument, has been occasioned
by two developments: firstly that the inquiry continued,
the second
respondent completing the hearing of evidence by the first respondent
on the evening of 3 November, while the High
Court
interim order was being sought; and secondly, that the applicant only
ascertained on 20 November that the South African Local
Government
Bargaining Council: Disciplinary Procedure Collective Agreement ("the
SALGA Code"), central to the disciplinary
inquiry and to the
appointment of the second respondent,
had
lapsed.
It
seems to me that the logical sequence of the issues between the
parties is as follows:
1. Is
the application to be dismissed
at
the
outset, as first respondent has propounded, on the basis that any
urgency in the matter has been self-induced?
2. If
not, does this court have jurisdiction to grant the relief sought?
If
this court does have jurisdiction, does
a
case
exist to intervene, by way of interdict or declarator resting on
what are essentially review grounds (as to which, see
University
of
Cape
Town v
Ministers
of
Education
,
1988(3) SA 203 (C) at 211E-G)
in
the untermiuated proceedings of the inquiry?
Urgency
As
regards urgency, two misconceptions underlie first respondent
's
contention
that the application should be dismissed at the outset without
further consideration. The first is that it was the court
entertaining the urgent application on 3 November which had the
discretionary power to determine either that the matter was not
urgent (for reasons related to the third main issue), or that any
urgency had been self-induced (because the applicant knew by
22
October that first respondent would not agree to the postponement he
had sought, yet waited for the inquiry to convene and proceedings
to
commence before lodging an application to postpone). That court
decided, implicitly, that the matter was sufficiently urgent
for
it
to
deal
with it as it did. Now the matter is before
me,
relating
not
to
urgent
interim but to final relief, with full sets of papers filed and final
relief being sought. Moreover, the parties appear to
have agreed in
relation to the timeframe adopted as regards the filing of papers and
the heads of argument. Simply on the facts
the complaint regarding
urgency lacks logic.
The
second reason is yet more fundamental. Citing
Schweizer-Reneke
Vleismaatskappy (Eiendoms) Beperk v Minister van Landbou
,
1971(1) PHF11 (T),
first
respondent contends that
dismissal
is an apt remedy when a case is brought on unfounded grounds of
urgency. That decision (by Trengove
J,
as
he then was), however, is no authority at ail
for
that
proposition. This was underscored most recently
by
the
Supreme Court
of
Appeal
ruling in
Commissioner,
SARS v Hawker as Services ffPtv) Limited
,
2006(4) SA 292 (SCA)
at
299G-300A.
It
lies within the power of a judge in such a situation to decline to
hear a matter on the grounds
of
lack
of urgency, or to strike it from the
roll.
In
circumstances which do not amount to an abuse of proceedings - and
that is not contended in this matter - there is no basis on
which a
court, even at a preliminary stage, is entitled merely to dismiss an
application in the manner first respondent has suggested.
Jurisdiction:
High Court
of
Labour
Court
I
turn
now to the second issue, that
of
jurisdiction.
Jurisdiction means the power vested in a court
by
law
to adjudicate upon, determine and dispose of a matter
f
Ewing
McDonald and Co Ltd v M
and
M
Products
,
1991(1) SA 252 (A) at 256G).
Is
first respondent correct that this court lacks jurisdiction to grant
the declaratory order and mandatory interdict the applicant
seeks?
The
power of the High Court to grant both interdicts and declaratory
orders to curb illegalities and unlawful conduct is rooted
in the
very function of the High Court itself. This is clear from the
earliest South African case law (see for instance
Central
Road Board
v
Mclntvre
.
(1855) to Searle, 165 at 170-171,
per
Wylde, C
J,
and
in particular
Johannesburg
Consolidated Investment Company v Johannesburg Municipality
,
1903 TSUI at 115,
per
Innes, C
J).
That
power has been recognised as part of the inherent jurisdiction of the
High Court, now explicitly protected in section 172 of
the
Constitution, 1996. That inherent jurisdiction, it must always be
borne in mind, is essentially procedural in nature and probably
does
not extend to the power to create substantive
law
(
Universal
City Studios Inc v Network Video (Pty) Limited
.
1986(2) SA 734 (A) at 754H).
Has
the inherent power of the High Court to grant relief of the kind in
issue been lost? That is the next logical inquiry. The departure
point is that legislative interference with the jurisdiction of the
High Court is not readily accepted (see for instance,
Lenz
Township Co (Ptv) Limited v Lorentz NO
,
1961(2) SA 450 (A)
and
Minister
of Law and Order
v
Hurley
,
1986(3) SA 568 (A)),
Whether
or not such an attenuation of jurisdiction has been effected in the
present case must be approached on that basis, and thus
with a
careful regard to the terms of the provisions contended to have that
effect.
In
Paper,
Printing, Wood and Allied Workers Union v Pienaar NO
,
1993(4) SA 621 (A),
just
such an exercise was conducted. The case concerned
the
Labour
Appeal Court (LAC) as
it
was
initially constituted. The question was whether its establishment in
1988 had the effect of ousting the review jurisdiction
of the then
Supreme Court (now High Court).
Harms,
J
(as he then
was)
had
held
a
quo
that
it
had.
On
appeal,
Botha.
J A
noted for the court (at
636J-637D)
as
follows:
"The
concept of specialist courts dealing with specialised matters is a
familiar one in our judicial system. We know Water
Courts, the Court
of the Commissioner of Patents, Special Income Tax Courts, and so
forth. In those instances there is no doubt
that the jurisdiction of
the ordinary divisions of the Supreme Court has been ousted. I do not
pause to consider the particular
statutory provisions by which that
result has been achieved (in most instances the jurisdiction
conferred on the specialist court
was expressly declared to be
exclusive). The point to be made is a different one. The existence of
such specialist courts points
to a legislative policy which
recognises and gives effect to the desirability, in the interests of
the administration of justice,
of creating such structures to the
exclusion of the ordinary courts (see
F
Mat hope and Others v Soweto Council.
1983(4) SA 287W, 291H, 292A). The present case seems to me that the
legislature probably intended to establish the Labour Appeal
Court in
conformity that that policy. The structure of the court is certainly
closely akin to that of the known specialist courts.
Consequently
there is, in my view, substantially less reason in the present case
(compared with cases such as
Lentz
.... Leteno and Robinson supra)
for closely scrutinising the provisions in question, or for jealously
guarding against interference with the jurisdiction of the
ordinary
courts."
Turning,
however, to the review grounds accorded to the Labour Appeal Court,
in comparison with those exercised by the then Supreme
Court at
common law, the Appellate Division held that establishing whether
these were wider was
"a
matter of great difficulty
'{at
63SF). Ultimately it concluded that the LAC had been accorded lesser
review powers than the Supreme Court. The Appellate Division
then
considered the court a
quo
's
conclusion
that it would be anomalous for the selfsame acts to give rise to
review in two courts, and it held as follows in this
regard;
"There
is obviously much force in this reasoning. It is indeed difficult to
think of a sensible reason why the legislature
would have wished to
bestow upon the newly created court
7
which ranks equal in status with the Supreme Court, the power to
review the proceedings in the Industrial Court, while at the same
time retaining the parallel existing procedure in the Supreme
Court... However, it seems to me that there are two further
considerations
which tend to detract from the force of the learned
judge
r
s
reasoning. The first is that the anomalies adhering to a system of
concurrent jurisdiction (to the extent in which there is an
overlapping of the grounds of review) are notional in character
rather than of practical effect No reason suggests itself why it
would be difficult or inconvenient in practice to cope with a dual
system of review in relation to proceedings in Industrial Court.
In
argument before this court reference was made to the possibility of
what was called forum shopping', but I am satisfied that
the prospect
of that kind of malpractice arising is too remote to be of any real
consequence."
The
court then concluded that the factors supporting concurrent
jurisdiction
"must,
by a narrow margin, carry the day"{s.\
641A).
The
statutory provisions under consideration in that matter are of course
now the
detritus
of
history, and the decision itself no authority
per
se
in
relation to the present matter. I would not be thought to suggest the
contrary.
I
have
cited it at some length, however, because in my respectful view it is
rooted in principle, and correctly describes the general
jurisprudential approach to be adopted when a problem such as that in
the present case arises.
In
law,
Lord
Stevn
has observed,
"context
is everything"
(
R
v Secretary
of
State,
ex
parte
Daly
[2001] (1) or ER 443
(HL)
at
447a,
cited
with approval in
Aktiebolaget
Hasslev Triomed <Ptv) Limited
2003(1) SA 15S (SCA) at 157G). It
is
necessary to consider more closely the current legislative context
here.
Even
at the time the interim Constitution was concluded, the enactment of
a new primary statute governing labour relations in conformity
with
the new constitutional dispensation was contemplated. Indeed, the
anticipated legislation is one of the few pieces of legislation
to be
referred to specifically in the schedules to the interim
Constitution. After an arduous process this legislation was duly
enacted as the
Labour Relations Act, 66 of 1995
("the LRA").
Its long title declares its central intention: the very first words
are
"to
change the law".
This
the LRA does in many respects, often radically, even if here and
there it draws, in the nature of things, on the long prior
legislative history relating to labour relations in South Africa.
One
of the controversies which had existed under the pre-existing
legislation was, as has been noted, the very issue of concurrency
of
jurisdiction as between the High Court and the Labour Court in the
key respect of review. Another was a similar debate
which
had
raged over a period
of
years
in the various Labour Courts regarding interdicts. The latter gave
rise to significant controversy and to differing decisions
(see
generally Cameron
et
at.
T
he
New
Labour Relations Act
(1989
) 89-90 and 189-90).
Both
the uncertainty and the anomalous consequences of what may or may not
have been a dual jurisdiction in relation to interdicts
(as to which,
see the critical analysis by Harms, J quoted
by
Botha,
JA in
PPAWU
v
Pienaar
N.O.
supra)
were
not only unsatisfactory. These are matters
which,
by
canon
of
construction,
we must take to have been present to the minds
of
the
lawmakers in 1 995 when the LRA was framed.
It
was in this setting, then, that
section 157
of the LRA, on which the
debate in the present matter focused, was enacted.
It
provides:
"157
Jurisdiction of Labour Court
(1) Subject
to the Constitution and section 173 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
from Labour Relations;
(b) any
dispute over the constitutionality of any executive or
administrative act or conduct, or any threatened executive of
administrative act or conduct, by the State in its capacity as an
employer;
(c) the
application of any law for the administration of which the minister
is responsible."
Section
157(1)
is
the dominant provision: section
157
(2)
provides for concurrence
of
jurisdiction
between the two courts - but
only
in
the circumstances it specifies. The difficulty, however, which has
arisen is a consequence of the apparent width and inexactitude
of
language in section
157
(2).
The result has been a burgeoning body
of
recent
case
law.
Argued
before me was the meaning and effect of
inter
alia
the
decisions in
Chirwa
v Transnet,
2008(4) SA 367 (CC);
Fredericks
v MEC for Education and Training, Eastern Cape
,
2002(2) SA 693 (CC),
Makambi
v
Member
of the Executive Council, the Department of Education. Eastern Cape
Province
,
2008(5) SA 449 (SCA);
De
Villiers
v
The
Minister of Education; Western Cape
(unreported case 18733/2007);
Boovsen
v Minister of Police
(unreported case 3499/08; and
Oliver
v
Universiteit
van SteUenboscn
(unreported case 2181/04).
The
plurality of voices in the Supreme Court of Appeal and the
Constitutional Court on this issue has compounded an inherently
difficult inquiry. The problem is that it is evident that the
intention of the LRA itself is not to encompass in an exclusive
dealing every potential aspect of the relations which arise between
employer and employee, and hence, what is loosely termed
employment
law. On the other hand, it is evident that, mindful of the
difficulties which had emerged in the past, the frarners
of the LRA
had the clear aim of creating an exclusive legal regime for matters
which properly fall within the purview of the
Act, and hence of the
curial structure it creates, with a view to avoiding the worst
anomalies of past legislative blurring.
Without
endeavouring in the extremely short time available to me to embark
upon an attempt at a detailed tour of the various authorities
to
which I have referred,
I
seek
to extract for the purposes of this case what I understand to be the
correct approach, in the light, in particular, of the
recent
Constitutional Court and SCA decisions, in these broad terms;
1. By
pre-constitutional principle and authority, it is clear, the High
Court has the power to grant declaratory orders and
interdicts,
relating to illegal and unlawful acts.
2. At
the level of principle, this would apply also to the conducting of
disciplinary inquiries conducted as between employer
and employee,
whether statutory or otherwise.
3. The
LRA, however, has sought (in section 157(1)} to create an exclusive
jurisdiction for the Labour Court in relation to
matters within the
purview of that Act, other than claims to constitutional rights
made in terms of section 157{2). The former
provision is both a
dominant and default provision.
Where
a court is faced with a dispute as to whether a case properly falls
within section 157(1) or (2), it will in each instance
have to
establish firstly whether that case involves a "matter"
regulated by the LRA, and secondly whether, objectively
characterised, it falls within the dominant and default provision
of section 157(1), or within the excision created by section
157(2).
In
that regard, the court will have to put substance over form, bear
in mind the danger of tactical contrivance in the presentation
of
cases, and apply, if necessary, the criterion of substantiality to
matters where certain facts may point in one direction
and others
in another.
Against
this background I turn to the relevant facts of the present matter
in endeavouring to answer which side of the line I
believe it falls.
The
founding affidavit was clearly conceived in circumstances of
urgency. I am mindful of that. The applicant did not however
seek,
in the interim order he himself proposed to the duty judge on 3
November, nor in the later adapted form of it, provision
for an
opportunity to supplement his founding papers. Nor did he
thereafter, before the end of the relatively leisurely period
of two
weeks accorded for the filing of answering affidavits, seek to
preempt the latter by supplementing the founding affidavits
in
any way. Only in reply - the answers by the respondents, including
first respondent's jurisdictional objection, now to hand
- did the
applicant seek to make out the case on which he now primarily
purports to rely. This is that, he contends, his constitutional
rights - more particularly to administrative fairness - have been
traduced by the conduct of the inquiry. It is on that basis,
the
applicant now contends, that the doors of the High Court stand wide
to him, and a concurrence of jurisdiction with the Labour
Court
exists.
Counsel
for the applicant fairly conceded in oral argument that
circumstances such as these - where the applicant, had he wished,
could have sought to supplement his case, and had ample opportunity
to do so; where the parties themselves agreed on a timeframe
for the
conduct of these proceedings; where three sets of papers have now
been filed before me; where I have been asked to determine
the
matter on the papers as they stand; and with the replying
affidavit filed just one court day before the hearing -militate
against a new case made out on the papers in reply being permitted.
This
is especially so when the founding affidavit is itself mindful of
the jurisdictional problem. Paragraph 3 indeed asserts
that the High
Court has inherent jurisdiction, and:
"Dat
ek geen ander forum het wat ek op
'
n
basis vir [sicJ dringendheid kan nader vir die regshulp hierin
versoek nie."
The
founding affidavit goes on to sketch the applicant's employment
history, and asserts that in his employment he has been victimised:
â
om
van my ontslae te raak sodat my pos gevul kan word"
by
another with other political affiliations.
The
case which is thus made out in the founding affidavit is one of
alleged gross irregularities in a disciplinary inquiry (to
which I
revert later) conducted pursuant to the employment relationship. The
applicant invokes, by implication, the right to
be treated fairly in
the inquiry and asserts that if the inquiry is completed, as matters
currently stand he faces the prospect
of being dismissed from his
employment.
Nowhere
does the applicant disavow (as the applicants did in
Fredericks
v
MEC
for
Education
supra
at
71
ID)
reliance
on section 23(1) of the Constitution. Conversely, nowhere does he
invoke rights other than those arising naturally from
and relating
to the proper conduct of a disciplinary inquiry, a matter governed -
he
is
himself
at pains to point out - by the SALGA Code
(if
applicable),
and pursuant to the LRA.
It
has been said, often enough, that parties invoking statutory
provisions are required to cite these, or at least
by
recognisable
paraphrase to invoke them (
Yannakou
v
Apollo
Club
1974(1) SA 614 (A)
at
623G).
The principle is not confined to the citation of statutory
provisions. In the context of constitutional litigation in
particular - that which the applicant, in his attempts to invoke
section 157(2) over section 157(1) necessarily contends this
to
be
-
the
need for
a
reasonably
recognisable invocation of particular rights has been stressed, time
and again (see for instance,
Bato
Star
Fishing
(Pty) Limited v Minister of Environmental
Affairs
2004(4)
SA 490 (CC)
at
507C-D).
It is also a factor that the applicant is not unrepresented; he was
assisted (at least from the appearance on 3 November
on) by an
attorney, before the disciplinary inquiry, and has been represented
throughout these proceedings by counsel, including
senior and junior
counsel.
Given
the pertinent allegations it was thought clearly important to make
in the founding affidavit relating to jurisdiction, and
the current
difficulties posed
by
the
Fredericks
/
Chirwa
debate
of which his counsel are to be taken to be aware, there is in this
instance in my view no credible consideration as
to
why
the
founding
affidavit did not, as in
Fredericks
,
nail
its colours squarely to the mast of a non Labour Relations claim, if
that was truly its nature and it was so truly contended.
The present
case in fact exemplifies the dangers of forum shopping and
simulation, through perceived tactical need when the shoe
is
belatedly
found
to
pinch.
I
thus conclude that in the present case, the applicant's case,
properly analysed, is clearly one of a contended invalidity and
unfairness in the conduct of an inquiry relating to the disciplining
of an employee. This is a "matter" regulated by
the Labour
Court, and by
it
alone.
It falls within the purview of section 157(1), and
not
within
the specific excision created by sub-section (2). I follow in
particular in this regard the emphasis placed by Nugent,
JA
in
Public
Officers Association
v
Kieomono
funrep SCA
441
/05,
2 September 2005)
at
paragraph 5, on
"the
applicant's claim
as
formulated
"
(emphasis
supplied).
I
believe that this approach is also in accordance with that adopted
last month by a Full Bench of
this
court
(Davis
et
Allie,
J
J)
in
De
ViMiers v Minister of
Education,
Western
Cape
(unreported).
Obviously
the formulation must, on an objective conspectus, be genuine.
Notwithstanding
this conclusion, it is necessary to address applicant's further
contention, in reliance on an unreported decision
by Cheadle, AJ in
Boovsen
v South African Police Services
(C), 60/8, unreported Labour Court,
14
February
2008)
(currently,
I was told by counsel, on appeal) that the Labour Court in any event
lacks power under section 157(1) read with section
185, to intervene
in incomplete disciplinary proceedings. If the answer I have given
to the second issue in this natter - namely
that there is no
concurrence of jurisdiction as between the High Court and the Labour
Court is correct - this further conclusion
by Cheadle, AJ
would
have
the effect that no court at all has jurisdiction to intervene in
such circumstances. Clearly that would be both a surprising
and
unpalatable consequence. It is necessary to determine whether it is
correct.
In
his reasons, Cheadle, AJ stresses the lack of an inherent
jurisdiction in the Labour Court, a creature of statute (in
contradistinction
to the High Court). Following
Moropane
v Gilbevs Distillers and Vintners (Ptv) Limited
[1997] 10
BLLR
1320
(LC),
per
Landman, AJ (as he then was), he holds that the Labour Court
"does
not have an ail-embracing jurisdiction over the employer-employee
relationship".
As
already indicated, that has to be accepted as a truism (see for
instance
Fedlife
Assurance v Wolfaardt
2002(1) SA4 49 (SACA);
Fredericks
v MEC
supra;
United
National Public Servants Association v Dismore
unrep SCA 2 September 2005;
Schoon
v MEC, Department of Finance, Northern Province
(2004) 25 ILJ 2311 (SCA^
Old
Mutual
Life
Assurance
v Gumbi
(2007) 28 ILJ 1499 (SCA);
Oscar
Mtatha v Makonva
(2007) 28 ILJ 2209 (SCA)).
But
with respect, that is not the point. It does not address the fact
that unfairness in the dismissal process i_s a "matter"
which the LRA clearly regulates.
Section
158 against that background is then in these terms:
"158
Powers of Labour Court
(1)
The Labour Court may -
(a)
make any appropriate order, including -
(i)
the
granting of urgent interim relief;
(ii)
the
interdict;
(Hi)
an order directing the performance of any particular act which
order, when implemented, will remedy a wrong and give effect
to the
primary objects of this Act;
(iv)
a declaratory order.
(b)
order compliance with any provision of this Act;
(j)
deal with all matters necessary or incidental to performing its
functions in terms of this Act or any other law."
Where
a person in truly extraordinary circumstances - a matter to which I
revert in considering the third issue - approaches the
Labour Court
on the basis that a disciplinary inquiry was, for instance,
about
to
commence
or was being conducted in the hands of a biased or unqualified
presiding officer, or on another factual basis so serious
as to
vitiate in law the inquiry, I have
little
doubt
that the Labour Court would in law exercise these powers to stop it.
In cases such as
Mantzaris
v University
of
Durban
WestviUc
[20001
10 BLLR 1203
(LC)
and
Ndlovu
v Transnet Limited
[1997] 7 BLLR 887
(LC),
the
Labour Court indeed considered interdicting proceedings. It did not
adopt the stance that
it
lacked
the power to do so. In fact, in
SAMWl?
v City of Cape
Town
[2008]
29
ILJ
1978
(LC),
the
Labour Court interdicted, on the particular facts of that matter,
even an unterminated proceeding.
The
suggestion in argument that the Labour Court is not as generally
amenable to, or as available for, urgent proceedings at the
High
Court is no answer to the question whether in law it has the
requisite power.
I
hold
that it does.
I
accordingly
hold that in the present case, on the application as
it
has
been framed, this court does not have jurisdiction in relation to the
relief sought, and that the Labour Court has jurisdiction,
and the
requisite power to grant interdicts and declaratory orders relating
to disciplinary inquiries.
That
in law disposes of the matter, but
it
seems
to me desirable, as
it
was
canvassed in argument, and in my view leads to the same result, to
record as briefly as
I
can
my views in relation to the third issue. By virtue of my conclusion
as regards the second issue, and regard being had to the
circumstances in which
it
is
necessary to give this judgment, I do so in outline.
A
basis to intervene in the inquiries
?
Counsel
for the parties are agreed that the applicable test to apply in
relation to an application for declaratory and interdictory
relief
pertaining to incomplete proceedings remains that laid down in
Wahlhaus
v Additional Magistrate, Johannesburg,
1959(3) SA 113 (A) at 119-120.
As
that judgment suggests, several important postulates
of
legal
policy compete in a situation such as the present. First there is the
principle that matters should not be determined by higher
courts on a
piecemeal basis
(see
F
Lawrance
v
Additional
Regional Magistrate of Johannesburg
,
1908 TS 525
at 526).
Then
there is the principle that courts do not deal with matters that may
be academic, or become academic: a litigant arguably treated
unfairly
in a particular respect may yet ultimately succeed, or the point of
unfairness which seem to loom so large at the time
may ultimately
have no bearing
at
all
on the outcome of the case. Thirdly, there is
the
concern
for the administration of justice itself, articulated most recently
by the Chief Justice in
Ziima
v
National
Director of Public Prosecutions
(unreported):
a
strained system, seeking to serve a large population, cannot afford
multiple interlocutory challenges of an inappropriate kind.
But as
against these, lastly there is also the concern expressed in
Wahlfeans
supra
at
120B
that
a court may, notwithstanding the considerations just enumerated, yet
consider itself obliged to intervene
â
in
the rare cases where injustice might otherwise result or where
justice might not by other means be attained."
The
applicant's case, it may be noted, seems to have been significantly
inspired by the unreported judgment of Goodman, AJ in
Oliver
v Universiteit van StetJenbosch
(case 2181/04,
undated)
-
so
much
so that
it
was
attached, unnecessarily, as an annexure to the founding affidavit. In
that matter the court intervened in an incomplete disciplinary
inquiry. It is unnecessary to consider whether on the facts it was
right to do so,
But
what
does matter is that, after accepting
Wahlhaus
as
laying down the binding test for intervention (i
n
the
terms just quoted), the learned acting judge saw fit to paraphrase it
thus:
"....die
vraag wat beantwoord moet word, is: is daar in at die omstandighede
btllik teenoor die applicant opgetree ?"
(p
16, para 121])-
That,
with respect, is
not
the threshold set by
Wahlhaus
for
intervention in an incomplete proceeding of another body. That
unfairness has occurred is not the issue. The issue is
that
an
irregularity has occurred (unfairness is just one manifestation)
which, it is already apparent, is of a kind and a degree calculated
to give rise to injustice.
And
in
that regard, the court must consider whether the injustice is such
that the affected party might not otherwise by other means
attain
justice. It may be noted that this is not the only area of law which
seeks to differentiate between the potentially fatal
or irremediable
and that which is irregular, but is not
to
be
treated as vitiating. This is evident in criminal law, as regards
irregularities in proceedings of lower courts
(
S
v Moodie
1962
(4) SA 587
(A) at 597,
and
S
v Naidoo
1962 (4) SA 348
(A) at
354),
and
in administrative law, as regards the willingness
of
courts
to permit collateral challenge only where the irregularity clearly
vitiates
(
Coalcor
(Cape) (Pty) Ltd v Boiler Efficiency Services
CC
1990 (4) SA 349
(C) at 355E-356B).
Applicant's
argument in my view fails in this respect, because his complaints do
not establish that injustice stands to result,
in the sense
contemplated, nor that justice might not by other means be attained,
also in the sense contemplated I say this for
the following reasons.
(a)
Second
respondent not appointed
?.
It
is necessary to deal firstly in outline with three contentions which
stand on a slightly different basis to general allegations
of
unfairness in the conduct of proceedings. Each of these contentions
in essence goes to jurisdiction. The first is that the second
respondent was never validly appointed: it was suggested in argument
that the
full
council
of second respondent by statute must appoint a disciplinary inquiry
in respect of a senior manager such as the applicant.
The point is
wholly without merit. Section 55(1 )(b)(f)(g) and (h) each afford a
basis for the municipal manager
of
a
municipal council to make such an appointment. The argument that
section 56(a), in providing for the
appointment
of such managers by a municipal council, implicitly
requires matters applying to the constituting of disciplinary
inquiries equally to be conducted by councils, is patently fiawed. An
appointment - or a
e
contrariis,
a
removal - is not currently in issue. To the extent that the argument
seeks to imply provisions into either section 55 or 56, it
stumbles
on the high hurdles set by Corbett, J A in the leading decision in
Rennie
v
Gordon
NO
198&{1) SA 1 (A) at 22D - G for the implication of statutory
provisions.
(b)
Lapse
of SALGA Code
?
The
second point of a potential defect of a jurisdictional nature is the
contended lapse of the SALGA Code. Counsel for first respondent
pointed to a provision in the contract of employment between the
applicant and first respondent which itself adopts the Code as
an
answer. This, he said, gave the code a self-standing
vires.
It
is not necessary to determine the correctness of that submission (see
S
v Prefabricated Housing fPty) Limited
,
1974(1) SA 535(A)), nor whether a statutory employer such as first
respondent would be disabled from in any event continuing
to apply an
ex
hypothesi
lapsed
code of this kind, for the purposes of a particular inquiry, so long
as it is fair. A simpler and compelling factor in the
present case is
that the founding affidavit expressly asserts the continued
existence and binding nature of the Code.
First
respondent admitted this in answer. It was only on the court day
before the hearing that the applicant sought to reverse
its position
and contend that the case on which it had relied had lapsed. As
Nienaber, JA noted in
Government
of
the
Province
of
Kwa-Zulu Natal v Ngubane
1996(4)
SA
943
(A)
at
949B-C:
"Had
the point been spelt out in the application papers the respondents,
duly alerted^ could have responded on fact
and
on law
.
"
(original
emphasis).
First
respondent unsurprisingly has objected to the
volte
face,
and
the inadequate opportunity it has had to address the matter in law
and in fact. I agree. The applicant has known since September
of his
impending inquiry, which in the nature of things might be expected to
be conducted under the SALGA Code. He thereafter has
had adequate
opportunity - from 3 November to the filing of the answering
affidavits a fortnight later - to discover what he now
alleges is the
incorrectness of the central factual and legal premise in his
founding affidavit in this respect, and tirneously
to plead this. I
accordingly decline to hold that the inquiry is vitiated by either
attack.
The
two matters I have just addressed would, I have suggested, go
fundamentally to jurisdiction as regards the conduct of the inquiry.
Lack of jurisdiction creates nullity
ex
tunc
f
cf.
Moch v Nedtravel
,
1996(1)
SA
1,
(A)),
and
falls potentially into
a
different
class in a
Wahlhaus
,
supra
challenge.
So does bias, for the reasons analysed by Corbett CJ in
Council
of Review, SADF v Mflnnig
.
1992(3) SA 482 (A) at 495),
and
to that
I
now
turn.
(c)
Bias
?
In
this regard, applicant's counsel argued that the conduct of second
respondent in continuing to sit, having been notified of the
applicant's intention on 3 November to seek an immediate order from
the High Court interdicting the inquiry - and thereafter, sitting
until the completion of the evidence then available into the evening
- gives rise to a basis for bias.
I
disagree.
While the replying affidavit refers to the second respondent
continuing to sit after he was so notified, no pertinent
allegation
is made that in so acting, he was activated by bias, or even that
that conduct gives rise to a reasonable perception
of bias. It is,
again, elementary, one would think, that what is essentially a review
ground must be identifiably stated. Otherwise
in prolix and not
always orderly papers, such as those filed on behalf of the applicant
in this matter, what is narrative and what
is conceived as
constituting part of a cause of action, is not readily apparent.
Discursive material which may be of a narrative
kind and
per
se
,
not to take the pleaded legal issues anywhere, may be considered to
have been included for atmospheric or other purposes, and
left
untraversed. The essential point is, as
I
have
stressed, that it is incumbent upon the applicant to make his points,
at least with some specificity. It is significant, in
the present
case, that even the heads of argument failed to alert the opposing
parties - and for that matter the court - to the
new contended ground
of attack.
This
notwithstanding, I was invited nonetheless to infer the allegation of
bias. I cannot do so from the factual allegations made:
that the
second respondent continued to sit, despite being notified of the
impending application to be made to the High Court.
It is entirely
open in law to persons in the position of second respondent to adopt
the attitude that they are currently entitled
to continue to sit, and
will continue to do so until they are otherwise directed by a court
of competent jurisdiction. The transcript
of the proceedings shows
that this stance was appropriately and clearly conveyed to the
applicant's representative. This unfortunately
elicited the less
courteous and even less considered reply that this was exactly what
the applicant was hoping for. That answer
speaks volumes for the
tactical and misguidedly assumptive approach adopted by the applicant
- or on his behalf - in this matter.
I
accordingly consider that no case has been made out relating to a
fatal defect in the conduct of the proceedings which might nullify
the proceedings
ex
tunc.
Cumulative
unfairness ?
But
that again is not the end of the matter. The applicant also alleges
that he was treated "unfairly" in a number of
respects.
The
first is that the refusal of a postponement sought on the first day
of the inquiry (31 October) was irregular.
I
disagree.
The application was duly considered by the second respondent and
rejected for reasons he gives. The suggestion that the
applicant was
entitled to the same period to prepare to answer the charges as the
forensic inquiry had taken is specious. As already
noted, he had been
given some two months' notice of the inquiry, he was suspended on
full benefits, and able to prepare himself,
and he had had the charge
sheet for two weeks. The second respondent considered the amplitude
of the case tabled against the applicant.
T see no unfairness of a
Wahlhaus
kind in his response.
The
second is that a renewed application for materially the same relief
was unfairly dismissed on Monday 3 November (he was now
also
permitted legal representation). The complaint is that the
application was not even read by the second respondent. This is
correct - but the applicant forbears todisclose that (as the
transcript shows) the second respondent inquired as to its ambit.
When told that it sought to revisit an application made one (hearing)
day before, the second respondent declined to entertain it
- other
than in relation to a claim for discovery, which he directed first be
made to the first respondent and which he said he
would determine if
not resolved. (This latter aspect was not acknowledged either in the
applicant's affidavit or the argument on
his behalf: it was necessary
for the court to establish the real facts from the transcript of
proceedings.)
None
of these various complaints, significantly, was characterised in
argument as grossly unfair - indeed my attribution of that
appellation was resisted in oral argument on behalf of the applicant.
This being the case, the matter must be approached on the
basis that
not one of the particular grounds is contended to be such, but that
cumulatively they are such as to give rise (as
I
understand
the contention) to a grave injustice, or to a situation such that
justice will not otherwise be obtained in due course.
I
do not consider that the
Wahlhaus
test is met.
If
the
inquiry continues, the applicant will be able to testify and to
present evidence. He will be able too to apply to the second
respondent for an opportunity to cross-examine those witnesses who
testified when he and his attorney chose to absent themselves
for the
purposes of the High Court application (if, as
I
understand
the complaint, a last portion of the transcript is not available, he
may apply for the evidence in question to be given
again).
But,
it is said, there has already been a fatal unfairness because the
application for a postponement first lodged on 31 October
- when the
hearing itself commenced - was granted not for the indefinite period
sought, nor the two months later suggested, but
only until after the
intervening weekend (that is, until 3 November).
It
is not apparent to me at this stage that that was unfair - the
setting, as I have said, is a disciplinary inquiry of a senior
manager, suspended with full benefits and thus able to devote his
time fully from the time of his suspension to preparation of
his
defence; notified in September that the inquiry would ensue; which
concerns his own conduct; and having been notified of the
date of
commencement
by
17
October.
The demands made on behalf of the applicant are redolent of a highly
judicialised proceeding: a claim to parity of time
in answering
charges; to unlimited discovery; to access to source material held by
the first respondent, on the most sweeping terms;
and to detailed
particulars to readily comprehensible charges, even after these
charges - on the intervention, it may be noted,
of the second
respondent - were clarified by the first respondent.
As
Corbett, JA has emphasised in
Du
Preez and Van Rensburg v Truth
and
Reconciliation
Commission
1997(3) SA 204 (SCA),
following
Lord Mustill in
Doo
d
v
?
s
case,
fairness is inherently flexible: it takes its required shape from the
contours
of
each
situation in which it must be applied. There is
a
spectrum
from the simplest situation
to
the
most elaborate
Privy
Council-type
proceeding: there is no one size
to
fit
all,
least
of
all
an abstrusely judicialised test
to
be
applied in the context of a disciplinary inquiry. The judgment
of
Colman,
J in
Heatherdale
Farms (Pty) Ltd v Deputy Minister
of
Agriculture
1980 (3) SA 476
(T) at 486D-G
is
instructive in this respect.
It
is
unnecessary
to
essay
an exercise as to whether or not each constituent aspect
of
the
criticised conduct amounts
to
unfairness.
I
am
not persuaded that any does. But that in any event is not the test.
The test is that which is laid out in
Wahlhaus,
supra
which
requires, qualitatively and quantatively, unfairness
of
a
kind
such as would militate against all the other policy considerations I
have enumerated, and warrant a court intervening now,
before
completion
of
proceedings,
because otherwise serious injustice arises.
If
in
due course it should transpire that material unfairness has occurred,
the remedies of the applicant are clear. They should have
been
explained to him. In terms of the
Labour Relations Act he
is entitled
to
challenge
both the inquiry and any consequential decision by the first
respondent (the completion
of
the
inquiry itself has no immediate final effect in relation to his
employment). He has access
to
the
appellate and review protection of the Labour
Relations
Act. If his employment rights pending the determination of those
proceedings for any reason are in issue - for instance,
because the
first respondent, notwithstanding the institution of any arbitral or
review procedure, seeks to act immediately and
finally upon any
decision it may make as regards sanctions - his ability to seek
relief is clear.
Order
The
application is dismissed with costs, including the costs of two
counsel.
GAUNTLETT,
AJ
Counsel
for the applicant TN POTGIETER, SC
(with
him, H Loots)
Counsel
for the first respondent DF IRISH, SC
(with
him R Steltzner)
No
appearance for the second respondent.