Mpakane v Tswelopele and Other (2800/2004) [2004] ZAFSHC 145 (21 October 2004)

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[2004] ZAFSHC 145
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Mpakane v Tswelopele and Other (2800/2004) [2004] ZAFSHC 145 (21 October 2004)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Case
Nr: 2800/2004
In
the matter between:
MOHANOE
MPAKANE
Applicant
And
TSWELOPELE
MUNICIPALITY
First
Respondent
LESANE SHADRACK
SESELE
Second Respondent
MMATHEBE
VIOLET PHATSHOANE
Third Respondent
JUDGMENT:
MUSI
J
HEARD ON:
14
OCTOBER 2004
DELIVERED ON:
21
OCTOBER 2004
[1] The applicant is
employed by Tswelopele Municipality (the first respondent) as its
manager for technical services. On 2 December
2003 the applicant
together with his co-worker and first respondent’s municipal
manager, one Mr. Mpatshe, were suspended from their
duties with full
pay pending an investigation into matters relating to their
employment. The internal investigation led to charges
being framed
and a disciplinary inquiry set in motion against the applicant and
his fellow employee aforesaid. The charges against
the applicant
essentially relate to disposal of certain assets of the first
respondent without proper authorisation and are not intricate
at all.
The second and third respondents are practising attorneys who have
been appointed by the first respondent respectively as
presiding
officer and prosecutor in the disciplinary inquiry of the applicant
and both acted throughout the events forming the subject
of this
application in their capacity as such.
It is necessary to give a
summary of what transpired and in so far as there are disputes of
fact, I shall rely on the version of the
respondents.
[2] The disciplinary
hearings of both the applicant and the municipal manager were
initially set down for 15 March 2004, which date
had been arranged
with their then representative, one Mr. van Heerden, a labour
consultant. Such hearing was, however, postponed
at the instance of
Mr. Sizephe, the attorney now representing the applicant, who had
then taken over the case of the municipal manager
from Mr. van
Heerden, apparently due to a conflict of interest. Because of
difficulty in reconciling the dates on which both representatives
would be available, the hearings of the two employees who were
separated and postponed to different dates. That of the applicant
was postponed to 26 and 27 July 2004. That of the municipal manager
was postponed to 5 and 6 August 2004. However, in June 2004
the
municipal manager terminated the mandate of Mr. Sizephe and appointed
another attorney, who apparently fitted himself into the
pre-arranged
dates enabling the disciplinary hearing of the municipal manager to
continue as planned.
[3] Not so with the case
of the applicant because on 26 July 2004, his labour consultant
representative was nowhere to be found and
Mr. Sizephe had now been
roped in to represent him. The latter was, however, not available on
that date and sent another attorney
(Mr. Beukes) to appear on his
behalf purely to seek a postponement. He had given Mr. Beukes dates
to which the matter could be postponed
but these could not fit in
with those of the second and third respondents. On the first
proposed date of 3 August 2004, the second
respondent was not
available and the second proposed date of 20 August 2004 was
conditional upon Mr. Sizephe securing a remand of
a criminal matter
in which he had been scheduled to appear elsewhere. The second
respondent was not prepared to fix what he regarded
as an uncertain
date. A deadlock developed over dates and Mr. Sizephe withdrew from
the matter there and then through Mr. Beukes.
The second respondent
then postponed the matter in order to give the applicant an
opportunity to find another representative. The
applicant was
advised that the matter would be heard in the week of 16 – 20
August 2004 and that his new representative must contact
the second
respondent to confirm two dates within that week for the hearing.
When nothing was heard
from the applicant’s side by 4 August 2004, the third respondent
directed that a notice be served on the
applicant advising that the
inquiry would be heard on 18 August 2004. It is clear that the
expectation throughout was that the inquiry
would need at least 2
days to be concluded and it can be accepted that the date of 18
August 2004 would only be the first day of
the hearing.
[4] In the meantime, the
applicant had gone back to Mr. Sizephe who, on 2 August 2004 wrote a
letter to the third respondent advising
of his reinstatement and
indicating that he would not be available on the dates given to the
applicant. He refers to 19 and 20 August
2004 but this is clearly
incorrect. By his own admission, the applicant had been told that
the hearing would take place on 2 days
between 16 and 20 August 2004.
The letter of 2 August 2004 did not reach the third respondent as a
wrong fax number had been used
and a further letter was then faxed on
11 August 2004 when the dates of 24 and 31 August 2004 were proposed.
This was followed by
another letter dated 13 August 2004 when it was
indicated that if the date of 24 August 2004 was not acceptable to
the respondents,
Mr. Sizephe would go ahead with his criminal trial
in New Castle. The third respondent’s reply was that the inquiry
would go on
as scheduled on 18 August 2004 and that the applicant’s
representative must simply make himself available on that day. This
triggered
the instant application which was launched on 17 August
2004. Upon being served with the papers in the morning of 18 August
2004
the respondents postponed the inquiry
sine
die
and
opposed the application. On the self same 18 August 2004 the
application was postponed
sine
die
with directions as to the filing of further papers.
[5] It is obvious that
once the disciplinary hearing was postponed
sine
die
upon service of the court papers herein, the purpose of the
application fell off. This must have been clear to all and sundry
when
this matter was postponed
sine
die
.
In oral argument, I took up with counsel for the applicant the
question of what order does the applicant now seek. Mr. Edeling
conceded that prayer 2.1 was now academic but submitted that I could
still grant prayer 2.2 and costs. He submitted that the conduct
of
the respondents in refusing to postpone the disciplinary hearing to
the dates proposed by the applicant’s attorney, to wit 20
August
2004, was unreasonable and prejudicial to the applicant. In
particular, going ahead with the disciplinary hearing on 18 August
2004 in the absence of the applicant’s attorney would have entailed
grave consequences for the applicant. The applicant was thus
entitled to bring this urgent application in order to ward off the
potential prejudice, so the argument went. Counsel thus submitted
that I should grant the order sought in prayer 2.2 and order that the
respondents pay the costs of the application up to 18 August
2004.
He submitted that each party should pay their own costs incurred
after the latter date.
[6] The latter submission
in respect of costs is interesting. It was made in response to my
following query: Since by 18 August
2004 the purpose of the
application had been achieved, why did the applicant still pursue the
matter? Why did he not go back to
the respondents with proposals for
new dates for the hearing? In prayer 2.2 the applicant requests the
Court to order that the parties
arrange dates for the disciplinary
hearing to take place within two months. But two months have almost
elapsed since the matter
was last on the roll and nothing has been
done in the way of arranging new dates. It is no good for the
applicant to put the blame
on the respondents, as Mr. Edeling has
sought to do by saying that the respondents are
domini
litis
in the disciplinary hearing and it is they who should have set new
dates. It was equally for the applicant to realize that no further
purpose would be served by pursuing the application. He is not
saying that he tried to talk to the respondents about new dates but
that he drew a blank. He did not approach the respondents at all and
was contend on simply proceeding with the application. It
is safe to
assume that the applicant was happy that the disciplinary inquiry
remained stalled so he could keep on drawing his full
pay. His
conduct post 18 August 2004 will have a bearing on what had happened
leading to the launching of the application.
[7] Now Mr. Benade for
the respondents has submitted that the purpose of this application is
very much alive. He argued that what
the applicant seeks with prayer
2.1 is in fact an order that he is entitled to his preferred attorney
and that the disciplinary inquiry
could not go on in the absence of
such attorney. Viewed in that context, with prayer 2.2 the applicant
seeks an order directing
that new dates be arranged with the
particular attorney. He then argued that the applicant has no right
to insist on representation
by a specific attorney and cited
inter
alia
HAMATA
AND ANOTHER v CHAIRPERSON, PENINSULA TECHNIKON INTERNAL DISCIPLINARY
COMMITTEE AND OTHERS
2002
(5) SA
449
SCA
.
He
submitted that the appropriate order would be to dismiss the
application with costs.
[8] This argument is not
without basis. It arises from the language of prayer 2.1 as well as
passages in the applicant’s founding
papers. Prayer 2.1 seeks to
stop the disciplinary inquiry from going ahead in the absence of “his
preferred legal representative”
and throughout the founding
affidavit the applicant talks of the need for “my legal
representative” as opposed to a legal representative.
However Mr. Edeling has
stated categorically that the applicant does not insist on the
services of a particular attorney but that
all he wants is to have
legal representation. He attributed prayer 2.1 to inept language. I
agree that prayer 2.1 should not be
read as seeking an order that the
applicant is entitled to legal representation by a specific attorney.
But that does not detract
from the inescapable inference that the
applicant did insist on a particular attorney in the dispute over
postponements and this
will have a bearing on an assessment of the
reasonableness or not of the conduct of the parties.
[9] In my view, the real
purpose of this application was to stop the disciplinary inquiry from
proceeding as scheduled and that is
the essence of prayer 2.1. That
purpose was achieved when the disciplinary inquiry was postponed
sine
die
upon service of the Court papers. However, in the absence of any
agreement as to what was to happen further to the application,
it had
to be adjudicated upon.
[10] The cardinal
question is whether the applicant was justified in launching the
application in the first place. Put otherwise,
was the conduct of
the respondents in refusing to grant a further postponement beyond 18
August 2004 reasonable or not? This refusal
should be viewed in the
light of the history of the matter. It was of the utmost importance
that the disciplinary inquiry be finalized
as expeditiously and
promptly as reasonably possible. The Disciplinary Procedure
Collective Agreement applicable to this matter
(Annexure “K” to
the applicant’s founding affidavit) makes this clear. Clause 6.5.7
thereof states that the inquiry should
be initiated upon five days
notice to the accused and should take place within 15 days of service
of such notice. The Code allows
for extension of these periods but
it is significant that clauses 6.5.8 and 6.5.9 vest the disciplinary
tribunal with the power of
control. If agreement cannot be reached
on suitable dates, the affected party may “apply to the
disciplinary tribunal for an extension”.
It is clear that the
presiding officer, in this case the second respondent, has a final
say in the matter. Of course he cannot
act arbitrarily or
unreasonably and must conduct matters in line with the principles of
natural justice and fair procedure.
[11] The reasons for the
need for the prompt commencement and conclusion of a disciplinary
inquiry of this nature are obvious. It
is of the utmost importance
to both the employer and employee that there be certainty in their
relationship. A state of limbo where
the employee’s future is
uncertain and the employer cannot fill his/her position is
undesirable.
In
casu
,
the applicant had been earning a full monthly salary for some 8
months to July 2004 while (11 months to date) whilst rendering no
service at all. It is causing the first respondent considerable loss
and is untenable a situation. It was therefore reasonable
of the
second respondent to insist that the disciplinary inquiry be
concluded by no later than 20 August 2004.
[12] But whose fault was
it that the disciplinary inquiry could not proceed on earlier dates?
Certainly not that of the respondents.
The matter had been set down
for hearing on 15 March 2004 having been postponed from January at
the instance of the applicant’s
representative, Van Heerden. Three
clear months had been allowed. On 15 March 2004 it was again
postponed due to no fault on the
part of the respondents. This
postponement was at the instance of Mr. Sizephe as he had not been
ready to proceed on that day.
[13] The crucial date is
that of 26 July 2004, a date that had been arranged with the
plaintiff’s former representative. Five months
had elapsed since
the last sitting and suddenly Van Heerden disappears from the scene
with no explanation whatsoever. Though the
applicant is not
personally responsible for this unacceptable development, Van Heerden
was nonetheless his representative. And why
does the applicant
become aware of Van Heerden’s absence only on 17 July 2004? When
would they have consulted to prepare for the
hearing? Why not keep
contact with his representative? Even then there was still enough
time to find another attorney and prepare
for the hearing when the
applicant consulted his present attorney. The latter had been
involved in this matter whilst representing
the municipal manager and
he should have been aware that the matter had been dragging on.
Knowing that he would not be available
on 26 July 2004 he nonetheless
accepted instructions. Now the respondents were still pliable and
prepared to postpone the matter
further. But when the days that the
applicant’s attorney proposed were not acceptable to the
respondents the applicant’s attorney
unceremoniously withdrew.
[14] In my view, the
applicant’s attorney adopted wrong attitude in this matter. He did
not seem to appreciate that the second
respondent, as presiding
officer, had the final say in fixing dates. Throughout the wrangling
over dates he talks of him accommodating
the respondents when the
opposite should have been the case. Now having withdrawn due to his
non-availability on the dates that
suited the respondents the
applicant’s attorney agrees to be reinstated in the matter within
almost a week of the earlier deadlock.
By this time the second
respondent had fixed dates for the hearing and had told the applicant
in no uncertain terms that he must
find a representative who would be
available on those dates. Yet the applicant goes back to the same
attorney. The attorney is
fully aware of the problems herein and is
again not available on the stipulated dates yet he accepts
instructions.
[15] In the
circumstances, the second respondent was justified in insisting that
the disciplinary inquiry would proceed on 18 August
2004 with or
without the applicant’s attorney. He was thereby not denying the
applicant his right to legal representation. All
that the applicant
had to do was to find an attorney who would be available. And the
applicant had been giving enough time to do
that. The applicant’s
excuse that he could not find one is lame. He did not need a labour
law expert given the nature of the
charges. Moreover, he was free to
engage even a non-lawyer to represent him, as is provided for in the
relevant Code. The problem
is that both the applicant and his
attorney were harbouring a misconception that the applicant was
entitled to his preferred attorney
and that the inquiry could not go
ahead as long as such attorney was not available. That is
unacceptable and the remarks of Lombard,
J in
S
v KYRIACOU
2000 (2)
SA
CR
704
OPD
,
though relating to a criminal trial, are equally applicable to a
situation like this and I quote at 705 J – 706 C:
“The only question that presently
calls for an answer is whether the right to have legal representation
of one’s choice goes
so far as to include the scenario where a
Court finds itself in a situation that it is at the mercy of its
officers as regards the
commencement and or continuation of any
particular case or trial. If this had to be so it means in effect
that Courts surrender
themselves to the dictates of their officers in
respect of their uppermost function and that is to dispense justice.
The interest
of the ‘other side’ and the Court are completely
ignored. This Court cannot and will not allow itself to be kept or
taken hostage
by its own officers – the legal practitioners. Such
procedure or practice is unacceptable – it can and will lead to an
abuse
of the process of the Courts. It would enable any litigant or
accused to literally one-handedly frustrate the proceedings in any
court by changing legal practitioners regularly, thereby enabling him
or her to gain extra time – to encourage delaying tactics.
What
makes the situation even more unbearable is the fact that in the
process the hands of all the other interested parties, including
the
Court, are tied.”
[16] I hold that the
applicant was the author of his own misery and that he himself
created the dilemma in which he found himself
when he launched the
application. I have already indicated that once the inquiry was
postponed on 18 August 2004 the applicant should
have taken steps to
arrange new dates with the respondents, which could have obviated the
need to proceed further with this application
and saved costs. The
respondents could also have done that and not proceeded to file
opposing papers. But in view of the inept
wording of the prayers and
the language of the founding affidavit the respondents can be excused
for adopting the attitude that the
matter needed to proceed to trial
so as the question of whether the applicant had a right to be
represented by his preferred attorney
be adjudicated upon. It is
obvious also that the applicant stood to benefit at the expense of
the respondents as long as the matter
was dragged out. He continued
to draw a salary for which he was rendering no services. That
probably explains why he took no steps
to bring closure to the matter
much earlier.
[17] Finally, Mr. Edeling
submitted that I should give directions as to how the inquiry should
be carried forward. I do not think
that I should usurp the functions
of the second respondent. I am mindful of the principle of judicial
deference. See
LOGBRO
PROPERTIES CC v BEDDERSON NO AND OTHERS
2003
(2) SA 460
SCA at 471
.
If
no agreement can be reached as to new dates, he can use his
discretion and set down the matter for hearing upon a reasonable
notice,
of say 3 weeks, to the applicant.
[18] In the result, the
application is dismissed with costs.
____________ H.M. MUSI, J
On
behalf of Applicant: Advocate W.J. Edeling
Instructed
by
Kramer
Weihmann & Joubert
BLOEMFONTEIN
On
behalf of Respondents: Advocate H.J. Benade
Instructed
by
Phatshoane
Henney Inc
BLOEMFONTEIN
/ec