Bula v Akharwaray and Others (478/03) [2003] ZANCHC 5 (5 September 2003)

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[2003] ZANCHC 5
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Bula v Akharwaray and Others (478/03) [2003] ZANCHC 5 (5 September 2003)

Reportable:
YES / NO
Circulate
to Judges: YES / NO
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to Magistrates: YES / NO
IN
DIE HOOGGEREGSHOF VAN SUID-AFRIKA
IN
THE HIGH COURT OF SOUTH AFRICA
(Noord-Kaapse
Afdeling / Northern Cape Division)
Saakno:
/ Case number:
478/03
Datum
verhoor: / Date heard:
22/08/03
Datum
gelewer: / Date delivered:
5/9/03
In
the matter:
BULA, RLN
Applicant
versus
AKHARWARAY, GH: MEC
OF FINANCE 1
st
Respondent
DIPICO,
EM: PREMIER 2
nd
Respondent
THE NORTHERN CAPE
GOVERNMENT 3
rd
Respondent
Coram: Lacock J
JUDGEMENT
LACOCK
J:
What induced this
application is to a large extent common cause:
The applicant, the
Head of the Department of Safety and Liaison in the Provincial
Government of the Northern Cape, was found guilty
on four charges
of sexual harassment towards female employees of the Provincial
Government in a disciplinary hearing during May
2002.
It was recommended
by the Chairperson of the disciplinary tribunal, one advocate
Halgryn that the applicant be dismissed from
public service.
Following the
aforesaid recommendation, the applicant was dismissed from public
service by the second respondent, the Premier of the
Northern Cape on
5 November 2002.
The aforesaid disciplinary action was taken and
purportedly conducted in accordance with the Disciplinary Code and
Procedures
for the Public Service adopted by the Public Service
Co-ordinating Bargaining Council in terms of Resolution 2 of 1999
(the Code).
I use the word purportedly since the applicant avers
that the prescribed procedures were not properly adhered to by the
disciplinary
tribunal.
The applicant appealed against the aforesaid ruling of
the disciplinary tribunal in accordance with the relevant
provisions of
the Code.
Paragraph 8.4 of the Code provides that
“if
the employee is a Head of Department, the relevant Premier or the
President will consider the appeal”
.
In a letter dated 8 May 2003 the Chief State Law
Adviser in the Office of the second respondent advised the
applicant that the
second respondent delegated his authority to
hear the appeal to the first respondent, the Member of the
Executive Council: Finance,
Northern Cape Government. The
applicant was advised that this delegation of authority was
exercised in terms of sec 3 B(4)(b)
of the Public Service Act of
1994.
The applicant, not content with the aforesaid decision
of the second respondent, lodged the present application whereby the
following
relief is claimed:
That a rule nisi be issued, calling upon respondents
to show cause, if any, on
FRIDAY, 1
AUGUST 2003 at 09H30
why the
following orders should not be made:
That the first
respondent be interdicted from acting as appeal authority and form
pronouncing any judgment in the appeal of applicant
against the
findings of advocate Leon Halgryn.
That the second
respondent’s delegation of authority in terms whereof first
respondent was appointed as appeal authority in the
above appeal of
applicant, be reviewed and set aside.
That second
respondent be authorized and ordered to appoint a retired judge or
senior advocate in co-operation and with written
approval of
applicant to act as appeal authority and to pronounce judgment on
the appeal lodged by applicant referred to above.
That the second
and third respondents be ordered to pay the costs of this
application jointly and severally, the one paying the
other to be
absolved.
Further and/or
alternative relief.
That the relief
set out in prayer 2.1 above, shall operate as an interim interdict
with immediate effect pending the finalization
of this application
including the application for review.”
In a supplementary affidavit, the applicant avers that
the parties concluded an agreement on 29 May 2003 in terms whereof
the respondents
consented to prayers 2.1 to 2.3 of the notice of
motion, and now requests the court to grant him the aforesaid relief
on the strength
of that agreement.
It appears to me
that the logical point of departure to resolve this matter will be
the alleged agreement referred to above.
The respondents deny that a final agreement had been
concluded between the parties. In this regard Mr Groenewald, the
attorney
for the respondents averred that, and I quote from his
affidavit,
“After telephonic discussions
with Applicant’s attorney of record, we agreed to the terms of
paragraphs 2.1 – 2.3 of the notice
of motion and that the
application would be removed from the roll by consent and with no
cost order. It was specifically agreed
that the above would be a
gentleman’s-agreement and that it would not be embodied in a court
order. Later that same afternoon
and after we had agreed to the
above the applicant’s attorney of record contacted me and advised
me that his client required
that the terms upon which we had settled
be made an order of court.”
By reason of the
applicant insisting on the additional term, that is that the
agreement be made an order of court, and the respondents’
refusal
to agree thereto, the agreement allegedly failed.
It is further alleged that on the following day, 30 May
2003, further discussions ensued between the attorneys in an attempt
to resolve
the dispute, but no agreement could be reached between the
parties primarily by reason of the applicant’s unwillingness to
contribute
to the costs of an arbitrator and the parties’ failure
to agree on an arbitrator.
This is a factual dispute which cannot be resolved on
the papers. Pursuant to the rule in
Stellenbosch
Farmers Winery Ltd v Stellenvale Winery 1957(4) SA 234 (C) at 235 F
,
I am obliged to accept the factual allegations of the respondents in
regard to this issue. These allegations are not so improbable
or
patently absurd that it can be dismissed without the hearing of oral
evidence (
Plascon Evans Paints v Van
Riebeeck Paints 1984(3) SA 623 (A) at 635 C)
.
I accordingly find,
for purposes of this application that no agreement as alleged by the
applicant had been concluded between the
parties.
I now turn to the
relief claimed by the applicant in the notice of motion on the
allegations contained in the supporting affidavit
as amplified in
the supplementary affidavit.
Mr Daffue, who
represents the applicant, conceded that the relief claimed in
paragraph 2.1 of the notice of motion necessarily follows
upon the
relief claimed in paragraph 2.2 thereof. It is accordingly not
necessary to consider the contents of paragraph 2.1 of
the notice of
motion.
For the relief
prayed for in paragraph 2.2 of the notice of motion the applicant
relies on a three-pronged argument.
Firstly, the
applicant contends that the second respondent had no competency to
delegate his appeal authority in terms of the Code
to the first
respondent.
Mr Daffue’s first submission in support of this
contention is that the Code makes no provision for such delegation
of powers,
and, by reason of the maxim
delegatus
delegare non potest
, the purported
delegation of his functions as the appeal authority to the first
respondent is
ultra vires
and of no force and effect.
There may have been
substance in this argument were it not for the provisions of sec 3 B
(1) and (4) of the Public Service Act of
1994 (Proclamation no 103 of
1994). These sub-sections read as follows:
“
(1)
Notwithstanding anything to the contrary contained in this Act, the
appointment and other career incidents of the heads of department
shall be dealt with by, in the case of-
(a) a
head of a national department or organisational component, the
President; and
(b) a head of a
provincial administration, department or office, the relevant
Premier.
(2) …
(3) …
(4) The executing
authority referred to in paragraph (a) or (b) of subsection (1) may
delegate or assign any power or duty to appoint
the head referred to
in that paragraph, as well as any power or duty regarding the other
career incidents of that head, in the case
of-
(a) the
President, to the Deputy President or a Minister; or
(b) the Premier
of a province, to a Member of the relevant Executive Council.”
To my mind the
functions of the second respondent as appeal authority referred to in
paragraph 8 of the Code, falls squarely within
the ambit of
“other
career incidence”
as contemplated in the aforesaid sections of
the Public Service Act, as far as those provisions are applicable to
a Head of a Provincial
Department.
The second respondent was therefore statutorily
authorised and entitled to delegate his functions under the Code to
the first respondent.
The maxim
delegatus
delegare non potest
therefore finds no
application in this matter. See
Attorney
General OFS v Cyril Anderson Investments 1965(4) SA 628(A) at 639 C
;
and
Rudolph & Another v Commissioner for
Inland Revenue 1997(4) SA 391 (SCA) at 396 B
.
Secondly, Mr Daffue submits that, since the second
respondent recused himself from the appeal, he became
functus
officio
and unable to delegate his functions
to the first respondent.
The short answer to
this argument is simply that the second respondent was never ceased
with the appeal, has not exercised nor attempted
to exercise any
functions as appeal authority under paragraph 8 of the Code, and
could not and did not recuse himself from the appeal.
What he did
was to delegate his functions as appeal authority to the first
respondent. His reasons for delegating his aforesaid
powers cannot
be construed as a recusal.
Secondly, the
applicant contends that his complaint against the first applicant’s
appointment as the appeal authority is reasonable
based on a
reasonable apprehension of bias.
The sum total of the applicant’s allegations in
support of this contention are the following:
“
Although
I have been advised that it is not necessary to deal with the
disciplinary hearing and the various procedural and other defects
in
detail, I wish to indicate that I have reason to believe that the
judgment will be set aside on appeal if a neutral and competent
person is appointed as appeal authority. I cannot say the same in
the case of 1
st
Respondent who is a confidant of and employee appointed by the 2
nd
Respondent.”
This is a bare statement of opinion unsupported by any
corroborative evidence or factual averments. The aforesaid
allegations do
certainly not substantiate a reasonable apprehension
of bias. To my mind it does not even disclose a reasonable
suspicion of
bias. See
Sager v Smith 2001(3)
SA 1004 (SCA) at 1009 E
and
at
1010 F to H
where it was held,
“The
test to be applied is an objective one, requiring not only that the
person apprehending the bias must be a reasonable person
but also
that the complaint must be reasonable. See S v Roberts (loc cit).
This two-fold feature of the required objective standard
has been
described in SARFU and SACCAWU as the double requirement of
reasonableness. In SACCAWU it was said the double reasonableness
requirement highlights the fact that mere apprehension on the part
of a litigant that a Judge will be biased - even a strongly
and
honestly felt anxiety - is not enough. See paras [14] and [16]. The
statement in the judgment of the Court a quo that '(t)he
existence
of such suspicion is a matter of subjective perception by the
complainant party' is accordingly contrary to the principles
laid
down in the above cases, requiring that the apprehension must be
that of a reasonable person.”
The third
contention advanced on behalf of the applicant is that the
provisions of Resolution 1 of 2003 adopted by the Public Service
Co ordinating Bargaining Council on 28 February 2003 whereby
Resolution 2 of 1999 (the Code) was amended, is applicable to
the
pending appeal of the applicant.
The relevant
provisions of Resolution 1 of 2003 being paragraph 3(c)(ii) thereof
reads as follows:
THEREFORE the
parties resolve –
…
…
that for
purposes of paragraph 3(b), if the employee charged with misconduct
is a head of department –
…
the relevant
Premier (in respect of a provincial head of department) or the
President is involved in the initial disciplinary proceedings
against the head of department, the appeal must be dealt with by a
panelist of the relevant sectoral bargaining council in the
public
service.”
It is submitted that the second respondent
“is
involved”
in the initial disciplinary
proceedings and therefore the appeal must be dealt with by a
panelist of the relevant sectoral bargaining
council. It is alleged
that the second respondent became involved in the initial
disciplinary hearing by reason of the fact that
he addressed the
following letter to the applicant on 5 November 2002:
“
You were
charged with misconduct of sexual harassment and after a properly
constituted disciplinary inquiry you were found guilty
on four counts
and not guilty on one count.
In the
circumstances I had time to peruse and consider the recommendation of
the chairperson, more importantly, the chairperson’s
analysis of
mitigation and aggravating factors in this regard.
In
my consideration of the aggravating and mitigating circumstances I
believe that the case in aggravation of sentence far outweighs
you
case in mitigation. In the light therefore, I have resolved to
impose the following sanction:
That you are
discharged from the Public Service in terms of clause 7.4 (vii) of
the Disciplinary Code and Procedure (PSCBC Resolution
2 of 1999).
You are further
reminded that you have the right to appeal this decision tot he
Presidency in terms of clause 8.2 of the Disciplinary
Code and
Procedure. This must be done within five(5) working days after
receipt of this letter.”
Ms Henriques, appearing for the respondents, submitted
that, by having dismissed the applicant, the second respondent merely
exercised
a statutory duty, since he is the only person authorised by
the Public Service Act to discharge a head of department. This
argument
appears to be a sound one.
If the dismissal by a Premier of a head of department in
terms of the Public Service Act is to be regarded as him or her
“becoming involved”
in the initial disciplinary proceedings, he would hardly ever, if at
all, be able to exercise his or her appeal authority in terms
of sec
3 B(1) of the Public Service Act and/or the Code as amended by
paragraph 3(c)(ii) of Resolution 1 of 2003. The word
“involve”
is defined in the Concise Oxford Dictionary as
“cause
to experience or participate in an activity or situation”
.
This appears to me to be the meaning to be ascribed to the words
“is
involved”
as used in paragraph 3(c)(ii) of
Resolution 1 of 2003. A Premier would be involved in the initial
disciplinary proceedings if he
has, for instance, initiated the
proceedings as a complainant or if he participated in the
disciplinary proceedings as a witness.
To my mind his exercising of
a statutory function to discharge a head of department, cannot be
construed as having become involved
in the initial disciplinary
proceedings, even, as in the instant matter, he considered the
recommendations of the disciplinary tribunal
prior to his discharging
the head of department.
It is further submitted by Mr Daffue that the aforesaid
provisions of Resolution 1 of 2003 contains a prohibition against
the delegation
of his powers by the second respondent in terms
thereof.
The answer to this
argument is that the provisions of this Resolution is of necessity
subject to the provisions of the Public Service
Act referred to
herein before.
From the aforesaid, it will be noted that I have
assumed that Resolution 1 of 2003 is applicable to the present
matter. However,
this assumption may not necessarily be correct.
If, as submitted by Mr Daffue, the Resolution deals with procedural
matters
only, it may be said that it has retrospective operation
and it’s provision are applicable to the applicant’s appeal,
although
the Resolution only came into effect on 28 February 2003,
ie subsequent to the lodging of the appeal. (See
Fredericks
& Others v MEC for Education & Training, EC 2002(2) SA
693(CC) at 703 B to E
). To my mind, it is
doubtful whether the establishment of a new appeal authority (as
was done in paragraph 3(c)(ii) of Resolution
1 of 2003) can be
categorised as a procedural matter. I have nevertheless assumed in
favour of the applicant that this is the
position.
Mr Daffue moved for an amendment of prayer 2.3 of the
notice of motion to substitute the reference therein of a retired
judge or
senior advocate for the panelist of the relevant sectoral
bargaining council in the Public Service referred to in paragraph
3(c)(ii)
of Resolution 1 of 2003.
By reason of my aforesaid finding that the second
respondent was not involved in the initial disciplinary proceedings,
the
ratio
for the
amendment has fallen away. I am not aware of any authority in terms
whereof I can prescribe to the second respondent in
what manner he is
to exercise his power to delegate his executing authority in terms of
the Public Service Act.
Therefore the application is dismissed with costs.
_________________________
HJ Lacock
JUDGE
For
the appellant:
Adv JP Daffue (instructed by Elliot, Maris,
Wilmans & Hay)
For the
respondents:
Adv JI Henriques (instructed by Towell and
Groenewald)