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[2024] ZALCJHB 12
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Minister of Women v Mahapa and Another (JR72/2020) [2024] ZALCJHB 12 (16 January 2024)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case
No:
JR 7
2/20
In
the matter between:
MINISTER
OF WOMEN
Applicant
and
MR
DERICK MAHAPA
First
Respondent
MR M
SHABANGU Second
Respondent
Heard:
01 December 2023
Delivered:
16 January 2024
Summary:
Practice and procedure – section 158(1)(h) of the LRA –
Minister impugns the decision
of the presiding officer of the
disciplinary hearing – legality review with implicates a
constitutional obligation of the
State as the employer – No LRA
vehicle available to the State to review its own decisions –
Labour Court Practice Manual
finds no application – Rule of 53
of Uniform Rules is a correct procedure – review not deemed
withdrawn or archived.
JUDGMENT
NKUTHA-NKONTWANA,
J
Introduction
[1]
The
applicant (the Minister) brought an application in terms of section
158(1)(h) of the Labour Relations Act
[1]
(LRA) to review and set aside the decision of the second respondent
(Mr Khoza) (main application). Mr Khoza was appointed as the
presiding officer over the disciplinary enquiry against the first
respondent (Mr Mahapa). Mr Mahapa faced six charges of gross
misconduct that pertained to alleged procurement irregularities. He
was exonerated from three charges and found guilty of the other
three. Despite having found Mr Mahapa guilty of charges that relate
to misrepresentation, Mr Khoza recommended a sanction of a
final
written warning. The Minister impugns the reasonableness of Mr
Khoza’s findings and the sanction of a final written
warning.
[2]
What
serves before me is the interlocutory application for the
reinstatement of the main application which, according to Mr Mahapa,
is deemed withdrawn and/or archived in terms of clause 11.2.3 read
with clause 11.2.7 and 16 of the Labour Court’s Practice
Manual
[2]
(Practice Manual). The
Minister disputes that the main application has lapsed because the
60
days for the filing of the record of the disciplinary hearing could
only commence running after the dispatch of the record by
Mr Khoza.
Moreover,
a
portion of the record of the disciplinary hearing was served and
filed in compliance with the Practice Manual. However, she contends
that this application was launched as a precautionary measure, in the
event it is found that the main application has indeed lapsed.
[3]
At the initial hearing of the matter, on 1 September 2023, I,
mero
mutu,
raised the question of whether clauses 11.2.3, 11.2.7 and
16 of the Practice Manual are applicable when one is dealing with a
review
application in terms of section 158(1)(h). The parties were
accordingly directed to file supplementary heads of argument and the
matter was postponed. The parties duly obliged and the hearing of
oral submissions took place on 1 December 2023.
[4]
This matter turns of the interpretation of section 158(1)(h) which
provides:
‘
The
Labour Court may…review any decision taken or any act
performed by the State in its capacity as employer, on such grounds
as are permissible in law…’
Submissions
[5]
The counsel
for the Minister, Mr
Matlatle
,
submitted that the Minister, as the head of a state department, in
essence, seeks to review her own decision on permissible grounds
and
that remedy is not found in the Promotion for Administrative Justice
Act
[3]
(PAJA). To buttress this
submission, Mr
Matlatle
referred to
the
Constitutional Court’s (CC) judgment in
State
Information Technology Agency SOC Ltd v Gijima Holdings (Pty) Ltd
[4]
the state can review its own
decision based on the principle of legality which is part of our law
or an incident of the rule of
law.
[6]
Thus, to the extent that the Minister seeks to review the outcome of
the
disciplinary hearing against Mr Mahapa in terms of section
158(1)(h) of the LRA, the Practice Manual finds no application, so it
was further submitted. In the alternative, the Minister contends that
the delay in filing the record was due to Mr Khoza’s
remiss
conduct. There were numerous requests for the record of the
disciplinary enquiry but to no avail. To that extent, the Minister
contends, the delay in filing the record did not offend the
provisions of the Practice Manual.
[7]
Mr Mahapa, on the other hand, persists that the main application has
lapsed
per the Practice Manual. Ms Gontsana, appearing on behalf of
Mr Mahapa, submitted that since the main application is launched in
terms of the LRA provision, there is no reason why the Practice
Manual would not apply.
[8]
She further submitted that the main application is fraught with fatal
challenges which include a failure to serve the review application on
Mr Khoza and unreasonable delay in launching same. As such,
the
Minister failed to show good cause for the reinstatement of the
lapsed main application.
Legal
principles and application
[9]
It
is trite that a presiding officer appointed to chair a disciplinary
hearing exercises power
qua
employer.
[5]
As such, I concur with the Minister that the conduct of the presiding
officer is subject, like that of the employer, to be reviewed
under
section 158(1)(h).
In
Hendricks
v Overstrand Municipality and another
[6]
,
the Labour Appeal Court (LAC) upheld the decision of the court
a
quo
that,
unlike state employees, the state, as an employer, does not have an
incidental dispute resolution process available to it
in terms of the
LRA other than to avail itself to its right of review in section
158(1)(h). It was pertinently stated:
‘
The
Labour Court has the power under s 158(1)(h) to review the decision
taken by a presiding officer of a disciplinary hearing on
(i) the
grounds listed in PAJA, provided the decision constitutes
administrative action; (ii) in terms of the common law in relation
to
domestic or contractual disciplinary proceedings; or (iii) in
accordance with the requirements of the constitutional principle
of
legality, such being grounds ‘permissible in law.’
[7]
[10]
In
Gijima
[8]
,
referred to by the Minister, the CC in a judgment penned by Madlanga
J and Pretorius AJ, unanimously held that PAJA does not apply
when an
organ of state seeks to review its own decision. It was further held
that an organ of state seeking to review its own decision
must do so
under the principle of legality. The following observations are
apposite:
‘
[39]
Pharmaceutical Manufacturers
tells us that
the principle of legality is “an incident of the rule of law”,
a founding value of our Constitution.
In Affordable Medicines Trust
the principle of legality was referred to as a constitutional control
of the exercise of public power.
Ngcobo J put it thus:
“
The
exercise of public power must therefore comply with the Constitution,
which is the supreme law, and the doctrine of legality,
which is part
of that law. The doctrine of legality, which is an incident of
the rule of law, is one of the constitutional
controls through which
the exercise of public power is regulated by the Constitution.”
[40]
What
we glean from this is that the exercise of public power which is at
variance with the principle of legality is inconsistent
with the
Constitution itself. In short, it is invalid. That is a
consequence of what section 2 of the Constitution
stipulates. …
The principle of legality may thus be a vehicle for its review
…’
[9]
(Own emphasis and footnotes omitted)
[11]
Moreover,
in
Ramonetha
v Department of Roads and Transport Limpopo and another
,
[10]
the LAC, per Savage AJA, as she then was, aptly stated:
‘
It
is now trite that inherent in our constitutional order is the
principle of legality in terms of which by virtue of the rule of
law
public functionaries, in their exercise of public power, are required
to act within the powers granted to them by law and arrive
at
decisions which are lawful, not arbitrary and are rationally related
to the purpose for which the power was given. There can
be little
doubt that the MEC’s decision is capable of review under
s158(1)(h) on the grounds of legality.’
[12]
It follows that the review application in terms of section 158(1)(h)
is premised on the
principle of legality. As such, Mr Mahapa’s
contention that the LRA is applicable is untenable and stands to be
rejected.
[13]
The relevant procedure when it comes to the filing of a record
in judicial reviews is provided in rule 53 of the High Court Rules.
Rule 53(1) states:
‘
Save
where any law otherwise provides, all proceedings to bring under
review the decision or proceedings of any inferior court and
of any
tribunal, board or officer performing judicial, quasi-judicial or
administrative functions shall be by way of notice of
motion directed
and delivered by the party seeking to review such decision or
proceedings to the magistrate, presiding officer
or chairperson of
the court, tribunal or board or to the officer, as the case may be,
and to all other parties affected —
(a)
calling upon such persons to show cause why such decision or
proceedings should not be reviewed
and corrected or set aside, and
(b)
calling upon the magistrate, presiding officer, chairperson or
officer, as the case may
be, to despatch, within fifteen days after
receipt of the notice of motion, to the registrar the record of such
proceedings sought
to be corrected or set aside, together with such
reasons as he or she is by law required or desires to give or make,
and to notify
the applicant that he or she has done so.’
[14]
In
Turnbull-Jackson
v Hibiscus Court Municipality and Others,
[11]
the CC stated:
‘
Undeniably,
a rule 53 record is an invaluable tool in the review process. It may
help: shed light on what happened and why; give
a lie to unfounded
ex
post facto
(after the fact) justification of the decision under
review; in the substantiation of as yet not fully substantiated
grounds of
review; in giving support to the decision-maker’s
stance; and in the performance of the reviewing court’s
function.’
[15]
While
in
Helen
Suzman Foundation v Judicial Service Commission
,
[12]
the CC explained the purpose of rule 53 as follows:
‘
[13]
The purpose of rule 53 is to “facilitate and
regulate applications for review”. The requirement
in rule
53(1)(b) that the decision-maker file the record of decision is
primarily intended to operate in favour of an applicant
in review
proceedings.
It helps ensure that review
proceedings are not launched in the dark. The record enables the
applicant and the court fully and properly
to assess the lawfulness
of the decision-making process
. It
allows an applicant to interrogate the decision and, if necessary, to
amend its notice of motion and supplement its grounds
for review.
[14]
Our courts have recognised that rule 53 plays a vital role in
enabling a court to perform its constitutionally
entrenched review
function:
Without
the record a court cannot perform its constitutionally entrenched
review function, with the result that a litigant’s
right in
terms of section 34 of the Constitution to have a justiciable dispute
decided in a fair public hearing before a court
with all the issues
being ventilated, would be infringed
.”
(Own emphasis and footnotes omitted)
[16]
Having found that the main application implicates the constitutional
principle of legality,
it follows that it had never lapsed or
archived or deemed withdrawn as contemplated in the Practice Manual.
[17]
The parties agreed, correctly so, that the alternative submissions by
Mr Mahapa that pertain
to delay in instituting the main application
and non-joinder of Mr Khoza do not serve before me. They will be
dealt with in due
course by the court ceased with the review
application.
Conclusion
[18]
In all the circumstances, to the extent that the
main application is a legality review in terms of section 158(1)(h),
it was never
defunct. Thus, this application is rendered superfluous.
The parties are at liberty to take further steps in prosecuting the
main
application.
Costs
[19]
The parties agree that costs shall be costs in the cause.
[20]
In the premise the following order is made:
Order
1.
The
main application is not defunct as it is a
legality review in terms of section 158(1)(h) of the LRA.
2.
Costs shall be costs in the cause.
P.
Nkutha-Nkontwana
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicant: Advocate
Adv. D Matlatle
Instructed
by: State
Attorney, Pretoria
For
the First Respondent:Ms Z Gontsana of Mdluli, Pearce, Mdzikwana and
Associates
[1]
Act
66 of 1996, as amended.
[2]
Practice
Manual of the Labour Court of South Africa, effective 1 April 2013.
[3]
Act
3 of 2000.
[4]
ZACC 40;
2018 (2) BCLR 240
(CC);
2018 (2) SA 23
(CC) (
Gijima
)
at para 40.
[5]
Ntshangase
v MEC: Finance Kwa-Zulu Natal and Another
[2009] ZASCA 123
;
2010 (3) SA 201
(SCA);
[2010] 2 All SA 150
(SCA);
[2009] 12 BLLR 1170
(SCA); (2009) 30 ILJ 2653 (SCA) at paras 13 to
17.
[6]
(2015) 36 ILJ 163 (LAC) (
Hendricks
)
at para 29; see
also
National Commissioner of the South African Police and Another v
Nienaber N.O. and Another
[2017] ZALCCT 17; (2017) 38 ILJ 1859 (LC);
[2017] 8 BLLR 840
(LC) at
paras 6 and 8.
[7]
Hendricks,
id.
[8]
Gijima,
(id fn 4) at paras 37 to 40.
[9]
Gijima,
(id fn 4).
[10]
[2018] 1 BLLR 16
(LAC); (2018) 39 ILJ 384 (LAC);
[2017] ZALAC
68
at para 21.
[11]
2014 (6) SA 592
(CC) at para 37.
[12]
2018 (4) SA 1
(CC) at para 13 to 15.