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[2024] ZALCJHB 97
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Luphondo v Pieterse and Another (J102/24) [2024] ZALCJHB 97 (13 February 2024)
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
Not Reportable
case
no:
J102/24
In
the matter between:
MATRIC
LUPHONDO
Applicant
and
rg
pieterse
NO
First Respondent
NATIONAL
PROSECUTING AUTHORITY
Second Respondent
Heard
:
9 February 2024
Delivered
:
9 February 2024
(An order was handed down on 9 February. This
judgment was handed down electronically by emailing a copy to the
parties. The 13
February 2024 is deemed to be the date of delivery of
this judgment).
Summary:
Interdict pendente lite. Applicant sought to
interdict ongoing disciplinary hearing of senior official in the
public service. Failure
to prove prima facie right and reasonable
prospects of success in main dispute. Application dismissed, no order
as to costs.
JUDGMENT
DANIELS J
Introduction
[1]
On 9 February 2024, I heard the application, which came before the
court, as an urgent application. I handed down an order,
dismissing
the application, with no order as to costs, that same day and
indicated that my reasons would follow. These are my reasons.
[2]
The
applicant seeks an order interdicting his disciplinary enquiry
pending the outcome of a review application brought in the Labour
Court under case number JR17/2024. The applicant alleges that the
disciplinary process to be both unlawful
[1]
and unfair.
[2]
[3]
He alleges that only the Minister can determine how he to be
disciplined, because of
section 12
,
13
and
14
of the
National
Prosecuting Authority Act No. 32 of 1998
as amended (hereafter the
“NPA Act”)
[4]
The application is opposed by second respondent, hereafter referred
to as the “NPA”.
[5]
The structure of this judgment is as follows:
5.1
First, I begin with the issue of jurisdiction,
5.2
Second, I set out the material facts,
5.3
Third, I deal with urgency,
5.4
Fourth, I set out the applicable legal principles,
5.5
Finally, I apply the law to the facts, and set out my conclusion.
Jurisdiction
[6]
It is trite that the Labour Court does not
have an “all embracing jurisdiction over the employer –
employee relationship”
and its jurisdiction is governed by the
four walls of the statute, or statutes, which grant it jurisdiction.
The Labour Court exercises
its broad powers, located under section
158 of the LRA, in relation to those matters which fall under its
jurisdiction, located
in section 157.
[7]
Section 157(2)(a) and (b) of the LRA provides that the Labour Court
has concurrent jurisdiction with the High Court in respect
of: (1)
any alleged or threatened violation of any fundamental right
entrenched in Chapter 2 of the Constitution arising from employment
and from labour relations; and (2) any dispute over the
constitutionality of any executive or administrative act or conduct
by
the State in its capacity as employer.
[8]
It took some time before the vexed issue of jurisdiction of this
court, to intervene in incomplete disciplinary processes (where
the
CCMA or bargaining council was mandated to determine procedural
fairness after the dismissal) would finally be settled.
[9]
In
Booysen
v SA Police Service & another
[3]
(hereafter
“
Booysen
”)
Cheadle AJ explored, in depth, the structure of the LRA, and its
relationship to the constitutional right to fair labour
practices.
The learned Acting Judge held that this court did not have
jurisdiction to intervene in uncompleted disciplinary processes.
This
was followed by
Jiba
v Minister of Justice & Constitutional Development
[4]
where Van Niekerk J, held that the court indeed had jurisdiction to
intervene, but it may not do so in a manner which would finally
determine the dismissal dispute and the court must intervene only in
“exceptional circumstances”.
[10]
On appeal,
the LAC finally settled the issue in
Booysen
[5]
holding that this court may intervene in incomplete disciplinary
processes if fairness was at issue, even though the CCMA or
bargaining
councils would subsequently to determine, on arbitration,
whether the dismissals were fair.
Material
facts
[11]
The
applicant was appointed by the second respondent as a Chief
Prosecutor. Thereafter, he was appointed as the Acting (Regional)
Director.
[6]
[12]
The applicant has been on paid suspension since 7 April 2021. He was
charged with gross misconduct,
viz
bribery and corruption, on
or about 31 May 2021. His arrest has been published widely in the
media and televised. There can be
little question that it is in
everybody’s interest that the dispute is resolved
expeditiously, but, of course, also fairly.
[13]
Although the applicant’s disciplinary hearing formally
commenced during May 2021, as of February 2024, the parties have yet
to present any evidence. The correspondence tendered into evidence as
annexures to affidavits reveal that the NPA has repeatedly,
and
bitterly, accused the applicant of unnecessarily delaying the
process. There may be some merit to the accusation. Most tellingly,
the applicant accused the initial chairperson, a prominent and
respected senior counsel, of bias and sought her recusal. The
applicant
took that issue on review, in this court, where the dispute
was settled on the basis that the parties would conduct the
disciplinary
process through arbitration before the General Public
Service Sector Bargaining Council (hereafter the “Bargaining
Council”)
under section 188A of the LRA. Now, the applicant
challenges the jurisdiction of the Bargaining Council, and its
appointed arbitrator,
to conduct the section 188A arbitration –
the very process agreed upon.
[14]
The section 188A hearing is being conducted under the so-called
Senior Management Service Handbook (the “SMS Handbook”)
although the provisions of the LRA, applicable to section 188A
arbitrations, such as sections 138 and 142, remain applicable.
Section 188A gives the applicant a significant measure of procedural
protection against a possibly biased employer.
[15]
The applicant alleges that he will suffer a grave prejudice if the
hearing is not interdicted from proceeding on 12, 13 and 14
February
2024 (the “set down dates”) because his legal team is
unavailable. In addition, the applicant alleges that:
15.1
He became aware of the set down dates on 7 December 2023, while
awaiting a ruling from the Bargaining Council on two preliminary
points (which he had earlier taken).
15.2
His legal team were not consulted on the set down dates, whereas this
had previously occurred.
15.3
A few days later, on 12 December, the Bargaining Council sent its
ruling on the preliminary points to the applicant’s legal
team,
although it had earlier been sent to the NPA. Instead of writing this
off (the Bargaining Council’s failure to send
the ruling to him
at the same time) as an administrative error, the applicant says that
this is proof of conspiracy.
15.4
The applicant filed an application in this court under case number
JR17/24 to review and set aside the ruling by the arbitrator.
[16]
Importantly, the applicant does not state when his legal team is
available, nor does he explain whether their availability was
communicated to the Bargaining Council at the last sitting.
[17]
In
addition, there are no confirmatory affidavits from any of the
attorneys or advocates in the applicant’s legal team.
Accordingly,
allegations that they are not available constitutes
hearsay evidence, which can only be admitted under section 3(1) of
the Law
of Evidence Amendment Act,
[7]
where a proper basis has been laid.
[18]
The applicant contends that the NPA will be guilty of contempt of
court if it calls two witnesses to testify because they have
been
warned not to testify by a Judge of the High Court, given that they
are witnesses in a pending matter before the High Court.
Of course,
this is a problem for the NPA, and not the applicant. The applicant
contends that he has not been provided with documents
by the NPA, but
it is apparent from the pleadings and the various annexures, that
this has little merit. The applicant complains
that the chairperson,
or arbitrator, the first respondent in this matter, is biased. Yet,
once again, the allegation is unsubstantiated.
[19]
There are further indications that the applicant seeks to delay
appear from his technical approach to the section 188A process:
19.1
The applicant alleges that a pre-arbitration minute must be concluded
before the hearing begins. Surely it is in the hands of the
arbitrator, who must determine whether the conclusion of a minute
will shorten proceedings?
19.2
The applicant alleges that the SMS handbook requires the employer to
disclose the main evidence against him before the hearing
begins. It
is unclear what the main evidence would constitute, except for the
nature of the charges and any documents, and video
or audio
recordings which the employer intends to use. In these circumstances,
an employee can object to the admission of evidence,
with great
significance, if it was in existence previously and is produced at
the hearing for the first time.
Urgency
[20]
The applicant moved with reasonable expedition, given the
circumstances, once the set down dates were provided to him on 7
December
2023. The applicant contacted his attorneys and had them
address a letter of demand to the Bargaining Council. Thereafter,
when
his attorneys received the ruling from the Bargaining Council,
on 12 December, he launched a review application thereafter.
[21]
This application, his second application in a short space of time,
was launched at the end of January 2024 and heard only a few
days
later.
[22]
I have also taken into consideration that these proceedings were
launched during the tail end of the festive season. Of course,
while
the festive season can never constitute a good reason for delay, it
is a reality that matters, including courts and law firms,
move
slower at that time. The application was launched well in advance of
the disciplinary hearing set down to proceed on 12, 13
and 14
February.
[23]
In the circumstances, I accept that the matter is urgent.
Interim
Interdict: Applicable Legal Principles
[24]
The applicant seeks an interdict
pendente lite
, pending the
finalisation of his review application, brought under case number
JR17/2024. In that regard, he alleges that the first
and second
respondents have no authority to conduct a disciplinary hearing
against him because, as an acting director, his discharge
is governed
by section 12, 13 and 14 of the NPA Act. Furthermore, the applicant
alleges that his lawful removal first requires
the Minister to
exercise his powers under the NPA Act.
[25]
In
UDM
and another v Lebashe Investment Group and others
[8]
the Constitutional Court held as follows:
“
An
interim interdict pending an action is an extraordinary remedy within
the discretion of the court
. For an order to be said to be
interim it must be capable of being reconsidered at the pending trial
on the same facts by the court
of first instance. …..The
requisites for the right to claim an interim interdict are: a prima
facie right even if it is
open to some doubt, injury actually
committed or reasonably apprehended, balance of convenience, the
absence of any similar protection
or remedy…
the
court must exercise its discretion judicially upon a consideration of
all the facts and circumstances
.” (Own emphasis)
[26]
In
addition, where an applicant seeks to interdict a functionary from
exercising a public power, a court may only grant an interim
interdict, when it is satisfied that the applicant has good prospects
of success in the main review.
[9]
The Constitutional Court stated: “
It
is only if a court is convinced that the review is likely to succeed
that it may appropriately grant the interdict. The rationale
is that
an interdict which prevents a functionary from exercising public
power conferred on it impacts on the separation of powers
and should
therefore only be granted in exceptional circumstance
.”
[10]
[27]
Accordingly, this court is required to assess whether the applicant
has reasonable prospects of success in the review. What follows
does
not finally determine whether the applicant’s rights under the
NPA Act have been or will be breached. This is merely
a “peek
into” the merits, as is required in an application of this
nature.
[28]
As the paragraphs below explain, I am not satisfied that the
applicant has reasonable prospects of success in the review, the main
dispute. This is based on my understanding of the NPA Act, as
explained below.
Interpretation
of the NPA Act
[29]
It is necessary to consider the applicable provisions in the NPA Act:
29.1
Section 12 deals with the term of office of the National Director and
Deputy
National
Director. These individuals
are insulated to protect them and ensure their independence. Only the
President may suspend them, pending
such enquiry as the President
deems fit. Given that the applicant is not the National Director, nor
the Deputy National Director,
the section holds no relevance for him.
29.2
Section 13 deals with the appointment of
Directors and Acting Directors. The section provides that the
President will appoint Directors
after consultation with the National
Director and the Minister, while Acting Directors will be appointed
by the Minister after
consultation with the National Directors.
Clearly, Acting Directors are not accorded the same level of armor.
This can only be
because of the intended nature of their tenure,
temporary and insecure.
29.3
Section 14 grants Directors a measure of
protection against dismissal. They too are also given the protections
in section 12 (3),
(4), (6), (7), (8) and (9), in respect of the
vacation of office and discharge.
[30]
It is readily apparent that the NPA Act
does not deal with the discharge of Acting Directors or Deputy
Directors. On the other hand,
the Act deals specifically with the
appointment and discharge of National Directors, Deputy National
Directors, and Directors.
[31]
In the unreported judgment of
Tshavungwa v National Director of
Public Prosecutions and others
(TPD 42117/06 dd 19 March 2008)
the court held that the
dismissal
was
unlawful because it was unauthorized. The court held that it was
axiomatic that, given that deputy directors are appointed
by the
Minister, they should be discharged by the Minister. With respect, I
differ. The NPA Act carefully spells out the procedures
for the
appointment process, and the discharge process. The protections
accorded to each position (i.e. the procedures for discharge)
are
commensurate with the level of authority and permanency applicable.
It was no accident that the legislature did not provide
protection
for Acting Directors and Deputy Directors. This is consistent with
the intention - providing additional statutory protection
only to
those that require it. Everyone else can rely on the constitutional
right against unfair dismissal – protection which
cannot
lightly be sniffed at.
[32]
In
Natal
Municipal Pension Fund v Endumeni Municipality
[11]
(hereafter “
NMPF
”)
the SCA had the following wisdom to share:
“
The
Interpretation is the process of attributing meaning to the words
used in a document, be it legislation, some other statutory
instrument, or contract, having regard to the context provided by
reading the particular provision or provisions in the light of
the
document as a whole and the circumstances attendant upon its coming
into existence.
Whatever
the nature of the document, consideration must be given to the
language used in the light of the ordinary rules of grammar
and
syntax; the context in which the provision appears; the apparent
purpose
to
which it is directed and the material known to those responsible for
its production.
Where
more than one meaning is possible each possibility must be weighed in
the light of all these factors
. The
process is objective not subjective. A sensible meaning is to be
preferred to one that leads to insensible or unbusinesslike
results
or undermines the apparent purpose of the document.
Judges
must be alert to, and guard against, the temptation to substitute
what they regard as reasonable, sensible or businesslike
for the
words actually used. To do so in regard to a statute or statutory
instrument is to cross the divide between interpretation
and
legislation. In a contractual context it is to make a contract for
the parties other than the one they in fact made
.
The
‘inevitable point of departure is the language of the provision
itself’, read in context and having regard
to the purpose
of the provision and the background to the preparation and production
of the document
.
(Own
emphasis)
[33]
Firstly, there is no ambiguity in the NPA. The applicant seeks to
tempt the court into reading in provisions which are not there.
In
NMPF
the SCA sternly warned us against this approach. To do so
would usurp the powers of the legislature.
[34]
In
Jiba
[12]
this court, per Van Niekerk J distinguished
Tshavungwa
(from
the facts of that matter) on the basis that in
Tshavungwa
the
employee had already been dismissed. Much like the
Jiba
matter, this matter is also distinguishable from
Tshavungwa
.
The applicant has been called to account for alleged misconduct; and
he has not been dismissed. It is not open to this court to
speculate
that he will be dismissed. The applicant is entitled to raise its
defence, if he is dismissed, on review. It is premature
for the court
to do so at this stage, on an urgent basis.
[35]
In addition, the
Tshavhungwa
and
Jiba
judgments are not
authorities for the carefully constructed dispute resolution
structures of the LRA to be undermined through piecemeal
attacks. I
can put it no better than Van Niekerk J: “In short
there is
no reason why the question of authority to dismiss should be
determined by this court in motion proceedings, initiated
on an
urgent basis, in circumstances where no dismissal is apprehended
,
and where the chairperson of a disciplinary enquiry (and I would add,
a commissioner or arbitrator in unfair dismissal proceedings)
has not
been seised with the question of authority and has made no ruling on
it.” (Own emphasis).
[36]
Of course, in this matter the chairperson has rendered his ruling on
jurisdiction, and the ruling is pending review. However, this
does
not mean that piecemeal litigation is to be endorsed. Piecemeal
litigation is the very antithesis of expeditious dispute resolution,
one of the primary objects of the LRA.
[37]
In my view, the applicant has failed to prove its right on a
prima
facie
basis, and he has failed to show good prospects of success
in the main dispute. I therefore need not consider the other
requirements
for an interim interdict. Nor do I need to consider
whether there are exceptional circumstances.
Costs of the
application
[38]
Both
parties
sought costs. In
MEC
for Finance: Kwazulu-Natal and Another v Dorkin NO and Another
[13]
the court stated as follows: “
The
rule
of practice that costs follow the result does not govern the making
of orders of costs in this Court
.
The relevant statutory provision is to the effect that orders of
costs in this Court are to be made in accordance with the
requirements
of the law and fairness. And the norm ought to be that
cost orders are not made unless those requirements are met. In making
decisions
on cost orders
this
Court should seek to strike a fair balance between on the one hand,
not unduly discouraging workers, employers, unions and
employers’
organisations from approaching the Labour Court and this Court to
have their disputes dealt with, and, on the
other, allowing those
parties to bring to the Labour Court and this Court frivolous cases
that should not be brought to Court
.
That
is a balance that is not always easy to strike but, if the Court is
to err, it should err on the side of not discouraging parties
to
approach these Courts with their disputes
.
”
(Own emphasis)
[39]
Both parties genuinely believed they were acting in defence of their
rights. In these circumstances, there is
nothing
in law or fairness which requires that either of them be mulcted in
costs. I therefore exercise my discretion by making no costs
order
.
Conclusion
[40]
In the result, the application is dismissed, with
no order as to costs.
R Daniels
Judge
of the Labour Court of South Africa
Appearances:
For the Applicant:
Instructed by:
For the Respondent
Instructed by:
[1]
In
para 3.3 he alleges that the dismissal is unlawful because it must
be held in accordance with section 12(6) of the NPA Act
- and this
is not the case.
[2]
At
para 7.11 of the founding affidavit, the applicant states: “I
humbly submit that the prima facie right that I have is
founded on
the principles of procedural and substantive fairness”.
[3]
30 ILJ 301 (LC)
[4]
(2010) 31 ILJ 112 (LC)
[5]
(2011) 32 ILJ 112 (LAC)
[6]
Directors,
including deputy directors and acting directors, are located at the
NPA regional offices.
[7]
No.
45 of 1988 as amended.
[8]
2023(1)
SA 353 (CC) at para 47
[9]
EFF
v Gordhan and Others; Public Protector and
A
nother
v Gordhan and Others
2020 (6) SA 325
(CC)
at
para
[42].
[10]
Fn.
9 above
[11]
2012
(4) SA 593
at
para 18
[12]
See
fn. 4
[13]
[2008] 6 BLLR 540
(LAC) at para 19