Van Onselen v Mogalakwena Local Municipality and Another (JA32/02) [2003] ZALAC 13; (2003) 24 ILJ 2145 (LAC) (30 September 2003)

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[2003] ZALAC 13
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Van Onselen v Mogalakwena Local Municipality and Another (JA32/02) [2003] ZALAC 13; (2003) 24 ILJ 2145 (LAC) (30 September 2003)

IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA
HELD INJOHANNESBURG
CASE
NO. JA 32/02
In the matter between:
NEIL MARTIN VAN ONSELEN
Appellant
and
MOGALAKWENA LOCAL MUNICIPALITY
First Respondent
MERVYN M RIP NO
Second Respondent
JUDGMENT
JAFTA AJA:
[1] This is an appeal against the judgment of the
Labour Court refusing to set aside, on review, the ruling of the
chairman of a disciplinary
enquiry. The appellant, who was the first
respondent’s employee, was, by agreement between the parties,
subjected to a disciplinary
enquiry on certain charges. The second
respondent was the chairman of the said enquiry. At the commencement
of the disciplinary hearing,
on 17 October 2001, the appellant
challenged the validity of the charge sheet on the basis that a
preliminary and peremptory procedural
step of having a written
complaint, as required by the first respondent’s disciplinary code,
was not complied with prior to the
formulation of the charge sheet.
It was then contended on his behalf, that the omission rendered the
charge sheet invalid.
[2]
Having considered the matter, the second respondent ruled that the
appellant could no longer raise the point because in the settlement

agreement that the parties entered into in respect of the previous
High Court application, he had waived his procedural rights thereon.
Dissatisfied with that decision, the appellant launched a review
application in the court
a quo.
The matter came before
Ngcamu AJ
who declined
to interfere with the second respondent’s decision and
consequently dismissed the application. Subsequently, the appellant
sought and was granted leave to appeal to this court. The principal
basis on which the decision of the court
a
quo
is attacked is that it erred in not
finding that the second respondent has committed an errror of law
when he came to the conclusion
that the appellant had, in the
settlement agreement referred to above, waived his procedural right
to objecting to the validity
of the charge sheet. Even Mr Grobler,
who appeared for the appellant before us, confined himself to the
aforesaid ground of appeal.
It was made clear that no reliance was
placed on grounds such as the justifiability or the rationality
test.
[3]
The appeal should, therefore, be dealt with on the basis of the sole
ground referred to in the previous paragraph and the point
raised by
the first respondent regarding the mootness of the appeal. It was
contended that he committed an error of law when he
found that the
appellant had waived his procedural right to attacking the validity
of the charge-sheet on the ground that a prerequisite
step of a
written complaint had not been taken. For this proposition the
appellant’s counsel relied solely upon the decision of
Hira
and Another v Booysen and Another
1992 (4) SA 69
(A) at 93A-94A.
At
those pages
Corbett CJ
is reported to have said:
“
To
sum up, the present-day position in our law in regard to
common
– law review is, in my view, as follows:
Generally
speaking, the non-performance or wrong performance of a statutory
duty or power by the person or body entrusted with the
duty or power
will entitle persons injured or aggrieved thereby to approach the
Court for relief by way of common-law review. (See
the
Johannesburg
Consolidated Investment
case supra at 115)
Where
the duty/power is essentially a decision –making one and the
person or body concerned (I shall call it ‘the tribunal’)
has
taken a decision, the grounds upon which the Court may, in the
exercise of its common-law review jurisdiction, interfere with
the
decision are limited. These grounds are set forth in the
Johannesburg Stock Exchange
case supra at 152
A-E.
Where
the complaint is that the tribunal has committed a material error of
law, then the reviewability of the decision will depend,
basically,
upon whether or not the Legislature intended the tribunal to have
exclusive authority to decide the question of law
concerned. This is
a matter of construction of the statute conferring the power of
decision.
Where
the tribunal exercises powers or functions of a purely judicial
nature, as for example where it is merely required to decide
whether
or not a person’s conduct falls within a defined and objectively
ascertainable statutory criterion, then the Court would
be slow to
conclude that the tribunal is intended to have exclusive
jurisdiction to decide all questions, including the meaning
to be
attached to the statutory criterion, and that a misrepresentation of
the statutory criterion will not render the decision
assailable by
way of common-law review. In a particular case it may appear that
the tribunal was intended to have exclusive jurisdiction,
but then
the legislative intent must be clear.
Whether
or not an erroneous interpretation of a statutory criterion, such as
is referred to in the previous paragraph (ie where
the question of
interpretation is not left to the exclusive jurisdiction of the
tribunal concerned), renders the decision invalid
depends upon its
materiality. If, for instance, the facts found by the tribunal are
such as to justify its decision even on a correct
interpretation of
the statutory criterion, then normally (ie in the absence of some
other review ground) there would be no ground
for interference.
Aliter
, if applying the correct criterion,
there are no facts upon which the decision can reasonably be
justified. In this latter type
of case it may be justifiably be said
that, by reason of its error of law, the tribunal ‘asked the wrong
question’, or ‘applied
the wrong test’, or ‘based its
decision on the matter not prescribed for its decision’, or
‘failed to apply its mind to
the relevant issues in accordance
with the behests of the statute’, and that as a result its
decision should be set aside on
review.
In
cases where the decision of the tribunal is of a discretionary
(rather than purely judicial) nature, as for example where it
is
required to take into account considerations of policy or
desirability in the general interest or where opinion or estimation
plays an important role, the general approach in ascertaining the
legislative intent may be somewhat different, but it is not

necessary in this case to expand on this or express a decisive”.
[4
]
It seems to me that not all of the guideline principles listed in
Hira
are applicable
to the present matter. In my view only the
first five principles and more especially the fourth and fifth apply
to this matter. It
would appear that the powers or functions
performed by the second respondent were essentially of a judicial
nature. However, we were
not referred to any particular statute as an
instrument which conferred the power on the second respondent to
preside over the disciplinary
enquiry nor was it argued that in terms
of the enabling statute the second respondent was intended to have
exclusive jurisdiction
on matters placed before him during the
enquiry. Therefore, I shall assume that his decision is justiciable
in court on review.
[5] The crucial issue for
consideration in this matter is whether the appellant has
successfully established grounds upon which the
second respondent’s
decision should be reviewed and set aside under common law. The
second respondent reasoned his way to the conclusion
that the
appellant had waived his procedural rights in the following manner:
“
When
one has consideration of the settlement agreement, the overall and
dominant impresssion obtained from the reading thereof is
that the
parties appear to have come to an agreement that the disciplinary
enquiries relating to Van Onselen and Groenewald will
now commence
and run their normal course. This would be in my view, by necessary
implication, mean that any procedural aspects which
had to be
completed prior to the commencement of the disciplinary enqury
itself before the chairman of the disciplinary enquiry,
to be
completed and/or waived…
Whilst,
as I have already indicated, [I] agree wholeheartedly with Mr
Coetzee’s submission that he is entitled to raise defences
to the
charge sheet and is not prevented from so by settlement agreement, I
fail to see how in the circumstances and all the factors
that were
present, the same can be said for the procedural prerequisite. The
fact that one or more of the charges on the charge sheet
may be
attacked by the employee on the basis of splitting of charges or
other defences does not however mean that the entire charge
sheet is
invalid. It is my clear understanding that what was intended, was
that the matter would proceed to hearing stage and that
all
procedural prerequisites prior to the hearing stage were compromised
or waived. I cannot on the basis of what has been placed
before me,
accept that is still open to the employee to raise the issue of the
written accusation as a defence to the charge sheet
at this time.”
[6]
The
appellant
has contended in the founding papers that the second respondent has
erred in law by failing to deal with the authorities
regarding waiver
of rights and thereby created the perception that he did not apply
his mind to the existence of the burden of proof.
The first
respondent replied thereto by stating that the contention was
incorrect because the second respondent had merely to construe
the
settlement agreement between the parties and that the issue of onus
did not arise for consideration.
[7]
On a close examination, the aforesaid statement by the appellant
fails to fit in under any of the common law grounds of review
set out
in
Johannesburg Stock Exchange v Witwatersrand
Nigel Ltd and Another
1988
(3)
SA 132
(A) at 152 A-E
. The appellant
complained that the second respondent’s failure to deal with
authorities on waiver created the perception that he
failed to apply
his mind. Firstly, establishing a mere perception that the
administrative tribunal has failed to apply its mind
falls short of
constituting a ground for review. It is incumbent upon the applicant
for review to prove that the tribunal has in
fact failed to apply its
mind and not that it is perceived to have done so. Secondly and
according to the decision in
Hira
it is a material and erroneous interpretation of a statutory
criterion that gives rise to the conclusion that the tribunal has
failed
to apply its mind to the relevant issue in conformity with the
behests of the statute. The appellant has not alleged and proved that
the second respondent was guilty of erroneous construction of a
specific statutory criterion but merely stated that the latter has
failed to deal with relevant authorities on the point. I am unable to
appreciate how the failure to deal with authorities per se
can be the
basis for deducing that the second respondent failed to apply his
mind to the issues before him. The main issue before
the second
respondent was to interpret the settlement agreement concluded by the
parties and made an order of the court with a view
to determining
whether its terms show that the appellant has waived his rights. The
determination of that issue did not, quite clearly,
involve the
interpretation of a statutory criterion. Even if it could be said,
for a moment, that the second respondent has erroneously
interpreted
a particular statutory criterion, such error would not have been
material because there are facts which would justify
his decision on
the correct interpretation of the parties’ agreement. Consequently
the court would not be entitled to interfere
on review. See also
SA
Veterinary Council v Veterinary Defence Association
2003 (4) SA 564
(SCA) at para [35].
[8]
With none of the common law review grounds in
Johannesburg Stock Exchange
having been
established, for the appellant to succeed he had to show that the
decision could be interfered with on the basis of some
other grounds
permissible in law. However, the appellant’s case has been confined
to a single common law review ground which has
already been dealt
with above. In fact counsel for the appellant conceded that the
appellant has to fail or succeed on the basis
of the ground relating
to the error of law. As I have already found that such ground has not
been established, it follows that the
appeal cannot be upheld. I may
add that even if the second respondent’s decision was challenged on
the basis of either the justifiability
test or rationality test, I
would still have come to the conclusion that the appeal cannot be
sustained.
[9] In the light of the view I have
taken of the matter, it is not necessary to deal with the point
raised by the first respondent
pertaining to whether or not the
appeal has become academic. Insofar as costs are concerned, there is
no reason for departing from
the ordinary rule that they should
follow the cause.
[10] Accordingly the appeal is
dismissed with costs.
__________________
JAFTA
AJA
I
agree
_______________________
NICHOLSON
JA
I agree.
_____________________
WILLIS
JA
Appellant’s
counsel : S.J Grobler SC
Instructed by
: S.J. van der Berg Attorneys
First respondent’s counsel:
ESJ van Graan
Instructed by
: De Swart Attorneys
Heard on 9 September 2003.
Delivered on 30 September 2003.