Public Servants Association v Department of Justice and Others (CA5/2002) [2004] ZALAC 1; [2004] 2 BLLR 118 (LAC) ; (2004) 25 ILJ 692 (LAC) (7 January 2004)

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Public Servants Association v Department of Justice and Others (CA5/2002) [2004] ZALAC 1; [2004] 2 BLLR 118 (LAC) ; (2004) 25 ILJ 692 (LAC) (7 January 2004)

IN THE LABOUR
APPEAL COURT OF SOUTH AFRICA
HELD IN
JOHANNESBURG
Case no: CA5/2002
In
the matter between:-
PUBLIC
SERVANTS ASSOCIATION APPELLANT
and
DEPARTMENT
OF JUSTICE 1
ST
RESPONDENT
WW
MARITZ NO 2
ND
RESPONDENT
COMMISSION FOR
CONCILIATION,
MEDIATION
AND ARBITRATION 3
RD
RESPONDENT
H.S
NORTIER 4
TH
RESPONDENT
AA
DUMINY 5
TH
RESPONDENT
___________________________________________________________
JUDGEMENT
___________________________________________________________
ZONDO JP
Introduction
[1] This
is an appeal from a judgement of the Labour Court in a review
application. The review application was brought by the Department
of
Justice, the first respondent herein, in order to have an arbitration
award that had been issued by the second respondent in a
certain
dispute reviewed and set aside. The second respondent is a
commissioner of the Commission for Conciliation, Mediation and
Arbitration, (“
the
CCMA
”),
the third respondent herein. He had issued the award under the
auspices of the CCMA. The dispute was about the decision of the
Minister of Justice and Constitutional Development not to appoint
Messrs H.S. Nortier and A.A. Duminy to certain posts for which
they
had applied and to appoint instead two other candidates. Although I
refer to a decision not to appoint them and not to a decision
not to
promote them, I do so for convenience. I accept that, had they been
appointed, such appointment would have been a promotion
for them. For
reasons that should become apparent later on in this judgement I
propose not to disclose the full identity of the successful
candidates but to refer to them as Mr A and Ms B. Mr A is an African
man whereas Ms B is an Indian female. The two posts in issue
were
those of senior assistant state attorney in the office of the State
Attorney, Cape Town.
Factual
background
[2] During
1998 the professional staff of the office of the State Attorney, Cape
Town, consisted of almost only whites. Out of a professional
staff
complement of 19, there was not a single African man or woman, not a
single Indian – man or woman. There were five Coloureds
– 3 men
and 2 women. There were 13 white men and one white woman.
[3] On
the 25
th
September 1998 the Department of Justice advertised two posts of
senior assistant attorney in the office of the State Attorney, Cape
Town internally. Only a few applications for these posts were
received. Among the persons who submitted their applications were Mr
A, Ms B, Mr Castello, Mr Duminy and Mr Nortier. The latter three were
employed in the office of the State Attorney, Cape Town as
assistant
state attorneys. Mr A was employed in the office of the state
attorney in Bisho as an assistant State Attorney. Ms B was
employed
as a public prosecutor in the magistrate’s court, Wynberg but was
an attorney who had practised as such at some stage
before.
[4] A
committee was established which was to interview the candidates. It
consisted of Mr D Mias, the State Attorney, Cape Town, Mr
H. Mohamed,
the Regional Head of the Department of Justice, Western Cape, Mr P.
Riedeman, a Deputy State Attorney, Cape Town and
Ms A. Abrahams who
is described as Director: Personnel, Regional Office. After
interviewing the candidates, the committee recommended
that Messrs
Nortier and Duminy be appointed to the posts. The basis for this
decision was largely that the two had more experience
than the other
candidates and that that is what the office of the State Attorney,
Cape Town, needed.
[5] The
committee’s report and recommendation were then sent to the Head
Office of the Department of Justice, Pretoria. The power
to make the
appointment lay with the Minister of Justice. The Acting Chief
Director: Human Resources Management of the Department
of Justice, Mr
M.N. Hendricks, studied the report and documentation. He had to make
a recommendation on who should be appointed.
He did not agree with
the recommendation of the selection committee. His view was that the
need for representivity in the office
of the State Attorney, Cape
Town, was so strong that the two candidates, namely Mr A and Ms B,
whose appointment would advance representivity
should be appointed
and not the ones recommended by the selection committee whose
appointment would not advance representivity.
[6] The
Acting Deputy-Director–General: Human Resource Management also
endorsed the view that the candidates who would advance
representivity
be appointed. The matter then went to the then Acting
Director – General who also endorsed Mr Hendricks’
recommendation. The
matter then went to the then Minister of Justice,
Dr Omar, for his consideration. He decided not to approve the
recommendation of
the selection committee but to approve the
recommendation that Mr A and Ms B be appointed to the posts and,
accordingly, appointed
Mr A and Ms B to the two posts.
[7] Messrs
Duminy and Nortier were aggrieved by the fact that they were not
appointed to the posts. In due course the appellant -
their trade
union - referred a dispute in this regard to the CCMA. It categorised
the dispute as one concerning an unfair labour
practice as defined in
item 2(1)(b) of Schedule 7 to the Labour Relations Act, 1995 (“
Act
66 of 1995)(“the Act”
).
In the CCMA the Department of Justice contended that the CCMA did not
have jurisdiction to arbitrate the dispute. It is not necessary
to go
into the grounds on which this contention was based. It suffices, for
present purposes, to state that the CCMA ruled that it
had
jurisdiction to arbitrate the dispute. The CCMA issued an arbitration
award in which it found that the Department of Justice
had committed
an unfair labour practice by not appointing or promoting Messrs
Duminy and Nortier and ordered it to accord Messrs
Duminy and Nortier
what is called “
protective
promotion
”.
The CCMA also ordered the first respondent to pay the respondents’
costs of the arbitration.
The
review application
[8] The Department
of Justice was aggrieved by the CCMA’s award. It, accordingly,
brought an application before the Labour Court
for an order
reviewing and setting aside the award. The appellant and Messrs
Duminy and Nortier opposed that application. The Labour
Court,
through Waglay J, granted the application and set the award aside.
It ordered the appellant to pay costs. It subsequently
granted the
appellant leave to appeal to this Court; hence this appeal.
The
appeal
[9] Quite strangely
Messrs Duminy and Nortier were cited in this appeal as the fourth and
fifth respondents respectively while their
union, the Public Servants
Association, appears as the appellant. In this judgement I shall
refer to them and their union collectively
as the appellants. I shall
refer to the two of them as the individual appellants or by their
surnames.
[10] During
argument in this appeal I raised with Counsel the question whether
the commissioner should not have had the successful
candidates joined
in the arbitration proceedings or at least whether he should not have
afforded them an opportunity to be heard
before he could issue the
award that he issued and, if he should have, whether the award should
not, for that reason, be set aside.
I raised these questions because
it appeared that the commissioner may have presided in proceedings in
which the successful candidates
might well have had a direct and
substantial interest or in which findings could be made that had the
potential to affect their rights
or interests adversely.
[11] In
the founding affidavit in support of its review application the first
respondent raised the issue of the non – joinder of
the successful
candidates in the arbitration proceedings. It said: “
Once
it became the case of the [individual appellants] that the appointees
were not suitable, it was incumbent upon them to join Mr
[A] and Ms
[B].
The
problem with which one is now faced is that a finding has been made
that they are not suitable. The [Department of Justice and
Constitutional Development] is now obliged to take the matter
further. This suggests that the [commissioner] has not properly
applied
his mind to the issues involved in this case. It was his duty
to ensure that there was a proper joinder of [Ms B] and [Mr A]. He
failed to fulfil that duty
.”
[12] The
other slightly different question of whether, even if the appointees
were not joined in the arbitration proceedings, the
commissioner
should, nevertheless, have afforded them an opportunity to be heard
before he could issue the award that he issued was
not covered by the
founding affidavit. I pause to observe that a court is, of course,
entitled to raise such issues even mero motu.
This is so because
there is a duty on it not to pronounce on matters that may adversely
affect the rights or interests of a party
who is not before it or
whom it has not afforded an opportunity to be heard. The same rule
would, in my view, apply to a statutory
body exercising public power
such as the CCMA.
[13] The
appellant’s response in its answering affidavit to the first
respondent’s point of non-joinder raised in the founding
affidavit
was that the first respondent’s
“belated
plea of non-joinder … does not assist the [first respondent]”.
The appellant took the attitude that the point of non-joinder should
have been taken
“as
a point in limine up front.”
At this stage I pause to make one observation. That is that when,
during the arbitration proceedings, Counsel for the first respondent
complained to the commissioner that the first respondent did not know
what the appellant’s case was and this was an unsatisfactory
state
of affairs. Counsel for the appellant responded that the first
respondent would learn their case as the case proceeded.
[14] There
were no pleadings exchanged between the parties in the arbitration.
When the arbitration proceedings commenced, it was
not clear what the
appellant’s bases were for its contention that the Minister’s
failure to appoint them to the two posts constituted
an unfair labour
practice. However, it would seem that their case in the arbitration
proceedings ended up including that the two
candidates that the
Minister had appointed were not suitable for appointment to those
positions. In the commissioner’s arbitration
award the commissioner
says something that supports this. He says, among other things, that
“(t)he
applicants relied on the recommendation of the selection committee as
supported by the evidence of Mr Mias and Mr Riedeman
to show that the
appointees of the Department were, in fact,
not
suitable
for appointment in the posts.” (
my
underlining). It is also clear from that page of the award that
Counsel for the first respondent presented argument designed to
show
that the selection committee had not said that the two appointees
were not suitable but the commissioner stated that he did
not agree
with the interpretation of the committee’s report advanced by
Counsel for the first respondent on this issue.
[15] During the
course of his award the commissioner stated that he was rejecting Mr
Mahomed’s evidence that all the five candidates
(including the
appointees) were suitable. The commissioner had this to say at some
stage in his award :
“With
my interpretation of what Mr Mohamed said I am satisfied that on the
evidence neither Mr [A] nor Ms [B] could cope with the
job at the
time of their appointment.”
He
then found
“as
an objective fact that they were not suitable for appointment.”
He
went on to say that
“that is the interpretation to be given to the unanimous
recommendation of the committee.”
He went on to find that “
they
did not have the experience and, accordingly, the minimum proficiency
to be able to perform the tasks that would have been expected
of them
as Senior Assistant [State] Attorneys.”
Later he said:
“
It follows
that when it is found as an objective fact that the appointments were
not in accordance with the policy of the [first]
respondent what
happened at a later stage is for practical purposes irrelevant. It
also has as a necessary implication that the condition
precedent to
the proper application of the affirmative action policy was not met
and that justification for the ultimate appointments
by the [first]
respondent must fail.”
[16] The
commissioner then said:
“For
the above reasons I have come to the conclusion that the failure to
appoint the applicants to the positions was unfair and
amounted to an
unfair labour practice.”
[17] The question
which arises is whether, where a tribunal that exercises public power
such as the CCMA, is called upon to arbitrate
a dispute such as this
one where it may or will have to make a finding that someone who has
been appointed to a position is unsuitable
for such a position, it is
proper or competent for it to proceed and arbitrate such a dispute
without such person being joined in
the arbitration proceedings or at
least being afforded an opportunity to be heard first.
[18] Counsel
presented their argument on the issues I raised as well as on other
issues. Leave was also granted to both Counsel to
submit written
argument after the hearing to cover these issues. Counsel on both
sides subsequently delivered written argument. I
now turn to deal
with these issues.
[19] In
dealing with the issues it is necessary to make a few observations
about the CCMA since, in arbitrating the dispute, the commissioner
was acting under the auspices, and, as a commissioner, of the CCMA.
The CCMA is established by sec 112 of the Act as a juristic person.
In terms of sec 113 it is independent of the State, any political
party, trade union, employer, employers’ organisation, federation
of trade unions or federation of employers’ organisations. It is
governed by a governing body. The governing body consists of a
chairperson and nine other members each of whom is nominated by
NEDLAC and appointed by the Minister of Labour and a director who
is
an ex-officio member of the governing body but has no voting rights.
[20] The
chairperson is an independent person. Those members of Nedlac who
represent organised labour, those who represent organised
business
and those who represent the State each nominate three members of the
governing body to make the nine members in addition
to the
chairperson. The director is appointed by the governing body (sec
118). At the commencement of the Act the CCMA was financed
and
provided with working capital from moneys that the Minister of
Labour, with the agreement of the Minister of Finance, had to
allocate to the CCMA from public funds (sec 122). It is otherwise
financed and provided with working capital from, among others,
the
moneys that Parliament may appropriate to it from time to time (sec
122).
[21] The
functions of the CCMA include the arbitration of certain disputes
between employers and employees. In terms of sec 136(1)
of the Act,
if the Act requires a dispute to be resolved through arbitration, the
CCMA must appoint a commissioner to arbitrate it
if certain events
have occurred or if certain time periods have expired. Sec 138 of the
Act contains general provisions relating
to arbitration proceedings.
Sec 138(1) provides that “
(t)he
commissioner may conduct the arbitration in a manner that the
commissioner considers appropriate in order to determine the
dispute
fairly and quickly, but must deal with the substantial merits of the
dispute with the minimum of legal formalities.”
Sec
138(2) provides that
“(s)ubject
to the discretion of the commissioner as to the appropriate form of
the proceedings, a party to the dispute may give
evidence, call
witnesses, question the witnesses of any other party, and address
concluding arguments to the commissioner.”
In terms of sec 143 an arbitration award issued by a commissioner of
the CCMA is final and binding and may be enforced as if it were
an
order of the Labour Court.
[22] By
sec 22(a) of Act 12 of 2002 sec 115 has been amended by the insertion
of sec 115(2A). Sec 115(2A) empowers the CCMA to make
rules
regulating, among other things, “
the
joinder of any person having an interest in the dispute in any
conciliation and arbitration proceedings
.”
This amendment came into operation only in 2002 and did not exist at
the time of the arbitration proceedings with which we are
concerned.
This, in my view, does not mean that the CCMA had no power to order
the joinder of third parties. Such power is incidental
to the
performance of its main functions and it had power to order a joinder
of a third party if the latter had a direct and substantial
interest.
[23] It
is also necessary to refer to the statutory provisions in terms of
which the dispute in this case was referred to the CCMA
for
arbitration. The dispute was referred in terms of item 2(1)(b) of
Schedule 7 to the Act. Item 2 dealt at the time – it is no
longer
in the Seventh Schedule now- with unfair labour practice disputes.
Item 2(1)(b) read thus at the time:.
“
2. Residual
unfair labour practices.
For the purposes
of this item, an unfair labour practice means any unfair act or
omission that arises between an employer and an
employee, involving
–
-----------
the
unfair conduct of the employer relating to the promotion, demotion
or training of an employee or relating to the provision
of benefits
to an employee;”
[24] In
terms of item 3 disputes falling within the ambit of item 2(1)(b)
were required to be referred to conciliation and, if conciliation
failed, to arbitration. The arbitration would be conducted by a
bargaining council if there was one with jurisdiction or by the CCMA
if there was none with jurisdiction. In terms of item 4(2) the
arbitrator would have power to determine such dispute “
on
reasonable terms.
”
[25] With regard to the issue of non- joinder it is
trite that a third party should be joined in proceedings if he is
shown to have
a direct and substantial interest in a matter and has
not consented or undertaken to be bound by any judgement that may be
given
in the matter. It is not necessary to refer to many authorities
in this regard. It is sufficient to refer to the case of
Amalgamated
Engineering Union v Minister of Labour 1949(3) SA 637(A).
[26] In that case a dispute existed between a trade
union and the employer of some of its members concerning their
working conditions.
At the request of the union the Minister of
Labour appointed an arbitrator to conduct a compulsory arbitration to
resolve that dispute.
The employer made representations to the
Minister as a result of which the Minister withdrew or “
nullified
”
the appointment of the arbitrator. The union then brought an
application before a Provincial Division of the then Supreme Court
against the Minister - without joining the employer - for an order
declaring that the appointment of the arbitrator was valid and
that
the withdrawal of that appointment was of no force and effect or,
alternatively, for an order requiring the Minister to appoint
an
arbitrator to arbitrate the dispute. When that matter went on appeal,
the Appellate Division raised the issue of the non-joinder
of the
employer mero motu. On those facts the Appellate Division held that
the employer had a direct and substantial interest in
the proceedings
and should have been joined.
[27] Fagan AJA took the opportunity in the
Amalgamated
Engineering Union
to review various
authorities on the issue of joinder of parties. I draw attention to
the two principles that Fagan AJA refers to
at 651, namely
“(1)
that a judgement cannot be pleaded as
res
judicata
against someone who was not a
party to the suit in which it was given, and (2) that the Court
should not make an order that may prejudice
the rights of parties not
before it.”
At 661 Fagan AJA said the
following among other things:-
“
Can
it be said that the City Council [which was the employer] is not
‘directly and substantially interested’ in the appointment
on
which we are asked to give a decision? To my mind the answer is
clear; the council can have no less an interest in it than the
Union
itself. In the prayer which we are asked to make an order of Court,
both in its first and in its alternative form, the dispute
is
referred to as one ‘between the Amalgamated Engineering Union and
the Durban City Council’. It is solely because of its participation
in the dispute that the Union has
locus
standi
to make the application. Then
surely the Council has an equal
locus
standi
to be heard on it.”
[28] In the following paragraph Fagan AJA went on to
apply another test. He said:-
“
Let
me apply another test. If we make the order prayed for , it will -
subject to what I say below as to the effect of the Council’s
non-intervention after notice – not be binding on the Council as
res judicata
inasmuch as the Council is not a party
to the proceedings. When the arbitrator was originally appointed, the
Council objected and
threatened recourse to law. It clearly had
locus
standi
to come to Court – no less
than the Union has to make this application. If it is not bound by
the order we make, it can again take
up exactly the same attitude:
object to the arbitrator, and come to Court to have his appointment
set aside. It may put additional
facts before the Court. Broome, J.,
said in the Court below, ‘I am not satisfied that all relevant
information is before me’.
Its counsel may put forward argument
which will persuade the Court to put a different interpretation on
the law. The effect would
then be that there would be two perfectly
valid, though totally irreconcilable, orders against the Minister;
one enforceable by the
union, ordering him to appoint an arbitrator,
another enforceable by the Council, interdicting him from appointing
an arbitrator.”
[29] Where a third
party who has a direct and substantial interest in a matter is not
joined in proceedings, it is not a defence to
a point of non-joinder
to say that such party had knowledge of the proceedings but did not
intervene. His mere non-intervention,
despite having knowledge of the
proceedings, does not make the judgement emanating from those
proceedings binding on such party.
(see Amalgamated Engineering Union
at 660). Even in the
Amalgamated
Engineering Union
case where the third party had been given a copy of the court papers
with a notice that they related to a matter that had been set
down in
court, the Appellate Division held that that was not good enough to
dispense with the need for the third party to be joined
in the
proceedings. (see Amalgamated Engineering Union at 661-663). In fact
Fagan AJA even decried the use of informal notifications.
He said at
662:
“
This case is a
good example of the uncertainties to which we would open the door if
we were to start allowing informal notifications
to take the place of
due and proper joinder of a party.”
Later, on the same
page he said that:
“
(
m)ere
non-intervention or even an intimation of non intervention, with
nothing more to it, after receipt of a notice of legal proceedings
short of citation, cannot therefore, to my mind, be treated as if it
were a representation, express or tacit, that the party concerned
will submit to, and be bound by, any judgement that may be given.”
[30] It seems to me that the facts in the
Amalgamated
Engineering Union
case are comparable to the
facts of the present matter. In that case the Minister had made a
decision in favour of one of the parties
who had conflicting
interests. The one party, that is the union, wanted an arbitrator to
be appointed. The other party, the City
Council, wanted the Minister
not to appoint an arbitrator. The Minister, having earlier appointed
an arbitrator, withdrew that appointment
in accordance with the
representations of the City Council. The union perceived that
decision as detrimental to its interests. The
City Council had
sought to advance its interests in the matter when it made
representations to the Minister to withdraw the appointment
of the
arbitrator. The union, in seeking an order that the earlier
appointment of the arbitrator be declared valid also sought to
advance its own interests in the matter as well.
[31] In
the present matter the successful candidates and Messrs Duminy and
Nortier were competitors in the race for appointment to
the two
posts. The Minister appointed the two candidates. Messrs Duminy and
Nortier maintained that the Minister’s decision not
to appoint them
but to appoint the two candidates was wrong and should not have
happened. They said it constituted an unfair labour
practice against
them. Obviously the two successful candidates would most probably
maintain that they were the right persons to have
been appointed.
[32] This
created a state of affairs in which it could be said that the
employer was faced with contradictory claims as to who should
have
been appointed. The unsuccessful candidates, Messrs Duminy and
Nortier, then took their grievance or complaint to arbitration.
That
arbitration was, to say the least, about who should have been
appointed to the two posts and who should not have been appointed.
To
my mind this demonstrates quite clearly that the successful
candidates had a direct and substantial interest in the arbitration
proceedings. It seems to me, therefore, that the commissioner could
not and should not have sat in judgement on Messrs Duminy’s
and
Nortier’s claim in the absence of the other two affected parties.
As the two successful candidates had a direct and substantial
interest in the arbitration proceedings, they should have been
joined. The commissioner’s failure to have them joined in the
arbitration
proceedings led to the issuing of an award adversely
affecting their rights and interests without their having been joined
and without
their having been afforded an opportunity to be heard.
[33] The result is a situation where the Minister and
the Department of Justice and Constitutional Development have in the
Department’s
employ two employees that a statutory body has
declared “
as an objective fact
”
to be unsuitable for the positions that they occupy. The deponent
to the founding affidavit in support of the review application
brought by the Department indicated that this created some difficulty
for the Minister and the Department. The difficulty, of course,
is
what the Minister and the Department should do with the appointees.
If the appointees had been party to the arbitration proceedings,
they
would have been bound by the commissioner’s award as long as it
stood. In that case it might not have been difficult for the
Minister
and the Department to remove them from those positions following the
finding that they were not suitable for them. However,
since they
were not party to the arbitration proceedings, they are not bound by
the arbitration award. Accordingly, if the Minister
and the
Department sought to remove them from such positions on the basis of
the commissioner’s finding, the appointees could bring
proceedings
in a court or tribunal of competent jurisdiction for an order
declaring that they are suitable for the positions and
have been
properly and validly appointed. If they were successful, this would
result in two contradictory findings or judgements
by different
tribunals on their suitability for the positions. This would be
wholly untenable and is one reason why they should have
been joined.
[34] The
Amalgamated Engineering
Union
case dealt specifically with the issue
of non-joinder. I now propose to refer to another decision of the
Appellate Division which
did not deal with the question of
non-joinder, but dealt with the duty which a statutory body or a
tribunal has even at common law
to afford a person an opportunity to
be heard before it can make a finding that may adversely affect his
or her rights or interests.
I refer to this in order to deal with the
question whether, even if there was no obligation to have the
successful candidates joined,
they should at least have been afforded
an opportunity to be heard. In
Du Preez &
Another v Truth and Reconciliation Commission 1997(3) SA 204 (A)
the respondent (“
the TRC
”)
was a statutory body. One of its committees was called the Committee
on Human Rights Violations the functions of which included
investigating and hearing alleged violations of human rights.
[35] When that committee was to hear evidence that was
going to implicate the appellants in that matter in cases of
poisoning and
murder and they had not been afforded a reasonable
opportunity to submit representations or to give evidence, they
successfully brought
an application to court to interdict the
Commission (and, therefore, the Committee) from hearing such evidence
until such time that
a reasonable and timeous notice had been given
to them of the Commission’s intention to hear or receive such
evidence, and facts
and information had been given to them, that
would enable them to identify the events and persons concerning which
or whom evidence
would be presented that could detrimentally affect
them. At 230I-231A of the judgement Corbett CJ said in part:
“In
my view, the solution to the problems raised by the issues in the
case may be found in the common law, and more particularly
the rules
of the common law which require persons and
bodies, statutory and other, in certain
instances to observe the rules of natural justice by acting in a fair
manner. In recent years
our law in this sphere has undergone a
process of evolution and development, focusing upon that principle of
natural justice encapsulated
in the maxim
audi
alteram partem
(which for the sake of
brevity I will call the “audi principle)”.
[36] At 231F of the judgement the Chief Justice went on
to say that
“(t)he audi principle is but one
facet, albeit an important one, of the general requirement of natural
justice that
in the
circumstances postulated the public official or body concerned must
act fairly”.
In seeking to answer the
question of what the duty to act fairly demands of a public official
or body concerned, the Chief Justice
referred with approval to a
passage in a speech by Lord Denning MR in the case of Re Pergamon
Press Ltd
[1970] 3 All ER 535
(CA). In that case inspectors were
conducting an investigative inquiry in the public interest. It was
argued in that case that, because
the inquiry was not a court of law,
and there was to be no determination or decision but only an
investigation or inquiry, the rules
of natural justice did not apply.
Lord Denning MR said in this regard:
“
It is true, of course, that the inspectors are not
a court of law. Their proceedings are not judicial proceedings …
They are not
even quasi-judicial for they decide nothing. They only
investigate and report. They sit in private…
But this should not lead us to minimise the
significance of their task. They have to make a report which may have
wide repercussions.
They may, if they think fit, make findings of
fact which are very damaging to those whom they name. They may accuse
some; they may
condemn others;
they
may ruin reputations and careers. Their report may lead to judicial
proceedings. It may expose persons to criminal proceedings
or to
civil actions… Seeing that their work and their report may lead to
such consequences, I am clearly of opinion that the inspectors
must
act fairly.”
[37] Corbett CJ then went on to express the view at
233B-C that “
likewise in the present case
the Commission and the Committee are under a duty to act fairly
towards persons implicated to their detriment
by evidence or
information coming before the Committee in the course of its
investigations and/or hearings.”
At 233D-E
he said about the Committee of the TRC: “
The
Committee’s findings in this regard and its report to the
Commission may accuse or condemn persons in the position of
appellants.
Subject to the grant of amnesty, the ultimate result may
be criminal or civil proceedings against such persons. Clearly the
whole
process is potentially prejudicial to them and their rights of
personality. They must be treated fairly.”
The
Appellate Division proceeded to substantially approve of the decision
of the High Court granting the appellants in that matter
the
interdict they had sought.
[38] In the present case there can by no doubt that the
commissioner could, and the CCMA can in an arbitration of a dispute
such as
this one, make findings that could be very damaging to third
parties. To make it worse some of the arbitration awards issued by
the
CCMA are published in the Industrial Law Journal which is read
widely within legal circles. As it turned out in this case the
commissioner
made a finding that is very detrimental to the two
appointees, namely, that
“as an objective
fact”
they are not suitable for the
positions to which the Minister appointed them. It goes without
saying that the commissioner was saying
that they should not have
been appointed to those positions. In conducting the arbitration
proceedings to finality
and
making such a damaging finding against the appointees without
affording them any opportunity to be heard or joined in the
arbitration
proceedings, the commissioner committed a gross
irregularity which vitiates the entire arbitration proceedings over
which he presided.
The parties before him must also bear some blame
for not drawing his attention to the need to join or hear the
appointees.
[39] The
appellant’s Counsel submitted that since the appellant did not seek
any relief against the two appointees such as the setting
aside of
their appointment, there was no basis for them to be joined. I assume
that the same argument would be advanced against the
proposition that
the commissioner should at least have afforded them an opportunity to
be heard. I do not agree. In my view whether
or not the appointees
should have been joined or should have been afforded an opportunity
to be heard is not dependent solely on
the question of the relief
sought. Even if no relief were sought against the appointees, they
should have been joined or at least
should have been given an
opportunity to be heard before the commissioner could make the
finding that “
as
an objective fact
”
they are not suitable for the posts to which they were appointed.
This is so because such a finding would, with or without any
relief
being sought against the appointees, affect their rights and
interests adversely.
I agree entirely with
Goldstone J who, in
Traube & others v
Administrator Transvaal & others 1989(1)SA 397 (W) at 400 I-J
,
said:
“A decision that a professional person
is unsuitable for a post is potentially of the utmost importance and
will, if it remains,
be a permanent blot on his good name.”
At
401 C-D Goldstone J went on to say that
“(w)here
the suitability of a person is the issue, and an adverse decision has
serious consequences for that person in relation
to his application
and in relation to his career, then I have no doubt that in the
absence of a clear provision to the contrary in
the statute he must
be entitled to be heard before he is made to suffer an adverse
decision.”
[40] In a subsequent appeal to the Appellate Division,
Corbett CJ said that he was not persuaded that the decision not to
appoint
the doctors who were applicants before Goldstone J to certain
posts could be said to have prejudicially affected them in their
existing
rights (
Administrator, Transvaal and
others v Traub and others 1989(4) SA 731 (A) at 754D-E
).
However, he did not, with respect, say that a decision that they
were not suitable for appointment to such posts would not affect
their professional careers adversely. Indeed, in that case the
doctors had no rights to be appointed to such positions. They only
had a right to have their applications for appointment to such posts
considered in a bona fide manner and without prejudice. In the
present case the appointees had already been appointed to the posts
and had commenced their duties in those posts when the arbitration
proceedings commenced before the commissioner. In such a case a
finding that they were unsuitable for appointment to such positions
could no doubt detrimentally affect their existing rights and
interests.
The
duty to act fairly obliged the commissioner not to make such a
finding without complying with the audi alteram partem rule or
without having them joined in the proceedings first.
[41] A party cannot
avoid the need to join another party to proceedings by the simple
device of formulating its relief in a certain
manner. If the question
whether or not a party should be joined in proceedings or should be
afforded an opportunity to be heard depended
simply on the order or
relief sought, then in this case the commissioner could have been
entitled not to have given the appointees
an opportunity to be heard
or not to have joined them in the arbitration proceedings even if he
were being called upon to find that
they were not only unsuitable for
the positions but that they were unsuitable because they had forged
their academic or professional
certificates on the basis of which
they were appointed. Of course, quite clearly that cannot be the
position. That would be a wholly
untenable situation. A tribunal
exercising public power can make no such finding against a party
without such party being joined
in the proceedings or at least being
afforded an opportunity to be heard.
[42] The appellants’
complaint is about the fact that the Minister decided not to appoint
the individual appellants to the posts
when they were the ones who
were suitable for such appointments and deserved to be appointed and
instead he appointed the appointees.
They now seek protective
promotion. That means that they will not be appointed to any posts of
senior assistant state attorney because
there would be no posts but
they would be paid or remunerated at a rate applicable to such posts.
[43] The
Department of Justice wanted to appoint two persons into the vacant
positions of senior assistant state attorney. It would
have budgeted
for such appointments. It did not seek to pay two persons who filled
those positions and pay two others (under the
guise of protective
promotion) for whose additional expenses it might not have budgeted
and who did not fill them. The Minister and
the Department of Justice
are entitled to say: if we should not have appointed the appointees
because they are not suitable and we
should have appointed the
appellants, then we cannot keep the appointees in those positions;
they must move out of those positions
and those who are suitable must
be appointed to fill them. Indeed, the Minister and the Department of
Justice may find it intolerable
to keep the appointees in those
positions when a statutory body has declared them unsuitable for the
positions if its award continues
to stand.
[44] The
commissioner’s finding that the appointees are unsuitable for the
positions to which they were appointed is as good as
the commissioner
granting the appellants the relief of a declaratory order that the
appointees are unsuitable for their positions.
For a tribunal
exercising public power to effectively make such a declaratory order
against a third party who is not before it or
who has not been
afforded an opportunity to be heard goes against so fundamental a
principle of our law that such a tribunal’s
decision cannot be
allowed to stand and must be reviewed and set aside. It would then be
up to the appellants to commence the proceedings
afresh and have all
interested parties joined if they still wish to pursue the matter.
[45] The
Court a quo set the award aside for reasons that I need not deal with
in the light of the conclusion I have reached on the
issue of
non-joinder. The result is that the non-joinder point is enough to
justify the Court a quo’s decision to set the award
aside. In these
circumstances the appeal must fail. With regard to costs, the matter
was argued on the basis that costs should follow
the result.
[46] In
the premises the appeal is dismissed with costs.
Zondo
JP
I
agree.
Mlambo
AJA
Appearances:
For
the Appellant: Adv. Stelzner
Instructed
by: De Klerk and Van Gend Attorneys
For
the Respondent: Adv. Soni
Instructed
by: State Attorneys
Date
of Judgement: 18 December 2003
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA
HELD
IN JOHANNESBURG
Case No: 5/2002
In
the matter between:
THE PUBLIC SERVANTS ASSOCIATION
Appellant
and
THE
DEPARTMENT OF JUSTICE First Respondent
WW
MARITZ N.O. Second Respondent
THE
COMMISSION FOR CONCILIATION Third Respondent
MEDIATION
AND ARBITRATION
HS
NORTIER Fourth Respondent
AA
DUMINY Fifth Respondent
____________________________________________________________________
J
U D G M E N T
_____________________________________________________________________
GOLDSTEIN AJA:
I agree respectfully with the judgment
of
Zondo
JP
except that I would (i) prefer the word “taints” to the word
“vitiates” in para [39], (ii) find it unnecessary to express
the
views in para [44] and (iii) not dismiss the appeal as he has done.
I accept that the matter ought, in fairness, not to be referred
back
to the commissioner who heard it for a further hearing after joinder
of the appointees. Cf
Livestock
and Meat industries
Control
Board v Garda
1961 (1) SA
342
(A) at 349G. The trial was a lengthy one and the commissioner
delivered a long and full award in which he expressed a firm view,
which the appointees would no doubt want him to reverse, on their
unsuitability. Indeed, he went so far as to make a costs order
against the Department of Justice finding that it “never had any
prospect of success ...” and that its defence of the matter
was
“frivolous and/or vexatious”. Nevertheless the appointees may
not wish to be involved in fresh proceedings which the appellant
and
Messrs Nortier and Duminy may decide to launch, and this eventuality
ought to be catered for.
In
Amalgamated
Engineering Union
, to which
the learned Judge President refers,
Fagan
AJA (as he then was) said the following at 663, after having found
that the City Council of Durban should have been joined in the
proceedings:
“
The difficulty is to know what to
do now that the matter has reached the appeal stage. One wishes to
avoid, as far as it may be at
all possible, the necessity of causing
the parties unnecessary trouble, expense and delay. The furthest,
however, that I think we
are able to go to to meet the parties is to
let the final judgment in this matter stand over so as to give them
an opportunity of
ascertaining from the Council whether it is
prepared to file with this Court, through its own attorneys, a
consent to be bound by
our judgment notwithstanding the fact that it
has not been cited as a party. If such consent is filed, we shall
give final judgment
without hearing further argument, as the merits
of the matter have been fully argued before us by counsel for the two
parties who
are appearing. If, however, no such consent is filed
within two months of the delivery of this interim judgment, or if at
any time
before the expiry of the two months the appellant’s
attorneys intimate to the Registrar of the Court that no such consent
can be
obtained, we shall give directions as to the course the
proceedings will then have to take.”
I
believe we should follow the same route and make the following order:
The appellant is
ordered to serve a copy of the papers including the Judgments of
this Court on each of the two appointees to
the posts of Senior
Assistant State Attorney, and to file the returns of service with
the Registrar of this Court.
Such appointees are given 2 months
from date of service to file with the Registrar of this Court a
consent to be bound by its judgment
herein.
If no such consents are filed within
the period of 2 months aforesaid, or if either of the appointees
indicate that he or she is
nor prepared to file such consent this
Court will give directions as to the course the proceedings will
then take.
_________________________
E
L GOLDSTEIN
ACTING
JUDGE OF THE LABOUR COURT OF APPEAL
Date
of judgment: 7 January 2004