About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Labour Appeal Court
SAFLII
>>
Databases
>>
South Africa: Labour Appeal Court
>>
2013
>>
[2013] ZALAC 27
|
|
Palace Group Investments (Pty) Ltd and Another v Mackie (JA 52/12) [2013] ZALAC 27; (2014) 35 ILJ 973 (LAC) (28 May 2013)
REPUBLIC OF SOUTH AFRICA
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Case no: JA52/12
In the matter between
PALACE GROUP INVESTMENTS (PTY) LIMITED
.........................................
First
Appellant
GRINPAL ENERGY MANAGMENT
SERVICES (PTY) LIMITED
.........................................................................
Second
Appellant
and
MACKIE ALEXANDER MICHAEL
........................................................................
Respondent
Heard: 28 May 2013
Summary: Respondent facing disciplinary hearing- respondent
seeking interim interdict to halt disciplinary proceeding against him
pending the adjudication of an alleged unfair labour practice dispute
lodged by the respondent- respondent alleging to have been
subjected
to occupational detriment for launching liquidation procedure against
the appellant. Labour Court granting interim interdict.
Requirements of interim interdict. Principle that an applicant
must set his/her case in the founding affidavit restated.
Respondent’s
prima facie
right arising out of the
alleged protected disclosure for lodging the liquidation application-
respondent failing to state the
facts on which he relied for
asserting that he was subjected to an occupational detriment-
respondent failing to attach to founding
affidavit annexures referred
to-
prima facie
right not established. Appeal upheld and
interim application dismissed with costs
Coram: Waglay JP, Davis JA and Molemela AJA
JUDGMENT (REASONS FOR ORDER)
MOLEMELAAJA
Introduction
[1] This is an appeal against the judgment and order of the Labour
Court (Rabkin-Naicker, J) in terms of which the Labour Court
in an
urgent application granted an interim interdict ordering that
disciplinary proceedings against the respondent be stayed pending
the
outcome of an unfair labour practice dispute. The appeal is brought
with special leave of this Court.
The factual matrix
[2] The respondent is employed by the first appellant and holds the
position of Group Risk and Internal Manager. There was a dispute
as
to whether the first or second appellant is the respondent’s
employer but nothing turned on this aspect.
[3] On or about 10
th
February 2012, the second appellant
received a copy of a notice of motion by facsimile. The notice of
motion appeared to have been
issued at the North Gauteng High Court
on 9
th
February 2012. The applicant in that application
was the respondent in these proceedings. The relief sought in that
notice of motion
was provisional liquidation of the second appellant,
alternatively that the second appellant be placed under business
rescue. The
notice of motion in question (“liquidation
application”) was not served on either of the appellants in
terms of the
Rules of the High Court and had merely been faxed to the
second appellant. The faxed notice of motion was not accompanied by
any
affidavit. It is common cause that on 9
th
February
2012, the respondent provided the appellants’ landlord with a
copy of the notice of motion in question and that
pursuant thereto,
the appellants’ landlord indicated to the appellants that he
intended to deny them any further access to
their business premises.
[4] An unsigned draft affidavit to the liquidation application was
subsequently sent to the appellants’ attorney of record
on 21
st
February 2012. No annexures were attached to that affidavit, the
respondent having indicated that such annexures were too voluminous
to be submitted electronically. The respondent never set the
liquidation application down for a hearing.
[5] On 19
th
July 2012, the appellants issued a notice of
contemplated suspension against the respondent, in terms of which
they also indicated
that the respondent would at a later stage be
invited to make representations regarding his contemplated
suspension. The respondent
was subsequently suspended on full pay and
issued with a notice to attend a disciplinary enquiry in which six
complaints of misconduct
were levelled against him.
[6] The respondent raised several preliminary points concerning the
impending disciplinary hearing,
inter alia
, alleging that the
subject matter of the complaints levelled against him emanated from
protected disclosures he had made. The chairperson
of the
disciplinary enquiry dismissed these preliminary points and ruled
that the disciplinary hearing proceed on 7
th
August 2012.
On 7
th
August 2012, the disciplinary hearing was postponed
to 15
th
August 2012 so as to enable the respondent to
obtain legal representation.
[7] On 10
th
August 2012, the respondent lodged an unfair
labour practice dispute with the CCMA, alleging that the disciplinary
proceedings
against him constituted an occupational detriment as
contemplated in the Protected Disclosure Act 26 of 2006 (“PDA”)
and as such constituted an unfair labour practice. At the
commencement of the disciplinary enquiry on 15
th
August
2012, the respondent launched an urgent application against the
appellants, seeking to interdict the disciplinary proceedings
pending
the outcome of the unfair labour practice dispute. It was agreed
between the parties that the disciplinary proceedings
would be
postponed pending the adjudication of the urgent application. The
urgent application was heard on 17
th
August 2012 and
judgment was handed down on 28
th
August 2012. The court
aquo
granted an interim interdict ordering that the
disciplinary proceedings against the respondent be stayed pending the
outcome of
the unfair labour practice dispute referred by the
respondent to the CCMA on 10
th
August 2012. The court
a
quo
also ordered the appellants to pay the costs of the
application. It is against this decision that an appeal has been
lodged in this
Court.
Proceedings at the court
a quo
[8] The respondent’s case in the urgent application was that he
made a protected disclosure in the liquidation application
that he
filed and that the disciplinary proceedings against him were
instituted as a result of these disclosures. It is to be noted
that a
copy of the liquidation application was attached to the urgent
application launched in the court
a quo
, but no annexures were
attached thereto.
[9] The court
a quo
remarked that the respondent had not
substantiated his claims by providing it with the annexures to the
liquidation application
and went on to state that it could only
presume that “he intends to ‘pull [the annexures] out of
the hat’ at
a later stage in the dispute”. This was after
the court
a quo
had concluded that “some of the
allegations he [the respondent] has made, as reflected in the charges
against him, fall full-square
within the definition of a “protected
disclosure’ in the PDA.” It would seem that the court
aquo’
s conclusion that the respondent made a protected
disclosure was made on the basis of the text of the
charges/complaints quoted
in the respondent’s founding
affidavit. What the court
a quo
did not consider was that in
the same text of the charges the appellants asserted that the
misconduct committed by the respondent
related to the fact that the
allegations he had made in the liquidation application were
fraudulent, dishonest and without any
reasonable basis.
[10] The court
a quo, inter alia
, stated as follows: “
It
may well be that Mackie has a personal axe to grind against his
employers. Indeed certain of the averments in the ‘winding-up
application’ suggest that he is concerned with monies owed to
him by the respondents. However, given the charges facing Mackie
and
taking into account the approach to the interpretation of the PDA
exemplified in the Radebe case (supra), I consider that he
has
established a prima facie right to the relief he seeks”.
The appeal
[11] At the conclusion of the hearing of the appeal on 28
th
May 2013, this Court granted an order upholding the appeal and
replacing the court
aquo
’s order with one dismissing the
application. The reasons for the order are set out hereunder.
[12] The crisp question for consideration in this appeal is whether
the court
a quo
was justified in granting the respondent an
interim interdict halting the disciplinary hearing. The appellants’
contention
is that the order of the court
a quo
was not
justified as the respondent failed to furnish the court
a quo
with sufficient information that served to establish the requisites
for an interim interdict. The respondent contended
in limine
that
given the fact that the order made by the court
a quo
was of
an interim nature, it was not appealable. He argued that even though
some allegations made in his liquidation application
are not
comprehensible when read without consideration of the annexures, as
correctly argued by the appellants, there are other
allegations that
are perfectly understandable on their own and, as such, clearly
spelling out the protected disclosures he made.
[13] It is trite that the granting of an interim interdict pending
the outcome of further proceedings is an extra-ordinary remedy
within
the discretion of a court, exercised upon a consideration of all the
facts. In motion proceedings, the facts are set out
in the
affidavits. The affidavits as such constitute pleadings and evidence.
It is trite that an applicant’s case is made
in its founding
affidavit and the respondent’s case in its answering affidavit.
It is settled law that the facts must be
set out in the affidavits
with sufficient particularity to enable the opposing party to respond
thereto.
[14] The respondent’s case was that he was entitled to
protection under the PDA due to the fact that the disciplinary
hearing
he was facing amounted to an occupational detriment, having
been instituted as a result of the protected disclosures he made in
the liquidation application. In order to determine whether the
respondent has
prima facie
established his entitlement to such
protection, it is necessary to consider a few sections of that Act
that are relevant to this
appeal.
[15] An occupational detriment is defined in section 1 (the
definitions section) of the PDA as including
inter alia
subjecting an employee to a disciplinary inquiry.In terms of section
3,an employee who makes a protected disclosure may not be
subjected
to an occupational detriment by his/her employer on account, wholly
or partly, of having made a protected disclosure.However,
not all
disclosures are protected in the sense of protecting the employee
making the disclosure from being subjected to an occupational
detriment by the employer implicated in the disclosure. A protected
disclosure is defined as a disclosure made to the persons/bodies
mentioned in sections 5, 6, 7, 8 and 9 and made in accordance with
the provisions of each of such sections. In terms of section
6, for a
disclosure to fall within the ambit of a protected disclosure, it
must have been made in good faith. It is clear that
before other
provisions of the PDA can come into play, the disclosure allegedly
made must answer to the definition of that term
as set out in the
definitions section.
[16] Section 1 of the PDA defines the term 'disclosure' as —
“
any
disclosure of information regarding any conduct of an employer, or an
employee of that employer, made by any employee who has
reason to
believe that the information concerned shows or tends to show one or
more of the following:
(a) That a criminal offence has
been committed, is being committed or is likely to be committed;
(b) that a person has failed, is
failing or is likely to fail to comply with any legal obligation to
which that person is subject;
(c) that a miscarriage of
justice has occurred, is occurring or is likely to occur;
(d) that the health or safety of
an individual has been, is being or is likely to be endangered;
(e) that the environment has
been, is being or is likely to be damaged;
(f) unfair discrimination as
contemplated in the Promotion of Equality and Prevention of Unfair
Discrimination Act, 2000 (Act 4
of 2000); or
(g) that any matter referred to
in paragraphs (a) to (f) has been, is being or is likely to be
deliberately concealed”.
[17] Section 9(1) of the PDA reads as follows
:
“
9.
General protected disclosure
Any disclosure made in good
faith by an employee-
Who reasonably believes that
the information disclosed and any allegation contained in it are
substantially true and
Who does not make the
disclosure for personal gain, excluding any reward payable in terms
of any law,
is a protected disclosure if-
one or more of the conditions
referred to in subsection (2) apply and
in all the circumstances of the
case it is reasonable to make the disclosure
”
.
[18] It is trite that for an applicant
to be successful in an application for an interim interdict he/she
must establish the following:
(i) A
prima facie
right, even though open to some doubt;
(ii) a well-grounded apprehension of irreparable harm if the interim
relief is not granted;
(iii) absence of an alternative remedy;
(iv) a balance of convenience in favour of granting the interim
relief.
[19] With regards to the first pre-requisite,
it is necessary to assess whether an applicant has,
prima
facie
, established a right capable
of protection. In the context of this particular matter, t
his
calls for a determination of whether the information disclosed by the
respondent in the liquidation application
prima facie
falls
within the definition of a protected disclosure; put differently,
whether such information
prima facie
qualifies as a protected
disclosure.
[20] T
he question is whether the
respondent had put sufficient information at the disposal of the
court
a quo
to enable it to determine whether he had shown a
prima facie
right to entitlement to the protection afforded by
the PDA. This inevitably calls for an assessment and analysis of the
information
disclosed by the respondent in the founding affidavit to
the liquidation application to determine whether it amounts to a
disclosure.
If it constitutes a disclosure, the
next question would be whether such disclosure is protected. If the
disclosure amounts to a
protected disclosure, the next consideration
would be whether the respondent was subjected to an occupational
detriment.
[21]
In order for the respondent to
satisfy the first requirement for an interim interdict, i.e. that he
has a
prima facie
right even though open to some doubt, he
would have to establish facts which clearly show that the disclosure
he made is one contemplated
in section 9(1) above. A perusal of the
respondent’s founding affidavit filed in the liquidation
application, without a consideration
of the annexures unfortunately
does not establish such facts, in my view.
[22] In a paragraph headed “Material Facts” in the
founding affidavit filed in the proceedings instituted in the court
a
quo
, the respondent simply stated as follows:-
“
47. On
or about 09 February 2012 I was forced in the circumstances
prevailing to initiate legal proceedings for the business rescue
and
or provisional liquidation of the second respondent [ second
appellant ], as is contained and or dealt with in annexures AMM
15
hereto. The annexures referred to in “AMM 15” hereto
number in excess of some 119 items and these have been omitted
herefrom on account of prolixity and uncertain relevance etc in the
determination of these proceedings. Where annexures to AMM
15 are
deemed necessary to the determination of the relief sought in the
proceedings, these shall be adduced herein. I understand
that the
attested affidavit and what follows hereafter would suffice to
establish the requirements to succeed on the basis of the
relief
sought in this matter. The application for business rescue and or
provisional liquidation has never been served due to a
belief that a
non-litigious resolution could be obtained, see annexure “AMM
16”.
[23] In the paragraphs following the one quoted above, the respondent
merely quotes from a document submitted by the appellants
at the
disciplinary hearing and then goes on to aver that the disciplinary
inquiry is an occupational detriment as contemplated
in the PDA. It
is thus clear from that founding affidavit that instead of narrating
the facts on which he relied for asserting
that he was subjected to
an occupational detriment, the respondent chose to simply incorporate
the contents of the founding affidavit
filed in the liquidation
application. Unfortunately for him the latter affidavit, without
annexures, failed to clearly identify
the alleged protected
disclosures.
[24] In the founding affidavit filed in the liquidation application
the importance of the annexures was couched by the respondent
as
follows:
“
17.
The annexures hereto are what they purport to be, are believed to be
relevant to the entire conspectus of facts and should be
read in
their entirety, as if incorporated [in] the body of the affidavit as
such, unless otherwise specifically stated or is implied
etc by the
context thereof.”
[25] I find it ironic that whereas the respondent had indicated that
the affidavit filed in the liquidation application was to
be read in
conjunction with the annexures, he repeatedly refrained from serving
these annexures on the appellants, both in the
liquidation
application and in the application under consideration, simply
because they rendered the application too “prolix”.
He
still did not deem it necessary to file these annexures even after
the appellants had, in their answering affidavit, complained
about
his failure to do so, having pointed out that it was “impossible
for it [the appellants] to deal with the allegations
without having
had sight of the annexures which form part of the application”.
The upshot of the respondent’s approach
was that when the court
a quo
adjudicated over the matter, it had the benefit of only
the affidavits and nothing more, hence its remarks that the
respondent
had apparently intended to pull the annexures out of a hat
at a later stage in the dispute.
[26] I must point out that in almost every other sentence in the
affidavit filed in the liquidation application, the reader is
referred to an “annexed” report or e-mail, but then no
such documents were attached to that affidavit. It is thus difficult
to obtain the full grasp of the averments because the respondent
merely makes allegations and then refers the reader to the unattached
annexures for substantiation, with the result that the averments in
question constitute bald and/or incomprehensible allegations.
[27] Furthermore, the respondent in his affidavit made some averments
pertaining to alleged impropriety concerning an invoice allegedly
submitted by the second appellant to Maluti-a-Phofung municipality.
Unfortunately these averments are confusing due to the fact
that the
respondent at some point stated that the invoice in question was
issued by another entity known as PPS. The respondent
further sought
to substantiate the allegations of impropriety by referring to a
contract entered into with the municipality in
question, which
contract was not attached to his affidavit. Due to the respondent’s
failure to attach the relevant annexures,
it is not clear whether any
alleged impropriety pertaining to that invoice was committed by the
appellants or by the other entity
known as PPS.
[28] Moreover, the respondent averred that he arranged to have a
meeting with the managing director of the second appellant to
discuss
the matter pertaining to suspicious or fraudulent activities but then
cancelled that meeting in order to make further investigations.
The
respondent then refers to an e-mail that he subsequently sent to the
managing director, where he, in the main, alluded to the
second
appellant’s financial woes and how its business could possibly
be salvaged. As a result, one is left unsure as to
whether the
respondent’s investigation concerning the invoice did in fact
confirm the managing director’s impropriety.
[29] Furthermore, the chronology of events pertaining to this invoice
is unfortunately not clear from the affidavit, not only because
there
seems to be a mistake with regards to the dates (in one paragraph the
respondent refers to a date in January 2011 and in
another paragraph
to a date in January 2012), but also due to how the incidents are
narrated.
[30] Mr van der Riet SC contended on behalf of the appellants that
the respondent’s liquidation application was motivated
only by
malice because the respondent failed to serve a copy of the
liquidation application on the appellants, believing, on his
own
version that “a non-litigious resolution could be obtained”
but then provided the appellants’ landlord with
a copy thereof.
The respondent subsequently sent an e-mail to the second appellant
suggesting that a possible solution for the
appellants’
financial problems was for the appellants to sell the business. In
the same e-mail, the respondent mentioned
that he had already had
confidential discussions with potential buyers pertaining to the sale
of the appellants’ business.
In the end, the respondent never
set the liquidation application down for a hearing.
[31] Whereas the PDA seeks to encourage employees to expose
wrongdoing in the workplace without fear of reprisal, the requirement
of ‘good faith’ is clearly one of the mechanisms
incorporated into the Act so as to safeguard the interests of
employers.
The respondent’s e-mail in which the afore-mentioned
proposition was made was attached to the appellants’ answering
affidavit. The contents thereof were not disputed by the respondent
in his replying affidavit. Neither did he make any attempt
of
refuting the appellants’ allegations about his motive for
launching the liquidation application. The relevance and importance
of such a refutal relates to the fact that for a disclosure to
constitute a protected disclosure as contemplated in the PDA, it
must
have been made by the employee in good faith. Given that an unfair
labour practice dispute pertaining to this matter is already
pending
in the Labour Court, I consciously desist from making any further
remarks pertaining to this aspect. Suffice it to mention
that the
respondent did not, in his replying affidavit, make any averments to
refute the appellants’ allegations of malice.
[32] Mr van der Riet SC also contended on behalf of the appellants
that the respondent made no averments whatsoever pertaining
to the
three remaining pre-requisites of an interim interdict and that was
another reason why the appeal ought to succeed. I do
not share that
view. Although the respondent did not in his affidavit direct himself
to the remaining requirements in so many words,
it is clear from the
court
a quo
’s judgment that it was alive to those
aspects and it cannot be said that it completely failed to consider
them. It must be
borne in mind that an affidavit is considered as a
whole. In the seminal judgment in the case of
Eriksen Motors
Limited v Protea Motors and Another
,
1
Holmes
JA aptly stated as follows:“
The
foregoing considerations are not individually decisive, but are
interrelated; for example, the stronger the applicant’s
prospects of success the less his need to rely on prejudice to
himself. Conversely, the more the element of “some doubt”,
the greater the need for the other factors to favour him. The Court
considers the affidavits as a whole, and the interrelation
of the
foregoing considerations, according to the facts and probabilities…”
[33] In my view, a perusal of the
respondent’s affidavit as a whole, without the benefit of the
annexures, reveals numerous
allegations so lacking in particularity
that one cannot reasonably conclude that the respondent made a
protected disclosure as
contemplated in the PDA.
[34] It is a trite principle that affidavits, constituting both
evidence and pleadings as they are, are expected to be clear and
to
accurately identify issues so that both the court and the litigants
can be properly appraised of relevant facts. The respondent’s
affidavit in support of his urgent application does not fit this
description. The vague manner in which the respondent’s
averments were set out in his affidavit resulted in him not
satisfying the requirements for the granting of an interim interdict.
In so far as the court
a quo
found that he did, it erred.
Appealability of the court
a quo’
s
order
[35] An interim order is ordinarily not appealable. However, in the
case of
National Treasury and Others v Opposition to Urban Tolling
Alliance,
2
the
Constitutional Court re-affirmed that it is not an inflexible rule
that an appeal cannot succeed against an interim interdict.
The court
stated that an Appeal Court must have regard to and weigh carefully
all germane circumstances, including whether an interim
order has an
immediate and substantial effect. Moseneke DCJ stated as follows at
par 24: “
It is so that
courts are rightly reluctant to hear appeals against interim orders
that have no final effect and that in any event
are susceptible to
reconsideration by a court when the final relief is determined. That,
however, is not an inflexible rule. In
each case, what best serves
the interests of justice dictates whether an appeal against an
interim order should be entertained.
That accords well with
developments in case law dealing with when an appeal against an
interim order may be permitted.”
[36] The interim order granted by the court
a quo
bars the
appellants from proceeding with the disciplinary hearing pending the
outcome of the unfair labour practice. In terms of
section 191(13)(a)
of the Labour Relations Act, Act 66 of 1995 once an unfair labour
practice dispute pertaining to an alleged
occupational detriment has
not been successfully conciliated, the matter then proceeds to the
Labour Court for adjudication.
[37] In a case such as the present, the result is that no
disciplinary hearing pertaining to the current charges can proceed
against
the respondent, who is currently on suspension with full pay,
until the whole litigation pertaining to the unfair labour practice
dispute is exhausted in the courts. During this entire period the
appellants would have to continue paying the respondent’s
remuneration without him rendering any service to them, due to his
suspension. Considering the substantial effect of the interim
order
on the appellants, coupled with the adverse order of costs made
against them without justification, the interests of justice
dictated
that this appeal be entertained even though the court
a quo’s
judgment was of an interim nature.
Order
[38] The above findings and conclusions constitute the reasons for
the order made, which is re-iterated as follows:
The appeal is upheld with costs.
The order of the court
a quo
is set aside and replaced with
the following:
“
The
application is dismissed”.
_________________
Molemela, AJA
I agree. _________________
WAGLAY JP
I agree. _________________
DAVIS JA
APPEARANCES:
FOR THE APPELLANTS: Van der Riet SC
Instructed by Webber Wentzel Attorneys
FOR THE RESPONDENT: In Person
1
1973
(3) SA 685
(AD) at 691.
2
2012
(6) SA 223
(CC).