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[2006] ZALCJHB 16
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Tshishonga v Minister of Justice And Constitutional Development and Another (JR898/2004) [2006] ZALCJHB 16 (16 February 2006)
IN THE LABOUR COURT OF
SOUTH AFRICA
(HELD AT
JOHANNESBURG)
CASE
NR: JR898/2004
In the
matter between:
M M
TSHISHONGA
Applicant
and
THE
MINISTER OF JUSTICE AND
1
st
Respondent
CONSTITUTIONAL
DEVELOPMENT
THE
DIRECTOR-GENERAL OF THE
2
nd
Respondent
DEPARTMENT OF JUSTICE
AND
CONTSTITUINAL
DEVELOPMENT
JUDGMENT:
H.M.
MUSI, J
HEARD
ON:
9 DESEMBER 2005
DELIVERED
ON:
16
FEBRUARIE 2006
[1]
This is a judgment on a point
limine
identified by the parties during the pre-trial conference held in
preparation of the hearing of the main case herein and which
was by
consent set aside for argument on a separate date.
[2]
The factual background to the dispute is common cause. The
applicant was employed
as a Deputy Director General of the Department
of Justice and Constitutional Development, the first respondent.
The second
respondent is the Director General of the first respondent
and I shall for the sake of convenience refer to both respondents
collectively
as the Department. On 7 October 2003 and 8 October
2003 the applicant made certain serious allegations to the media
about
the conduct of his employer, the then Minister of Justice and
Constitutional Development, Dr. P.M. Madoena, in his capacity as
such. The applicant was immediately suspended and charges of
misconduct were duly preferred against him. The Department
duly
instituted disciplinary proceedings in terms of its Senior Management
Services Handbook Procedure for Disciplinary Action
against Senior
Managers, and appointed an independent person in the name of Mr.
Bosch to chair the proceedings.
[3]
The chairman of the Disciplinary Tribunal issued his findings on 27
July 2004, in
terms of which he found that the information that the
applicant had divulged to the media was a protected disclosure as
defined
in section 1 of the Protected Disclosures Act no. 26 of 2000
(the PDA) and therefore that the applicant’s suspension and
disciplinary enquiry to which he had been subjected were occupational
detriments as defined in section 1. It would be noted
that in
terms of section 3 of the PDA no employee may be subjected to an
occupational detriment as a result of having made a protected
disclosure. In effect the disciplinary tribunal upheld the
applicant’s defence thereat.
[4]
Before getting into the merits of the dispute, a few preliminary
comments will do.
The effect of the disciplinary tribunal’s
findings was that the applicant’s suspension would lapse and he
would have
been entitled to resume his normal duties. Now the
disciplinary tribunal made no such order but it is a natural or
inevitable
ex lege
consequence of the acquittal. And although the disciplinary
tribunal had no power to order that the applicant be paid his
salary
for the period of the duration of the suspension, just like it would
not normally order the lifting of the suspension, in
practice the
applicant would normally have been paid such outstanding salary if
the suspension had been without pay.
[5]
The above-mentioned practice is in line with the notion of fairness
that underlies
the resolution of disputes under the Labour Relations
Act no. 66 of 1995 (the LRA). In the case of an employee who
has been
dismissed but a subsequent arbitration finds that the
dismissal had been substantively unfair, section 193 (2) provides
that reinstatement
must be ordered, subject of course to certain
qualifications. In most cases, reinstatement is with
retrospective effect,
which means that the employee is paid the
salary that he/she would have earned for the duration of the period
of dismissal.
[6]
With that prelude I turn to consider the preliminary point that I
have been called
upon to decide. In fact three points were
initially raised in the pre-trial minutes. As Mr. Hulley for
the respondent
indicated the third point
in
limine
was never intended to be argued
if this court was satisfied that it had jurisdiction in the matter.
There can be no doubt
that this court has jurisdiction. Though
Mr. Hulley made it known that he does not agree that the media could
ever be regarded
as persons or bodies to whom/which a disclosure can
legitimately be made in terms of section 9 of the PDA, he nonetheless
conceded
that the second point
in limine
is bound up with the first point.
A determination of whether the media are persons or bodies to
whom/which a disclosure could
legitimately be made falls within the
findings of the disciplinary tribunal that the information disclosed
was a protected disclosure
within the meaning of section 1 of the
PDA.
[7]
The real bone of contention is the first point
in
limine
. It is important to
restate it here:
“
1.
Whether the respondents are bound by the findings of the chairman of
the disciplinary
enquiry to the effect that the disclosures were
protected in terms of the
Protected Disclosures Act. The
Applicant contends that the findings made by the chairman cannot be
challenged by the respondents in these proceedings and that
the
respondents are accordingly bound by those findings. The
respondents contend that they are neither entitled nor obliged
to
review a decision of an internal disciplinary enquiry but that they
are not bound, for the purposes of the present proceedings,
by the
findings of the chairperson.”
[8]
In support of the applicant’s case, Mr. Haycock, who argued the
matter on behalf
of the applicant, cited authority for the
proposition that it is generally not permissible to subject an
employee, who had been
acquitted of misconduct charges, to a second
disciplinary enquiry on the same or similar charges, as this would
amount to double
jeopardy (the autrefois acquit doctrine of criminal
procedure). That being so, the employer would be bound by the
determination
of its own disciplinary tribunal in the absence of any
internal regulation providing for the overruling of such findings by
a more
senior official of the employer entity.
[9]
Counsel pointed out that
in casu
the disciplinary code of the department has no provision for the
overruling of the findings made by its own disciplinary tribunal
nor
has the Department sought to have such determination reviewed.
He pointed out that the Department could not, for
example, dismiss
the applicant, precisely because it is bound by the acquittal
verdict. Counsel submitted that in arriving
at its decision,
the disciplinary tribunal had regard to all the evidence before it
and applied the applicable law to the facts
and that it was fully
empowered to do so.
[10]
Mr. Hulley contended that the double jeopardy rule is used by an
employee as a defence where
the employer, dissatisfied with the
outcome of a disciplinary enquiry, arraigns the employee before
another disciplinary tribunal
on the same or substantially similar
charges. He submitted that since the applicant has instituted
action, there can be no
question of a double jeopardy. Counsel
submitted that the real issue in this case is whether the court is
bound by a finding
of another body on the same issues which the court
is called upon to determine. He contended that in essence the
findings
of a disciplinary tribunal constitutes its mere opinion on
the conclusion that should be reached based on the facts placed
before
it and as such it is evidence of the opinion of an expert,
which is generally inadmissible. He pointed out that for such
evidence to be admitted the expert would have to testify and the
normal rules of evidence in this regard will then have to be
followed.
In support of his argument, Mr. Hulley referred to
the cases of
BIRKETT v ACCIDENT FUND
AND ANOTHER
1964 (1) SA 561
T and
PHILLIPS N.O. v GOLDSTUCK
1959 (3) SA 951
N all of which applied the rule of English law stated
in the case of
HOLLINGTON v HEWTHORN
COMPANY LTD
1943 KB 587
(CA).
[11]
Now it is so that the rule in
HOLLINGTON
v HEWTHORN
has become part of our
law of evidence. This is by virtue of the provisions of section
42 of the Civil Proceedings Evidence
Act 25 of 1965 which enjoined
our courts to apply the English law of evidence that was applicable
as at 30 May 1961. The
court in
HOLLINGTON
v HEWTHORN
ruled that a person’s
conviction of a criminal offence is not admissible in subsequent
civil proceedings to prove that the
person has committed the relevant
offence. The rationale for this judgement was that the decision
of a court is its own opinion
and as such is not binding on another
court.
[12]
This rule has, however, evoked a lot of criticism so much so that in
England it was abolished
by legislative intervention. See
generally the South African Law of Evidence (formerly Hoffmann and
Zeffertt) 2003 edition
at page 316
et
seq
. Now, there has not been any
intervention by the legislature in South Africa but the courts have
excluded the rule’s
application in at least one particular
class of case, as indicated below, and there are indications that its
continued application
might be reviewed. See the South African
Law of Evidence
op cit
at page 318.
[13]
In the case of a striking off of an attorney the courts have excluded
the application of the
rule. In such cases a previous criminal
conviction is admitted as
prima facie
proof of the commission of the offence but the attorney is given the
indulgence of showing that he/she was wrongly convicted. See
HASSIM
v INCORPORATED LAW SOCIETY OF NATAL
1977(2) SA 757 (A), the leading case in this regard. The
rationale for this position is interesting and may have had some
relevance to the instant case to the extent that it was held that an
application for the removal of an attorney is of a disciplinary
nature and not a civil proceeding. However it is clear that the
instant case is a civil proceeding.
[14]
In my view, this matter can best be resolved with reference to the
procedures for resolution
of labour disputes under the LRA. The
applicant is claiming compensation for an unfair labour practice.
The normal
procedure for enforcement for such a claim is provided for
in section 191 of the LRA. In terms hereof the dispute would be
referred to the CC.M.A. or the bargaining council concerned for
conciliation. If that fails, it would go to arbitration.
Now it is trite that arbitration under the LRA is a hearing
de
novo
of all disputed issues and the
findings of an earlier disciplinary enquiry are irrelevant and not
binding. The record of
the disciplinary enquiry itself becomes
relevant only insofar as it is evidentiary material before the
arbitrator and of course
it can be used for purpose of cross
examination and to asses the credibility of witnesses and the cogency
of the respective versions
of the parties.
[15]
However, subsection 13 of section 191 permits an employee to approach
the Labour Court directly
for adjudication in a situation as such as
the present where the employee alleges that he has been subjected to
an occupational
detriment by the employer in contravention of section
3 of the PDA for having made a protected disclosure. This is to
be
read with section 4 of the latter Act which provides that an
occupational detriment short of dismissal, is deemed to be an unfair
labour practice and that any disputes in relation thereto must follow
the procedure set out in the
Labour Relations Act and
may be referred
to the Labour Court for adjudication. See also
section
186(2)(b)
of the LRA. Adjudication in this regard would proceed
in the same way as adjudication of
inter
alia
an automatically unfair dismissal
or retrenchment in terms
section 187
read with
section 191(5)(b)
of
the LRA and it would be a trial
de
novo
. It can hardly be suggested
that the findings of the preceding disciplinary enquiry would be
binding on the court.
No authority to that effect has been
cited nor am I aware of any.
[16]
It is apposite to refer again to the minutes of the pre-trial
conference. The issues in
dispute and which the court is
required to determine are identified as follows:
“
(a)
Ad the Merits
1.
Whether the disclosures made by the
Applicant on 7 and 8 October 2003 were protected in terms of the
Protected Disclosures Act, 2000
.
2.
Whether the suspension from duty of the
applicant and/or the disciplinary hearing constituted “
occupational
detriments”
as defined in
section
1
of the
Protected Disclosures Act.
3.
Whether
the suspension from duty of the
applicant or the disciplinary hearing constituted “
unfair
labour practices”
as defined in
section 186
of the
Labour Relations Act. …”
The
applicant is in effect saying that the court is bound by the findings
of the disciplinary tribunal on the very same issues that
the court
is called upon to decide. It is a contradiction in terms.
[17]
In my view, a different approach may have been called for had the
applicant formulated his claim
differently. Such would be the
case, for instance, if he had sought from the court an order
compelling the respondent to
pay him the salary he would have earned
for the duration of the suspension and the legal costs he incurred in
contesting the charges
at the disciplinary enquiry, this, on the
basis that these would be entitlements inevitably flowing from the
determination made
by the disciplinary tribunal. Significantly,
the Department has admitted that it considers itself to be bound by
such determination
as indeed it should. In this regard, I refer
to the comments I made at paragraphs 3 and 4 of this judgment.
[18]
I conclude that the point
in limine
must be decided in favour of the respondents. The relevant
findings made by the chairman of the disciplinary enquiry are
not
binding on the respondents in these proceedings. The applicant
is to pay the costs of the hearing of the 9
th
December 2005.
___________
H.M MUSI, J
On behalf of Applicant:
Adv. H. Haycock
Instructed
by
Henning
Viljoen Attorney
PRETORIA
On behalf of
Respondents: Adv. Hulley
Instructed
by
The
State Attorney
JOHANNESBURG
/em