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[2008] ZALCJHB 85
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Bopape v University of South Africa and Another (J2353/08) [2008] ZALCJHB 85 (17 November 2008)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
CASE
NUMBER: J2353/08
In
the matter between:
BOPAPE,
DAPHNE RASIBE MATLAKALA
Applicant
and
UNIVERSITY
OF SOUTH AFRICA
First
Respondent
BAYIJNATH,
N PROFESSOR
Second
Respondent
JUDGEMENT
NGALWANA
AJ
Introduction
[1]
This is an application for the review and setting aside of the
decision of the second respondent acting as chairperson in
disciplinary
proceedings convened by the first respondent against the
applicant. The decision sought to be reviewed and set aside is
one
by which the second respondent refused to allow the applicant
legal representation in those disciplinary proceedings by a person
who is not an employee of the first respondent. This decision
appears to be grounded in the first respondent’s policy
that in
disciplinary proceedings an employee has the right “to be
represented by a colleague of his choice or by a shop-steward
–
either one being an employee of the Technikon”. In other
words, outside counsel, so the second respondent believes,
is not
permitted in first respondent’s internal disciplinary
proceedings.
[2] The applicant also
seeks an order declaring clauses 2 and 5.23 of the first respondent’s
policy to be “unreasonable,
irrational and unconstitutional and
thus be set aside”. Clause 2 is the one quoted above as
limiting representation
at the first respondent’s disciplinary
hearings to shop stewards and/or employees of the first respondent.
Clause 5.23
reads:
“
Under
no circumstances will outside lawyers or IR consultants be allowed to
interfere with the internal disciplinary processes of
the [first
respondent].”
[3]
In supporting this prayer the applicant seeks to invoke the
provisions of the Constitution of the Republic of South Africa,
1996,
Act 108
of 1996 (“the Constitution”) and those of the
Promotion of Administrative Justice Act, 3 of 2000 (“PAJA”).
The first respondent disputes that PAJA is applicable in relation to
the decision of the second respondent in refusing the applicant
the
services of an outside attorney.
[4]
Because of the view I take of this matter, it is not necessary to
decide whether the policy provisions sought to be impugned
are
unreasonable, irrational or unconstitutional. Consequentially,
it is also unnecessary to decide whether or not, in making
the ruling
he made, the second respondent was performing an administrative
action within the meaning of PAJA.
Common
Cause Facts
[5]
The following facts are common cause.
[6]
The applicant was appointed by the first respondent as regional
director on a five year contract from 1 January 2006 until 31
December 2010.
[7]
On 19 June 2008 she was suspended from duty on full pay on
allegations of gross negligence in the performance of her duties
and
disregarding a lawful instruction.
[8]
On 5 September 2008 she received a notice to attend a disciplinary
hearing on the same charges.
[9]
The notice informed her that although she was entitled to
representation during and after the disciplinary hearing, such
representation
had to be either by a union member or an employee of
the first respondent but “not outside people”.
[10]
At the commencement of the disciplinary hearing on 15 October 2008
the second respondent ruled that the applicant
“
is
entitled to representation, but that representation has to be
internal. I will not allow external representation in this
matter.”
[11] The basis for the
ruling was, according to the second respondent, that
“
[t]hese
hearings are generally internal affairs. We keep it so to avoid
them coming unnecessarily protracted and legalistic.
. . . What
I am guided by is what the intention of the employer is. . . .
It is saying that the matter should be kept
internal. That’s
a very important stipulation. And therefore, it is for that
reason that it’s been quite
specific, that it should be by a
colleague of his choice . . . or by a shop-steward, either of one
being an employee of the [first
respondent], and that is the
operative phrase them, being an employee. So the representation
has to be internal.” [sic]
page
9 of transcript of disciplinary proceedings
[12]
The second respondent postponed the disciplinary hearing, because he
considered the matter “very serious”, in order
to enable
the applicant to challenge his ruling in court.
[13]
The first respondent’s “initiator” or evidence
leader at the disciplinary proceedings is neither an employee
of the
first respondent nor a shop-steward. He is an IR consultant.
[14]
The first respondent is of the view that the second respondent has no
discretion to allow outside representation at its disciplinary
hearings.
para
18 of the opposing affidavit
[15] The second
respondent also considers himself bound by what he considers to be
the meaning of the first respondent’s policy
as regards
representation at disciplinary proceedings, which he understands as
conveying a clear intention of the first respondent.
para
[11] above
The
Dispute
[16]
It seems to me the determination of this matter turns on whether or
not, on a proper construction of the relevant provisions
of the first
respondent’s policy, the second respondent has any discretion
to allow outside representation for the applicant
in its internal
disciplinary hearing.
[17]
In argument before this Court, Mr van der Westhuizen for the
respondents submitted that this Court should not entertain this
application because if it should find that the second respondent does
have discretion to allow outside representation, it will
have to
refer the matter back to the second respondent for the exercise of
that discretion. If, in the exercise of his discretion,
the
second respondent were to refuse outside representation, that same
issue may eventually come back to this Court on review.
For
that reason, he submitted that the disciplinary hearing ought to be
allowed to continue so that all issues arising therefrom
can be dealt
with
holus bolus
in due course and not piece-meal. This point was never
foreshadowed in the papers. In any event, this submission
presupposes
that the second respondent will make an adverse ruling
against the applicant both on the discretion issue and on the merits
of
the charges against her. One should not speculate about the
outcome of the disciplinary proceedings.
The
Review
[18]
The application is for the review of the second respondent’s
ruling in a disciplinary hearing. The scheme of the
Labour
Relations Act, 66 of 1995, (“the LRA”) is that employees
who are aggrieved by an unfair suspension or any other
unfair
disciplinary action short of dismissal have recourse to the CCMA and,
only if they do not get joy there, to this Court.
Mr Mahlase
for the applicant has pointed to no authority (and I am not aware of
any) allowing an employee in such a situation
to challenge the
employer’s conduct directly in this Court without first going
through the conciliation and arbitration process
at the CCMA.
This issue may well be successfully conciliated there.
[19]
In light of the general scheme of the LRA, it is in any event
questionable whether an employee can permissibly challenge an
interlocutory ruling of a disciplinary committee (even if it fits the
definition of “unfair labour practice” in section
186(2)
of the LRA) directly in this Court.
[20]
While section 158 of the LRA confers wide powers on this Court, the
matter referred to it must still fall within its jurisdiction
before
it can invoke those powers. The power conferred on this Court
by section 158(2)(b) is not an option because, assuming
that the
second respondent’s ruling constitutes an unfair labour
practice, the appropriate forum to determine that issue
would be the
CCMA and this Court could not readily assume jurisdiction and step
into the shoes of the CCMA because that requires
the consent of the
parties. Since the first respondent disputes this Court’s
jurisdiction at this stage, the propriety
of this Court assuming
jurisdiction would be in doubt.
[21]
The remaining option would be for this Court itself to refer the
issue to the CCMA pursuant to section 158(2)(a) of the LRA.
But
the applicant does not allege unfair dismissal or unfair suspension.
Neither has Mr Mahlase in argument. What is
sought is
rather to set aside a disciplinary committee’s refusal to allow
the applicant outside representation in an internal
disciplinary
hearing. It has not been argued before this Court that the
second respondent’s ruling constitutes an unfair
labour
practice which is capable of being referred to the CCMA under section
191. For that reason it is not open for this
Court to assume
that this is indeed so.
[22]
I should mention that in my view the principle in
Hamata
and Another v Chairperson, Peninsula Technikon Internal Disciplinary
Committee and Other
(2002) 23 ILJ 1531
(SCA) is equally applicable on the facts of this case. In that
case, the Supreme Court Appeal found, on
common law considerations,
that a provision similar to rule 2 in this case did not preclude the
exercise of discretion on the question
of whether or not to allow
outside representation. I respectfully agree. There is
nothing in rule 2 of the first respondent’s
policy to suggest
that the second respondent has no discretion whatsoever in relation
to the permissibility of outside representation.
In the
exercise of that discretion, the second respondent would have regard
to the factors referred to in
Hamata
.
[23]
But the applicant has, in my view, jumped the gun in heading directly
to this Court at this stage. If it is any consolation,
it is
still open to the applicant to refer the issue to the CCMA if it is
an issue capable of such referral.
Finding
[24]
In the result the application cannot succeed.
Costs
[25]
I do not believe that a costs order is warranted against the
applicant in the circumstances of this case. In any event,
the
first respondent did not press the issue in argument and advanced no
grounds for the punitive costs order it seeks in the answering
papers.
____________________
Ngalwana
AJ
Appearances
For
the applicants:
Mr Mahlase
Instructed
by:
Mahlase Nonyane-Mahlase Attorneys
For
the respondents:
Mr G van der Westhuizen
Instructed
by:
MacRobert Inc
Date
of hearing:
11
November 2008
Date
of judgment:
17 November 2008