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[2009] ZALCJHB 2
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Jiba v Minister Of Justice And Constitutional Development and Others (J167/09) [2009] ZALCJHB 2 (19 May 2009)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
CASE
NO. J 167/09
In
the matter between:
NOMGCOBO
JIBA
Applicant
and
MINISTER
OF JUSTICE AND CONSTITUTIONAL
DEVELOPMENT
& 16 OTHERS
Respondent
JUDGMENT
VAN
NIEKERK J
[1]
This is an urgent application in terms of which the applicant seeks
relief relating to a pending disciplinary enquiry. The relief
sought
includes declarators to the effect that the decision to institute,
commence and proceed with disciplinary proceedings against
the
applicant is unlawful, that the decision to suspend her is unlawful,
that a ruling made by the 11
th
respondent (who was appointed as chairperson of a disciplinary
enquiry at which the applicant has been called to account on
allegations
of misconduct) should be set aside, and an order
reinstating the applicant with immediate effect.
[2]
On 3 February 2009, the date on which the application was first set
down for hearing, the matter was postponed until 16 April
2009 to
permit the filing of answering and replying affidavits. It was agreed
then that the pending disciplinary hearing would
be suspended
‘pending the hearing of the review application’. On 16
April 2009, the matter was again postponed to 24
April 2009, when it
was finally argued.
[3]
The papers in this matter exceed a thousand pages. I do not
intend to burden this judgment with a recitation of what are
largely
common cause, background material and averments of an argumentative
rather than a factual nature.
[4]
The applicant is employed by the 16
th
respondent, the Department of Justice, as a senior deputy director of
public prosecutions, and attached to the 17
th
respondent, the National Prosecuting Authority, in the unit known as
the Directorate of Special Operations. In essence, the applicant
claims that she is the victim of a conspiracy by the management of
the NPA, and that the decisions to suspend her and to institute
disciplinary action against her are manifestations of this
conspiracy. In September 2007, the applicant was requested to
assist the SAPS in an investigation involving senior members of the
NPA, and in particular, the 10
th
respondent. Following her engagement with the SAPS, the applicant
claims that she was requested to divulge the content of her
communications with the SAPS. She refused to do so. After addressing
letters recording her concerns to several of the respondents,
the
applicant claims that on 12 December 2007, she was handed a letter of
suspension. In February 2008, the applicant was
notified that
she should attend a disciplinary enquiry to answer to allegations of
misconduct concerning dishonesty, unprofessional
conduct and conduct
unbecoming and bringing the NPA into disrepute. The enquiry was
postponed to 18 April 2008. When the
hearing commenced, the applicant
raised a point
in limine
to the effect that the NPA was precluded from proceeding with the
enquiry since it had failed to hold the hearing within a period
of 60
days after the applicant’s suspension, a failure that the
applicant alleged was contrary to applicable procedures.
The
chairperson of the enquiry heard evidence given by the applicant and
a number of witnesses who testified for the NPA. There
was a dispute
of fact as to the date of the applicant’s suspension. The
chairperson ruled that the applicant’s suspension
came into
effect on 10 January 2008 and that the hearing had been timeously
convened, on the 57
th
day, and that the proceedings should continue. The hearing was set
down for 4 to 6 August 2008. The applicant had in the interim
requested a copy of the record of the proceedings. When the
hearing convened, the applicant applied for an indefinite
postponement
of the proceedings pending an application to review the
ruling on the point
in limine
.
The application was granted. Between August 2008 and January 2009,
the applicant states that she attempted to obtain the record,
in
order to initiate the application for review. On 8 January 2009, the
applicant received notice that the disciplinary hearing
would
continue on 5 and 6 February 2009. The tapes of the hearing having
been made available to the applicant in October 2008,
the transcribed
record was made available to her on 27 January 2009. In the face of
her employer’s insistence to proceed
with the enquiry on 5 and
6 February 2009, the applicant filed this application on 29 January
2009, seeking the relief outlined
above. In these circumstances, the
applicant submits that she is fully justified in bringing the
application as matter of urgency.
[5]
During argument, both parties made submissions regarding this court’s
jurisdiction to entertain the application, and on
the merits of the
applicant’s suspension and the chairperson’s ruling on
the point
in limine
.
Before addressing the question of urgency, I wish to make a few
observations on these issues.
Disciplinary
proceedings and suspension: Jurisdiction
[6]
Mr Boda, who appeared for the fourth to seventeenth respondents,
submitted that the court had no jurisdiction to entertain this
application. In relation to the relief sought in respect of the
applicant’s suspension, he submitted that there was no pending
lis between the parties that could legitimately form the basis for
relief. In relation to the part of the relief sought that concerned
the disciplinary hearing, Mr Boda submitted that s 157 of the LRA,
read with ss 191 and 193, precluded the court from intervening
in
internal disciplinary proceedings.
[7]
In relation to Mr Boda’s first point, the matter was argued on
the basis that the applicant seeks final relief, in circumstances
where she has not referred a dispute concerning her suspension to
arbitration, and the time limits applicable to the referral have
lapsed. In these circumstances, in my view, this court is not
deprived of the jurisdiction to make an order concerning the
lawfulness
or fairness of the suspension. Whether the applicant is
entitled to an order is another matter. The applicant’s
suspension
aside, whether this court is empowered to review or
interdict internal disciplinary proceedings is a more controversial
matter.
[8]
Support for Mr Boda’s submission that this court has no
jurisdiction in these circumstances is to be found in the recent
decision by Cheadle AJ in
Booysen v SAPS
& another
[2008] ZALC 87
;
[2008] 10 BLLR 928
(LC).
In that case, the court observed that s 191 of the LRA requires
disputes about the fairness of a dismissal to be referred
to the CCMA
or a bargaining council with jurisdiction, and confers on those
bodies the jurisdiction to arbitrate disputes about
dismissals for
misconduct. The court considered at some length the purpose
underlying the statutory dispute resolution system and
in particular,
the delicate balance struck between the competing interests of
employer and employee, and concluded that a purposive
interpretation
of the Act leads to the conclusion that this court has no
jurisdiction to intervene in disciplinary proceedings.
I might add
that s 157(5) states in the clearest possible terms that this court
does not have jurisdiction to adjudicate an unresolved
dispute if the
Act requires the dispute to be resolved through arbitration.
[9]
I am not convinced that the proposition established in
Booysen
can be so broadly and unequivocally stated. While it is clear to me
that the letter and purpose of the Act precludes this court
from
making orders, as it is from time to time requested to do (more often
than not by way of urgent motion proceedings), that
would have the
effect of finally determining those dismissal disputes that fall
within the province of the CCMA or a bargaining
council, s 158 (1)
(a) gives this court the power to grant urgent interim relief in
respect of disputes that must ultimately be
determined by
arbitration. Whether or not the court
should
intervene is a separate matter, and one that I address below in
relation to the merits of the present application. But provided
the
relief sought does not amount to a usurping of the CCMA’s or a
bargaining council’s statutory functions, it seems
to me that
this court, in principle at least, has the jurisdiction to make
interim orders concerning disciplinary proceedings.
The
review
[10]
The applicant seeks to review and set aside the chairperson’s
ruling that the disciplinary hearing was held within 60
days of her
suspension, and that the disciplinary enquiry should therefore
proceed. I do not intend to make any definitive finding
on the
substantive correctness or otherwise of the chairperson’s
ruling, save to say that it is supported by a recent judgment
of this
court. In
Lekabe v Minister of Justice
and Constitutional Development
(unreported, 5 February 2009, J1092/08) the court held, in relation
to the same SMS code, that an employer’s right to discipline
an
employee does not fall away if the employer has failed within the
permitted 60-day period of suspension to convene a disciplinary
enquiry into alleged misconduct.
[11]
I wish to deal with the application in so far as it relates to the
chairperson’s ruling on a more preliminary basis.
Exceptional
circumstances aside, it is undesirable for this court to entertain
applications to review and set aside rulings made
in uncompleted
proceedings. In
The Trustees for the
Time Being of the National Bioinformatics Network Trust v Jacobson
and others
(unreported, C249/09, 14
April 2009), I said the following in relation to the review of
interlocutory rulings made by commissioners:
“
There
are at least two reasons why the limited basis for intervention in
criminal and civil proceedings ought to extend to uncompleted
arbitration proceedings conducted under the auspices of the CCMA, and
why this court ought to be slow to intervene in those proceedings.
The first is a policy-related reason – for this court to
routinely intervene in uncompleted arbitration proceedings would
undermine the informal nature of the system of dispute resolution
established by Act. The second (related) reason is that to permit
applications for review on a piecemeal basis would frustrate the
expeditious resolution of labour disputes. In other words, in
general
terms, justice would be advanced rather than frustrated by permitting
CCMA arbitration proceedings to run their course
without intervention
by this court.” (at para 4).
[12]
The same considerations apply to internal disciplinary hearings, with
the additional point that for this court to routinely
consider
applications such as that before me would entirely undermine the
statutory dispute resolution system. By asking the court
to rule that
the disciplinary action initiated against the applicant was
unauthorised and unprocedural, the applicant is effectively
asking
the court to by pass the bargaining council and to ignore its role in
a carefully crafted scheme that acknowledges and gives
effect to the
value of self-regulation. This court, through its review powers, is
mandated to exercise a degree of oversight over
labour-related
arbitrations - its powers as a court of first instance are
constrained by the LRA, and that constraint must be respected.
Authority
[13]
Mr Zilwa, who appeared for the applicant urged me to deal with the
application based on an overarching argument to the effect
that the
fourth respondent was not entitled, either in terms of the
Constitution or the NPA act, to deal with employment issues
affecting
a senior official such as the applicant. The submission is based on
the provisions of the National Prosecution Authority
Act, 32 of 1998
(“the NPA Act”), which in s 15 confers the power on the
Minister to appoint suitable persons as deputy
directors. Mr Boda
urged me to accept that the power to dismiss was implicit in the
power of the National Director of Public Prosecutions,
and that it
would be unconstitutional for only the Minister to have the power to
dismiss.
[14]
I do not intend to dwell on this issue. The NPA is silent on the
question of who is empowered to dismiss deputy directors.
Mr Zilwa
referred me to the unreported decision of
Tshavhunga
v National Director of Public Prosecutions and others
(TPD, 42117/06, 19 March 2008) which deals pertinently with the issue
of authority to terminate the employment of deputy directors
of
public prosecutions. After a review of the applicable legislation,
the court concluded that since the NPA Act conferred powers
on the
Minister to appoint deputy directors of public prosecutions, it was
axiomatic that only the Minister had the power to terminate
the
services of such a person if he or she was no longer suitable to hold
office. The court held further that where a contested
termination of
services arises from the contract of employment (as opposed to an
administrative act, a basis that Mr Zilwa did
not rely on), an action
must be brought “within labour forums and in particular the
Labour Court, again without inordinate
delay” (at para 46).
[15]
For at least two reasons, the ratio of the
Tshavhunga
decision is distinguishable from the facts of the present case. In
Tshavhunga
,
the applicant had been dismissed, and challenged the lawfulness of
his dismissal
inter alia
on the basis that the executive committee that took the decision to
terminate his services was not authorised to do so. In the
present
circumstances, there is no dismissal - the applicant has been called
to account for her conduct in a disciplinary enquiry;
she has not
been dismissed. Secondly, there being no dismissal, the issue of
authority to effect a dismissal is prematurely raised
- the applicant
has the right to raise as a defence at the disciplinary hearing the
alleged unlawfulness of her employer’s
actions, or those of any
of the other respondents, a defence that may be upheld. In the event
that the applicant is found guilty
of any of the charges against her,
it remains open for her to contend that only the Minister has the
right to make any decision
to dismiss her. In this event, the
chairperson (should she be persuaded to uphold the applicant’s
contentions on authority
to dismiss) might elect to make only a
recommendation to the Minister, based on the evidence led at the
hearing. It is not for
this court, in motion proceedings brought on
an urgent basis, to anticipate events that might equally give
substance to the applicant’s
contentions or not.
[16]
Further, the
Tshavhunga
judgment
is not authority for the proposition that the dispute resolution
structures established by the LRA can be undermined by
piecemeal
attacks brought by way of motion proceedings in this court on
interlocutory rulings and decisions made by chairpersons
of
disciplinary hearings, or by commissioners and arbitrators. When the
court in that matter stated that a contested termination
of
employment should be brought before the appropriate forum without
delay, it meant no doubt that this should be done subject
to the
procedures established by the LRA and the time frames that it
provides. In short: there is no reason why the question of
authority
to dismiss should be determined by this court in motion proceedings,
initiated on an urgent basis, in circumstances where
no dismissal is
apprehended, and where the chairperson of a disciplinary enquiry (and
I would add, a commissioner or arbitrator
in unfair dismissal
proceedings) have not been seized with the question of authority and
have made no ruling on it.
[17]
In summary: although the court has jurisdiction to entertain an
application to intervene in uncompleted disciplinary proceedings,
it
ought not to do so unless the circumstances are truly exceptional.
Urgent applications to review and set aside preliminary rulings
made
during the course of a disciplinary enquiry or to challenge the
validity of the institution of the proceedings ought to be
discouraged. These are matters generally best dealt with in
arbitration proceedings consequent on any allegation if unfair
dismissal,
and if necessary, by this court in review proceedings
under s 145.
Urgency
[17]
This court recently referred to a “worrying trend” that
has become evident in the last year or so where the court’s
roll is clogged with applications either to interdict disciplinary
hearings from taking place, or to have dismissals declared invalid.
The court observed that in most of these instances, the applicants
were persons of means who could afford the cost of seeking relief
on
an urgent basis in circumstances where the case was unexceptional
(see
Mosiane v Tlokwe City Council
(unreported, J202/09, 24 April 2009). Although this court must
obviously guard against an abuse of its process, its doors
are open
to all employees, the wealthy and the impecunious. There is no basis
to discriminate against employees of means simply
on account of their
ability to finance the litigation that they institute against their
employers. The question in every application
brought as a matter of
urgency is whether the application is urgent, and whether the
remaining requirements for interim or final
relief (as the case may
be) have been met.
[18]
Rule 8 of the Rules of this court requires a party seeking urgent
relief to set out the reasons for urgency, and why urgent
relief is
necessary. It is trite that there are degrees of urgency, and the
degree to which the ordinarily applicable rules should
be relaxed is
dependent on the degree of urgency. It is equally trite that an
applicant is not entitled to rely on urgency that
is self created
when seeking a deviation from the rules.
[19]
The urgency of this application rests on that part of the relief
sought that concerns the review of the chairperson’s
ruling on
the point
in limine
.
The ruling was made on 17 June 2008. As early as 8 June 2008, shortly
after argument was finalised (on 4 June), the applicant
sought to
acquire a transcript of the proceedings. Her evidence is that she
required the record to consult her legal representatives
on the
prospect of an application to review any ruling made by the
chairperson. At the time that the disciplinary hearing was postponed
to permit the applicant to launch an application for review, the
record had not been received. Transcription commenced in October
2008, and a transcribed record made available to the applicant in
January 2009.
[20]
I deal now with that part of the relief sought that seeks to set
aside the applicant’s suspension. There is no reason
why the
facts relevant to the review of the chairperson’s ruling should
be relevant to the urgency of the challenge to the
lawfulness of the
applicant’s suspension – these are discrete disputes. The
applicant was suspended in either December
2007 or January 2008,
depending on which party’s contention in relation to the date
of suspension is correct (it is not necessary
for me to make a
finding on this issue). Either way, more than a year has elapsed
since the applicant was suspended. On 9 July
2008, she referred a
dispute to the General Public Service Sectoral Bargaining Council
under case number PSGA 413-08/09. The dispute
was conciliated on 11
August 2008, and a certificate on non-resolution of the dispute was
issued on the same day. The applicant
has not referred the dispute to
arbitration; indeed, any dispute regarding the applicant’s
suspension has been dormant for
months. The applicant was entitled to
approach this court for urgent relief, subject to the rules relating
to urgency, pending
the determination of any dispute referred to the
bargaining council. The contention advanced on behalf of the
applicant in these
proceedings i.e. that the applicant was suspended
by persons who had no authority to do so, could have been argued at
that stage.
The delay in obtaining a transcription of the
disciplinary proceedings was entirely irrelevant to the applicant’s
suspension.
I fail to appreciate how in these circumstances the
matter of the applicant’s suspension assumes any degree of
urgency.
[21]
In view of my findings on the other relief sought by the applicant,
little purpose would be served in striking the matter from
the roll.
I intend therefore to dismiss the application. There is no reason why
costs should not follow the result. None
of the considerations
relevant to the exercise of the court’s discretion mentioned in
NUM v East Rand Gold And Uranium Ltd
[1991] ZASCA 168
;
1992 (1) SA 700
(A) affect the application of the general rule that
costs should follow the result.
I
accordingly make the following order:
The
application is dismissed, with costs.
ANDRE
VAN NIEKERK
JUDGE
OF THE LABOUR COURT
Date
of Hearing: 24 April 2009
Date
of Judgment: 19 May 2009
For
the applicant: Adv PHS Zilwa
Instructed
by: TP Hotane
For
the respondents: Adv F Boda
Instructed
by: the State Attorney