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[2009] ZALCCT 10
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Govender v Minister Of Defence (C695/09) [2009] ZALCCT 10 (8 October 2009)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT CAPE TOWN
REPORTABLE
CASE
NO: C695/09
In
the matter between:
DR
VADIVAL GOVENDER
Applicant
and
MINISTER
OF DEFENCE
Respondent
JUDGMENT
MOLAHLEHI
J
Introduction
[1]
This is an urgent application in which the applicant seeks to have
his suspension from work uplifted and the intended disciplinary
action suspended pending the application concerning protected
disclosure which the applicant intends filing with this Court. The
application which is opposed was postponed at its last hearing to the
2
nd
October 2009, with a directive to the parties to file
their relevant papers including heads of argument. The applicant
seeks an
order on the following terms:
“
1.
Dispensing with the forms and service provided for in the Rules of
Court and allowing this matter to be heard
as one of urgency-;
2.
That a rule nisi be issued calling upon the Respondent to show cause,
if any, on a date to be determined by
this Honourable Court why an
order should not be granted in the following terms:
2.1
Declaring that the Applicant's suspension with effect from 26
August 2009 is invalid and that the Applicant is permitted forthwith
to resume his duties upon terms and conditions no less favourable
than existed on 26 August 2009;
2.2
…
2.3
Interdicting and restraining the Respondent from taking any
disciplinary action against the Applicant pursuant to the notice of a
disciplinary enquiry dated 11 June 2009, pending the final
determination of proceedings to be instituted by the Applicant within
20 days of the date of this order setting aside the said disciplinary
enquiry;
2.4
…
2.5
Costs of suit.”
Background
facts
[2]
The applicant who has 25 (twenty five) years experience in the health
sector is one of the two specialist anesthesiologists
in the employ
of the respondent and the deputy head of the Department of
Anesthesiology at 2 Military Hospital, in the Western
Cape, was
suspended by the respondent with effect from 26 August 2009. In these
proceedings the applicant seeks to challenge and
have that suspension
set aside because according to him he was not given a hearing. The
applicant also seeks an order staying the
disciplinary proceedings
initiated against him, pending the finalization of the proceedings he
intends instituting against the
respondent which would concern the
protected disclosure which he had made regarding the management of
the financial affairs of
the respondent by some of its managers. The
applicant is part of the management team of the respondent.
[3]
It is not disputed that the applicant has made a disclosure regarding
financial irregularities in the affairs of the respondent
and such
disclosure was made to the Surgeon-General on 22
nd
August
2008. According to the applicant, he made the disclosure after
unsuccessful attempts of persuading the management of the
respondent
to address such alleged irregularities. Following that confidential
disclosure a firm of auditors, Price Waterhouse
Coopers, was
appointed by the respondent to investigate the allegations made by
the applicant. The details of the complaint are
not disclosed in the
founding affidavit of the applicant. Those details are however not
relevant for the purposes of this judgment,
save to indicate that
according to the applicant they involve contraventions of the Public
Finance Management Act 1 of 1999 (“PFMA”)
and the
Treasury Regulations issued in terms of the PFMA as well as the
irregular procurement of services. The allegations implicate
various
high-ranking officers in the military health services.
[4]
The applicant’s case is that his suspension was a result of the
complaints contained in his letter of complaints dated
of 22
nd
August 2008 and accordingly constitutes a protected disclosure as
envisaged in terms of the Protected Disclosures Act 26 of 2000
(“PDA”). The scheduled disciplinary action is according
to the applicant in contravention the provisions of section
3 of the
PDA in that it subjects him to an occupational detriment.
[5]
The applicant states his founding affidavit that soon after making
the disclosure, during September 2008, a junior nursing staff
member
who is not an employee of the respondent but contracted as a theatre
nursing staff at the hospital, started making
contrived and unfounded
allegations of misconduct against him. The complaint was finally
formalized through the assistance of the
head of the nursing sister.
The head who was at the time a fulltime employee of the respondent
but subsequently resigned is one
of the people implicated in the
alleged irregularities which the applicant had disclosed to the
respondent.
[6]
The two people referred to above are Sister M. and Major C.. The
complaint which both of them lodged with the respondent concerned
inappropriate, unprofessional and sexual harassment on the part of
the applicant. For the purpose of this judgment I do not deem
it
necessary to deal with the details concerning the alleged sexual
harassment.
[7]
Subsequent to the allegations of sexual harassment, the respondent
appointed one of its employees to conduct an informal inquiry
into
the complaints. Whilst the chairperson of the inquiry was skeptical
about the letters of the complaints laid by Sister M.
and Major C.,
nothing turns much on the outcome of the inquiry in as far as the
suspension is concerned. The essence of the chairperson’s
recommendation was that there was a need for training concerning
issues of sexual harassment.
[8]
The inquiry was held on the 20
th
November 2008. It would
appear nothing happened in terms of taking any steps in relation to
the complaints lodged and the recommendations
made by the chairperson
of the inquiry until May 2009. On the 5
th
May 2009 Major
C. addressed another complaint to the Officer Commanding in which she
listed two incidences relating to the allegation
that the applicant
had brought into the theater and displayed pictures carrying sexual
images. Major C. further requested that
the complaint should be
forwarded to the Labour Relations for investigation.
[9]
On 14
th
May 2009, Major C. lodged another complaint
against the applicant concerning allegations of harassment and
intimidation. Thereafter,
on the 11
th
June 2009, the
applicant was informed in a letter that disciplinary hearing was to
be convened against him concerning:
“
. . .
allegations that you could have made yourself guilty of unacceptable
and inappropriate
conduct of sexual nature over the
period October 2008 to May 2009 and threatening Maj M.A C. on 14 May
2009.”
[10]
On 28 July 2009, Lt Col Jacobs senior labour relations officer based
in Bloemfontein who was appointed to conduct further investigations
on the complaints regarding the applicant, addressed what appears to
be a preliminary report to the Chief Directorate HR Strategic
Direction and Policy (the Chief Director HR). In essence the report
indicates that the investigation has commenced and that the
charges
against the applicant were much more serious than it was made to be
in the initial report. In addition the report indicated
that:
“
a.
The initial charge of "unacceptable and inappropriate conduct
sexual nature" must please be amended
to also include.
harassment, victimisation and threats to personal life.”
[11]
It would appear that on the same day that the report was written an
incident occurred whilst Lt Col Jacobs was interviewing
people about
the matter which prompted him to address a letter dated the same
date, 28
th
July 2009, to Chief Director HR motivating for
the suspension of the applicant. The letter reads as follows:
“
REQUEST FOR
SUSPENSION: 98285463CA DR V. GOVENDER: 2 MILITARY HOSPITAL
..
1.
. . .
2.
During the first phase of the investigation a number of
serious allegations have been made against Dr Govender. Not only the
initial
alleged misconduct “of a sexual nature”. Further
actions lodged against him by fellow medical officers are
intimidation,
victimisation, and threats to personal life as well as
racism.
3.
Whilst conducting interviews at the Head of Department (HOD)
Orthopaedics Dr Govender (the Anaesthetist) was seen lurking at the
door, at a time and place where he had no valid reason to be. This
type of behaviour has been seen as a form of intimidation.
4.
In conversation with two specialist from Gaenecology and
Obstetrics (Drs van Wyk and Abdurahman) it was indicated that support
for
the investigation as well as corroboration of witnesses may be
forthcoming.
5.
It is clear from the above that the presence of Dr Govender in
the workplace is:
a.
Hampering the investigation by personal presence in the
working environment.
b.
Intimidating junior personnel to come forward with their
statements.
c.
Creating a hostile environment
6.
In view of the above it is requested that Dr Govender be
suspended from the workplace up to the conclusion of the matter by
means
of the hearing.”
[12]
The applicant was following the above request notified of his
suspension in a letter dated 26 August 2009.The relevant parts
of the
letter read as follows:
“
1.
. . . .
2.
Kindly be advised that it has been decided to suspend you as a
precautionary measure, with
immediate effect (date of this
notification), in terms of the provisions of paragraph 7.2 (2) of
Chapter 7 to the Senior Management
Services Handbook. The suspension
shall be with full pay and will stay in force for a period of 60
days.
3.
The reasons for the above-mentioned step are the following:
a.
You are suspected of serious misconduct (unacceptable and
inappropriate conduct of a sexual
nature, intimidation,
victimisation, threats to personal life and racism).
b.
It is believed that your presence at the workplace may hamper the
investigation should you
be permitted to remain in your current
position.
c.
There is a possibility that you may be in a position to intimidate or
influence witnesses.”
[13]
Thereafter, and on 31
st
August 2009, the applicant’s
attorneys of record addressed a letter demanding that the suspension
of the applicant be uplifted
immediately. And more importantly the
attorneys indicated that:
“
Should we not
receive your positive response on or before Wednesday, 2 September
2009 urgent legal action will be taken without
any further notice.”
[14]
The applicant seeks the intervention of this Court on the grounds
that the suspension came without warning and as a complete
surprise
to him. He contends in his founding affidavit that neither he nor the
head of his department was approached prior to the
decision to
suspend having been taken. He argued in this regard that he was not
granted any opportunity to respond to the intended
suspension nor was
he afforded an opportunity to putting his case or making
representations before the decision to suspend could
have been taken.
The applicant further submitted in this respect that in suspending
him in that manner the respondent failed to
comply with the
requirements of the
audi alteram partem
principle, and for
that reason the suspension should be regard as being patently
unlawful and procedurally irregular. The applicant
further contends
that had he been afforded a hearing before the suspension, it would
have become obvious that my suspension is
most inappropriate in the
circumstances and further that envisaged disciplinary action against
him is unlawful and in breach of
the
Protected Disclosures Act 26 of
2000
.
Point
in limine raised by the respondent
[15]
The respondent raised as a point in
limine
regarding the
locus
standi
of the Minister, cited by the applicant as the only
respondent. In this respect Ms Nymen for the respondent argued that
the Minister
does not have
locus standi
to be cited as the
respondent in these proceedings in that it is the Secretary of
Defence, as the employer of the applicant, who
suspended the
applicant in terms of
section 7(3)(b)
read with
section 17(1)
(b),
16B
(1) (b) and (4)(b) (ii) of the Public Service Act, 103 of 1994.
[16]
Section 7(1) and (3)(a) - (b) of the Public Service Act deals with
the organizational structure of the Public Service indicating
that
each department shall have a head who shall be the incumbent of the
post on the establishment bearing the designation mentioned
in column
2 of Schedule 1, 2 or 3 opposite the name of the relevant department
or component, or the employee who is acting in that
post. In the
Department of Defence the organisational structure designate the
Secretary for Defence as the head of that department.
[17]
Section 17(1)(a) and (b) of the Public Service Act dealing with
termination of employment vests the power to dismiss an employee
in
the executive authority and to be exercised in accordance with the
Labour Relations Act 66 of 1995
.
[18]
Ms Nymen argued that in line with the above legislative frame work
and notice of suspension, the applicant ought to have cited
the
Secretary of Defence, in this proceedings and not the Minister. In my
view this argument bears no merit. Institution of proceedings
against
the various departments of the State is governed by the
State
Liability Act No.20 of 1957
. In its preamble, that Act provides as
follows:
“
To consolidate
the law relating to the liability of the State in respect of acts of
its servants.”
[19]
Section 1 reads as follows:
“
Claims
against the State cognizable in any competent court –
Any claim against the
State which would, if that claim had arisen against a person, be the
ground of an action in any competent
court, shall be cognizable by
such court, whether the claim arises out of any contract lawfully
entered into on behalf of the State
or out of any wrong committed by
any servant of the State acting in his capacity and within the scope
of his authority as such
servant.”
[20]
And section 2 reads as follows:
“
Proceedings to
be taken against Minister of department concerned -
(1)
In any action or other proceedings instituted by virtue of the
provisions of section one, the Minister
of the department concerned
may be cited as nominal defendant or respondent.
(2)
For the purposes of subsection (1), “Minister” shall,
where appropriate, be interpreted
as referring to a member of the
Executive Council of a province.”
[21]
The issue of the citation of a Minister of a state department
received attention in the context of an enforcement of
an arbitration
award that had been made an order of Court by the Labour Court, in
the Labour Appeal Court case of
Minister of Health &
Another v Bruckner (2007) 28 ILJ 612 (LAC).
In that
judgment where Zondo JP and Comrie AJA concurred with the decision of
McCall AJA, the Court held that:
[42] . . .
That intention is repeated in
s 1
of the
State Liability Act. The
purpose of
s 2
of the
State Liability Act, and
its predecessor (Crown
Liabilities Act 1 of 1910), is to permit a party bringing an action
against the state to cite the minister
of the department concerned or
a member of the executive council of a province as nominal defendant
or respondent. This does not
mean that an action may only be brought
against the state or a province by citing the minister of the
department concerned or a
member of the executive council for, as
pointed out by Nugent JA in Kate on appeal, the government itself can
be cited as defendant
or respondent.
[43] The
purpose of
s 3
of the
State Liability Act is
to provide that where,
in actions against the state, a minister (as defined) is cited as the
nominal defendant or respondent, and
a judgment or order is made
against the minister as nominal defendant or respondent, no
execution, attachment or like processes
may be issued against the
minister in his or her personal capacity or against the property of
the state.
[44] The
State Liability Act is
not a bar to bringing an action against a
public official or functionary (including a minister), for an order
to compel that official
or functionary to fulfill an obligation
imposed upon him or her by law. Such an action is an action against
the public official
or functionary concerned and not an action
against the stat.”
[22]
In the light of the above authority, it is my view that the
respondent’s point
in limine
stands to be dismissed. I
now proceed to consider the case of the applicant, which in my view
turns around the issue of the speed
at which the applicant instituted
these proceedings.
[23]
In urgent applications the burden to persuade the court to dispense
with the forms and service provided for in the Rules of
the Court
rests with the applicant. In this respect the applicant has to
persuade the court as to why his or her case should be
given
preference over other cases that are awaiting dates for enrolment. In
this regard
rule 8(2)
of the Rules of the Labour Court requires that
an urgent application be supported by an affidavit which inter
alia,
must state:
“
(a)
The reasons for the urgency and why urgent relief is necessary;
(b)
The reasons why the requirements of the rules were not complied with,
if that is the case; and
(c)
. . . .”
[24]
It is common cause that the applicant was suspended on the 26
th
August 2009 and only instituted these proceedings on 15
th
September 2009. It is also common cause that the applicant was
informed of the initiation of disciplinary proceedings against him
in
June 2009. There is no explanation in the applicant’s founding
affidavit as to why it took the period from the 26
th
August 2009 to the 15
th
September 2009 to institute these
proceedings. In his founding affidavit the applicant states that:
“
16. My
suspension is procedurally irregular, serves no useful or legitimate
purpose and is wholly unjustified in the circumstances.
I am
obviously being severely prejudiced by the suspension and am being
precluded from performing my services at the hospital.
My suspension
clearly can only serve their ulterior purpose of intimidating me and
punishing me for having made the protected disclosure
in my letter of
22 August 2008. As such, my continued suspension is unlawful and in
violation of my fundamental rights, including
the right to fair
labour practices, human dignity, freedom of expression and
occupation.
17. Given the
circumstances set out above, the matter is obviously urgent and it is
also in the beat interests of the hospital
that this matter be dealt
with as one of urgency and without any further delay. It is the most
apposite, just and expeditious course
in the circumstances to
approach the Honourable Court on an urgent basis to protect my
rights. I am suffering severe prejudice
as a result of my unlawful
suspension due to the negative connotation attached to the suspension
in general and the affront my
good name, reputation and dignity in
particular resulting from being precluded from performing my
professional duties. The delays
inherent in any course of action
would render the effective protection of my fundamental rights
nugatory.
18.
I have attempted to resolve this matter by means of corresponding
with the Department via my attorneys
of record requesting that my
suspension be lifted in view of the irregularities involved and the
fact that my suspension is completely
unnecessary and unjustified. .
. .”
[25]
In response to paragraph 40 of the answering affidavit of the
respondent where the issue of the urgency of the matter is raised,
the applicant deals mainly with the prejudice to his rights arising
out of the suspension and the disciplinary inquiry. The applicant
does not deal with issue of the time it had taken to institute these
proceedings.
[26]
Mr Potgieter for the applicant argued that in considering the time it
has been taken to institute the proceedings, account
should be taken
into account the objective factors that applied after 2
nd
September 2009. The submission in this respect is that the applicant
was trying to engage the respondent with the view of resolving
the
problem and that the delay was not so unreasonable to justify refusal
to provide the applicant with the relief he is seeking.
[27]
In my view the applicant has failed to discharge his duty of showing
why his matter deserves a preferential treatment over
other matters.
As indicated earlier the notice of suspension is dated the 26
th
August 2009, which the applicant apparently received on the 27
th
August 2009. It is clear that the applicant’s attorneys did
nothing after the letter of the 31
st
September 2009, until
the 15
th
September 2009. There is no merit in the
submission that the applicant was still awaiting a response from the
respondent in particular
regard being had to the fact that the
applicant had in his letter of the 31
st
September placed
the respondent on specific terms that failure to comply with the
demand, that the suspension be uplifted, will
result in an urgent
application being instituted without further notice.
[28]
The other suggestion by Mr Potgieter that the period for consultation
and preparation of the papers should also be factored
into the delay,
does not assist the case of the applicant in that it does not derive
support from the objective facts and circumstances
of this case. It
is essential that a party seeking an indulgence that he or she takes
the Court into his or her confidence by disclosing
all relevant facts
to assist the Court in exercising its judicial discretion fairly and
justly to both parties. The applicant has
not in the present instance
stated in its papers in what way could consultation and the drafting
of the papers have contributed
to the delay in bring the application
earlier. Even the submission made from the bar did not take this
issue further than that
it was important to take into account the
period of consultation and the drafting of the papers. The facts as
setout in the founding
affidavit of the applicant are straight
forward, and the notice of motion including the founding affidavit
consists of only twelve
pages. In the facts setout in the founding
affidavit are no different to those set out in the letter dated 31
st
August 2009. In my view regard being had to the contents of the
letter of the 31
st
August the applicant could quite easily
have brought this application much earlier with very little effort in
as far as preparation
of the papers was concerned. The reading of the
letter and the founding affidavit, indicates very clearly that
comprehensive consultation
had already been done at the time the
letter was issued on 31
st
August 2009.
[29]
The same applies to the issue of the issue of the claim for protected
disclosure. The applicant knew on the 11
th
June 2009 about
the disciplinary inquiry that would be conducted against him. The
charges that would be proffered against were
formulated in that
letter, and what remained was the date of the hearing. The applicant
did nothing about this until 15
th
September 2009.
[30]
In my view, for the above reasons the applicant’s application
fails because of lack of urgency. I however do not believe
based on
the authority of
NUM v East Rand Gold And Uranium
[1991] ZASCA 168
;
1992 (1) SA 700
(A),
that costs should follow the results.
[31]
In the premises the following order is made:
1.
The applicant’s application is struck off the roll.
2.
There is no order as to costs.
_______________
Molahlehi
J
Date
of Hearing :
2
nd
October 2009
Date
of Judgment :
8
th
October 2009
Appearances
For
the Applicant :
Adv Potgieter SC
Instructed
by :
Bagraims Attorneys
For
the Respondent: Adv R Nyman
Instructed
by :
The State Attorney