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[2010] ZALCJHB 373
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Volschenk and Another v Morero and Others (J2247/2010) [2010] ZALCJHB 373 (10 November 2010)
IN
THE LABOUR COURT OF SOUTH AFRICA
(HELD
AT JOHANNESBURG)
CASE
NO: J 2247-2010
In
the matter between
VOLSCHENK,
B
1st
Applicant
VAN
DER WESTHUIZEN, E.
F 2nd
Applicant
and
MORERO,
SELLO DADA
N.O. 1st
Respondent
THE
CITY OF
JOHANNESBURG 2nd
Respondent
CITY
POWER JOHANNESBURG (PTY)
LTD 3rd
Respondent
JUDGMENT
LAGRANGE,
J
Background
1.
This matter was heard on an urgent basis. It was opposed by the
second respondent, the City of Johannesburg. My brief reasons
for the
order are set out below.
2.
The two applicants are seeking an interdict staying disciplinary
proceedings pending a review of a ruling of a chairperson of
the
disciplinary enquiry denying them legal representation in the form of
an attorney and, or alternatively, an advocate.
3.
It is
common cause that a chairperson of an enquiry must consider such a
request notwithstanding the provisions of the disciplinary
code,
which do not provide for legal representation. All this means is that
he must exercise his discretion on the issue when it
is raised. The
essential requirement by which the need to permit legal
representation is evaluated is whether fairness necessitates
it.
[1]
4.
In terms of the disciplinary code and procedures which are applicable
to the proceedings, the employees are entitled to be represented
by
trade union representatives, who are not confined to shop stewards
but include union officials, who might be full-time paid
employees of
a union. They declare they have no confidence in union representation
without attempting to justify this subjective
belief with reference
to objective factors. The employer is represented in the enquiry by
an admitted and practising attorney.
Existence
of a
prima facie
right
5.
The applicants believe that the circumstances of the enquiry are such
that the chairperson ought to have exercised his discretion
to permit
legal representation in their favour. In support of this they cite
the following reasons:
5.1. The
employer is making use of a legal professional and there would not be
‘parity of arms’ if they
could not engage such expertise
in their own defence.
5.2. They
believe the matter is complex. In this regard they cite the fact that
they are facing a charge of fraudulently
misrepresenting City Power
by writing off several accounts without the required supporting
documentation and/or authority causing
City Power a financial loss in
the region of R 6 million. Alternatively, they were accused of
causing such loss by being negligent
or dilatory in their duties in
writing off the accounts without the necessary authorizations. Apart
from the value of the alleged
loss they point out that transactions
in question involve 93 separate transactions.
5.3. They
were initially charged criminally and though these charges were later
withdrawn without explanation, they
could be reinstituted.
5.4. There
was a suggestion that the case might entail evidence by accounting
experts and they would be disadvantaged
in dealing with such expert
evidence.
6.
In evaluating these reasons I am compelled to look only at the merits
of the applicants’ claims as they appear on the affidavits,
because I do not have the reasons why they were refused legal
representation before me.
7.
On the question of the complexity of the matter, it appears that
although there may be many instances of impugned transactions,
the
essential question in each case is whether amounts were written off
without the necessary authority or supporting documentation.
The applicants have been employed for several years in the billing
department of the respondent. On the face of it, the factual
basis of
the allegations is one that they ought to be able to deal with on the
basis of their working knowledge of the billing
procedures. If
the employer deluges them with significant amounts of documentary
evidence in the course of the enquiry, which
they need to peruse and
consider, that is something that can be dealt with by way of requests
for postponement and, or alternatively
timeous discovery of the
documents in question, if justified.
8.
At this stage, there is no indication that a forensic expert will be
used. Should that occur, the applicants might wish to call
a similar
expert to assist them. There is no reason why the question of legal
representation might not be revisited if that occurs,
but there is
insufficient evidence before me now to assume that such witnesses
will testify, or that they will be unable to deal
with the evidence
of such witnesses based on their own knowledge of the billing
system. Judging by the applicants’
own account of
their interaction with the employer’s internal investigator, Mr
Mkhonza, they were able to deal with the allegations
against them,
even to the extent that they explained to him how the billing system
worked.
9.
The fact that the cumulative effect of the charges involves a large
amount is not in itself a factor which demonstrates that
legal
counsel is required. The most serious prejudice the applicant’s
face in consequence of the outcome of enquiry is dismissal,
not a
civil judgment debt. This is the same prejudice facing employees
implicated in dishonest conduct involving even small amounts
of
money.
10.
On the question of the whether legal expertise is required to deal
with questions of fraud and the like, such charges
against employees
are commonplace and in my view is also not an issue necessitating
legal expertise to address it. In so
far as the charges might
involve evaluating the intent of the employees, that is matters
within the knowledge of the employees
and on which they should be
able to give evidence without difficulty and be able to defend
themselves.
11.
Criminal and disciplinary proceedings are distinct and the result of
one may not be relied on in the other proceedings.
To the extent that
the applicants may not wish to make any incriminating statements they
may exercise their right not to give evidence
(See,
Fourie v
Amatola Board
(2001) 22
ILJ
694 (LC)
at 696
-7,
[7] –[11]). It is not uncommon for employees
facing charges involving loss or damage to an employer’s
property to also
face actual or potential criminal charges.
12.
On the
question of ‘parity of arms’ raised by the applicants, it
must first be noted that in having the right to representation
by a
full time union official, the applicant’s rights to
representation are more extensive than those provided for in the
LRA,
which do not go beyond the right to representation by a union shop
steward.
[2]
There is no
restriction on the expertise that such a union official may possess.
The main authorities on the question of
legal representation in
internal enquiries do not dictate that there must be parity between
the ability and expertise of representatives,
but only that the
procedure should be fair.
[3]
Whether that might necessitate legal representation will depend on
the particular factual circumstances which demonstrate that
an
exception to the rule is justified. In the circumstances of
this matter, I do not believe the applicants would be deprived
of a
fair hearing if they were only able to use a union official as their
representative.
13.
Accordingly, I am not satisfied that the applicants have laid
sufficient facts before the court to conclude that this
is a case in
which they have a
prima facie
right to be allowed legal
representation on a proper exercise of the presiding officer’s
discretion.
Threat
of irreparable harm
14.
I am also not persuaded on the evidence available that the applicants
will suffer irreparable harm in the conduct of their
case if they
cannot be represented by a legal representative as opposed to a trade
union official, given the apparent factual substratum
of the charges
and the level of skill an average union official might ordinarily be
expected to display in defending members in
an enquiry.
Balance
of Convenience
15
.
The prejudice to the respondent of the enquiry being delayed, for
what is likely to be a considerable period of time pending the
outcome of a review, compared to the prejudice to the applicants in
the event they are vindicated on review but denied interim
relief, is
much greater in my view, not least because it will have to continue
paying the applicants’ salaries while the
enquiry is stalled,
whereas the ramifications for the applicants if the ruling is set
aside might be far reaching. Accordingly,
the balance of convenience
favours the respondent.
16.
In the
circumstances, the applicants have not made out a case for interim
relief which would justify the court interfering in incomplete
internal proceedings.
[4]
Order
17.
In the circumstances, the application for interim relief suspending
the enquiry pending the outcome of a review of the
chairperson’s
ruling refusing legal representation is refused.
18.
No order is made as to costs.
ROBERT
LAGRANGE
JUDGE
OF THE LABOUR COURT
Date
of Hearing: 08 November 2010
Date
of Judgment: 10 November 2010
Appearances
For
the Applicants: J F Steyn instructed by A C Nothnagel Attorneys
For
the Respondent: V P Ngutshane instructed by Mdgajwa Attorneys
[1]
See
Majola
v MEC, Department of Public Works, Northern Province &
others
[2004]
1 BLLR 54
(LC)
at
54, [1] and, more recently,
MEC:
Department of Finance, Economic Affairs & Tourism, Northern
Province v Mahumani
(2004)
25
ILJ
2311 (SCA) at
2315,[11]
[2]
See
Labour Relations Act, 66 of 1995
, Schedule 8, Code of Good Practice:
Dismissal, Item 4(1)
[3]
Hamata
& Another v Chairperson, Penninsular Technikon Internal
Disciplinary Committee & Others
(2002) 23
ILJ
1531 (SCA
)
at 1536,[11] and 1539, [23] on the application of the principle in
the context of administrative tribunals and applied in the
context
of disciplinary enquiries in
MEC:
Department of Finance, Economic Affairs & Tourism, Northern
Province v Mahumani
(2004) 25
ILJ
2311 (SCA)
at 2315,[11]
[4]
See
Booysen
v Minister of Safety and Security and Others
(
CA
09/08, dated 01/10/2010
)
unreported LAC judgment, at par [54].