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[2010] ZALCCT 47
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Police and Prisons Rights Union (POPCRU) and Others v Department of Correctional Services and Another (C544/2007) [2010] ZALCCT 47 (11 May 2010)
IN THE
LABOUR COURT OF SOUTH AFRICA
HELD AT
CAPE TOWN
CASE
NO.: C544/2007
Reportable
In the matter between :
POLICE AND PRISONS
RIGHTS
UNION
(POPCRU)
............................................................................................................
First
Applicant
LEBATLANG
E.J.
…....................................................................................................
Second
Applicant
NGQULA
T.R.
…..............................................................................................................
Third
Applicant
KAMLANA
L.T.
….........................................................................................................
Fourth
Applicant
JACOBS
C.
…....................................................................................................................
Fifth
Applicant
KHUBHEKA
M.W.
…......................................................................................................
Sixth
Applicant
and
THE DEPARTMENT OF
CORRECTIONAL
SERVICES
.......................................................................................................................
First
Respondent
AREA COMMISSIONER :
POLLSMOOR
MANAGEMENT
AREA
............................................................................................
Second
Respondent
JUDGMENT
Cele J
Introduction
[1] The Applicants seek an
order declaring that the dismissal of the second to the sixth
applicants was automatically unfair as
contemplated by section 187(1)
(f) of the Labour Relations Act no 66 of 1995 (the Act) and/or that
their dismissal amounted to
unfair discrimination, on the basis of
their religion and culture, in terms of section 6 of the Employment
Equity Act no 55 of
1998 (the EEA). In the alternative, the
applicants seek an order that their dismissal was substantively and
procedurally unfair.
They seek compensation and/or
damages in respect of their dismissal. In addition,
they seek retrospective reinstatement
into the posts that they held
prior to their dismissal and an order declaring that the Department’s
Dress Code with particular
reference to a failure or refusal to cut
dreadlocks is unconstitutional. Further, the applicant contended that
the chairperson
of the internal disciplinary hearing was biased
against them when he refused to allow them to be legally represented
in a matter
involving constitutional issues and after the initiator
had shown that he was not opposed to such legal representation.
[2] The respondents opposed
the claim by contending that, the claim that the dismissal of the
second to sixth applicants was automatically
unfair in terms of
s 187(1)(f) of the LRA, is simply not borne out by the
evidence. The reason for their dismissal had
nothing to do with
discrimination or unfair discrimination. They were dismissed
because they failed to comply with the Dress
Code. The same
would have happened to the four correctional officers who complied
with the Dress Code by cutting their hair,
had they not carried out
the instruction to attend to their hairstyles.
[3] Furthermore, the
disciplinary action against the applicants was but one step in the
enforcement of departmental policies which
happened when the second
respondent assumed duty at Pollsmoor in January 2007. In
addition, the Dress Code – as the
applicants themselves concede
– applies equally to all members of the Department, regardless
of their religion or culture,
and does not have a disparate impact on
any member or class of members, on the grounds of religion or
culture. For the same reasons,
the applicants’ claim under the
EEA must fail.
[4] There is accordingly no
basis for an order that the Department pay damages for
discrimination. The applicants were treated
fairly. They
were not entitled to legal representation in terms of resolution 1 of
2006. They were legally represented
by Mr. Casner, an advocate
with experience in defending employees of the Department.
[5] In any event, the
decision refusing them legal representation was reasonable.
They walked out of the disciplinary hearing
with full knowledge and
appreciation of the consequences. Their claim that the
chairperson was biased has no merit.
They themselves say that
the alleged bias is based simply on the fact that the chairperson
disagreed with their representative.
Their appeals could not be
considered becaUse they did not`furnIsh any grounds of`appeal,
despite being requested to dO so on mnRe
than one occasion.
Consequently their dismiSsal was rightly confirmed.
[6] The constitutionaL
attack on the Dress Code is misConceived. It was wholly
inadequately pleaded. In addition, the
applicentw have
sought`to attack the entire Dress Code without any idEntIfication of
its unconstitutional featureS, any identification
ofthe
constitutional provisions`which it is said to contravene, or indeed
any explanation at all of the way in which the Dress
Code is alleged
to be unconstitutional.
Background
facts
[7] The
second to the sixth applicants henceforth referred to as the
applicants were in the employ of the first respondent, hereafter
referred to as the Department or the employer as Correctional
officers based at Pollsmoor Prison. They were members of the first
applicant, the union. Whilst in the employ of the Department and in
the course of carrying out their duties, the applicants wore
dreadlocks. The Area Commissioner of Pollsmoor Prison in 2007 was the
second respondent.
[8] On 19 January 2007 the
second respondent issued a written instruction to the applicants as
well as other correctional officers
in the Department, to comply with
the Dress Code by attending to their hairstyles. These officers
were also requested to
advance reasons on or before 25 January 2007,
why corrective action should not be taken against them in the event
that they did
not comply with the written instruction. Four
correctional officers complied with the instruction by cutting their
hair.
The applicants refused to carry out the instruction.
[9] On 15 February 2007 the
second respondent addressed a letter to the applicants, stating that
their conduct amounted to a failure
to carry out a lawful order or
instruction without just or reasonable cause. They were also
informed that management was
contemplating their suspension from
duty. They were required to submit reasons why they should not
be suspended. They made
written representations concerning their
suspension to the second respondent. The second, fifth and
sixth applicants contended
that they wore dreadlocks for religious
reasons as they were Rastafarians. The third and fourth
applicants stated that they
had worn dreadlocks for cultural reasons.
Notwithstanding their explanations, on 2 February 2007 they were all
suspended from duty
with immediate effect, pending a disciplinary
inquiry.
[10]
At their disciplinary hearing on 4
June 2007, Mr. Casner, an advocate, and Mr. Arendse of the union,
represented the applicants.
They argued that the applicants
were entitled to legal representation based on the provisions of a
collective agreement, Resolution
1 of 2006. The chairperson
declined the request for legal representation. Mr. Casner then
asked the chairperson to
recuse himself on the ground of bias.
The application for recusal was refused. The applicants then
walked out of the
hearing.
[11] After the proceedings
were adjourned on 4 June 2007, the initiator wrote to the applicants
advising them that the hearing had
been postponed to the next day and
that if they did not turn up at the hearing, it would continue in
their absence. On 5
June 2007 the hearing was again postponed
to 7 June 2007. The applicants were again represented by Messrs
Casner and Arendse.
They walked out of the hearing a second
time when the chairperson affirmed his decision regarding recusal.
The hearing proceeded
in their absence and all five applicants were
found guilty and were dismissed with immediate effect, for failing to
comply with
the Dress Code by wearing a dreadlocks hairstyle while on
duty. They were advised in writing of their right to appeal
against
that decision.
[12] On 3 July 2007 the
applicants noted an appeal against the chairperson’s decision
but they did not submit a detailed motivation
of the grounds of
appeal, as required by Resolution 1 of 2006. On 17 July 2007
they were again informed in writing and orally
that they had to
submit written grounds of appeal. They failed to do so.
Their appeals were consequently not considered
by the Department and
their dismissal was confirmed.
The
evidence
[13] While the dismissal of
the applicants by the Department was common cause, the respondents
denied that discrimination was ever
the basis for it. The applicants
were then settled with the onus of proving the facts in support of
the alleged discrimination.
The five applicants testified in their
case and they further called three more witnesses. Six witnesses
testified for the respondents.
1.The version of the
applicants.
1.1Thamanqa Russel
Ngqula
[14] Mr Ngqula testified
that he was an HRD practitioner in the human resource department and
had been in this job since 2003 up
to his dismissal in 2007. He
only interacted with offenders at weekends twice a month His
qualifications included a B.Tech
in human resource management.
[15] He began growing
dreadlocks in April 2001 because of his calling to become a
traditional healer. The calling had started when
he began to have
dreams in 1993. These dreams involved African dancing, and
there were voices that told him that he needed
to be part of this
calling. He asked his elders to interpret the dreams. In 1993
when he woke up he found that his hair was
cut on the back side and
this again happened in 2001 when he heard the voice that was saying
“
Thamasanqa we have dreaded you so that you should accept
the calling”
.
[16] His mother had been
called to be a traditional healer in 2000. Eventually in 2001
after speaking with his mother she
referred him to her mentor. In the
process of accepting the calling he changed his surname from his
mother’s surname Ntsasa.
He reclaimed his father’s
surname Ngqula, and he had to go to the Eastern Cape where a ritual
took place which included amongst
other things the slaughtering of
goats, and speaking to his ancestors in the kraal to accept him. That
ritual took place in 2002,
and then in 2003 another ceremony took
place. He was unable to give the precise dates of the rituals
performed in respect of his
calling in December 2002. However he
stated that he was there for two weeks The ritual in 2003 was also
held in December. However
he stated that he was there for two weeks.
It marked the acceptance of the calling in the Eastern Cape. His
mother’s mentor
was in charge of the rituals and consultation
with the elders of his family. The question of the timeframe during
which he was
required to wear dreadlocks was determined by his mentor
and this was determined to be up to December 2007. His dreadlocks
were
shaved in December 2007.
[17] Mr. Ngqula was shown
his record of service by counsel for the Respondents and to his leave
record. He was called to explain
why these records did not
reflect the two weeks holiday he had testified to taking in December
2002. Mr. Ngqula explained
that what he could recall was
that five days of the period were composed of national public
holidays as well. With those
days included, the period amounted
to about 10 days on the basis of the documents presented. In respect
of 2003, he stated that
he worked at the prison up to and including
the weekend of 16 December so that he could take his days off.
He had accumulated
a couple of days off. The time off, public
holidays and three days in which he took sick leave covered the
period during
which he was away. He stated that the “days
off” were not recorded in the persal system. He said that
they are recorded in the register. He requested counsel to make
available the information in the register. He said that the
register
was the Z168 which indicated whether one was on duty or not, whether
one was on vacation leave or took days off.
[18] When he faced
disciplinary charges relating to his dreadlocks he told the
respondents that he would be cutting them in December
2007. From
2001, until facing the disciplinary charges in 2007, none of his
superiors in the Department commented on his dreadlocks
except for
his supervisor who said that the dreadlocks looked neat.
[19] He referred to the
letter he had written to Respondent to explain the wearing of his
dreadlocks after receiving a complaint
from the Second Respondent.
In the letter he set out that he had received the calling in 2001 and
referred the Second Respondent
to the name of his mentor who could be
contacted to confirm the calling. The letter stated that all he
was asking for was
the Department to “
respect my culture as
an African and to allow me to fulfil my calling”
. He
informed the Respondents that his hair would be cut in December 2007.
[20] In early 2006 he had
been nominated by the Director of Corporate Services, Pollsmoor
Management Area, to participate in the
drafting of a new dress code
policy which was more in line with the Constitution of South Africa.
He stated that part of
a document entitled “Chapter 27”
that was presented to those at the workshop made an example about
“Rastaman”
hairstyle. He stated that Chapter 27 as
discussed was not a finalised policy but a draft. He mentioned at the
group discussion
on the draft policy that the term Rastaman hairstyle
was demeaning to other religions.
[21] When it was put to Mr.
Ngqula that a Mr Opperman would give evidence that he had told Mr.
Ngqula that he would have to explain
his dreadlocks at the workshop,
he said that he did not remember that and that the workshop was about
refining the draft dress
code policy to be in line with the White
Paper. It was also put to him that Mr. Opperman would testify
that Mr. Ngqula was
asked to explain his dreadlocks at the workshop
and that his explanation was to the effect that the Constitution gave
one the right
of freedom of speech and association. Mr. Ngqula
testified that Mr. Opperman must have misunderstood him. What
he had to
do at the workshop was not to explain his personal
situation, but part of the input he gave at the workshop was that it
was a workshop
whereby everybody was free to air his views to
contribute to refining of the document. Mr. Ngqula further
denied that other
members of the workshop had disagreed with what he
was saying. It was a debate that took place at the workshop.
Mr. Ngqula
denied that Mr Petersen had told him that his braids were
not according to the dress code. He further denied that Mr.
Opperman
was correct that he only wore dreadlocks from 2004.
Mr. Ngqula stated that he interacted closely with Mr. Opperman as
from the time he was at Pollsmoor Prison, from 2003. He
already had dreadlocks. He conceded that he had not disclosed
to
anybody at Pollsmore Prison that he had received the calling. He did
not think it necessary. It was something that was within
him.
[22] In answer to questions
from Court regarding his calling, Mr. Ngqula explained that he was
specialising as a fortune teller
and prophet, and that the nature of
his calling did not include the regalia of a Sangoma, and that
according to his mentor, the
wearing of the beads depended on whether
one dreamt about the beads or not. It was not something one was
compelled to do.
He further explained that the main purpose of
his calling was to ensure that he was living a healthy life and that
he did not have
the intention of having a “surgery”, just
responding to the calling, and he was exempted from practising as a
Sangoma.
Although he did not have a “surgery”, if
someone needed his wisdom he was there to assist that person
depending on
what his ancestors were saying. On asking whether
he was possessed when he got the calling, he said that he was not,
but
what came to him were things that he was shown by his ancestors
in the dreams that he could not explain. Court further
asked him if he was not possessed and for example making strange
noises during the time that he was resisting the calling..
Mr. Ngqula stated that the only thing that he could recall was that
he kept on having a terrible headache. He said that although
he had
received the calling he was still active in the Presbyterian Church
of Africa and that his calling did not clash with Christian
principles.
[23] Mr. Ngqula testified
that there were five women correctional officers wearing dreadlocks
that he knew of, one of whom was Ms
Mjobi from Medium B, a
traditional healer. The women wore their dreadlocks without a cap
most of the time. He said that he only
wore a cap when he found that
his dreadlocks were not neat and presentable.
[24] He referred to clause
5.1.1 of the dress code relied upon by Respondent at the disciplinary
hearing of the Applicants, in particular
the clause which stated that
the guidelines are laid down for the hairstyle of all departmental
officials and in judging whether
officials hairstyles are acceptable,
neatness was of an overriding importance. He further referred
in his evidence to a “final
draft” of the Respondent’s
policy approach to corporate wear, in particular that its aims were
to “
deal with the challenges which are being encountered
around issues of corporate wear, that is inflexibility in
accommodation issues
of diversity which is religious, gender and
cultural”.
[25] Mr
.
Ngqula conceded that when he
joined the Department he knew there was a disciplinary code and there
was a dress code.
He further agreed that the uniform indicates
that all correctional officials are from the same organisation.
Mr. Ngqula
agreed that in 1998 he knew that the wearing of dreadlocks
would have been against the dress code, but stated that in 2001 he
was
not sure if the code was in place because of the fact of the
White Paper, and documents that were in the pipeline. He
further conceded that the dress code applies equally to all of the
different cultures in the department. Mr. Ngqula persisted
with
his view that the policy was not in line with the Constitution of
South Africa because it contained an element of discrimination.
He
referred to the transcript of the disciplinary enquiry discovered by
the respondents, which included the testimony of his immediate
supervisor, Ms Ngoma. She was asked whether she knew about the
dress code of the department and had stated that:
“
I
don’t think there was a dress code because the last time I
remember there was a session I think in 2005 where there was
a
discussion about the dress code, which Mr Ngqula also formed part of
those discussion. Their formulation a policy
around dress
code. So that is as far as I know. I don’t hear
that the policy was finalised”
.
(sic) Ngqula said that Ms Ngoma was the acting head of the
human resources department.
[26] As regards the issue
of drugs being smuggled into correctional centres, Ngqula testified
that of those officials that he knew
about who had been caught for
this crime, none of them were wearing dreadlocks. He further
confirmed that not just dagga
but other drugs such as cocaine and tik
were smuggled into the prison. To his knowledge those who
were trying to smuggle
drugs in could conceal the drugs in their
bags, jackets and even under their hats. He stated that
all Correctional
Service officials were liable to random searches.
Mr. Ngqula testified that he did not regard his dreadlocks as a risk
in terms
of his personal security.
[27] With regard to the
investigation into his alleged misconduct, Mr. Ngqula testified that
the investigator, Mr Manyamati, interviewed
him for 5 minutes and
asked 3 questions. He had stated in his sworn statement
that he did not know the correct procedure
to follow in order to wear
dreadlocks. He even asked the investigator during the
interview what the procedure was but
he would not give him that
information. Mr. Ngqula was adamant that the sworn statement he had
made before the investigator did
not indicate that he knew the
procedure to follow in regard to asking permission to wear
dreadlocks. His letters to the second
respondent were not guided by
procedures that he was familiar with.
[28] In as far as the
decision by applicants to withdraw from the disciplinary hearing was
concerned, Mr. Ngqula testified that
they asked to have legal
representation because they felt their case was a constitutional
issue and they would be better served
to have legal representation.
He said that after a discussion with the initiator of the
disciplinary hearing, Mr Manyamati,
the initiator had agreed that
legal representation was to be permitted. He said that the decision
by the applicants to withdraw
from the disciplinary hearing was due
to their apprehension of bias on the part of the chairperson.
[29] Mr. Ngqula said that
he submitted a notice of appeal after the finding that he should be
dismissed in which he gave his reasons
as procedural and substantive
unfairness, and asked for reinstatement or a properly constituted
disciplinary hearing that was of
an unbiased chairperson. He had
spoken to the labour relations officer to ask for the verbatim
minutes or the transcripts of the
minutes that were taken during the
hearing, which had taken place in his absence in order that he and
his fellow applicants could
see the whole details of the case and
identify areas that they could quote when doing detailed grounds of
appeal. The transcript
was not made available to them and the first
time they saw it was when it was with his legal representatives. In
relation to the
applicable guidelines regarding the right to obtain a
transcript of the disciplinary enquiry, Mr. Ngqula stated that the
applicants
had gone to one of the union members to find these.
The guidelines in respect of Resolution 1 of 2006, stated clearly in
sub-section (g) that the verbatim minutes shall be available within
10 working days so that the Applicants could give detailed grounds
of
appeal.
[30] In regard to his
post-dismissal situation, Mr. Ngqula testified that he had found a
job in September 2007 at the Department
of Public Works.
However, from September 2007 until February 2008 he was not earning a
salary because the persal system indicated
that he had been
dismissed. Public Works had investigated the matter with
Correctional Services and the Director-General
of Public Works had
finally approved the unblocking of the dismissal code. He had
assisted in processing the unblocking.
[31] He said that on the
11
th
October 2007, he had faxed his suspension letter and
the reasons why he should not be suspended, the notification of
dismissal,
the finding of the disciplinary hearing and the notice of
appeal and dismissal letter to his head office. His
interaction
with the Department of Public Works on this problem had
been directed to a Deputy Director at head office. On being shown a
letter
which had been discovered by the Respondent from the Cape Town
Department of Public Works, which suggested that Mr. Ngqula had not
been co-operative regarding the circumstances of his termination, he
explained that this must have been a misunderstanding or a
communication breakdown because the writer of the letter had never
interacted with him regarding the problem.
He
said the fact that he was not paid for 5
months had a major effect on his house bond and his ability
to
maintain his daughter and support his family. In addition
it led to a break in service of his employment with the
Public
Service which affected his pension. He said that he did not wish to
be reinstated in the employ of the Respondent.
[32] He conceded that when
he applied for the job at Public Works he did not disclose the fact
that he was suspended. When he applied
he had not yet received
confirmation of his dismissal because the appeal was still in
process. It was his understanding that
during the appeal
process he would still be able to have an opportunity to resign.
On this basis he did not see any need
to disclose the dismissal while
there was an appeal still pending. He testified that on the 10
th
September 2007, when he arrived in the regional office of the
Department of Public Works he went to the Deputy-Director and
disclosed
the matter of his dismissal and stated that he had been
dismissed by Correctional Services but that he was pursuing the
matter
through the CCMA.
[33] In regard to the
curriculum vitae that he submitted to the Department of Correctional
Services which he made available to Court,
he confirmed again that he
did not indicate that he had been dismissed from Pollsmoor. He
reiterated that at the time he
sent the application for employment he
was not dismissed and the disciplinary processes were still ongoing.
1.2
Eganamang James Lebatlang
[34] He explained that when
he joined the Department of Correctional Services the
demilitarisation process was in place, and even
the instructors at
the college were not sure if they were suppose to use the old system
of training or which one to follow.
He stated that that
is why there was this confusion about the policy of the department
and the dress code. At college they
were given uniforms and
told how to wear the uniform and how to look as an ideal correctional
officer. When he had
signed his oath of office and
assumed duty on 7
February 1997, he knew the dress code
applied just by seeing how his colleagues were dressed. He did
not know there was a
written code.
[35] He said that he worked
at Boksburg Prison, between August 1998 and September 2002 and was
thereafter transferred to Pollsmoor
Prison. He stated that he
could not recall whether there was any official that had dreadlocks
in Boksburg but that correctional
officials, over the 4 years he was
there could wear their hair as they wished. He was asked if he had
worn dreadlocks at Boksburg
whether it was fair to say that he would
have been disciplined, and he stated that he could not answer that
because he did not
know. Mr. Lebatlang said that in Boksburg he
worked under a Mr Magagula who was the head of the correctional
centre. He did not
know that Mr Magagula was an Orlando Pirates
supporter as he was not socialising with him. He denied that he
shared a mutual
friend with Mr Magagula, as his friend Mr. Terence
Mahlangu was not a friend of Mr Magagula. He denied that he had
various discussions
with Messrs Magagula and Mahlangu regarding the
football games.
[36] He testified that he
had worn dreadlocks for approximately 4 years as from late 2003.
Nobody had raised any problem from management
regarding his
dreadlocks before 2007. He began growing the dreadlocks when he
became a Rastafarian. He was aware that the respondent
disputed he
was a Rastafarian, because when he had spoken to his mother a week
before he testified she had told him that she had
visitors from the
Department of Correctional Services who asked her about him and as to
whether he was a Rastafarian and what he
was eating, and they also
told his mother that they had been sent by him to her.
[37] He testified that he
had become a Rastafarian because it practised peace, respect and
love. He had Rastafarians friends, and
he used to sit and discuss
with them and that is when he changed to become a Rastafarian. He
testified that he still met with those
people, and they discussed the
Bible and religion sometimes about twice a month. He followed a
vegetarian diet in which only fish
and vegetables were eaten as per
the Rastafarian religion. As Rastafarians dreadlocks were to be
worn because dreadlocks
were considered as a crown, and were one’s
identity as a Rastafarian. He stated that in Rastafarianism
they observed
Sabbath and whatever was said in the Christian Bible
was followed by Rastafarians so that they celebrate Christmas, Good
Friday
and Ascension Day. He testified that he embraced every aspect
of the Rastafarian culture.
[38] He wore a beanie or
cap sometimes at work, but did not always because nobody had any
problem with his dreadlocks. The beanie
covered his dreadlocks
completely when he wore it. Further, he testified that his dreadlocks
were neat and that he cared for them
in order to ensure they were
neat. Mr. Lebatlang stated that if he had been required to wear
a cap or hat at all times he
would have been definitely prepared to
do so. When he received the letter from second respondent regarding
his hairstyle he wanted
to know what the current policy was regarding
the Department’s dress code but he did not receive a response
to this. He stated
that in basic training they were given a uniform
and told how to wear the uniform and he wore the uniform in service
as required.
[39] He had never had a
special relationship with Rastafarian inmates, and for that matter he
was not working in the prison.
He was only working in community
corrections. In community corrections, he did not work in the centre
with inmates. He merely
met with them at the reception to
interview them there.
[40] Mr. Lebatlang
testified that the reason why he asked for the original dress code
was because he was given a document with the
first letter of
complaint from the second respondent. He had been given this by Mr De
Beer from Pollsmoor Correctional Services.
It was stamped in
Swellendam and was dated 15 May 2002. He was never informed
about a procedure to get permission to get
an exemption from the
dress code. He stated that he always complied with the dress
code of the Department because he was
always dressed in his uniform,
even when he went to Pollsmoor or he was coming back working in his
office he was always dressed
in his uniform and he always wore it
neatly, even after he started to wear dreadlocks. He conceded that he
was aware of the rules
relating to hairstyle and moustaches but saw
it for the first time in writing in 2007. He said that he did not
know the detailed
content of the written dress code before 2007.
He agreed that if there are rules and regulations they must be
observed and
it is no answer for an official to say he can break a
rule because nobody is enforcing it. He said that he was not charged
with
the other applicants and did not attend the first day of the
disciplinary hearing.
[41] He knew women
correctional officers who wore dreadlocks. He knew
several of them wearing dreadlocks while he was
working at
Pollsmoor. He did not know the reason for them wearing
dreadlocks. He referred to one lady working
in labour relations
with the surname of Majuva and also to Ms Mjobe, and two women
working in Medium A reception.
[42] He said that he had
told a journalist who had written an article about this case that he
started wearing dreadlocks when he
arrived at Pollsmoor, and not as
was written in the article, when he started working with the
Department.
[43] He had not been able
to find employment since his dismissal although he had made several
efforts but had not been fortunate
to get a job. He has a wife
and three children. At the time of his employment he was
living in the residence
of the department where he was still staying
because he had no income to stay at any other place. He
wanted to be reinstated
in his post.
1.3
Cowen Jacobs
[44] He had been working
for the department since February 1999 and was employed in Pollsmoor
Female Correctional Centre where he
had various functions including
being an arsenal controller. He started legal studies but had not yet
obtained his legal qualifications,
he had not sat for the final
examination of his LL.B as yet.
[45] He began to grow his
dreadlocks in late 2004 or early 2005. He had been an atheist but in
early 2005 he started a spiritual
battle with himself and his hair
started to grow. Usually he cut his hair when it grew, but he
could not touch his hair and
that is how it started even before he
submitted to ‘’Jah Rastafari”. As a Rastafarian he
attended festivals and
partook in sessions where he read the
scripture, had discussions and listened to teachings of various
elders. The discussions
were about “Jah Rastafari,”
the daily life of a Rastafarian.
[46] He had not received
any official objection to his dreadlocks prior to 2007, and he had
worn the applicable uniform at work
including the official hats when
the need arose. Mr. Jacobs confirmed that the initiator of the
disciplinary proceedings was in
agreement regarding the issue of
legal representation, and that he noted an appeal against his
dismissal. The appeal notice
was dated the 3
rd
July
2007. The document entitled “DCS Disciplinary code and
Procedure DBC resolution 1 of 2006” which was dated 2
nd
of July 2007, had not been seen by him at the time of his
disciplinary hearing nor at the time of his appeal. He had
asked
Ms Mpa of labour relations for the document but she had not
produced it. When he noted an appeal he had not provided detailed
grounds
for the appeal because according to the “DCS
Disciplinary Code and Procedure DBS Resolution 1/2006” the
applicants
had to give a notice of appeal within 5 days, and then
wait for the verbatim minutes of the hearing and to do a detailed
appeal
application. He referred to the clause relating to the right
to receive verbatim minutes for more serious misconduct.
[47] Mr. Jacobs said that
he was aware of a document entitled “guidelines for offenders
belonging to the Rastafarian faith”.
He knew there
were certain services for Rastafarian offenders and there were
specific inmates who made food just for the Rastafarians
in the
prison kitchens. In terms of the guidelines these inmates
were allowed to wear dreadlocks. He himself followed
the Rastafarian
diet known as “Ital”, which included fish, seafood,
vegetarian diets and bread.
[48] The first time he was
told that it was necessary to ask permission to wear dreadlocks was
when he was issued with a letter
in 2007 and went to see the
investigator. It was also during the interview with the investigator
that he was told that he had to
inform the department when one
changed or adopted a particular religion. He asked the investigator
to provide him with the relevant
documentation which he did not give
to him. He said that the document entitled “Chapter
27” which included
the words “Rastaman hairstyle”
was not included in the documents given to him with his suspension
letter.
[49] Mr. Jacobs referred to
the “final draft” document entitled “corporate wear
policy final draft together building
a caring correctional system
that clearly belongs to all”. He referred in
particular to the paragraph that stated
“the department shall
endeavour to provide a special corporate wear upon application to
accommodate religious and cultural
needs where possible. Such
application shall be considered in consultation with the relevant
religious or cultural bodies
and taken into account the security and
financial implication of such request”. He had seen the excerpt
from the alleged
dress code for the first time when given the letter
contemplating his suspension. At college in 1999, he was
informed about
the colour of the uniform and how it must be ironed
but he was never given a document to scrutinise. He was not even
issued with
the uniform at his training college because there were
too many students and there was not enough equipment for everybody.
[50] He had never faced a
disciplinary enquiry during his employment with the Department.
He had applied for a transfer
in 2006 to Goodwood Prison as it would
be easier for him to pursue his studies closer to the university and
his home. The
Department had recommended his further studies
and said it could not stand in the member’s way for a better
career but it
also had to look at its own interest. He was never
given the transfer. In February 2002 his supervisor had described him
as a hard
working disciplined member.
[51] Mr. Jacobs testified
that Correctional Services officials could be searched at random.
In his experience there
were no Rastafarian officials who were ever
arrested for smuggling drugs into the prison. He did not
have a clue regarding
how drugs were smuggled in the Centre except
from the stories and cases he had heard about like being brought in
sport bags, and
even with the bread truck delivery. He said
that the job of a correctional official was risky and dangerous
work. He
had sustained an injury when he had to wrestle with an
HIV positive inmate and that this was the kind of violence any
official
was likely to meet especially at the female facility.
[52] In regard to his
finding employment after his dismissal, he said that he was not
successful in South Africa until his brother
invited him to New
Zealand because they were looking for experienced correctional
officials. He had tried to find work in
South Africa and had
applied to the Department of Justice as a trainer prosecutor but had
not received any reply. In the interim
he had utilised his own
vehicle to drive school children to school just to have some income.
He went to New Zealand in February
2008 and applied at their
Department of Corrections. He had been employed at the
department and had indicated to them that
he had a dispute with his
previous employer and that he had to come back because of that
dispute. He would start his job
in New Zealand in October
2008. He said that at his interview in New Zealand he was put
at ease when he informed them about
the labour dispute and he was
thrilled to hear that not all countries discriminate against the
Rastaman or against their dreadlocks.
[53] When he was asked
whether in his written application for the job in New Zealand, he had
disclosed the fact that he was dismissed
from DCS in South Africa.
Mr. Jacobs stated that he did not disclose that he was dismissed.
He had not kept a copy of his
application and certain of the
documentation relating to the job application were thrown out because
he had stored them in his
brother’s garage and it had been
mixed up with other people’s belongings which were stored in
the garage to be returned
to South Africa. He stated that he
unfortunately did not have a copy of receipt of his application.
He undertook to get a
copy of his application for employment
submitted to Auckland Department of Corrections.
[54] As to whether he had
disclosed that he was a Rastafarian in his application, he said that
the application form did not make
provision for one’s
religion. He said that when he entered the interview room he
tied his hair up but his hair fell
loose. The panellists
comforted him by saying he was not to worry about the hair as they
would not discriminate against his
religion in any way because
hairstyles were not an issue there. As to how a panellist would
spontaneously say he was not
to worry as they did not discriminate
against religion, he said that his features were Rastafarian through
his dreadlocks and his
beard. He stated that a child had once stopped
him in the street in New Zealand and asked to touch his hair and told
him that he
was just like Bob Marley and that anyone could have
recognised him as a Rasta.
[55] Mr. Jacobs maintained
that he was never officially approached regarding his dreadlocks but
that his supervisors Ms Lulama and
Mr Mbuli had informally raised the
issue with him. Mr. Lulama had told him that looked funny
and Mr. Mbuli had asked
why his hair was growing and he told Mr.
Mbuli that he was converting to the Rastafarian religion, where after
Mr. Mbuli said that
it was fine, as long as he did his work and was
neat. Those officials had neither given him permission nor had
they disapproved
his dreadlocks. .
[56] Mr. Jacobs conceded
that after he had received the letters and the relevant documentation
on the dress hairstyle, he realised
that the dress code was in
existence. However, he said certain parts of it were never
implemented and he was under the impression
that it was because the
country was going through that transitional stage of democracy and
certain policies and laws were changed
and certain were still intact
but were not enforced. He assumed the same thing happened with
the dress code.
1.4
Lucky Thamsanqa Kamlana
[57] Mr. Kamlana testified
that he was first employed by the Department on 9 March 2000 and that
he had worn dreadlocks since March
2001. He referred to the
letter he had sent to the second respondent explaining the reasons
for wearing his hair in the manner
that he did. He explained
the nature of his sickness ‘intwaso’ that he mentioned in
the said letter, and testified
that as he was growing up, he was a
person who had a lot of dreams and some of these necessitated him
approaching the elders.
As he was growing older these became
stronger and they changed his whole personality and he
started having mood swings.
Besides mood swings, he would sometimes
go into convulsions. He would dream about people that he had never
seen and did not even
know and those people would indicate to him in
his dream that at certain times during his life things would happen
and those things
would indeed happen. The people in his dreams were
wearing long white robes and beads with something white on their
faces. His
great-grandfather had had this kind of sickness and he had
ended up becoming a traditional healer. He spoke to his uncle
and then to a person that he knew by the name of Mr Hadebe who was a
traditional healer. Mr. Hadebe called the family together
and
the family indicated that he was still too young to become a
traditional healer and there were a lot of things that he needed
to
do in the house.
[58] His family decided
they needed to connect with the ancestors to be advised on how to
deal with the illness. A ritual
was held at his grandmother and
grandfather’s place in Gugulethu where an appeal was made to
the ancestors. A ritual
was enacted at the grave of his great
grandfather where a white rooster was slaughtered and the blood
poured over the grave.
The family then went back to the
house and spoke to the ancestors and traditional beer was then
served. He was still
waiting for the ancestors to
indicate to him when he needed to cut his dreadlocks. Before 2007 his
employers had never raised the
problem about his hairstyle. He
wore a hat at work almost every day. This was the beanie which
covered his dreads.
When he was still employed his dreads came
just below his ear. All his dreadlocks were folded under the
beanie. He said
that his family’s religion was Methodist and
he had not changed his religion and still attended at the Methodist
church.
He confirmed that up until the date on which he testified, he
had not accepted the calling and said that he had put an appeal to
the ancestors and was awaiting a response of that appeal.
[59] He
was never told by his employers that he had to apply to wear
dreadlocks. At his training all that was indicated to him was
that he
needed to iron his uniform, and he was told that he could not wear
windbreakers with his uniform and other clothes other
than the
corporate uniform. He expected the employer to positively respond to
his explanation about “intwaso” because
being Africans
themselves he thought they would have understand what this exactly
means. Mr Magagula, his manager, never raised
the issue of dreadlocks
with him nor did he ask him for permission to wear dreadlocks. At the
time Mr. Magagula arrived at the
centre he was already wearing
dreadlocks. He had never told the department that he had been
“called”, because
he did not see the need to do that,
because the illness of his was of a personal nature. He was not
aware of any procedure
to ask permission to wear them. Mr. Kamlana
stated that the investigator during the two or three minute interview
with him, asked
him if he was aware of the fact that he needed to get
permission to wear dreadlocks and he indicated that he was not aware
of that.
Mr Kamlana stated that the initiator for the disciplinary
enquiry had a positive attitude towards allowing legal
representation.
[60] Mr. Kamlana testified
that he has a diploma in education and that subsequent to his
dismissal he found a job as a teacher on
15 January 2008 at a primary
school in Hout’s Bay. He had indicated to the principal
of the school under what circumstances
he was dismissed and she said
that they were not prejudiced against such people. Although he had
the job, he could not get permanent
employment because the persal
systems interlock between the present job and his previous
employment. He suspected that
the persal system indicated
that government dismissed him at his previous job. As a casual
he did not enjoy the benefits
of a permanent educator and did not
receive a bonus or a pension. He did not wish to be reinstated
in the Department of Correctional
Services.
[61] He confirmed that he
had signed an acknowledgement that he had received a copy of the code
of conduct and familiarised himself
with that. He further
conceded that a code of conduct was important for security at a
correctional centre, and that the code
of conduct was important for
discipline and that as part of discipline all correctional officials
wore uniforms and that there
was a standard uniform for officials and
also standard requirements relating to personal appearance; and
further that the reason
for a standard uniform and standard personal
appearance requirements was that correctional officials should work
as a team.
He conceded that all correctional officers had
to comply with the code of conduct and that such compliance was
essential for security
and discipline. Mr. Kamlana further
conceded that if the code of conduct helped to maintain unity amongst
correctional officials
and because of its critical role in the
correctional centre an official could not say that the code of
conduct was not being enforced
therefore could be disobey.
Mr Kamlana was referred to the code of conduct, including the
provision that a member
of the Department, during official duties,
dressed and behaved in a manner that advanced the reputation of the
Department and also
respected the corporate wear and adhered to the
dress code.
[62] Mr.
Kamlana was referred to the code of conduct and read out the
following clause:
“
a member of the
Department of Correctional Services executes all reasonable
instructions by persons officially assigned to give
him, provided
these are not contrary to the provisions of the Constitution and/or
any other law”
. He confirmed that
this clause was contained in the code of conduct.
1.5
Mduduzi Kubheka
[63] Mr. Kubheka testified
that he commenced his employment with the Department on 14 November
1993 and had worn dreadlocks since
late 1994. Dreadlocks ware a crown
that reflected the true identity of the Rastafarians. He first got
interested in Rastafarians
in the 1980’s when he was in
Durban. When practising their religion Rastafarians met
as groupings and read the
Bible. They also explained to new members
what a Rastafarian was all about. Mr Kubheka stated that it was only
after he had stopped
living with his parents who were very strict,
that he was able to embrace the faith of Rastafarian more deeply
although he had
been interested in it from the age of 13.
During the early 1990’s he accepted its principles but he
wasn’t that
deeply into the practice of the faith. He had
left home in 1992 to come to Cape Town. He stated that after
1994 when
the new Constitution came into being, he actually started
practising the principles of Rastafarianism and that Rastafarians had
problems prior to that because Rastas were unacceptable. The
dreadlocks had started in 1994 but he was not practising the faith
on
a very large scale at that time.
[64] He was part of the
last group of recruits during the era of militarisation in the
Department. At college he was taught
mostly in Afrikaans which
he did not understand. When he arrived at Pollsmoor, he was the first
to be dreaded but was followed
by a Ms Mjobi who was a traditional
healer. He did not know he had to declare he had become a
Rastafarian. The officials
he knew about who were arrested for
smuggling drugs were not, to his knowledge, Rastafarians. His
relationship with Rastafarian
inmates was limited to directing them
as to where they could obtain bibles. When seeing the department’s
guidelines for offenders
practising the Rastafarian faith he thought
that law breakers were allowed and yet he was allowed to practise his
beliefs when
he was a law abiding person. No one ever
complained about his dreads between 1994 and 2007. He
said that officials
could wear two types of hats and that he wore the
beanie most of the time and it covered his dreads. He was known at
Pollsmoor
as “Rasta”.
[65] As to the alleged
security risk of wearing dreadlocks, he stated that anything on one’s
body could be pulled and that
there were ladies who had braids and
dreadlocks. Offenders also fought amongst themselves. He referred to
the submissions he had
written to the second respondent regarding his
dreadlocks. He explained that he had received assistance in the
legal drafting
that was contained in the submission from his wife. On
22 October 2004, he had applied for a temporary transfer to do
in-service
training for one year to one of the government departments
for his national diploma in civil engineering. The Department had
strongly
recommended his transfer and had also stated in the letter
that he was to report back at Pollsmoor after his in-service
training.
That letter was signed by the Area Commissioner of that
time.
[66] Mr Kubheka further
testified that he had approached the South African Human Rights
Commission regarding his dismissal and read
from a letter from the
SAHRC to his attorneys of record stating that
inter alia
“our
legal department at the SAHRC considered the complaints and determine
that
prima facie
it may constitute a violation of the rights
to equality, freedom of religion, belief, culture as per sections 9,
15, 30 and 31
in the Bill of Rights”. The letter further
stated that the Department had continuously failed to provide a copy
of
the dress code under which the employees were disciplined despite
several requests in writing and by phone. Kubheka explained that
as a
Rastafarian, people get the notion that if you are, you may bring
“herbs” to the prison, but he had always done
his work
strictly according to the rules. He gave evidence that he had
never during his 13 years employment with the Department
been charged
with any disciplinary infraction. None of his supervisors had
complained about his dreadlocks nor had the previous
heads of prison
that he had worked under, including Mr Marcus, Mr Schultz and Mr
Klein raised any complaint. .
[67] He did not know of any
procedure in order to make an application to wear religious dresses.
His dreadlocks were neat. He said
that he knew by sight those
officials who had cut their hair in response to the receipt of a
letter by the Area Commissioner. None
of those officials were
Rastafarians nor to his knowledge, were they traditional healers. He
testified that Mr Nyube’s hair
was not dreadlocked. His
hair was long and as to the other three officials their dreadlocks
were still short and might have
been their style. He was
referred to the record of the disciplinary enquiry discovered by the
respondents, and in particular
to the testimony of his supervisor, Mr
Molefe. He said that it was recorded that Mr Molefe had
stated that he was not
aware of any dress code but that when he was
appointed he was given a uniform to wear. He stated that Mr.
Lebatlang had approached
him to give him more information pertaining
to the Rastafarian faith. When asked whether the two of them
worshipped together
at a particular place he said that Rastafarians
did not need a specific time that they had to go together to a
place. When
they got together they would reason and would have
discussions about Jah. He said that there was no place of worship but
that the
Sabbath must be observed. On what days are celebrated in his
faith he stated that they were 23 July, a Christmas day, 17 August,
a
Marcus Gavey’s day and that Rastafarians also celebrate Africa
day.
[68] As to whether he had
ever received a response to the representations he had made on 25
January 2007, he said that the only
response from the Department was
the letter saying that he did not adhere to the dress code and he was
thee after served with a
letter of suspension.
[69] He had not found any
employment since his dismissal but he was making sandals which he was
selling to earn a living.
He had tried to get other work in
in-service training to finish his studies but he had not been
successful on anything yet.
He was married and had three
children. He wished to be reinstated into his position with
first respondent.
1.6
Zola Ganjana
[70] Mr Ganjana gave
evidence as a representative of the union and testified that he was
the head of the Department for Correctional
Services within Popcru.
He was involved in about 20 disciplinary enquiries per year and that
he had dealt with charges against
officials for smuggling drugs.
He had never had a case of a Rastafarian official charged for this in
all his years of doing
disciplinary enquiries.
[71] He stated that in his
experience the rule regarding dreadlocks was not uniformly applied in
the Department and there was a
Mr Vokwana who had dreadlocks in the
Department who had left. He was based at the regional office in
Goodwood.
The head of legal services at head office of
the Department also wore dreadlocks.
[72] According to him, the
role of a human resource practitioner in a disciplinary hearing was
very limited. It was only to
guide the hearing and was limited
to that aspect not to any other. He said that the human resources
representative could not get
involved in decision-making within a
tribunal.
1.7
Ndilisa Toyo
[73] Mr Toyo gave evidence
that he was a traditional healer and practised from 1990 to the
present. He stated that he
knew Mr Ngqula and also knew
his mother whom he had met in 2000. His mother was
his student. He stated
that he was also a teacher to Mr. Ngqula
and that he was asked to meet with him because Mr. Ngqula was not
well in that he had
a headache problem and he had hair that was
twisted. He had woken up with hair that was twisted. They
met in Mr. Ngqula’s
mother’s house in Khayelitsha in 2001
when he was busy with his mother’s ritual. The advice he
gave to the family
of Mr. Ngqula about his sickness was that they
were to take him home to where his clan name was, that is, to his
“father’s
side” to do the rituals. He told
Mr. Ngqula that what he was going through and the dreams he had all
showed that he
was to go home, to his father’s side and do his
rituals.
[74] He was present at the
ceremony connected to the reclaiming of Mr. Ngqula’s father’s
clan name which took place
in Xolo in Transkei. The ritual took place
in December 2002. Mr. Ngqula had to accept his clan name and
then would have to
do a ritual as to his calling. He said that
there was a ceremony to mark the acceptance of the calling where a
goat was slaughtered
and they made some traditional beer. This
ceremony took place in Xolo in Transkei at the end of 2003. It
was at the
end of December/ the beginning of January. The
ceremony took a week. He was involved in the ceremony to shave Mr.
Ngqula’s
“ivitani” in December 2007 where again
they slaughtered and made traditional beer. He and members of
Mr. Ngqula’s
family shaved his head. His participation was
limited to the three rituals and did not go beyond that. He
said that he was
able to dispense traditional medicine.
[75] In response to
questions by court on how he treated his patients, Mr. Toyo said that
he sat down on a goat skin and would then
call ancestors from
both his mother’s and father’s side. He would then
enquire from them as to why a patient
with him had come for
consultation. The ancestors would give him the answer in a continued
communication with them which he would
continuously convey to that
patient. If the patient was deserving of a healing, he would give the
medicine that was needed.
1.8 Ndihleli Albert
Kandekana
[76] Mr Khandekana was
called as an expert witness and he confirmed the summary of his
qualifications and opinions as set out at
page 76 of the pleadings
bundle.
[77] Mr. Khandekana stated
that dreadlocks are a symbol that a person is following the calling
that comes from their forefathers.
It is believed that if you
do not wear the dreadlocks you will be punished and that you may end
up like a mad person. He
confirmed and expanded upon the
opinions contained in the expert summary.
[78] Mr. Khandekana stated
on questioning by the Court that there are two groups of persons, one
group being fortune tellers, and
the other who dispense medication,
even though there may be an overlap between the two.
[79] Propositions were put
to Mr Khandekana gleaned from published works of academics such as
Dr. Harriet Ngubane and Mr Hammond
Tooke. He agreed with this
proposition made in a book written in 1989 that Hammond Tooke
had written that throughout
South Africa herbalists are almost all
exclusively male while diviners are frequently often female, almost
entirely so. He conceded
that once a person has graduated that person
does not go and work alone. He usually works with his mentor
for some time until
he can be by himself. Mr. Khandekana
stated that not all traditional healers were equally skilled.
It depended
on their mentor because if the mentor did not know the
medicine, that student could not equal other students.
[80] He confirmed his
opinion that those who are called are not always suffering from
“intwaso” but have dreams which
are messages from the
ancestors that that person should be called. He said that there
are ceremonies that take place in relation
to the ancestor to try and
postpone the calling. He testified that a Westerner might not
be likely to recognise the symptoms
of “intwaso” suffered
by someone who received the calling. As to whether a person
could also become a prophet
or a diviner, he stated that it could be
so, saying that even in his tradition most of the traditional healers
were women but also
a man could become a traditional healer. He
stated that when he went to work or to visit somewhere he did not
always wear his beads
as he had them in court. He said
that there would be some beads under his clothes even though not
visible.
2.
The version of the
respondents
2.1 Mandla Jephtha
Mkhabela
[81] The second respondent,
Mr. J. M. Mkhabela was the Deputy Commissioner of the Pollsmoor
Management Area. He occupied the
position since January 2007.
He has been employed with the Department for the past 22 years and
has served in various correctional
centres throughout the country.
[82] On his arrival at
Pollsmoor he found that there was a large scale of non-compliance
with departmental policies including the
dress code of the
department. He said that non-compliance with policies of the
Department could cause poor service delivery
and a poor image of the
Department as there was negative publicity about Pollsmoor Then after
compliance and adherence to the rules,
departmental policies were
enforced, it tended to be better and the image of the Department
reflected also on the image of the
government at the end of the day
because if one looked at what the Department’s vision said, “to
be one of the best
of the world in delivering Correctional Services
with integrity and commitment to excellence”, that meant that
the
Department needed not to look at this thing in a myopic
way. It was necessary to look at this thing in a broader way to
say
Correctional Services was operating and competing with other
Correctional Services in the world and also South Africa belonging
to
the job as well. So there could not be a situation where there
was no compliance with policies and at the end of the day
there would
be lawlessness, with all things that were not helping the Department.
[83] He testified at length
about the various issues that he found to be reflective of a lack of
discipline at Pollsmoor Prison.
Dagga was the drug of choice at
Pollsmoor. He further stated that during his term of
office at Pollsmoor, there had
been cases involving dagga smuggling
by correctional officials. An example was one Mr Gouws in 2007
who was caught in possession
of dagga hidden in his lunch box, and a
Mr Mayekiso who in 2008 was found in the possession of dagga hidden
in the sleeves of his
jersey. Other drugs are also used and offenders
are found in possession of other drugs like Tik and Mandrax.
[84]
The second respondent’s evidence was
largely unchallenged and certainly not contradicted. He said
that the lack of discipline
and security as a result of
non-compliance with departmental policies manifested itself in a high
rate of absenteeism; numerous
audit queries; prisoner-on-prisoner and
member-on-prisoner assaults; escapes; negative publicity for the
institution; and a lack
of accountability.
[85] As a first step to put
things right, the second respondent dealt with non-compliance with
the corporate wear policy by issuing
a written instruction to
correctional officials (including the applicants) to comply with the
Dress Code and to advance reasons
why corrective action should not be
taken against them if they did not comply. Four officials
complied with the Dress Code
and cut their hair. The applicants
did not. To address the problem of officials leaving their place of
work without permission
during working hours, the second respondent
introduced a permission slip. This ensured that officials
remained at their place
of work which enhanced service delivery.
[86] The third issue that
the second respondent addressed was punctuality. Numerous
officials were coming late. A column
was added to the duty list
to note down the times when officials reported late for duty. A
new system in terms of which officials
who continuously came late
were given a verbal warning valid for six months, was also
introduced.
[87] The next problem which
the second respondent dealt with was non-compliance with the leave
policy. There was a high rate
of absenteeism. Officials
were taking leave before it was approved. Officials who had
taken study leave did not submit
their results to the Department.
[88] The second respondent
also discovered that the funds of the Members’ Club were being
used for an unauthorised purpose.
The club gets its funding
from trading points in the management area such as tuck shops, a
petrol station, a mess and guest houses.
It exists for the
wellbeing of members. Its duty is to ensure that recreational
facilities such as the gymnasium, tennis
court, swimming pool and the
soccer and rugby fields are maintained and upgraded. But the
funds of the club were being used
to make loans to officials.
Once that was stopped the bank balance of the club improved from R533
000 in 2006 to about R1.3
million in 2008.
[89] Another way in which
there was no compliance with departmental policies related to the use
of official vehicles. Accidents
involving these vehicles were
not being reported and investigated. Disciplinary steps were
not being taken against officials
who were negligent. That
changed and the figure relating to accidents went up in 2007 because
accidents were being investigated
and disciplinary steps taken
against officials. There was corruption regarding repairs to
vehicles – the same service
providers were being used without
obtaining competitive quotations and expenditure could not be
accounted for. That too,
was remedied. Traffic fines were
recorded, followed up and action was taken against officials in
respect of whom fines were
imposed.
[90] The smoking policy was
also not being implemented in Pollsmoor Management Area.
Officials were smoking in offices and
corridors and offenders who
smoked were placed with those who do not. Contrary to the
policy, child offenders were allowed
to smoke in the juvenile
centre. Steps were taken to enforce the smoking policy.
Officials were not allowed to smoke
in the workplace and smoking in
the juvenile centre was stopped. The enforcement of departmental
policies and stepping-up discipline
resulted in more dismissals in
2007 and 2006.
[91] On a practical level,
compliance with the Department’s policies, including the Dress
Code, has improved service delivery.
In the audit report for
the 2007/2008 financial year, there was not a single query about
leave administration. The level
of absenteeism had gone down
and officials have stopped going to Pick & Pay and Spar in a
nearby mall during working hours.
Officials are now carrying
out their duties as they are supposed to do and performance is being
improved but there is still a long
way to go.
[92] Compliance with
departmental policies has also improved discipline at Pollsmoor.
Present management and more specifically
prisoner-on-prisoner
assaults, stabbings and complaints by inmates have declined.
Escapes have also declined. The result
of enforcing compliance
with the Dress Code has enhanced discipline and team work which as
portrayed Pollsmoor in a positive light.
As a result, there was
no longer negative publicity concerning Pollsmoor.
[93] On being asked why he
did not accede to the Applicants’ request to keep their
dreadlocks, he stated that there was no
concession in the dress code
for deviation or for accommodating such requests except for medical
reasons. He further stated that
he did not accede to their request
because that request would open the flood gates and that to allow one
or two cultures or religions
that would mean we would need to allow
for everybody. In his view at the end of the day this would
mean there was no uniform
in Correctional Services. He stated that in
his view the applicants’ dismissal did not constitute unfair
discrimination because
the dress code applied across the board and it
did not target anyone.
[94] Mr. Mkhabela conceded
that the draft dress code that was annexed to the investigation
report did not include the word “Rastaman”
in it.
He further conceded that the dress code referred to by respondent’s
expert witness was different to that
annexed to his enquiry report,
in that it included the two extra words “Rastaman hairstyle”.
Mr. Mkhabela confirmed
that the expert witness “for the
respondent was a senior man in the department”. He said that Ms
Ngomo as the acting
head of HR should have known about the dress code
because she was working at HRD.
[95] He was also referred
to the evidence of one of his managers, Mr Molefe given at the
disciplinary enquiry where he stated that
he was not aware of any
dress code and he conceded to the correctness of the transcript of
the enquiry. Mr. Mkhabela confirmed
that he had signed an oath which
included a clause that officials should execute all reasonable
instructions by persons officially
assigned to them provided these
are not contrary to the provisions of the Constitution and/or any
other law. He also confirmed
that the dress code applied before
the Constitution came into effect. When asked as to how he applied
his mind as to the constitutional
issues arising from the dress code
he replied that he had to look at what the code said and also the
interests of the Department.
[96] When questioned as to
whether he asked his legal department to assess whether the code
complied with the Constitution, he stated
that at management areas
they implement policies. He asserted that he was able to
consider the legal issues contained in
the submissions by Mr. Kubheka
without reference to legal experts. He stated that he was
aware that Mr. Kubheka had
never in 13 years had one disciplinary
infraction when considering his suspension. He was not
aware that a transfer
to do training in civil engineering had been
approved by his previous incumbents. Mr. Mkhabela stated that he did
not ask for his
HR officials to brief him when he applied his mind to
the suspension of Mr. Kubheka. He further stated that he
did
not meet with Mr. Kubheka nor consult with him.
He said that the initiator
of the disciplinary enquiry had stated in the enquiry report
presented to him that, if Mr Kubheka needed
to comply with the
Departmental policies on receipt of second respondent’s of 19
January 2007, he would have enquired of
the correct procedure he
needed to follow, rather than later stating that he did not know the
procedure and still refused to cut
his beard and dreadlocks.
[97] Mr. Mkhabela stated
that he had read the Correctional Services Act and was referred to
section 134(2)(f) which provides that
the national commissioner might
issue orders on the wearing of attire for religious or cultural
purposes. He said that he
did not remember the provision, but
that if it was in the Act that meant it was applicable. In relation
to the rule or standard
on the dress code not being consistently
applied by the Department before he joined it and that he had said in
his evidence there
was a general culture of non-compliance he said
that as he had started on 15 January 2007 at Pollsmoor, he did not
know what was
happening before his arrival but he conceded that he
was aware that managers of the applicants did not tell them to cut
their hair
as they were wearing their dreadlocks and no one took
action.
[98] He conceded a receipt
of a letter with submissions made by Mr. Ngqula regarding his
dreadlocks, requesting the Department to
grant him the necessary
permission to keep his dreadlocks until December 2007. He
replied to Mr. Ngqula’s submissions
in one day. He said
that he had applied his mind to the submissions made by Mr. Ngqula
and it took him a day to consider
them. Mr. Makabela conceded that
Mr. Ngqula was not working with offenders as his primary task and
that his training and skills
were relevant to the organisation but
that he had not met and consulted with him.
[99] Mr. Mkhabela said that
he did not ask legal services to look at Mr Jacobs’ submissions
nor did he read the cases cited
in the submissions himself.
He conceded that the dress code allowed females to wear dreads.
He said that it did
not make provision for the males because of their
differences: Males and females were not the same. If a woman
member becomes
a sangoma because she received a calling she would be
permitted to wear dreads as it did not make any difference because
the dress
code allowed them to have dreads. He said that if he had
been given a policy that contained provisions that he considered to
be
racist he would have implemented it .as such would have been
checked by legal services and employee relations and all the
specialists leaving him to implement such a policy. He stated
that he would not permit a woman correctional official who
had asked
him permission to wear a gold stud in her nose for culture reasons on
the basis that the dress code specifies about earrings,
about
bracelets, about necklaces but not about a gold stud on the nose.
He stated that the dress code was a package
and that one could not
separate it from discipline and compliance with departmental policy.
He stated that the national commissioner
had not made any orders in
regard to religious and cultural policies.
2.2
Ephraim Bheki Ndebele
[100] Mr Ndebele gave
evidence as an “expert witness” for the respondents and
confirmed the contents of the expert summary
were his opinions.
He stated that he had held positions in Correctional Services since
27 February 1995. He described
himself as a loyal member of the
Department. He said that he held the rank of a Director,
and that as such, he was
given performance assessments by the
Department. He further confirmed that his immediate superior
the Chief Deputy Commissioner
Operations and Management Support was
aware that he was testifying in the trial. In
regard to the expert summary
he stated that the dress code quoted in
it applied at the time that the applicants were disciplined and when
they were dismissed.
[101] In his opinion, an
official who was a Rasta would stand out as a person who believed in
Rastafarian religion. Offenders always
looked for a soft spot which
they were going to use to get a grip on the official so as to be able
to manipulate him or her. Offenders
knowing the beliefs of
Rastafarians would make the official targets of manipulation. He
stated that dagga was central to the Rastafarian
religion and once
the offenders had got hold of such an official, they would want him
to supply them with what they wanted to get.
[102] He conceded that it
was correct that the copy of the dress code annexed to the
disciplinary investigation report and in particular
clause 5.1.2.3
thereof, was different from the code that he referred to in his
expert report. Ndebele conceded that he had not
been able to provide
figures relating to Rastafarian officials who may have been involved
in any disciplinary infractions.
[103] A proposition was put
to him, which he agreed with that if it was commonly regarded that
Tik was most prevalent amongst the
Coloured community, it would then
mean that he would have a worry about the relationship between
Coloured correctional officials
and Coloured inmates.
[104] Mr. Ndebele stated
that women correctional officials worked with offenders at
correctional centres. He conceded that
women who have long hair
could be grabbed by their long hair. He stated that as a
precaution for them not to fall prey easily
they should not wear
their hair loose. He stated that he had heard that the applicants
wore their hair most of the time under a
beanie or tied back.
[105] Ndebele agreed that a
member of the Department was to execute all reasonable instructions,
provided they are not unconstitutional.
He further conceded that all
officials were targets of manipulation. When asked if it was
his evidence that someone who believed
in the Rastafarian faith was
more likely to be dishonest or corrupt than another official simply
because of the tenets of his faith
he said such a member was at risk
of being approached because of his religion and there was a need to
protect officials from being
manipulated and corrupted.
[106] Ndebele was referred
to findings of the disciplinary hearing of Mr. Kamlana in particular
the aggravating factors presented
by the initiator, that the
Department was a security cluster and had its own corporate wear
which accommodate religious wear
on application and Mr Kamlana
knew about it but did not make an application in writing.
He said that the statement
by the initiator regarding the
accommodation of religious wear on application was incorrect.
2.3
Jabulani Samuel Mahlangu
[107] Mr Mahlangu stated
that he was the head of the correctional centre, Kroonstad management
area. From March 2002 until December
2002 he was head of prison at
the juvenile centre in Boksburg. He stated that there was a case in
Boksburg where an official wore
dreadlocks, a man by the name of
Koloti who came from the Western Cape, while Mr Lebatlang was working
there. Mr. Mahlangu testified
that Koloti was working at the juvenile
section with Lebatlang. An investigation was conducted
against Koloti and Koloti
decided to cut his hair. Mr.
Mahlangu testified that Koloti was represented by a Popcru shop
steward Mr. Terence Mahlangu
who was a close friend of Mr
Lebatlang. He said that it was incorrect that
correctional officials at Boksburg could
wear their hair in any way
they felt comfortable and that Koloti had been investigated because
his dreadlocks were in conflict
with the dress code.
Koloti had removed his dreadlocks while the investigation was on. He
said that Mr. Lebatlang had
left Boksburg before the disciplinary
process against Koloti had ended, and would not have been in a
position to know the outcome
or whether Koloti kept his dreads or
not.
2.
4 Mr Graham Wickham
[108] Mr G. Wickham, a
correctional officer had been in the department since 1986.
He had investigated an incident when
an inmate was assisted by a
member of Correctional Services to escape out of the admission centre
by providing him with a uniform.
This was the only incident of this
kind that he had been involved with.
2.5
Ms Kegomoitswe Mpa
[109]
She was employed for 21 years in the Department of Correctional
Services, and was in the position of Employee Relations Manager
for
the Pollsmoor management area for the past 2 years and was
responsible for the processing of internal appeals by employees.
Her
evidence was that the applicants did not comply with Resolution 1 of
2006 in lodging their internal appeal. In relation to
the guidelines
for managers dated 2 July 2007
and in particular the clause
stating: “
although disciplinary hearings must be recorded
there is no entitlement to minutes as in the previous disciplinary
procedure”,
she said that she explained to applicants’
representative who had approached her that they did not need to wait
for the minutes
in order for them to submit their motivation for
their appeal, because they were not entitled to any minutes.
[110] Ms
Mpa
was referred to a document entitled “
Disciplinary
code for the Department of Correctional Services DBC resolution 1 of
2001 dated the 23
rd
February 2001”
which she said was
no longer in force. She was further referred to annexure “C”
of the document headed “
Disciplinary
procedure manual for the Department of Correctional Services”
.
She confirmed that this document stated that the employer must
provide verbatim word for word minutes of the disciplinary
hearing to
the appellant/representative within 10 days working days on receipt
of the intention to appeal. She stated that all
tapes of disciplinary
hearings were to be transcribed once enquiries were completed,
whether an appeal was filed or not and she
said that the verbatim
minutes are normally made available to the Department. She stated
that the applicants had a representative
at the disciplinary hearing
who could have told them what transpired there. She however
said that the verbatim minutes provide
a safe and secure record of
the enquiry proceedings. She was referred to the notes of the
chairperson of the disciplinary enquiry
and confirmed them as such.
She conceded that the disciplinary chairperson had referred to clause
7.3.8(g) of the guidelines
dealing with legal representation
contained in the “
DCS disciplinary
code and procedure DBC Resolution 1/2006”,
which she had said did not exist prior to the 3
rd
July 2007.
[111]
She was referred to the document entitled “Chapter 27”
“Corporate Identity dress code” and she stated
that she
was familiar with it and said that, given it referred to PSCBC
Resolution 3 of 1999, the document was prepared after that
resolution. She testified that she had never applied any other
resolution other than Resolution 1 of 2006 and the only guidelines
that exist in relation to that resolution were those dated the 2
nd
July 2007.
She was referred to a document entitled “
DBS
disciplinary code and procedure DBC Resolution 1 of 2006”
stamped on its cover draft “
do not copy”.
The
draft was dated 9 February 2007 and was entitled “
guidelines
for managers DCS disciplinary code and procedure DBC resolution 1 of
2006”
. She confirmed that these were the
guidelines she referred to that were in draft before the guidelines
dated the 2
nd
July 2007 were published.
[112] Ms Mpa testified that
she had written a letter regarding the case of Mr. Ngqula because
there was some concern about whether
the process had been fair. She
confirmed that she had written in the letter “
there is
nothing like old policy in the Department. If the policy is phased
out the new one is phased in and if it is not phased
out it means
that the one that is used will still be used”
. She denied
though that she was referring to the dress code when she made this
statement in the letter because the query at hand
was about
suspension, yet conceding that the suspension policy had not changed.
[113] Ms Mpa was referred
to the disciplinary guidelines dated the 2
nd
July 2007.
She conceded that the documents was not part of the resolution but
were departmental guidelines and prepared by the
Department itself
rather than as a collective agreement. She stated that
she could not account why the HR representative
in the disciplinary
hearing of the applicants referred to the “
DCS disciplinary
code and procedure DBC Resolution 1 of 2006”
because they
were not using those guidelines. It was suggested to her that if the
guidelines of July 2007 were approved only after
the disciplinary
hearing, there must have been earlier guidelines that the HR
department had regard to but she insisted that no
guidelines were in
place before the approved one.
2.6
Mr. Themba Shadrack Magagula
[114] Mr Magagula was then
the current Regional Head Corporate Services in the Western Cape and
was employed at Boksburg Prison
from 14 August 1996 until 31 March
2005. He knew Mr. Lebatlang as they worked together at Boksburg and
they used to discuss issues
of soccer because they were both
supporters of Orlando Pirates. That would be when he took
rounds in the institution. Mr.
Mahlangu would join in such
discussions which took place on many occasions. At that time Mr.
Magagula was an Assistant Director
and Mr. Lebatlang was at the
lowest grade in the Department and that was in the period 2000 up to
2002.
[115] As to whether he was
a witness in the 2007 disciplinary enquiry against the applicants, he
said: he did submit an affidavit
in the form of a reply to the
investigating officer that was impacting on one of the correctional
service officials working at
his centre He confirmed that
he gave evidence at the hearing in respect of Mr. Kamlana who, if
wanted to keep
his dreadlocks should have made a request to make a
submission to head office, in that case being the area
commissioner,
to give indication as to why he could not comply with
the policy, and a decision would be taken. He said that there was a
procedure
for an application not to comply with the dress code by
making a submission to the Area Commissioner.
2.7
Gerdt Martin Opperman
[116] Mr Opperman testified
that he was a Co-ordinator, Human Resources and had been in that
position since 1999. He said that he
attended a workshop with Mr.
Ngqula on corporate wear and insignia run by the Department He stated
that he had a discussion with
Mr. Ngqula about his dreadlocks before
the workshop and informed him that he had been selected to go to the
course because he was
wearing dreadlocks and Mr. Ngqula told him he
would explain it at the workshop. He testified that Mr. Ngqula was
not chosen because
of his intelligence, qualifications and his role
in human resources. He said that Ngqula had stated at the workshop
that according
to the Constitution he was allowed to wear dreadlocks
because of the freedom of speech and association. He conceded though
that
Mr. Ngqula might have said that everyone should have freedom of
expression to give their inputs thereat. He testified that Ngqula
did
not have dreadlocks in September 2003 and that he started to wear
dreadlocks in 2004.
[117] Opperman gave
evidence in respect of Mr. Ngqula’s service record with
particular reference to leaves he had taken and
referred to forms
Z1039 and G122. According to the G122 form Mr. Ngqula worked on 16
December 2002. He took a day off on 28 February
2003. The form
showed that he worked on 25 and 26 December 2003. Mr.
Opperman testified that according to the
records, Mr. Ngqula had no
vacation leave in December 2003 and that he had 3 days of sick leave
from 29 to 31 December 2003.
He said that Mr. Ngqula applied
for leave of absence for the period 23 to 31 December 2002. He
conceded however that the Z168 register
was different from other
kinds of registers because it also recorded when people had days off,
and that days off would be days
other than sick leave or vacation
leave because people worked shifts.
Submissions
by parties
Applicants’
submissions
[118] Applicants submit
that by applying the workplace rule, the alleged dress code, to
dismiss them, the respondents unfairly discriminated
against them.
The direct discrimination is in that female correctional officials
are permitted to wear dreadlocks. The indirect
discrimination
is in that such a rule infringed against the rights of Rastafarian
correctional officials to practice their religion,
and in the case of
third and fourth applicants, the rights of correctional officials to
practice their culture.
[119] Section 187 of the
Act identifies a specific category of dismissals that, if proved to
exist, are regarded as automatically
unfair. Should this
Court be satisfied that a causal link is established on a balance of
probabilities between the
prohibited reasons for dismissal and the
circumstances of the dismissal, no justification can be proffered by
the employer, and
the employee automatically qualifies for the
privileges conferred upon the special category of dismissals, namely
a rebuttal presumption
of unfairness and an entitlement to double the
ordinary compensation awarded.
[120] The Labour Appeal
Court has held that section 187 imposes an evidential burden upon an
employee to produce evidence which
is sufficient to raise the
credible possibility that an automatically unfair dismissal has taken
place. It then behoves
the employer to prove to the
contrary, that is, to produce evidence to show that the reason for
the dismissal does not fall within
the circumstances envisaged in
section 187 for constituting an automatically unfair dismissal.
[121] Applicants’
further claim that they have been unfairly discriminated against in
terms of the section 6 of the EEA. Section
6(2)(b) provides as a
defence, that it is not unfair discrimination to distinguish, exclude
or prefer any person on the basis of
an inherent requirement of the
job. Moreover, section 11 of the EEA provides that
whenever unfair discrimination
is alleged, the employer against whom
the allegation is made must establish that it is fair.
This in effect creates
a rebuttal presumption that once
discrimination is shown to exist by the applicant it is assumed to be
unfair and the employer
must justify it. Once discrimination has been
established, the employer has to prove that the discrimination was
fair or has to
justify that discrimination as justifiable under
section 6(2)(b).
[123] Direct discrimination
refers to situations in which some people are treated differently
from others on the basis of their
race, sex, religion or other
protected trait. Indirect discrimination on the other hand occurs
when an employer utilises an employment
practice that is apparently
neutral, but disproportionately affects members of disadvantaged
groups in circumstances where it is
not justifiable.
[124] Section 187 of the
LRA and section 6 of the EEA provide for a defence to unfair
discrimination on the basis of the inherent
requirement of the job.
The respondents have not sought to rely on the inherent requirement
of the job defence. It
is not pleaded in their statement
of opposition nor was such defence put to witnesses during the course
of the trial. Respondents’
defence to the claims of the
applicants is that there was no discrimination, alternatively the
discrimination was fair, and in
the further alternative the
discrimination was justified in terms of section 36 of Act 108 of
1996.
[125] It should be noted
that the respondents further did not dispute that the wearing of
dreadlocks is a requirement for adherence
to the Rastafarian religion
or for adherence to the cultural beliefs of third and fourth
applicants. Rather, the approach
taken by the
respondents, as is evident from their statement of response, was that
the applicants did not wear dreadlocks for religious
or cultural
reasons. It was on this basis that much of respondents’
cross-examination of the applicants was directed towards
destroying
their credibility. It is submitted that such an approach was premised
on the inherently improbable notion that the applicants
would have
been prepared to forego their jobs and livelihood merely on the basis
of their preference for a particular hairstyle.
DID THE DISMISSAL OF
THE APPLICANTS AMOUNT TO UNFAIR DISCRIMINATION?
[126] It is respectfully
submitted that the evidence before Court establishes that the
applicants wore dreadlocks because of their
adherence to the
Rastafarian faith, in the case of second, fifth and sixth applicants
and for the reason of their culture and beliefs,
in the case of the
third and fourth applicants.
[127] Oral evidence can
only be properly evaluated by testing it against the inherent
probabilities. The failure to do so
constitutes a misdirection.
It is submitted that even should Court find that some of the
applicants’ evidence was not satisfactory,
on the crucial
question as to whether the applicants wore their dreadlocks for the
reasons they alleged, the probabilities are
overwhelmingly in their
favour. As submitted above, it is highly improbable that
the applicants would have foregone
their jobs and livelihood merely
because they preferred a hairstyle as a statement of fashion.
[128] It was Mr. Kubheka’s
evidence that those correctional officers who had acceded to the
cutting of their hair were not
to his knowledge of the Rastafarian
faith nor traditional healers. The respondents did not call any of
the said officials to refute
this evidence. Although Mr. Kubheka
evinced a deeper knowledge of the Rastafarian faith than Mr.
Lebatlang, the difference can
be attributed to the fact that he had
been a member of the Rastafarian faith from 1994 i.e. a period of
some 17 years while Lebatlang
had only joined the faith for a period
of approximately 4 years. In any event, it is submitted that Court is
not concerned with
the validity or correctness of the Rastafarian
faith or beliefs, only with their sincerity.
[129] The respondents’
attack on the credibility of Mr. Lebatlang focussed on his statement
that he did not know whether,
if he had worn dreadlocks at Boksburg,
he would have been disciplined and that he could not recall whether
there was an official
that had dreadlocks when he worked at
Boksburg. It was not put to Mr Lebatlang that a certain Kolati
had been investigated
for wearing dreadlocks at Boksburg.
This failure contravened the principles governing the practice of
cross-examination.
A witness is entitled to an
opportunity to defend himself or herself against an allegation of
mendacity.
Such an opportunity was never afforded to Mr.
Lebatlang. It is submitted even were Court to find that Mr.
Lebatlang’s evidence
was not satisfactory in all respects, on
the material issue as to whether he wore his dreadlocks in conformity
with his belief
in the Rastafarian religion, the inherent
probabilities are strongly in his favour.
[130] It is submitted that
as far as Mr. Ngqula was concerned, his evidence as to his calling
and as to the times of the ceremonies
he attended was corroborated by
Mr.Toyo. Furthermore, he made every effort to make available the
curriculum vitae he had provided
to the Department of Public Works
and his sick leave record from the Public Service persal system.
Despite producing various documents
in order to disprove Mr. Ngqula’s
evidence regarding the periods he spent in the Eastern Cape, the
respondent, although invited
to, did not produce the register Z168
which respondent’s witness confirmed would indicate not only
vacation and sick leave,
but also days off which are taken because
correctional officials work according to a shift system. Mr.
Kamlana’s evidence
regarding the rituals performed to plead
with the ancestors to delay his calling were not seriously disputed
by the respondent.
That such a practice does take place was confirmed
by the expert witness for the applicants, Mr. Khandekana.
[131] In respect of Mr.
Jacobs, the respondent did not seriously challenge his adherence to
the Rastafarian faith, but rather focussed
on an attempt to undermine
his credibility in relation to what he had testified he had stated at
an interview for a job in New
Zealand. Crucially, it must be
emphasised that Mr. Jacobs clearly stated in his evidence that he had
not disclosed his dismissal
to his prospective employer in New
Zealand. It is submitted that the respondents’ initiative to
write to the New Zealand
Correctional Services department
notwithstanding this fact, without regard to the possibility that
such a communication may have
negatively impacted on the job
prospects of its former employee, can be explained either an
extraordinary display of vindictiveness
or a desperation to use any
means to win its case. This approach was also apparent
when one has regard to the undisputed
evidence of Mr. Lebatlang who
informed Court that correctional officials had recently visited his
mother on the pretence that they
had been sent by him, and
interrogated her regarding whether he was a Rastafarian or not.
THE APPLICANTS
EVIDENTIAL BURDEN
[132] It is submitted that
the Applicants have discharged the evidential burden upon them to
produce evidence sufficient to raise
the credible possibility that an
automatically unfair dismissal had taken place. Further in regard to
the provisions of the EEA,
and specifically sections 6 and 11
thereof, the applicants have shown that
differentiation/discrimination has taken place on the
listed grounds
in the EEA. It is further submitted that Court should be satisfied
that on an assessment of the evidence produced
at trial, a causal
link has been established between their dismissals and the prohibited
reasons listed in section 187 of the Act
on the one hand, and the
grounds listed in section 6 of the EEA on the other.
[133] It is submitted that
the applicants’ refusal to cut their dreadlocks was a
sine
qua non
for the dismissal. In as far as legal causation is
concerned, the most probable inference that may be drawn from the
established
facts of the case was that their refusal to cut their
dreadlocks on religious and/or cultural grounds was the main or
dominant
or proximate or most likely cause of their dismissal. It was
abundantly clear from the evidence of second respondent that the
dismissal
of applicants was due to the enforcement of the alleged
dress code on a basis that did not recognise or accommodate religious
and/or
cultural diversity in any respect whatsoever.
[134] Once the applicants
have established that discrimination took place and a causal link
between such discrimination and their
dismissal, the respondents are
burdened with establishing that such discrimination was fair.
[135] As stated above, the
respondents have not pleaded the specific defences provided for in
the EEA and the Act against unfair
discrimination, nor was such a
defence put to the applicants at trial. Insofar as
respondents may attempt to rely on
the evidence of their witnesses
and in particular their so-called “expert witness” that
absolute adherence to the dress
code is an inherent requirement of
the job, alternatively that the wearing of short hair by male warders
is an inherent requirement
of the job, such propositions are, on the
basis of the evidence before Court, not sustainable.
[136] Firstly, it should be
stated that Mr. Ndebele’s evidence although proffered as
evidence of an expert witness, was in
fact given by a person who has
been employed for the first respondent for more than 23 years and who
conceded that he was a loyal
member of the Department. It is
submitted that the impartiality and/or objectivity of his evidence
must be called into serious
question. Moreover, the
premise for his “opinion” that members of the Rastafarian
faith are more
prone to corruption in a correctional centre is as an
extraordinary as it was unsubstantiated, and appears to reflect what
can
only be described as prejudice on his part. It
is submitted that his “opinion” as regards to the dangers
caused by non-adherence to the dress code do not meet the standard
required of an expert opinion.
[137] Mr Ndebele could
proffered no facts nor data to support his opinion as regards the
potential of male correctional officers
wearing dreadlocks being
prone to corruption, nor indeed any data regarding alleged corrupt
activities by any Rastafarian official
in the employ of the first
respondent. Indeed his reasoning was characterised by a series
of unsubstantiated claims with
no basis on fact. Similarly no facts
or data were proffered by Mr. Ndebele or by the second respondent to
support their view that
non-adherence to the dress code is a threat
to the security of the first respondent. The second respondent’s
approach amounted
simply to a bald allegation that any deviation from
the detail of the alleged dress code, even to the extent of the
wearing of
a small nose stud or the wrong type of earring by a female
official, was not to be tolerated and would undermine the security
and
discipline of the first respondent.
[138] The respondents
relied on the limitation test contained in the Constitution as a
defence, and put it to the applicants that
even if their dismissal
amounted to unfair discrimination, such unfair discrimination would
be permitted in terms of section 36
of the Constitution.
It should be borne in mind that both the EEA and the Act are
legislative instruments enacted to
give effect to the provisions of
the Constitution. Where legislation has been enacted to give effect
to the provisions of the Constitution,
it is impermissible for a
litigant to bypass that legislation and rely directly on the
provisions of the Constitution in the absence
of a constitutional
challenge to the legislation so enacted.
[139] Section 1 of the Act
similarly states that the purpose of the Act is
inter alia
to
give effect to the obligations incurred by the Republic as a member
State of the international labour organisation. It is submitted
that
the respondents’ failure to lay claim to the defences set out
in both the EEA and the Act in the absence of attacking
such
provisions as being unconstitutional, falls foul of the principal
enunciated in
Sidumo & Another v
Rustenberg Platinum Mines Ltd & Others
[2007] 12 BLLR 1097
(CC)
.
It is further submitted that their defence of applicants’
main claims may well fall on the basis of this omission alone.
[140] Should Court
not be of the view that respondents’ case fails as aforesaid,
it is submitted that in any event,
a consideration of the issue as to
whether the respondents have proved that the discrimination was fair,
will take account of the
notion of justification and proportionality
as contained in section 36 of the Constitution. In
considering whether
the respondents are able to justify the
discrimination suffered by the applicants as fair, the following is
relevant:
The
Correctional Services Act 111 of 1998
has as its object the changing
of the law governing the correctional system and giving effect to
the Bill of Rights in the Constitution,
1996
(inter
alia)
(Preamble);
Section 134(2)
of the
Correctional
Services Act provides
that the Commissioner may issue orders, not
inconsistent with that Act and the regulations made there under,
which must be obeyed
by all correctional officials and other persons
to whom such orders apply as to
inter
alia
the wearing
of attire for religious or cultural purposes; ( sub-section (f));
Correctional
officials such as the applicants are bound by a code of conduct
which explicitly provides that they must follow lawful
orders
provided these are not in conflict with the provisions of the
Constitution;
The
fact that (as was made abundantly clear in second respondent’s
evidence), the respondents’ case does not contemplate
the
principle of “reasonable accommodation” of applicants’
religious and cultural beliefs.
As
far as the concept of reasonable accommodation is concerned, note
should be taken of section 5 of the EEA which places a duty
on all
employers “to promote equal opportunity in the workplace by
eliminating unfair discrimination in any employment
policy or
practice”.
[141] Women correctional
officials who also work with offenders are permitted to wear their
hair long, including in dreadlocks.
Furthermore, the corporate wear
policy allows hats to be worn at all times and as applicants were
permitted to demonstrate in Court,
these concealed the dreadlocks.
The respondents have not offered any evidence of a single incident to
show that applicants’
dreadlocks were a threat to safety,
security and
esprit de corps
. Moreover it should be noted that
Mr. Lebatlang did not in any event work with inmates. Mr. Ngqula’s
work with inmates was
restricted to weekend shifts.
[142] Part of the
justification proffered by the respondents in this case was that “an
old policy stands till a new policy
is adopted”.
However, this justification was in stark contradiction to their
stance as regards the disciplinary
code guidelines, which on their
version could not be applied at all while new guidelines were being
devised. It must
be emphasised that the bulk of the
document relied on by the respondents called “
Disciplinary
code for the Department of Correctional Services
is not a
collective agreement but as confirmed twice by the respondents’
witness Ms Mpa, but is in fact a departmental guideline
policy based
on the collective agreement of 2001. This
guideline policy making up the bulk of the document
is entitled
“
Disciplinary Procedure Manual”
. Counsel for
respondents persisted in referring to the whole document as a
collective agreement despite his own witness’
insistence on
more than one occasion that it was not.
[143] It is submitted that
the above analysis focussing as it does on the issue of whether the
discrimination was unfair, and including
the enquiry as to whether
the policy relied on by the department was the least restrictive
means of enforcing its purpose in having
a dress code for the
Department, provides Court with a means to decide on the claims in
this case without resorting to the application
of the Constitution.
Such an approach is in line with the
Sidumo
judgment
supra
.
[144] It is respectfully
submitted on the basis of the above submissions, that Court should
find that the dismissal of the applicants
was automatically unfair
and in addition amounted to unfair discrimination in terms of the
Employment Equity Act.
>
PROCEDURAL AND
SUBSTANTIVE FAIRNESS OF THE DISMISSALS
[145] It is submitted that
should Court hold that the dismissal of the applicants did not
involve unfair discrimination, it should
find in favour of the
applicants’ claim in the alternative, that their dismissal was
procedurally and substantively unfair.
It is trite that the
respondents bear the onus to prove their dismissals were fair. With
reference to this alternative claim the
following submissions are
made:
Schedule
8 of the Act is incorporated into the 2006 collective
agreement DCS Resolution 1 of 2006 including clause 7 thereof
should
be considered;
It
is submitted that from the summary of evidence above, the alleged
dress code was not only inconsistently applied but from the
evidence
of the respondents themselves, the applicants could not have
reasonably be expected to have been aware of the rule or
standard as
their senior managers were themselves not aware of the rule and
furthermore had not been applying it consistently
or at all.
Furthermore there was confusion as to which dress code applied. Ms
Mpa confirmed the dress code containing the word
“Rastaman”
was introduced after 1999, while Mr. Mkhabela insisted that the
dress code had never changed since demilitarization
in 1996. The
dress code upon which the charges against applicants were brought
was not the code containing the words “Rastaman”.
According to the transcript of the disciplinary hearing, the Acting
Head of Human Resources did not know whether there was a
dress-code
at all, as the department was busy drafting a new policy to bring
the code in line with the constitution.
The
entire premise of the disciplinary investigation and of the
disciplinary hearing, was based on an approach which found the
applicants guilty of misconduct because they had not applied
according to the procedure for exemption from the dress code.
Respondents’
witnesses gave conflicting evidence in regard to whether there was
such a procedure. Second respondent asserted
that there was no such
exemption while Mr. Magagula (who had clearly not been prepared in
relation to this evidence for trial)
was referred to his statement
during the disciplinary enquiry and conceded that there was such a
procedure. Respondents’
notable failure to bring
either the chairperson or the initiator/investigator of the
disciplinary proceedings to give evidence
at the trial did not give
an opportunity for Court to examine the seeming contradictions in
this respect. It is submitted
that the only inference to
be drawn from the failure to bring these witnesses is that they
would have undermined the department’s
approach in the trial,
which was on second respondent’s evidence, to present a case
that no application for exemptions
existed in the department.
The failure to bring these witnesses also prevented the applicants
from testing the premise
of the hearing with them and from
furthermore confirming that the chairperson and initiator had regard
to the guidelines which
predated those of July 2007. Their
non-appearance at trial in essence means that the first respondent
cannot discharge its onus
to prove the dismissals were procedurally
and substantively fair.
It
was apparent from the evidence given by first applicant’s
representative that the human resource’s representative’s
role at the hearing did not involve decision-making. This was
undisputed. The disciplinary hearing transcript discovered
by
the respondent reflected that her role in the decision to not allow
legal representation was clearly not limited to one of
merely
advice. It reads that the “
Chairman
request the parties to adjourn and leave him with the HR rep to
consider the submission by the alleged transgressors
representation.
It
is submitted that the guidelines relating to conducting disciplinary
hearings and appeals applied up to the day before the
applicants’
appeal was noted. The new guidelines document of 3 July 2007
had not been given to the applicants by
the department’s
labour relations department. In these circumstances, it is
submitted that it was not procedurally
fair for the record to be
refused to them, more especially given that the minutes were
prepared for the department in any event.
Furthermore, had the
applicants been informed that there would be no right to the
transcript of the disciplinary hearing this
may have impacted on
their decision to walk out of the hearing.
Contrary
to the respondents’ case, there were guidelines i.e. a
procedure manual which applied in the Department before
the 3
rd
of July 2007. This is established if one has regard to
the Correctional Services Regulations of 30
th
July 2004 and specifically the disciplinary procedure for the
Department contained therein. This makes reference to the
“
disciplinary
procedure manual
”.
It should be noted that these regulations insofar as they apply to
the disciplinary procedure, published on the
30
th
July 2004, were amended by proclamation on the 3
rd
August 2007. In terms of this proclamation, the new
disciplinary procedure regulations, (Schedule A), commenced on the
23
rd
July 2007. It must therefore be stated that the
proposition put by counsel for the respondents that Resolution 1
of
2001 was abolished by Resolution 1 of 2006 is simply incorrect.
Respondents’ assertion that there were no
guidelines until
July of 2007 is untrue. The disciplinary procedure manual for the
Department of Correctional Services is referred
to in the Government
Gazette of the 30
th
July 2004 which states” “
for
a pro-forma model containing the steps aimed at ensuring a
procedurally fair disciplinary hearing, refer to the Disciplinary
Procedure Manual”.
It
is further evident from the transcript of the disciplinary enquiry
that the sworn statements made by the applicants were not
put before
the chairperson nor referred to by him.
On
the question of whether the decision to exclude legal representation
amounted to procedural unfairness, it is submitted that
this
question needs to be considered in relation to the code of conduct
signed by all members of Correctional Services and the
qualification
that reasonable orders must also be in conformity with the
Constitution. Furthermore, the guidelines
referred to in
the disciplinary hearing clearly allowed for the chairperson to
exercise a proper discretion in complex cases.
This trial itself has indicated just how complex the issues that
were relevant to the enquiry are. It is submitted that
it was
procedurally unfair to deny the applicants a legal representative,
more especially in the face of the employer’s
agreement to
allow legal representation for the parties.
[146] In the circumstances
of the evidence given at the trial, and the failure of the
respondents to bring the chairperson or initiator
to give evidence,
it is submitted that the only conclusion that Court can come to is
that the disciplinary hearing was substantively
unfair. On
respondents’ version in Court there was no exemption procedure
in regard to the dress code on religious
and cultural grounds.
On the documents discovered by the respondents the disciplinary
inquiry and hearing was conducted on
an entirely different premise,
as was the decision for the applicants’ dismissals.
[147] In view of the above
should Court find against applicants in their primary claims, it is
respectfully prayed that the Court
find that the applicants’
dismissals were procedurally and substantively unfair. Wherefore the
applicants respectfully pray
for the relief as set out in the Notice
of Motion.
Respondents’
submissions
[148] The applicants
contend that their dismissal was automatically unfair. In any
proceedings involving a dismissal, the employee
is required to
establish that he was in fact dismissed. It is common cause that the
applicants were dismissed because they failed
to comply with the
dress code. The next question is whether the applicants’
dismissal entailed any discrimination.
There was no
discrimination
[149] The starting point in
determining whether there is discrimination, we submit, is the
Constitution. Thus s 39(2)
enjoins a court, when
interpreting any legislation, such as the Act or the EEA, to give
effect to the spirit, purport and objects
of the Bill of Rights. ]
Section 9(1) of the Constitution provides that everyone is equal
before the law and has a right to equal
protection and benefit of the
law. In terms of s 9(3) the State may not unfairly
discriminate directly or indirectly
against anyone on one or more
grounds, including inter alia, gender, religion, conscience, belief
or culture. Section 9(5)
provides that discrimination on one or
more of the grounds listed in s 9(3) is unfair unless it is
established that the discrimination
is fair.
[150]
The first question then is whether the challenged law (the Dress
Code) or conduct (the decision to dismiss the applicants)
differentiates between people or categories of people. It is
submitted that the Dress Code does not differentiate between
categories
of people, more specifically, officials of the
Department. As such it is not discriminatory. The Dress Code is
facially neutral.
It applies equally to all officials of the
Department. In fact, the applicants in evidence conceded this.
Furthermore, the
Dress Code is not indirectly discriminatory.
It does not have a disparate impact on the followers of any religion
(let alone,
Rastafari) or culture. Its impact and enforcement
are felt equally by members of different religions and cultures.
This too, the applicants conceded.
[151] Many of these
religions and cultures have specific dress- and personal appearance
requirements, and practices. But they
are also precluded by the
Dress Code from fulfilling those requirements or engaging in those
practices. In this regard, the
second respondent testified that
officials could not be allowed to practice their culture at work; and
that observing culture goes
beyond dress. It has to do with
rituals also, for example, correctional officers could not be allowed
to burn incense at
work. He also said that a correctional
officer on duty could not be permitted to dress in traditional
sangoma wear in accordance
with her culture.
[152] Moreover, in the
instant case the respondents applied the Dress Code consistently.
It is common ground that apart from
the applicants, the same
instruction was given to four other correctional officials to comply
with the Dress Code. These
officials however complied with the
Dress Code and cut their hair. It is submitted that had these
officials not complied with the
Dress Code, the respondents would
have initiated disciplinary proceedings against them as well.
If they had persisted in
their refusal to comply with the Dress Code,
they too probably would have been dismissed.
[153] Inasmuch as the Dress
Code is not discriminatory on its face, its effect, or the way in
which it is applied, it is submitted
with respect, that the
applicants’ claim that their dismissal was automatically
unfair, fails at the first hurdle. It is
further submitted that the
decision by the chairperson of the disciplinary enquiry to dismiss
the applicants, had nothing to do
with discrimination, for the
reasons advanced below.
Ms.
Mpa gave evidence that the record of the disciplinary hearing which
appears at respondents’ bundle was filed with the
Office of
Employer Relations and Pollsmore. The disciplinary record shows the
following:
T
he
second to sixth applicants were charged with a contravention of the
Disciplinary Code and Procedure contained in Resolution
1 of 2006,
in that on or about 19 January 2007 they had contravened the Dress
Code by wearing dreadlocks whilst on duty; alternatively
that they
had failed to carry out a lawful order or instruction without just
and reasonable cause by refusing to keep their hair
in accordance
with the Dress Code.
The
initiator presented evidence demonstrating that the second to sixth
applicants had failed to comply with the Dress Code or
carry out a
lawful instruction.
Based
on the unchallenged evidence, the chairperson found that the second
to sixth applicants had contravened the Disciplinary
Code contained
in Resolution 1 of 2006, by undermining the Dress Code of the
Department by wearing dreadlocks while on duty.
They were
dismissed and advised of their right to appeal the chairperson’s
decision.
[154] It is submitted that
the disciplinary record does not contain a hint of discrimination,
let alone unfair discrimination on
the grounds of gender, religion or
culture. On the contrary, a perusal of the record reveals that
the decision to dismiss
the second to sixth applicants was reasonable
and justifiable in the light of the evidence placed before the
tribunal.
[155] The evidence on
behalf of the Department before the disciplinary hearing went
unchallenged. This happened because the
applicants elected to
walk out of the hearing, with full knowledge of the consequences of
doing so. In fact, the applicants
concede that they were aware
of the consequences.
[156] It is accordingly
submitted that when taking the decision to dismiss the applicants,
the chairperson did not differentiate
between people or categories of
people, and accordingly that there was no discrimination. Apart from
this, it is submitted that
there was no discrimination when the
decisions to suspend the applicants and to initiate disciplinary
proceedings against them,
were taken. The applicants do not challenge
the decisions to suspend them. As already submitted, the second
respondent did not
differentiate between officials of the Department
on any basis, when he decided to enforce compliance with the Dress
Code.
Had the four correctional officials who complied with the
Dress Code by cutting their hair not done so, disciplinary
proceedings
would also have been instituted against them.
If
there was discrimination it would not be unfair
[157] If the discrimination
is on a specified ground, as in this case, religion, conscience,
belief, culture and gender, the respondents
must show that the
discrimination was fair. The test of unfairness focuses primarily on
the impact of the discrimination on the
complainant and others in his
or her situation. The following factors are taken into account when
determining whether discrimination
has an unfair impact:
The
nature of the discriminating law or conduct and the purpose sought
to be achieved by it. An important consideration is whether
the
primary purpose of the law or conduct is to achieve a worthy and an
important societal goal.
The
position of the complainants in society and whether they have been
victims of past patterns of discrimination. Differential
treatment that burdens people in a disadvantaged position is more
likely to be unfair than burdens placed on those who are relatively
well off.
The
extent to which the rights of the complainants are impaired and in
particular whether there is an infringement of their fundamental
rights to dignity.
[158] It is submitted that
in any event, the second respondent’s evidence places it beyond
question that the enforcement of
the Dress Code was but one step in
the enforcement of a number of departmental policies which were not
being complied with at Pollsmoor.
In this regard, the second
respondent’s evidence went unchallenged. He said that a
lack of compliance with departmental
policies, including the Dress
Code, will lead to a lack of discipline and lack of security.
That, in turn, will adversely
affect service delivery. It is
accordingly respectfully submitted that the applicants have not
established any discrimination and
that on this basis alone, their
claim under s 187(1)(f) of the LRA, stands to be dismissed. But
even if there was discrimination,
it is submitted that the applicants
would still not succeed because such discrimination would not be
unfair.
[159] The right to be
afforded a fair hearing before one’s dismissal is indeed an
integral part of our law. This right
is explicitly recognized
by the Act and has been restated in numerous decisions of this
court. However once an employer institutes
disciplinary action
and gives the affected employee notice thereof, it is open to the
employee to attend or refuse to attend the
enquiry. Should the
employee refuse to attend the enquiry such employee must be prepared
to accept the consequences thereof,
one of which is that the enquiry
will proceed in his absence and adverse findings may be made. These
factors are assessed objectively
and cumulatively. However,
they do not constitute an exhaustive list.
[160] Applying the above
principles in the instant case, it is submitted that the applicants
were not dismissed as a result of unfair
discrimination on the part
of the respondents.
As
already submitted, the applicants concede that all officials are
subjected to the Dress Code. That has always been the
case
regardless of gender, religion or culture. The applicants
further concede that discipline is essential for good order
and the
essential functioning of the Department. They also concede
that that dress code is an essential part of correctional
management
and the enforcement and maintenance of security and discipline.
As such, the Dress Code fulfils an important
societal goal. It
cannot therefore be said that the applicants (even though all are
from the previously disadvantaged group)
have been victims of
discrimination in the application or enforcement of the Dress Code.
The
applicants’ rights to religion and culture have not been
limited to such an extent that their rights to dignity have
been
impaired. As stated above, the applicants also concede that
the Dress Code is facially neutral – it applies
equally to all
correctional officials in the Department. It is not indirectly
discriminatory – it impacts equally
on all religions, beliefs
and cultures.
[161] It is accordingly
submitted that the applicants were not dismissed as a result of
unfair discrimination. Indeed, their
dismissal had nothing to
do with discrimination at all. It is to this issue that the
focus will now turn.
[162] The disciplinary
action taken against the applicants was but one step in a series of
actions taken by the respondents to ensure
compliance with
departmental policies. Non-compliance with these policies, as
the second respondent stated in his evidence,
led to a lack of
discipline and security, non-compliance with the Dress Code and
adversely affected service delivery. The applicants
pay no regard to
this.
[163] The second respondent
testified that when he assumed duty at Pollsmoor on 15 January 2007,
his first impression was that there
was large scale non-compliance
with departmental policies, including the Dress Code. This
non-compliance manifested itself inter
alia as follows. There was no
access control at the entrance to the prison, people could come and
go without being searched or
asked for identity. Correctional
officials did not comply with the Dress Code. They mixed the
uniform, wore private
shoes and had different hairstyles. Some
female officials had dyed their hair purple.
[164] The second respondent
had extensive experience as an Area Commissioner. However, what
he encountered at Pollsmoor was
different from his experience at
other correctional centres in that there was large scale
non-compliance with departmental policies
in many areas.
However, a similar experience in Pietermaritzburg Management Area
enabled the second respondent to deal with
the problems at Pollsmoor.
[165] Three days after
taking up his position, the second respondent on 19 January 2007
called a meeting of correctional officials.
There were five
issues on the agenda which the second respondent addressed at the
meeting, namely compliance with departmental
policies; security;
employee relations; performance management; and human resource
development. He said inter alia that officials
had to comply
with the Dress Code; that there was too much movement on the terrain
and that security measures would be put in place;
that he was
committed to work closely with trade unions; and that it was
important that officials carried out their functions according
to
their job descriptions so that service delivery could be enhanced.
After each topic was discussed, time was allowed for
questions,
comments and input. At the end of the meeting officials were
asked whether they had any objection in relation
to compliance with
departmental policies. There was no objection.
[166] It is appropriate at
this juncture to point out that these facts are common cause.
Mr. Ngqula confirmed that the meeting
of 18 January 2007 took place
as well as the agenda. Mr. Kamlana also confirmed that it was
not business as usual when the
second respondent became the Area
Commissioner at Pollsmoor.
[167] As to whether the
applicants could be exempted from compliance with the dress code, the
second respondent said that it would
open the floodgates. That
was also the evidence of the respondents’ expert, Mr. Ndebele.
The second respondent explained
the purpose of insisting on
compliance with departmental policies.
[168] It appears that the
applicants are not pressing their claim based on gender
discrimination. It is submitted that it
has no merit, for the
following reasons.
The
applicants themselves concede that there are distinctions in the
Dress Code because of the biological difference between men
and
women, especially in this case.
The
second respondent’s answer under cross-examination provides a
complete answer. He said that the female officials were
permitted to
wear dreadlocks and that a distinction needed to be made here
because female officials are different from males
and the dress code
makes that difference and for him or any manager to say if a male
official wants to wear pantyhose and high
heels and the manager
declines permission and that member says it is discrimination, that
would not be discrimination. It is
a provision that is made by the
dress code.
No unfair
discrimination under the EEA
[169] What all
of this shows, it is submitted, is that it cannot be suggested that
the reason for the applicants’
dismissal was that the
respondents unfairly discriminated against them on the ground of
gender, religion, conscience, belief or
culture. It is
accordingly respectfully submitted that the applicants’ claim
that their dismissal was automatically
unfair as envisaged in
s 187(1)(f) of the LRA, is without foundation.
[170] Section 6 of the EEA
provides that no person may unfairly discriminate directly or
indirectly against an employee in any employment
policy or practice,
on one or more grounds including gender, religion, conscience, belief
or culture. It is submitted that the
test for discrimination under
the Constitution and s 187(1)(f) of the Act applies equally in
determining whether there is
discrimination under s 6(1) of the
EEA. For the reasons advanced above, it is submitted that the
applicants’ dismissal
does not constitute unfair discrimination
under s 6(1) of the EEA.
THE DRESS CODE IS CONSTITUTIONAL
[171] The applicants seek
an order declaring that the Dress Code is unconstitutional.
The constitutional attack was not properly pleaded
[172] At the outset it is
submitted that the constitutional attack on the Dress Code is
misconceived. It was wholly inadequately
pleaded. The
statement of case merely in a single sentence states that the Dress
Code is unconstitutional. The applicant
has thus attacked the Dress
Code without any identification of its unconstitutional features, any
identification of the constitutional
provisions which it is said to
contravene or indeed any explanation at all of the way in which the
Dress Code is alleged to be
unconstitutional. The Constitutional
Court has held that a litigant must lay a proper foundation for a
constitutional challenge
in the papers or the pleadings as the other
party must be left in no doubt as to the nature of the case it has to
meet.
[173] A proper foundation
for a constitutional challenge in the papers, it is submitted, is
moreover essential to enable a party
seeking to justify a limitation
of a constitutional right to place before the court information
relevant to the issue of justification.
As a result of this
inadequacy of pleading, there are complex issues arising from the
constitutional attack which could not, and
have not, been addressed
by either party. These include the following:
The
identification of the particular features of the Dress Code which
are said to be unconstitutional.
The
specific constitutional provisions said to be contravened by the
Dress Code. The respondents have assumed that it is
s 9(3)
of the Constitution – the right not to be unfairly
discriminated against.
The
question whether the offending features of the Dress Code indeed
contravene the constitutional provisions concerned (which
are not
identified) and if so, in what respect and to what extent they do
so.
[174] On this basis alone,
it is respectfully submitted, the applicants’ attack on the
constitutionality of the Dress Code
falls to be dismissed.
[175] It is submitted that
there is a further reason related to the applicants’ inadequate
pleading, why the constitutional
attack must fail. It is that
the applicants’ have attacked the entire Dress Code. In other
words, they are seeking
an order declaring that the whole of the
Dress Code is inconsistent with the Constitution, including its
requirements relating
to: work dress for various categories of
staff such as nurses; insignia; civilian dress guidelines; personal
appearance;
and identification.
[176] It is accordingly
submitted, with respect, that for this reason also, the
constitutional attack on the Dress Code should be
dismissed. It
is plainly bad.
The
Dress Code is justifiable under s 36 of the Constitution
[177] It is however
submitted that even if the applicants had properly pleaded the
unconstitutionality of the Dress Code, it would
make no difference to
the outcome of this case, since the Dress Code would easily pass
muster under s 36 of the Constitution.
[178] Section 36 of the
Constitution provides that the rights in the Bill of Rights may be
limited only in terms of law of general
application to the extent
that the limitation is reasonable and justifiable in an open and
democratic society based on human dignity,
equality and freedom,
taking into account all relevant factors, including the nature of
right; the importance of the purpose of
the limitation; the nature
and extent of the limitation; and whether there are less restrictive
means to achieve the purpose. The
Dress Code, a form of subordinate
legislation, constitutes law of general application.
[179] It is submitted that
the evidence of the respondents’ expert, Mr. Ndebele, that the
Dress Code is necessary for the
enforcement and maintenance of
security and discipline within a correctional centre environment, is
compelling. The bulk of his
evidence was unchallenged and
uncontradicted. Mr. Ndebele testified that the Dress Code is an
essential part of correctional management
and the enforcement and
maintenance of security and discipline. As such, it is designed to
achieve important societal goal.
[180] Mr. Ndebele also
testified that a correctional centre is an institution focused on
tight security, the implementation of sentences
imposed by the courts
and discipline. Security and discipline are critical to the
orderly operation of a correctional centre
or system. The very
nature of the correctional system demands a strict code of behaviour
supported by a clear and effectively
disciplinary code with effective
disciplinary procedures. This applies to both personnel and
offenders. All members
of personnel are required at all times
to comply with instructions and conduct themselves and perform their
duties in a way that
influences offenders for good and commands their
respect.
[181] The Dress Code
reinforces security. If dreadlocks are allowed, Rastafarian
officials will stand out and undesirable
associations between such
officials and Rastafarian offenders are likely. This is likely
to result in offenders finding ways
to influence Rastafarian
officials to bring dagga – central to the Rastafarian religion
– into correctional centres.
These officials will be
manipulated. Discipline will also be adversely affected because
officials will have to look the other
way. This, in turn, will
adversely affect the rehabilitation of offenders.
[182] The Dress Code also
advances prison security through the quick identification of
officials. It has happened that offenders
have escaped from
correctional centres by impersonating officials.
[183] The Department’s
personnel comprise members of various faiths, cultures and beliefs,
many of whom have specific dress
requirements. In enforcing the
Dress Code the Department treats all religions and cultures
uniformly. If the Department
were to allow officials to wear
dreadlocks it would find itself in the untenable position of being
faced with numerous requests
for exemptions from compliance by
followers of other religions to wear non-uniform garments that those
individuals believe are
required by the tenets of their particular
religion. For example, a Shembe believer would want to wear
calf skin; a Christian
a crucifix over his or uniform; and a Muslim a
scarf or a fez. This will create chaos in a correctional centre
which is underpinned
by security and discipline.
[184] It is submitted that
on the level of the facts, the second respondent confirmed Mr.
Ndebele’s evidence.
Where
there is a lack of compliance with departmental policies, including
the Dress Code, it will lead to a lack of discipline
and lack of
security.
Dagga
is the drug of choice at correctional centres. There have been
cases where offenders have been involved in the possession
and
smuggling of dagga. Correctional officials also smuggled dagga
into prisons. The second respondent gave examples
of two
cases. In the first, a correctional officer, Mr. Gouws
smuggled dagga into Pollsmoor in his lunch box in 2007.
In
2008 Mr. Mayekiso attempted to smuggle dagga into the prison by
hiding it inside the sleeves of his jersey. Both these
officials were dismissed.
The
use of dagga, tik and mandrax in a correctional centre impedes
rehabilitation. Dagga is the source of power for the
26 gang.
In fact, prison gangs control and market dagga. When these
inmates have drugs they are able to exchange
goods and services and
it is also a source of conflict. Some of the gang fights and
uprisings that take place in correctional
centres are as a result of
these drugs.
Dreadlocks
also pose a particular security risk to officials because their hair
could easily be grabbed by an inmate when they
have to break up gang
fights in prison. In fact, Mr. Ndebele’s evidence was
not only confirmed factually by the second
respondent, but also by
Jacobs himself, who testified that he was attacked and injured by an
offender without provocation –
and inherent risk in a
correctional centre environment.
As
regards undesirable associations between Rastafarian officials and
Rastafarian inmates which is likely to result in inmates
finding
ways to influence officials to bring dagga into correctional
centres, the second respondent referred to an incident that
happened
at Pollsmoor in April 2008. A large group of people under the
auspices of the Rastafari Working Council marched
to Pollsmoor where
they demanded to hand over a memorandum that offenders in prison for
dagga-related crimes should be released,
because they did not do
anything wrong. The police ordered the group to leave.
The
second respondent also confirmed Mr. Ndebele’s evidence that a
violation of the Dress Code by allowing male correctional
officials
to wear dreadlocks would open the gates for personal preferences by
other officials.
Finally,
the second respondent testified that there is a link between
discipline and rank or insignia. He was with the Department
during the demilitarization process in 1996. When that
happened, correctional centres were difficult to manage as the level
of respect went down. That also had an adverse impact in
exercising discipline over offenders who were used to military
ranks
and levels of authority.
[185] The applicants
however submit that Mr. Ndebele’s evidence must be called into
serious question because he is employed
by the Department. The
applicants however miss the point.
The
applicants themselves concede that security and discipline is
critical in a correctional centre environment. Mr. Kamlana
testified that in terms of the Code of Conduct, a member of the
Department is required to dress and behave in a way that advances
the reputation of the Department, respects the corporate wear and
complies with the Dress Code. This is important for security
and discipline. He further conceded that as part of discipline
all correctional officers wear a standard uniform and comply
with
standard requirements relating to personal appearance, because they
have to work as a team within a risky and dangerous
environment.
Mr.
Kamlana in fact confirms Mr. Ndebele’s evidence that the Dress
Code promotes and enhances unity which is part of the
organizational
culture; that compliance with the Dress Code shows a disregard for
personal preferences and evinces self-discipline
and obedience to
the team concept; and that it is an essential part of correctional
management and the enforcement and maintenance
of security and
discipline.
Mr.
Jacobs also confirmed Mr. Ndebele’s evidence that a
correctional centre is an institution focused on security and
discipline, which includes ensuring the safety of its own officials
in the performance of their functions. Mr. Jacobs testified
that a correctional centre is not a safe environment and officials
could encounter violence on a daily basis. He himself
was the
victim of an unpredictable and unprovoked attack in 2005 which
involved a struggle with an inmate and caused him to sustain
an open
wound. He did not have dreadlocks at the time. It is
submitted that this underscores Mr. Ndebele’s
evidence that
dreadlocks pose a security risk to officials because their hair
could easily be grabbed by an offender.
Mr.
Kubheka also confirmed Mr. Ndebele’s evidence that dreadlocks
pose a security risk in that they could be grabbed by
offenders; and
that there could be undesirable associations between Rastafari
officials and Rastafari offenders. He said
that Rastafari
offenders had approached him, and not correctional officials
belonging to the Christian faith, to provide them
with Bibles.
[186] Finally, the
applicants make much of the “
reasonable accommodation”
principle, namely that failing to take steps to reasonably
accommodate the applicants on the basis of religion or culture, will
amount to unfair discrimination. They refer to numerous foreign
authorities for the contention that the policy relied on by the
Department was not the least restrictive means to achieve its
purposes.
[187] It is submitted that
the applicants’ reliance on the principle of reasonable
accommodation and foreign authorities is
misplaced, essentially for
two reasons. First, the applicants ignore the evidence of the second
respondent and the expert, Ndebele.
Secondly, the foreign
authorities are distinguishable.
[188] It is respectfully
submitted therefore that the applicants’ attack on the
constitutionality of the Dress Code has no
merit, and should be
dismissed.
PROCEDURAL FAIRNESS
[189] The applicants
contend that the dismissal of the second to sixth applicants was
procedurally unfair, for the following reasons:
The
second to sixth applicants were unreasonably refused legal
representation.
The
chairperson of the disciplinary hearing failed to recuse himself.
The
hearing was held in the absence of the second to sixth applicants.
The
appeal was not properly considered.
[190] In their heads of
argument however, the applicants impermissibly seek to broaden the
attack based on procedural unfairness,
in two respects. The
first is that the role of the human resource representative at the
disciplinary hearing was not limited
merely to furnishing advice.
The second is that the failure to provide the applicants with the
record of the disciplinary
proceedings, was procedurally unfair.
[191] As to the first new
attack, the applicants are not permitted to raise in their heads of
argument, issues not covered by the
pleadings. That is a trite
principle of law. But in any event, it is submitted that these
new challenges have no foundation.
In fact, the evidence goes
the other way.
The
statement in the disciplinary record that “
chairman
request (sic) the parties to adjourn and leaving with the HR rep to
consider the submission by the alleged transgressors
representation
(sic)”
, does
not suggest that the human resource representative was in any way
involved in the chairperson’s decision to refuse
the
applicant’s legal representation.
The
new challenge based on the minutes of the disciplinary hearing is
opportunistic. The applicants now, for the first time,
say
that had they been informed that there would be no right to a
transcript of the disciplinary hearing, “
this
may have impacted on their decision to walk out of the hearing”
.
But there is no such evidence on record. In any event, the
unchallenged evidence of Ms. Claasen was that the record
had been
typed only on 25 July 2007 – long after the applicants were
required to lodge their appeals in terms of Resolution
1 of 2006.
[192] Before dealing with
the grounds upon which the applicants allege that their dismissal was
procedurally unfair, it is necessary
to deal with the applicants’
submission that the “
entire premise of the disciplinary
investigation … and … the disciplinary hearing was
based on an approach which found
the applicants guilty of misconduct
because they had not applied according to the procedure for exemption
from the Dress Code”
.
[193] Their submission is
simply wrong. The record shows that the respondents launched an
investigation into the applicants’
failure to comply with the
Dress Code. That is clear from: the letters addressed to
them, their own evidence that what
they had told the investigator was
true and correct regarding their failure to comply with the Dress
Code, and what happened at
the disciplinary hearing. Indeed, it
is common cause that the second to sixth applicants were charged with
contravening the
Dress Code by wearing dreadlocks, alternatively
failing to carry out a lawful order or instruction without just or
reasonable cause
by refusing to wear their hair in accordance with
the Dress Code.
The grounds of
procedural unfairness advanced by the applicants.
Legal
representation.
[194] At the outset it is
submitted that it was established in evidence that the
DCS
Disciplinary Code and Procedure: DBC Resolution 1/2006
Guidelines for Managers
were approved on 2 July 2007.
Before that date there were no disciplinary guidelines issued under
Resolution 1 of 2006.
[195] Resolution 1 of 2006
was entered into between the State and the relevant trade unions,
including POPCRU on 4 August 2006.
Its stated purpose was to
replace the previous collective agreement (Resolution 1/2001 annexes
A, B and C) relating to the Disciplinary
Code and Procedure of the
Department; and to amend the regulations on the Disciplinary Code and
Procedure issued under the
Correctional Services Act 111 of 1998
.
[196] Resolution 1 of 2001
did not provide for an employee to be legally represented. Likewise,
the regulations made under the
Correctional Services Act did
not
provide for legal representation. The Disciplinary Guidelines however
provide for legal representation in defined circumstances.
This
provision however, came into force only on 2 July 2007, after the
applicants’ disciplinary hearing. The applicants
were
thus not entitled to legal representation. Consequently their
application for legal representation to the chairperson
of the
disciplinary enquiry was misconceived. On this basis alone, it is
respectfully submitted that the attack on the decision
dismissing
them on the basis that they were refused legal representation, falls
to be dismissed. The right to legal representation
in this case is
governed by the Disciplinary Code, the product of a collective
agreement.
[197] Even accepting that
the applicants were entitled to legal representation, it is submitted
that their claim to procedural unfairness
on this ground must fail,
for the following reasons:
The
applicants were legally represented. Mr Casner informed the
chairperson at the disciplinary enquiry that he was a qualified
advocate. He regularly represented employees of the Department
at disciplinary enquiries. Moreover, the applicants
themselves
conceded that there was nothing preventing Mr. Casner and Mr.
Arendse from representing them at the disciplinary hearing.
In
addition, the chairperson had regard to the fact that he was
required to make a ruling that was fair and just in the
circumstances,
and the fact that legal representation should be
considered only in cases that were highly technical and complicated
and where
it would be in the interest of both parties as well as the
interest of justice.
[198] It is accordingly
submitted that the contention advanced on behalf of the applicants
that the proposition that Resolution
1 of 2001 was abolished by
Resolution 1 of 2006 is incorrect, is quite wrong. So too, is
the submission that it is untrue
that there were no guidelines until
July 2007.
Regulation
33 of the Correctional Services Regulations made under the
Correctional Services Act
(“
the
Correctional Services Regulations”
),
which deals with discipline provides that correctional officials are
subject to the disciplinary code and procedure as provided
for in
Resolution 1 of 2001. As already stated, that Resolution was
replaced by Resolution 1 of 2006. There were
thus no
disciplinary guidelines issued under Resolution 1 of 2001.
Neither were there any guidelines under Resolution 1
of 2006, until
2 July 2007.
The
applicants in any event, we submit, miss the point. They
cannot demonstrate that the disciplinary code and procedure
referred
to in Schedule A and B to the Correctional Services Regulations, nor
the Disciplinary Procedure Manual to which the
applicants refer,
allows legal representation in circumstances such as the present, or
entitles them to the
verbatim
minutes of disciplinary proceedings.
[199] It is accordingly
respectfully submitted that the applicants’ claim that they
were treated unfairly because they were
refused legal representation,
is without merit.
[200]
As already stated, it appears that the applicants are no longer
persisting with the relief that the chairperson failed to
recuse
himself. In any event, it is submitted that any allegation that
the chairperson was bias should fail.
The hearing in absentia
[201] In this regard, the
following facts are common cause:
On
5 June 2007 when their request for legal representation was declined
the applicants walked out of the hearing.
When
the hearing recommenced on 7 June 2007 the applicants again walked
out of the hearing when the chairperson refused to recuse
himself.
Nothing
prevented Messrs Casner and Arendse from representing the applicants
at the disciplinary enquiry. Mr. Casner is
qualified advocate
experienced in representing employees of the Department at
disciplinary enquiries.
Numerous
attempts were made to secure the applicants’ presence at the
hearing. After they walked out on 4 June 2007,
the initiator
wrote to them advising them that if they did not turn up for the
hearing it would continue in their absence.
When the
applicants did not appear at the hearing on 5 June 2007, they were
informed that the hearing was postponed to 7 June
2007. They
were again advised that if they did not turn up for the hearing it
would continue in their absence. On
7 June 2008 the applicants
walked out of the hearing for a second time. The applicants
knew that if they walked out of
the hearing, it would continue in
their absence. Nevertheless they decided to walk out.
[202] It is accordingly
respectfully submitted that the applicants accepted the consequences
of their walk out – that the
hearing would proceed in their
absence and adverse findings may be made. They cannot now
complain that they were not treated
fairly.
The appeals could not be
considered
[203] It is common cause
that the applicants all filed notices of appeal on 3 July 2007.
The notice of appeal contained an
instruction that a detailed
motivation of the grounds of appeal must be attached to the appeal
documents. It is further common
cause that none of the applicants
submitted a detailed motivation of their grounds of appeal. The
unchallenged evidence of Mpa
was that she had asked the applicants on
numerous occasions to comply with annexure E to Resolution 1 of 2006,
by submitting a
detailed motivation of the grounds of appeal.
In this regard, she testified as follows:
The
notices of appeal were completed by all the applicants in her office
with the assistance of Casner. He regularly assisted
Pollsmoor
employees in disciplinary enquiries. Two shop stewards, Mrs.
Lepuwana and Mrs. Malgas were also present.
Ms.
Mpa explained to Casner that it was not necessary to wait for the
minutes of the disciplinary proceedings in order for the
applicants
to submit their motivation of the grounds of appeal. She
specifically asked them for the motivation and explained
to them
that they needed to submit the grounds of appeal within a period of
five days.
[204] On 17 July 2007 Ms.
Mpa addressed a letter to all the applicants which stated inter alia,
that on 03July 2007 they submitted
the notice to appeal to her office
without any grounds or reason as expected and they were once more
invited to submit their reasons
or grounds for appeal within the
prescribed period of five days failing which her office would be left
with no option but to confirm
their sanction of dismissal. Ms. Mpa
handed the letter to Messrs Ngqula and Kamlana when they called at
her office. They
said that they would read it outside her
office and that they would return. They never did. She
telephoned Mr. Jacobs regarding
the letter and he told her to contact
Mr. Casner, which she did. There was another discussion about
the motivation of the
grounds of appeal. Mr. Casner however
said that he was waiting for the minutes.
[205] The applicants failed
to submit the motivation of the grounds of appeal by 25 July 2007.
Consequently, their appeals
could not be considered and the Area
Commissioner, Corporate Services, Pollsmoor Management Area,
confirmed the sanction of dismissal.
Ms. Mpa made numerous attempts
to get the applicants to comply with the requirement that they submit
a detailed motivation of the
grounds of appeal when they signed the
suspension register in her office every Wednesday.
[206] In these
circumstances, it is submitted that it cannot be suggested that the
applicants were not treated fairly because their
appeals were not
properly considered – they could not be considered because the
applicants failed to submit the grounds of
appeal despite repeated
requests by the first respondent that they do so. But when faced with
this insurmountable hurdle, the applicants
changed their tack.
They now allege procedural unfairness on the basis that they were not
provided with the minutes of the
disciplinary hearing. This new
challenge, it is submitted, fails for two reasons. First, it is
not covered by the pleadings.
Second, on the law and the facts,
it has no foundation.
[207] Unsurprisingly, item
8 of the Disciplinary Code and Procedure contained in Schedule A to
the Correctional Services Regulations,
also does not provide that an
appellant should be furnished with the minutes of a disciplinary
enquiry. It is submitted that the
reason why an appellant is not
entitled to minutes is not far to seek – an appeal must be
heard and decided expeditiously.
Appeals are decided on the papers.
An employee must note an appeal within five working days of receiving
notice of the final outcome
of a hearing or other disciplinary
procedure. The Department must finalise appeals within 30 working
days from the date of receipt
of the appeal, failing which, in cases
where the employee is on suspension after dismissal, he or she, after
expiry of the 30 working
days, must resume duties immediately and
await the outcome of the appeal.
[208] It is accordingly
submitted that the challenge that the applicants were not treated
fairly because they were not provided
with the minutes of the
disciplinary hearing, fails on the level of the law.
[209] On the level of
facts, it is submitted that the challenge is contrived. When he
completed the applicants’ notices of
appeal, Casner was
informed that they were not entitled to minutes. Mpa explained
to him that they could get the tapes of
the disciplinary hearing if
they needed the minutes. None of the applicants called at her
office for the tapes. Before 2
July 2007 the union lodged an appeal
without minutes in the case Mr. Mbiko. The union also lodged an
appeal without minutes after
2 July 2007 in two cases. In the
first, Mr. Casner himself noted an appeal without minutes against his
own dismissal.
The second was the case of Mr. Siebritz. The
applicants now say that it was procedurally unfair for the record to
be refused, given
that the minutes were prepared for the Department
in any event. The applicants miss the point. They do not
(and indeed
cannot dispute that they were required to file their
notice of appeal within 5 days). They did so on 3 July 2007.
But
the undisputed evidence is that the minutes were completed on 25
July 2007.
[210] It is accordingly
respectfully submitted that none of the grounds for procedural
unfairness bear scrutiny, and accordingly
that the applicants’
claim that they were not treated fairly, should be dismissed.
[211] In the circumstances,
the respondents ask that the applicants’ claim be dismissed
with costs, including the costs of
two counsel.
Evaluation
[212] The first claim of
the applicants is premised on the provisions of sections 187 (1) (f)
of the Act and section 6 of the EEA.
Section 187 (1) (f), to the
extent relevant here reads:
:”
187
Automatically unfair dismissals
(1)
A dismissal is automatically unfair if the employer, in dismissing
the employee, acts contrary to section 5* or, if the reason
for the
dismissal is-
(a)………..
(f)
that the employer unfairly discriminated against an employee,
directly or indirectly, on any arbitrary ground, including, but
not
limited to race, gender, sex, ethnic or social origin, colour, sexual
orientation, age, disability, religion, conscience, belief,
political
opinion, culture, language, marital status or family
responsibility;..”
[213] Sub-section (1) needs
to be read together with sub-section (2) of the same section for
purposes of this claim and it reads:
“
(2)
Despite subsection (1) (f)-
(a)
a dismissal may be fair if the reason for dismissal is based on an
inherent requirement of the particular job;”
[214] Section 6 of the EEA
on the other hand reads:
“
6
Prohibition of unfair discrimination
(1)
No person may unfairly discriminate, directly or indirectly, against
an employee, in any employment policy or practice, on one
or more
grounds, including race, gender, sex, pregnancy, marital status,
family responsibility, ethnic or social origin, colour,
sexual
orientation, age, disability, religion, HIV status, conscience,
belief, political opinion, culture, language and birth.
(2)
It is not unfair discrimination to-
(a)
take affirmative action measures consistent with the purpose of this
Act; or
(b)
distinguish, exclude or prefer any person on the basis of an inherent
requirement of a job.
(3)
Harassment of an employee is a form of unfair discrimination and is
prohibited on any one, or a combination of grounds of unfair
discrimination listed in subsection (1).”
[215] It behooved the
applicants to prove the discriminatory conduct of the respondents
which they sought to place reliance on.
It was common cause that all
applicant employees kept and maintained a dreadlock hair style while
they were on duty. Soon after
the second respondent assumed duty at
Pollsmoor Prison, he issued an instruction to all correctional
officers, inter alia, that
those who kept a dreadlock hair style were
to cut their hair and forego the hair style. With the exception of
the applicant employees,
other male staff members co-operated with
the instruction. It has never been the case of the applicants that
the instruction was
directed at them and to the exclusion of some
other staff members, with the exception of the female colleagues.
Therefore, to the
extent that the claim of the applicants suggests
that the respondents treated them differently from the female
colleagues who were
excluded from the instruction, their claim is one
of a direct discrimination on the basis of gender. The second level
at which
the applicants sought to pitch their case to fit within a
discriminatory category is one of indirect discrimination. This
refers
to situations when an employer utilises an employment practice
that is apparently neutral, but disproportionately affects members
of
disadvantaged groups in circumstances where it is not justifiable.
See
Leonard Dingler Employee Representative Council & Others
v Leonard Dingler (Pty) Ltd & Others (1998)
19 ILJ
285 (LC) at 289.
It is within this grouping that I understand the
discriminatory case of the applicants to be falling. It has not been
the case
of the applicants that the respondents directly prohibited a
belief in Rastafarianism and in cultural beliefs. Their case is that
the second respondent utilized an employment practice that was
apparently neutral, in the form of an instruction to remove the
dreadlock hair style, which disproportionately affected them as
members of disadvantaged grouping, without justification.
[216] The applicants were
settled with the onus of proving the discrimination they complained
of. If successful, the onus would
then shift to the respondents as
the proved discrimination would be presumed to be unfair.
Section
187 of the Act identifies a specific category of dismissals that, if
proved to exist, are regarded as automatically unfair.
Should this
court be satisfied that a causal link is established on a balance of
probabilities between the prohibited reasons for
dismissal and the
circumstances of the dismissal, no justification can be proffered by
the employer, and the employee automatically
qualifies for the
privileges conferred upon the special category of dismissals, namely
a rebuttal presumption of unfairness and
an entitlement to double the
ordinary compensation awarded.
See
Tammy Cohen “Onus
of Proof in Automatically Unfair Dismissals ‘Janda vs
First National Bank’; (2006)
27 ILJ 2627 (LC) (2007) 28 ILJ
1465.
[217] Under the legal
issues the applicants pleaded in their statement of case that:
“
The
dismissal of the second to Sixth Applicants is substantively unfair
and amounts to an automatically unfair dismissal in terms
of s189 (1)
(f) of the Labour Relations Act 66 of 1996 (sic) and/or unfair
discrimination as contemplated by section 6 (1) of the
Employment
Equity Act No 55 of 1998 in that the respondent discriminated against
the second to Sixth Applicants directly and or
indirectly on the
grounds of religion and/or conscience and/or belief and/or culture
and/or gender.”
[218] The respondents’
denial was couched in the following terms:
“
The
dismissal of the Second to Sixth Applicants was fair in terms of the
Labour Relations Act No 68 of 1996 (sic) and the dismissal
of the
second to Sixth Applicants was fair discrimination as contemplated by
section 6
(1) of the
Employment Equity Act No 55 of 1998
in that the
Respondent did not discriminate against the Second to Sixth
Applicants directly and/or indirectly on the grounds of
religion
and/or conscious (sic) and/or belief and/or culture and/or gender.
[219] The allegation of
gender discrimination was accordingly well pleaded by the applicants
and well responded to by the respondents.
It remained the undisputed
version of the applicants that none of the female correctional
officers at Pollsmore Prison who had
a dreadlock hair style were
similarly disciplined as the applicant employees were. This was an
allegation of gender based discrimination.
I propose to return to
this later.
Discrimination on
the grounds of religion and/or conscience and/or cultural beliefs.
[220] There is an
overwhelming probably in favour of the applicants’ version that
all of them kept their dreadlock hair style
because of the belief
that the second, fifth and sixth applicants had to Rastafarianism and
the third and fourth had towards cultural
practices. This is so
notwithstanding the various concerns that may be raised on the
evidence of each applicant employee, such
as the exact period when
Mr. Ngqula would have taken leave to go and attend to the cultural
ceremony pertaining to his calling.
In this regard the evidence of
Mr. Toyo, the traditional healer went a long way towards confirming
the performance of the traditional
ritual ceremony connected to the
reclaiming by Mr. Ngqula of his father’s clan name and one for
the acceptance of the calling
where “ivitani” or
the dreadlock hair style was cut in December 2007. Various challenges
were made on the version
of the second, fifth and sixth applicants on
their faith and its practices but it was never suggested to them that
they were lying
about their faith, nor am I able to find the basis
for the rejection of their evidence on the issue. I therefore hold
that all
five applicants kept a dreadlock hair style because of their
religious, Rastafarianism, and cultural beliefs.
[221] In relation to the
beliefs that the applicants had, Ms Hilary Rabkin-Naicker appearing
for the applicants submitted, correctly
in my view, that court is not
concerned with the validity or correctness of the Rastafarian faith
or beliefs but only with their
sincerity.
It is to
her indebtedness that I will refer to some of the cases she places
reliance on, such as in the case of
United States v Bellard
322 US 78
(1944)
at p86 – 87 where the following appears:
“
Men
may believe what they cannot prove. They may not be put to the proof
of their religious doctrines or beliefs. Religious experiences
which
are as real as life to some may be incomprehensible to others yet the
fact that they be beyond the ken of mortals does not
mean that they
can be made suspect before the law.”
[222] In
Prince v President, Cape Law Society and
Others
[2002] ZACC 1
;
2002 (2) SA 794
(SA)
court held
that
:”
[49] The right to freedom of religion is
especially important for our constitutional democracy which is based
on human dignity,
equality and freedom. Our society is diverse. It is
comprised of men and women of different cultural, social, religious
and linguistic
backgrounds. Our Constitution recognises this
diversity. This is apparent in the recognition of the different
languages;
the prohibition of discrimination on the grounds of,
among other things, religion, ethnic and social origin; and the
recognition
of freedom of religion and worship. The protection
of diversity is the hallmark of a free and open society. It is the
recognition
of the inherent dignity of all human beings. Freedom is
an indispensable ingredient of human dignity.”
[223]
In
SACWU &
Others v Afrox Ltd (1999) 20 ILJ 1718 (LAC)
court, albeit not in the context of a discrimination claim, was faced
with the question whether an employer had dismissed striking
employees based on operational reasons as a result of their
participation in a protected strike which would have made the
dismissal
automatically unfair in terms of section 171(1)(a) of the
Act. It endorsed the following approach:
“
The
enquiry into the reason for the dismissal is an objective one, where
the employer's motive for the dismissal will merely be
one of a
number of factors to be considered. This issue (the reason for the
dismissal) is essentially one of causation and I can
see no reason
why the usual twofold approach to causation, applied in other fields
of law, should not also be utilized here (compare
S v Mokgethi &
others
1990 (1) SA 32
(A) at 39D-41A; Minister of Police v Skosana
1977 (1) SA 31
(A) at 34). The first step is to determine factual
causation: was participation or support, or intended participation or
support,
of the protected strike a sine qua non (or prerequisite) for
the dismissal? Put another way, would the dismissal have occurred if
there was no participation or support of the strike? If the answer is
yes, then the dismissal was not automatically unfair. If
the answer
is no, that does not immediately render the dismissal automatically
unfair; the next issue is one of legal causation,
namely whether such
participation or conduct was the 'main' or 'dominant', or
'proximate', or 'most likely' cause of the dismissal.
There are no
hard and fast rules to determine the question of legal causation
(compare S v Mokgethi at 40). I would respectfully
venture to suggest
that the most practical way of approaching the issue would be to
determine what the most probable inference
is that may be drawn from
the established facts as a cause of the dismissal, in much the same
way as the most probable or plausible
inference is drawn from
circumstantial evidence in civil cases. It is important to remember
that at this stage the fairness of
the dismissal is not yet an issue
(see para [33] below). Only if this test of legal causation also
shows that the most probable
cause for the dismissal was only
participation or support of the protected strike, can it be said that
the dismissal was automatically
unfair in terms of s 187(1)(a) . If
that probable inference cannot be drawn at this stage, the enquiry
proceeds a step further.”
[224] In
Hoffman v SA Airways (2000) 21 ILJ 2357 (CC) at 2370
court held in relation to discrimination that
“
the
determining factor regarding the unfairness of the discrimination is
its impact on the person discriminated against. Relevant
considerations in this regard include the position of the victim of
the discrimination in society, the purpose sought to be achieved
by
the discrimination, the extent to which the rights or interests of
the victim of the discrimination have been affected, and
whether the
discrimination has impaired human dignity of the victim”
.
[225] When assessing
whether discrimination or differentiation is unfair, court explained
as follows in
Harksen : v Lane NO & Others
1998(1) SA 300 (CC) at 325 A:
“
Firstly,
does the differentiation amount to “discrimination”?
If it is on a specified ground, then discrimination
will have been
established. If it is not on a specified ground, then whether
or not there is discrimination will depend upon
on whether,
objectively, the ground is based on attributes and characteristics
which have the potential to impair the fundamental
human dignity of
persons as human beings or to affect them adversely in a comparably
serious manner…
If
(the differentiation) has been found to have been on a specified
ground, then unfairness will be presumed… The test of
unfairness focuses primarily on the impact of the discrimination on
the complainant and others in his or her situation.
[226] It has now to be
determined whether the respondents did in fact violate the right of
the applicants to exercise their freedom
of religion and cultural
practices through their retention of a dreadlock hair style without
being subjected to a disciplinary
enquiry which had the sequel of a
dismissal. It was always beyond dispute that the applicants never
brought it to the attention
of either of the respondents that the
instruction issued by the second respondent was in conflict with the
applicants’ religious
and cultural practices. The applicants
knew very well that the second respondent had just arrived in
Pollsmoor Prison and that
therefore he would not have known about
their beliefs. No evidence was led that the second respondent acted
in flagrant disregard
of the rights of the applicants to their
religious and cultural beliefs. In fact the evidence of the third and
the fourth applicants
left no doubt that the respondents would not
have known that they were undergoing a cultural calling towards being
traditional
healers. The second respondent testified. It was never
put to him that he knew any of the second, fifth or sixth applicants
to
be Rastafarians. It is probable that some of the correctional
officers, including supervisors knew that some of the applicants
practised Rastafarianism. It is this group that would have done
nothing about that practice until the arrival of the second
respondent.
[227] I have to remind
myself that the enquiry into the reasons for the dismissal is an
objective one, where the employer's motive
for the dismissal will
merely be one of a number of factors to be considered, see the
Afrox
decision
supra
. Clearly therefore the motive for the
instruction to cut dreadlocks which led to a disciplinary action that
was a precursor to
the dismissal of the applicants could never have
been as a result of a
direct intention
(my emphasis) to
discriminate against neither applicant. It was very strange that the
applicants who well knew their rights to
religious and cultural
practices did not see it fit to assert such rights at the very
critical moment when the issue of their hair
style arose for
consideration. The case of the applicants is therefore that the
respondents unconsciously and yet directly discriminated
against them
in their exercise of their religious and cultural practices. In my
view, that would be a contradiction in terms.
[228] The evidence of the
second respondent on why he issued the instructions to have
dreadlocks cut must not be confused with this
approach I have
adopted. Nowhere in his evidence did he say that he issued the
instruction well knowing the beliefs of the applicants.
His evidence
on what his reaction would be to a staff member who would want to
wear a nose earing was the position he took as a
witness. By then the
applicants had been dismissed without the knowledge of their beliefs.
What the second respondent said about
a right to cultural beliefs did
not give the reason for the dismissal of the applicants. It revealed
the attitude of the second
respondent as he stood in the witness box
which, however had no bearing on the reasons for dismissal as he had
not been informed
of such beliefs when disciplinary actions against
the applicants were initiated and completed.
[229] Accordingly, I find
that the applicants, who bore the onus of proving that the
respondents
rationale
for the dismissal of the applicants was
based on direct discrimination, have failed to discharge the duty
resting on them as I am
not satisfied that a causal link is
established on a balance of probabilities between the prohibited
reasons for dismissal and
the circumstances of the dismissal, Factual
causation, that is a belief in religious and cultural practices has
not been proved
to have been a
sine qua non
or prerequisite
reason for the dismissal of the applicants.
[230] The next enquiry is
about whether or not indirect discrimination has been shown to have
been the basis for the dismissal of
the applicants. The case of the
applicants is that the indirect discrimination was constituted by the
rule which infringed against
the rights of Rastafarian correctional
officials to practice their religion, and in the case of third and
fourth applicants, the
rights of correctional officials to practice
their culture. The respondents did not dispute that the keeping of
the dreadlock hair
style was a practice consistent with the beliefs
held by the applicants. In fact, the applicants produced overwhelming
evidence
in this regard. Court has already found that the keeping of
the dreadlock hair style constituted part of the Rastafarian and
cultural
practices. The instruction of the second respondent to have
the applicants cut their dreadlocks had the effect of the
introduction
of an employment practice that was apparently neutral
but disproportionately affecting members of a disadvantaged grouping.
It
is to be ascertained whether such a practice by the respondents
was justifiable or reasonable in the circumstances. It will
depend on this aspect whether the presumption of unfairness will or
will not arise. The test of unfairness focuses primarily on
the
impact of the discrimination on the complainant and others in his or
her situation, the
Harksen
case
supra
. Relevant
considerations in this regard include the position of the victim of
the discrimination in society, the purpose sought
to be achieved by
the discrimination, the extent to which the rights or interests of
the victim of the discrimination have been
affected, and whether the
discrimination has impaired human dignity of the victim, see
Hoffman
case above.
[231] It is beyond doubt
that the impact of the instruction would have a devastating effect on
their beliefs which they held high
at the time. Rastafarians stood to
be scorned at by those who knew them and the practice of their faith.
The third and fourth applicants
would similarly be frustrated in
their traditional calling, for the period during which they had to
keep the dreadlocks hair style.
In relation to the position of the
applicants in society, not much turns on this as they were among a
number of other correctional
officers with divergent religious and
cultural beliefs and similarly entitled to practice their faith. The
purpose sought to be
achieved by the second respondent was no doubt,
the restoration and maintenance of discipline which was intended to
improve security
measures in prison. It was common cause that the
instruction of the second respondent to have dreadlocks cut was but
one of the
many other instructions he had issued to improve the
working environment in prison. As already found, the attention of the
second
respondent was never drawn to the effect his instruction would
have on their beliefs so that he would have had to apply his mind
to
it. The modality of informing the second respondent was, in my
view irrelevant, It could have been a formal or informal
application
to keep dreadlocks with an accompanying explanation or it could have
been a response to his instruction. What matters
it that his
attention should have been drawn to their beliefs and he was not.
[232] In relation to the
extent to which the rights or interests of the victim of the
discrimination have been affected, it needs
to be said that the
applicants had a strong faith in the practice which was the basis for
the keeping of their dreadlocks. The
right to practice their faith
was adversely affected and their dignity was no doubt impugned. The
applicants had a right to their
faith. In my view, they erred by
failing to assert that right. The consequence is that the practice by
the respondents, through
the instruction issued by the second
respondent, was justifiable and reasonable in the circumstances. The
presumption of unfairness
has therefore been negated by irrefutable
evidence. It has to be borne in mind that the existence of a right is
one thing and the
exercise thereof is another. Accordingly it had not
been shown that the respondents indirectly discriminated against the
applicant
employees. .
[233] Quite some time and
effort were spent by the parties on the issue of the dress code. What
initiated the dismissal of the applicant
employees was the issue of
the instruction by the second respondent followed by the disciplinary
hearing. The investigation should
therefore have been about the
legitimacy and reasonableness of the instruction. The dress code
merely formed the basis of the legitimacy
of the instruction issued
by the second respondent. For purposes of this judgment I found it
unnecessary to have had to deal with
the issue of the dress code
alone, believing that the final answer to this matter, will provide
the necessary determination of
that issue.
[234] I now return to the
gender discrimination issue. The basis on which the respondents’
counsel, Mr. Schippers, appearing
with Mr. O’ Brien submitted
that the applicants were not pressing their claim on gender
discrimination is not supported by
the pleadings and the evidence, as
already pointed out. It was submitted that the gender discrimination
had no merits on two reasons.
The first was that the applicants
themselves conceded that there were distinctions in the dress code
because of the biological
difference between men and women,
especially in this case.
[235]
The second, it was said lay in the second respondent’s answer
under cross-examination as providing a complete answer.
He said that
the female officials were permitted to wear dreadlocks and that a
distinction needed to be made here because female
officials were
different from males and the dress code marked that difference and
for him or any manager to say if a male official
wanted to wear
pantyhose and high heels and the manager declined permission and that
member said it is discrimination, that would
not be discrimination.
It was a provision that was made by the dress code.
[236] It was never made
clear why the biological differences between men and women had to
justify discriminating among them. The
biological differences between
Blacks and Whites would never be an acceptable basis for racial
discrimination which constitutes
the very said past of this country.
Gender based discrimination in fact forms a listed ground on the
basis of which dismissal would
be automatically unfair both in terms
of section 187 (1) (f) of the Act and section 6 of the EEA. Both of
these sections must be
seen against the background of the provisions
of section 9 under the Bill of rights of the Constitution Act, 1996.
The relevant
subsections are (1) and (2) which read:
“
(1)
Everyone is equal before the law and has the right to equal
protection and benefit of the law;
(2)
Equality includes the full and equal enjoyment of all rights and
freedoms. To promote the achievement of equality, legislative
and
other measures designed to protect or advance persons, or categories
of persons, disadvantaged by unfair discrimination may
be taken. “
[237] The second
explanation suffers from a similar discrepancy as was the first. In
addition, legislated discrimination is not
by that fact alone
justified and reasonable. Racial discrimination was legislated and
protected by legislation in the past. That
fact alone did not render
it fair. That a differentiation between male and female officers was
provided for in the dress code does
not mean that such
differentiation was fair. Factors for the determination of fair
discrimination have been outlined and referred
to. No evidence was
led by and on behalf of the respondents as the basis for
discriminating between the male and the female correctional
officers
when it came to the keeping of a dreadlock hair style. One has to
guard against a bias in favour of a view held by some
that hair
platting is a practice for women and not men and thus using that as a
difference between men and women. The view that
male correctional
officer who keep dreadlocks may compromise security in that prison
inmates may use dreadlocks as a means of escape,
by pulling them, was
not supported by any evidence. Female correctional officers are not
immune from such vulnerability. Evidence
of the second, fifth and
sixth applicants was that they kept their dreadlocks neat and covered
with uniform hats.
[238] The factual basis on
which it can be said that the instruction of the second respondent,
as based on the dress code, was reasonable
and justifiable and
therefore covered by the provisions of section 36 of the Constitution
Act, 1996, has therefore not been successfully
laid. Mr Ndebele’s
evidence on the necessity of the dress code for prison officials is
not the issue. The need to draw the
differentiation in that code has
been the issue. That Rastafarian correctional officers would stand
out and an undesirable association
between then and the Rastafarian
prison inmates was likely to take place, was rather speculative and
devoid of any evidential support.
The fear of Mr. Ndebele that
Rastafarian correctional officers were likely to be manipulated by
prison inmates is nothing but a
prejudicial bias against these
officials. Not one example of such an instance could be given by him,
yet it was the undisputed
evidence of the applicants that they had
had their dreadlocks for sometime before the intervention of the
second respondent.
[239] Accordingly, the
applicants have succeeded in proving that the respondents did
discriminate against them on the basis of gender.
The respondents
have on the other side not succeeded in rebutting the presumption on
the unfairness of the instruction issued by
the second respondent
which was a precursor to the dismissal of the five applicants. It has
therefore been shown that the dismissal
of each of the five
applicants on the basis of gender was automatically unfair. I
consider it unnecessary that the further grounds
on which the
applicants relied to attack the fairness of their dismissal be
examined.
[240] The next stage
relates to the relief to be granted to the successful applicants.
Section 193 (2) of the Act states that this
court, upon finding the
dismissal of an employee to have been unfair, must require the
employer to reinstate or re-employ the employee
unless any of the
four circumstances outlined in (2) (a) to (2) (d) are found to exist.
Court has a discretion which it has to
exercise judiciously.
Paragraph 38 of the statement of case outlined the relief sought by
the applicants, in the event of being
successful with their claim and
the relief they seek is couched in the alternative. Essentially they
seek to be reinstated to the
employment positions they held before
their dismissal and in the alternative, compensation. During the
course of the trial there
was a shift by some from the relief of
reinstatement but at the end of the trial, all seek the pleaded
relief. There has not been
a suggestion that a continued employment
relationship of any of the applicants would be intolerable. Nor am I
able to find that
it is not reasonably practicable for the
respondents to reinstate the applicants that were unfairly dismissed.
[241] The undisputed
evidence of the second and the sixth applicants was that they never
found any employment since their dismissal.
The third applicant found
employment with the Department of Works in September 2007 although he
had salary payment problems due
to the persal system. The fourth
respondent had a diploma in education and he found a temporary
employment post as an educator.
The fifth applicant found employment
in New Zealand as a Correctional Officer but he now wants to come
back home. The third, fourth
and fifth applicants have received some
earnings during the period of their dismissal by the respondents.
They were therefore able
to mitigate their damaged during that
period.
[242] I have considered the
issue of costs. I am alive to the effect that the order to be issued
will have to the parties. This
has been a protracted trial in which a
number of witnesses were called and examined. Counsel spent enormous
time in the preparation
and presentation of this matter. It will
accord with the fairness of this matter that costs should follow the
results.
[243] Accordingly, the
following order will issue:
1.
The respondents are ordered to reinstate
each of the five applicant employees who wish to be reinstated, with
effect from the date
of his dismissal, with no loss of earnings, or
benefits. From these earnings must be deducted those earnings that an
applicant
employee received from the employment by another
institution, after the date of dismissal by the respondents up to the
effective
date of this order.
2.
Each such applicant employee as wishes to
be reinstated has to report for duty at Pollsmoor Prison on17 May
2010 An applicant employee
who wishes to be reinstated but is not
within the Republic of South Africa on the date of this order, shall
have 30 more days within
which to report for duty, that is, on or
before 18 June 2010.
3.
The first respondent is directed to
compensate each of the applicant employees who do not wish to be
reinstated, in an amount of
money equivalent to twenty (20) months of
the salary earned by such employee as on the date of his dismissal,
with a salary increase
that the employee would have been entitled to
at the time, but for the dismissal. Such payment is to be made on or
before 17 May
2010, the date from which Interest at the regular
percentage becomes payable for any outstanding amount.
4.
The respondents are ordered to pay costs of
this claim and are held jointly and severally liable.
_____________
Cele
J.
DATE OF HEARING : 18
DECEMBER 2009
DATE OF JUDGMENT : 11 MAY
2010
APPEARANCES
FOR APPLICANT : Adv Hilary
Rabkin-Daicker
Instructed by : CHEADLE
THOMPSON & HAYSOM INC.
FOR RESPONDENT : Adv Ashon
Schippers SC (with Stanely
O’
Brien SC)
Instructed by: State
Attorney