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[2011] ZALCJHB 34
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Armstrong v South African Civil Aviation Authority (J504/11) [2011] ZALCJHB 34; [2011] 10 BLLR 980 (LC); (2011) 32 ILJ 2487 (LC) (5 May 2011)
IN THE LABOUR COURT OF SOUTH AFRICA
(HELD AT JOHANNESBURG)
CASE NO: J504/11
In the matter between:
JOHAN ARMSTRONG
Applicant
and
SOUTH AFRICAN CIVIL AVIATION AUTHORITY
Respondent
JUDGMENT
LAGRANGE, J:
Introduction
Judgment
in this matter was handed down on 5 May 2011. The reasons for the
judgment are set out below.
This
is an application for final relief which was brought on an urgent
basis to prevent the respondent employer ('SACAA') from
continuing
with any disciplinary proceedings against the applicant. The
principal basis for the application is that the applicant
contends
the employer had already finalised matters arising from an incident
between himself and Mr D. The applicant submits
that the erstwhile
director of SACAA, Captain Jordaan, had already made a decision in
conjunction with the Executive Legal Manager
not to take any
disciplinary action against him arising from the incident and that
the matter was closed.
The
incident took place on 2 December 2010 when the applicant who was
employed as an inspector in the respondent's Airworthiness
Department 2010 went to conduct an inspection on aircraft belonging
to a flying school based at Brakpan airport. A confrontation
ensued
between himself and the owner of the aircraft, Mr S Dhlamini.
Without going into detail it is sufficient to note that
the
applicant and the owner had conflicting accounts of what transpired
and who was wrong. The applicant reported the incident
to his
immediate superior, Ms Teague. The latter in turn advised the
applicant that the owner of the aircraft's father, Mr I
Dhlamini who
also happens to be employed by the respondent, had complained that
the applicant had beaten his son. The son subsequently
laid a
complaint against the applicant. Various statements were taken from
eyewitnesses to the incident and the applicant submitted
a report on
the incident to his superiors. Following the report, the General
Manager: Aircraft Safety, Mr Chakarisa, referred
the matter to the
director requesting guidance on how the matter should be taken
further.
After
considering the matter, the director recommended that the applicant
should consider laying a charge against Mr Dlamini with
the release
and that SACAA should also consider laying charges against him on
the basis that its regulations had been contravened.
The director
specifically sought the input of the legal department. On 3 December
2010 the general manager: Legal Department,
Mr M endorsed the
proposal of the director. Pursuant to those recommendations the
applicant requested SACAA to institute criminal
proceedings against
Mr T for his alleged contravention of various provisions of the
Civil Aviation Act 13 of 2009
arising from the incident. The legal
department assisted the applicant in finalising the complaint, but
it seems the matter was
never formally lodged with the police.
Subsequent
to the events above, Capt Jordaan left SACAA and Mr Chakarisa was
appointed acting director in his stead. Events took
a turn in the
new year when the joint owners of the flying school now lodged a new
complaint against the applicant with the respondent
arising from the
incident. This led to the applicant being suspended early in
February 2011 and being issued with disciplinary
charges. The
essence of the charges is that he had allegedly physically
manhandled Mr Dlamini during the course of his inspection
in
December and had brought the reputation of SACAA into disrepute by
doing so. Understandably, the applicant was distressed
by these
developments relating to the incident.
The
applicant asked for a final order declaring that the SACAA was bound
by the ‘decision’ of the former director
‘made in
conjunction’ with the Executive Legal Manager, Mr Mogai, in
respect of the incident and prohibiting the
employer from continuing
any further disciplinary action against him. He further asked the
court to compel SACAA to lay criminal
charges against his accuser
for contravening
section 136
of the
Civil Aviation Act 13 of 2009
and for other relief to finalise matters arising from the incident.
In the alternative, he asked the court to order the employer
to
postpone the disciplinary hearing until such time as it reviewed the
‘decision’ mentioned and, in the event that
the
disciplinary proceeding did take place, to replace the chairperson
Mr Matonsi, whom he claimed was a personal friend of the
complainant’s father.
The
rights in issue
In
his founding affidavit, the applicant complained of the unfair
manner in which his employer has dealt with the matter and
approaches the court on the basis that he has no other way of
protecting his livelihood and his constitutional rights not to be
subject to unfair labour practices.
The
first difficulty the applicant has is that it is now well
established law that this court will not readily intervene on an
urgent basis in incomplete internal proceedings.
1
Essentially, the applicant must demonstrate that his case is
exceptional in terms of that standard. In support of his argument
he
cites the case of
Mortimer v Municipality of Stellenbosch
,
2
an unreported judgment of Gauntlett AJ decided before the LAC
decision in
Booysen
but referred to by the LAC in its
decision.
In an
obiter dictum, the court in
Mortimer
accepted the correct
test for intervening in incomplete proceedings as the one expounded
in
Wahlhaus
v Additional Magistrate, Johannesburg
.
3
The court
in
Mortimer
was
at pains to stress that the threshold for intervention laid down in
Walhaus
was
not satisfied merely because some unfairness had occurred or would
result if the proceedings continued:
“
That
unfairness has occurred is not the issue. The issue is
that
an
irregularity has occurred (unfairness is just one manifestation)
which, it is already apparent, is of a kind and a degree calculated
to give rise to injustice.
And
in
that regard, the court must consider whether the injustice is such
that the affected party might not otherwise by other means
attain
justice. It may be noted that this is not the only area of law which
seeks to differentiate between the potentially fatal
or irremediable
and that which is irregular, but is not
to
be
treated as vitiating.”
4
The
LAC, which endorsed the approach in
Mortimer
was loath to lay
down a definitive test for the exercise of the labour courts power
to intervene in incomplete proceedings in
exceptional circumstances,
but it did identify criteria mentioned in
Walhaus
as some of
the considerations which might justify intervention:
“
Among
the factors to be considered would in my view be whether failure to
intervene would lead to grave injustice or whether justice
might be
attained by other means.”
5
One
of the examples of a situation which might justify intervention
cited in
Mortimer
, which the applicant relies on is, where
a
disciplinary inquiry was, for instance,
about
to
commence
or was being conducted in the hands of a biased or unqualified
presiding officer, or on another factual basis so serious
as to
vitiate in law the inquiry.
The
applicant alleges that the chairperson of the enquiry is a friend of
the complainant’s father who is also employed at
SACAA. The
only evidence he could advance for this assertion is that the two of
them travelled on the same flight on a corporate
World Cup soccer
junket. They were not the only beneficiaries of this corporate
largesse, other managers were also on the flight.
A degree of
familiarity among senior managers is not sufficient to impute an
unacceptable degree of bias, bearing in mind the
unavoidable
presence of some bias in internal enquiries chaired by employees.
6
I do not
think the applicant has laid a sufficient factual foundation to
establish a reasonable suspicion of bias that vitiates
the prospect
of a fair enquiry.
The
other leg of the applicant’s claim is the question whether or
not the applicant’s disciplinary charges were disposed
of when
the Director in conjunction with General Manager: Legal Department
decided to recommend that criminal charges should
be laid against
the complainant and the applicant should be assisted in doing so.
The applicant submits that, by so doing, a
decision was made that no
disciplinary action should be taken against him.
It
is true that the employer appeared to take the applicant’s
side in dealing with the incident, but that is not the same
as
pressing charges against him and then concluding on the basis of the
evidence that he is not guilty of misconduct. The applicant
wrongly
tries to elevate his situation to be on a par with someone who has
already faced disciplinary charges and is acquitted
only to be faced
with a fresh set of charges, which are in substance the same. The
principle of ‘double jeopardy’
has no application in a
situation in which the applicant was never previously charged and
had not been subjected to an enquiry
on substantially the same
charges as before.
I
am not persuaded that the initial approach to the incident adopted
by the employer can equate to an acquittal of the applicant
of a
charge of misconduct arising from the incident. Even if the employer
had provisionally and explicitly expressed the view
that it saw no
need to initiate disciplinary proceedings against the applicant, it
does not mean that it could not reconsider
its approach, especially
in the light of a further complaint lodged after it had taken its
initial decision not to initiate disciplinary
action.
The
applicant contends that the only way the respondent could proceed
with disciplinary action against him is if it set aside
its own
decision on review. A case in which this was done is
Ntshangase
v MEC for Finance: Kwazulu-Natal and Another
.
7
In that matter the state, as the employer, asked the court to set
aside the sanction imposed by the chairperson of a disciplinary
enquiry. However, what distinguishes that matter from this one is
that the decision under scrutiny in
Ntshangase
was the
outcome of a formal statutory disciplinary process, where the
employer was bound by the chairperson’s decision.
8
Whichever way one construes the deliberations of the former Director
in this case about the appropriate course of action for
SACAA to
pursue in relation to the incident, they cannot be construed as
equivalent to a final and binding decision on whether
or not the
applicant was guilty of misconduct. They amounted to a view taken by
the employer on an appropriate course of action
to follow at the
time.
Subsequent
to embarking on that approach SACAA received a complaint from the
joint owners of the aircraft company about the altercation
with the
applicant. Captain Jordaan had left SACAA and Mr Chakarisa was
appointed as the Acting Director. SACAA then decided
to invoke
disciplinary proceedings against the applicant. It is true that this
must have been an unpleasant turn of events for
the applicant and he
might well have questions in his mind about what prompted SACAA to
change tack so dramatically, but I do
not think that the executive
authority of a body like SACAA cannot change its mind on a course of
action when it is not bound
by its earlier decision like the
employer in
Ntshangase’s
case was.
Conclusion
In
the circumstances, I am satisfied that the applicant has failed to
establish a clear right that would entitle him to relief
in this
instance, and consequently the application must fail for this
reason. It is accordingly not necessary to consider the
other
grounds for succeeding in an urgent application for a final
interdict.
Order
Accordingly,
the following order was made in this matter:
The
application is dismissed.
No
order is made as to costs.
ROBERT
LAGRANGE
JUDGE OF THE LABOUR COURT
Date of hearing: 01 April 2011
Date of judgment: 05 May 2011
For the
Applicant: Advocate P L Uys instructed by B Swart.
For the
Respondent: Advocate P Mokoena instructed by M Fisha.
1
See
Booysen v Minister of Safety and Security and Others
(2011)
32
ILJ
112 (LAC
)
at 129-130, par [54]
2
(18243/2003)
[2008] ZAWCHC 306
(27 November 2008), unreported
3
1959
(3) SA 113
(A) at 119-120
4
Mortimer
above n 2 at para 17 of the unreported decision.
5
Booysen,
at par [54]
6
See
Anglo American Farms t/a Boschendal Restaurant v Komjwayo
(1992) 13
ILJ
573 (LAC) at 583C-F on the unavoidable
practicalities of prior contact between parties in an internal
enquiry, which alone cannot
justify an allegation of bias.
7
(2009)
30
ILJ
2653 (SCA)
8
At
2661, para [17]