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[2011] ZALCJHB 220
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Malehopo v Athletic South Africa and Others (J8204/2010) [2011] ZALCJHB 220 (7 June 2011)
VAN
VOORE AJ
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
Not
Reportable
Case
no: J8204/2010
In
the matter between:
MOLATELO
MALEHOPO Applicant
and
ATHLETICS
SOUTH AFRICA First Respondent
SOUTH
AFRICAN SPORS CONFEDERATION Second Respondent
AND
OLYMPIC COMMITTEE (“SASCOC”) Third Respondent
RAYMOND
HACK
N.O.
Fourth Respondent
RAYMOND
MALI Fifth Respondent
Date
of Hearing: 30 May 2011
Date
of Judgment: 07 June 2011
JUDGMENT
VAN
VOORE AJ
This
is an application launched on an urgent basis to,
inter alia,
interdict disciplinary proceedings against the applicant, Mr
Molatelo Malehopo (Malehopo) from proceeding as scheduled on 31
May
2011. I heard the matter on 30 May 2011 and dismissed the
application with costs on the attorney own client scale. I now
set
out the brief reasons for my order of 30 May 2011. I will
supplement these reasons if need be.
On
30 August 2010 Malehopo was charged with serious allegations of
misconduct. Amended allegations of misconduct were served
on
Malehopo on 10 November 2010. The disciplinary hearing was
scheduled to take place over the period 29 November 2010 to 3
December 2010. This was not to be. Since 30 August 2010 the
proceedings of the disciplinary hearing have limped along in
‘stop-start’ fashion. It is a matter of great concern
that by the time this matter came before me nearly 17 months
have
passed since 10 November 2010.
Malehopo
is legally represented in the disciplinary hearing by an attorney
and counsel. In fact, the amended allegations of misconduct
were
served on him through the offices of his legal representatives.
Malehopo has had the benefit of legal advice in the disciplinary
proceedings since at the very latest November 2010. Prior to the
launching of this application it was agreed between Athletics
South
Africa (ASA) and Malehopo that the hearing would continue on 26 and
27 May 2011. That agreement was reached taking into
account the
availability of all relevant parties including Malehopo’s
counsel. Due to the apparent non-availability of
Malehopo’s
counsel the disciplinary hearing did not in fact proceed on 26 and
27 May 2011. A further agreement was then
reached that the
disciplinary hearing would proceed on 31 May 2011. By 26 May 2011
the proceedings of the disciplinary hearing
were under way. There
served before the appointed chairman of the disciplinary hearing
very many documents including a report
styled a “Forensic
Report”. At some point during the proceedings of the hearing,
on or about 11 April 2011,Malehopo
raised a jurisdictional challenge
which required a decision or ruling by the chairman. Malehopo had
the benefit of legal advice
in mounting the jurisdictional challenge
and the chairman made a ruling on 11 April 2011 dismissing the
jurisdictional challenge.
On 18 April 2011 and during the course of
the proceedings of the hearing, the chairman gave a written decision
on the jurisdictional
challenge. The chairman dismissed the
jurisdictional challenge and ruled that the “disciplinary
inquiry is to proceed
into the merits of the allegations against”
Malehopo. It had earlier been agreed that the hearing would proceed
on 11,
12 and 15 April 2011. Following the chairman’s ruling
on 11 April 2011the hearing proceeded. However, due to the illness
of Malehopo’s counsel, the matter did not proceed on 15 April
2011.
In
2010 the matter was scheduled to proceed on 29 November 2010.
However, Malehopo was apparently not available on that date
and the
hearing was rescheduled to proceed on 30 November 2010. Yet again,
and apparently at Malehopo’s request, the hearing
did not
proceed on 30 November 2010 and was postponed to 13 December 2010.
Events then took an interesting turn in that an application
was
launched in the Labour Court on an urgent basis and was set down for
hearing on 10 December 2010. Malehopo approached the
Labour Court
for seeking for relief,
inter
alia
,
that the SASCOC and the then chairman of the hearing, Norman Arendse
SC, be interdicted from proceeding with the disciplinary
hearing
scheduled for 13 December 2010. In the 10 December 2010 application
Malehopo also sought an order that pending an application
to review
and set aside the refusal, that the disciplinary inquiry is referred
to the Commission for Conciliation, Mediation
and Arbitration in
terms of section 188A of the Labour Relations
1
,
the hearing be interdicted. The December 2010 application came
before Steenkamp J and he dismissed the application with costs.
Steenkamp J found,
inter
alia
,
that the matter did not fall into a category of exceptional cases as
contemplated in the matter of
Booysen
v Minister of Security.
2
Steenkamp J took into account that allegations of misconduct were
put to Malehopo on 30 August 2010, that these allegations were
amended in November 2010 and that Malehopo was given supplementary
documentation. Steenkamp J found that it took Malehopo an
‘extraordinary long time’ to approach the Court on an
extremely urgent basis. Steenkamp J did however proceed to
consider
the merits of the application and then dismissed the application
with costs.
In
relation to the alleged urgency, Malehopo’s position in the
current application has not improved.
Malehopo
comes before this Court with a multi-pronged attack on the propriety
of the proceedings of the disciplinary hearing.
These may be
summarised as validity of the proceedings, the authority challenge
in relation to SASCOC and its constitution,
the non-alleged
compliance with the disciplinary code of the ASA, the alleged
unlawful suspension, the alleged illegality of
action taken by the
SASCOC, the chairman of the disciplinary hearing and the
administrator. It is also alleged that the chairman
is biased. It
is hard to imagine a fuller challenge to continued disciplinary
proceedings. In relation to the authority challenge
Malehopo claims
that he has always disputed the authority of the SASCOC and that
this application was launched after it became
clear to him during
the cross-examination of one du Plooy that, notwithstanding
statements to the contrary, SASCOC was the driving
force behind the
allegations and disciplinary hearing against him. This allegation
is simply not sustainable. On or about 11
April 2011, Malehopo
raised an authority issue before the chairman. A ruling was made on
that day and the chairman gave his
written reasons on 18 April 2011.
Since 11 and 18 April 2011 Malehopo continued his participation in
the hearing. It is not
part of Malehopo case that on 11 or 18 April
2011 he conveyed to the chairman that he could no longer participate
and submit
himself to the proceedings of the hearing for lack of
authority. Far from it, further dates were agreed for the
continuation
of the proceedings. Those dates included 12 and 15
April 2011, 26, 27 and 31 May 20011 and 7 to 9 June 2011. Malehopo
has
come before this Court claiming that there is in the offing an
authority challenge yet to be launched and the disciplinary hearing
should be interdicted pending such a challenge. Malehopo in this
application now says that he ‘intended to review’
the
ruling made by the chairman on 11 April 2011. However, he has done
nothing since 11 April 2011 to launch such a review.
On any
reckoning Malehopo’s conduct amounts to an abuse of the
processes of this Court.
I
do not propose to dwell on the alleged unlawful suspension as a
ground for interdictory relief. Malehopo was suspended on 16
November 2009. He now claims that he was suspended by SASCOC, an
entity that is not his employer and which, so he says, does
not have
the power and authority to suspend him. During the period 16
November 2009 to 24 May 2011 (the date on which the notice
of motion
in this matter was signed) Malehopo took no steps to approach a
Court to challenge the alleged unlawful suspension
on the basis for
lack of power or authority. Further at no time has Malehopo
referred an alleged unfair suspension dispute to
the CCMA or a
bargaining council. It is wholly unacceptable that a party in
Malehopo’s position can do nothing about an
alleged unlawful
suspension for so long and then on the eve of the continuation of a
disciplinary hearing approach this court
for urgent interdictory
relief. On this score also, the application falls to be dismissed
with costs. Malehopo’s conduct
displays a disturbing degree
of abuse of the processes of this Court.
It
is telling that notwithstanding the judgment of Steenkamp J of
December 2010 Malehopo, persists with the challenge based on
section
188A of the LRA.
From
no later than 25 August 2010, Malehopo was aware of the involvement
of SASCOC allegations of misconduct against him. The
fourth
respondent, Mr Raymond Mali (Mali) was appointed as the
administrator of ASA by SASCOC during November 2009. The fact
of
the suspension of the ASA’s board of directors in November
2009 and Mali’s appointment as administrator was known
to
Malehopo since November 2009. Mali’s involvement in the
disciplinary proceedings and the hearing was known to Malehopo
since
November 2009. Between November 2009 and launching of this
application on 26 May 2011, Malehopo did not approach a Court
to
challenge the lawfulness of the suspension of the board, the
decision to suspend him, to bring allegations of misconduct against
him and to convene and hold a disciplinary hearing. He now seeks,
inter alia
, an order interdicting the continuation of the
disciplinary hearing pending an application or action to set aside
the full range
of decisions and proceedings that lead to his
suspension and the disciplinary hearing and that he be ordered by
this Court to
institute such an application or action within 30
days.
Malehopo’s
conduct and approach are untenable. In the nearly 17 months since
November 2009 he had every opportunity to
do that which he proposes
to do now but has to date failed to do. His excuse is that he did
not do it previously because only
when du Plooy gave evidence at the
disciplinary hearing did it become apparent to him that it was
SASCOC and not the ASA who
instituted disciplinary proceedings
against him is simply not good enough.. Malehopo, knowing that he
has grave problems with
urgency (that knowledge having supplemented
by his experience in the December 2010 application before Steenkamp
J) has desperately
sought to create urgency out of nothing.
Our
courts have repeatedly held that the Labour Court must be slow to
intervene in pending and ongoing disciplinary proceedings.
This
application was launched on 26 May 2011 in circumstances where the
hearing was scheduled, by agreement, to proceed on 31
May 2011.
Malehopo waited until the day before the hearing to seek an order
that would put a stop to the already commenced disciplinary
hearing.
Malehopo’s case must fail on urgency. Malehopo’s
conduct in launching these proceedings has raised serious
concerns
with me. As to costs, Malehopo’s conduct as described above
cannot be tolerated and is certainly not to be encouraged.
In
the circumstances I made the following order:
The
application is dismissed for lack of urgency
The
Applicant is ordered to pay the costs on the attorney own client
scale.
VAN
VOORE AJ
Appearances:
For
the Applicant : Adv.Mphahlele
Instructed
by : Makafula & Verster
For
the Respondent : Adv.Mosam
Instructed
by : Jay Reddy
1
66 of 1995 (LRA).
2
[2011] 1 BLLR 83
(LAC).