About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2011
>>
[2011] ZALCJHB 75
|
|
Mashiya v Sirkhot NO and Others (J1744/11) [2011] ZALCJHB 75; [2012] 2 BLLR 183 (LC); (2012) 33 ILJ 420 (LC) (30 August 2011)
REPUBLIC OF SOUTH AFRICA
Reportable
Of
interest to other judges
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
CASE
NO: J 1744/11
In the matter between:
NW
MASHIYA
….................................................................................
Applicant
and
ADV
I SIRKHOT N.O.
….........................................................
First
respondent
THE
MINISTER OF
CORRECTIONAL
SERVICES
….......................................
Second
respondent
THE
NATIONAL COMMISSIONER OF
CORRECTIONAL
SERVICES
…..........................................
Third
respondent
Heard
:
29 August 2011
Delivered
:
30 August 2011
Summary: Application to interdict disciplinary hearing –
recusal of chairperson
judgment
STEENKAMP J
Introduction
This is an application to order that the chairperson of a
disciplinary hearing, due to commence at 0900 today, 30 August 2011,
must recuse himself from the hearing; and interdicting the
respondents from proceeding with the hearing today or on any other
date under the chairmanship of the first respondent, Adv I Sirkhot.
The applicant further seeks an order that the respondents
must agree
to another independently appointed arbitrator from the relevant
sectoral bargaining council.
The application was brought on an urgent basis and the hearing
before me was concluded at 1700 on Monday 29 August 2011. At the
request of the applicant I did not give an
ex tempore
judgment but indicated that I would hand down judgment at 0800 the
next morning, 30 August 2011. Due to the urgency of the matter
and
the time constraints I will provide only brief reasons for my
findings.
Background
The applicant is the Area Commissioner for Leeuwkop Prison, employed
by the Department of Correctional Services. The first applicant
is
Adv Imthiaz Sirkhot, a legal practitioner who is cited in his
nominal capacity as the appointed chairperson in a disciplinary
hearing. The second and third respondents are the Minister and the
National Commissioner, respectively, of Correctional Services.
The applicant has been accused of various instances of serious
misconduct involving dishonesty. It is common cause that, should
he
be found to have committed the alleged acts, he may well be
dismissed.
The applicant, as a senior employee in the public service, falls
within the auspices of the Senior Management Service Handbook
(SMS
Handbook) and the provisions concerning discipline contained
therein. In terms of clause 2.7 (3)(b) of the Handbook:
“
The
employer must appoint a person, from within or outside the public
service, as chairperson of the disciplinary hearing.”
Adv Sirkhot, a person from outside the public service, was appointed
to chair the applicant’s disciplinary hearing.
And in terms of subclause (e):
“
In
a disciplinary hearing, neither the employer nor the member may be
represented by a legal practitioner, unless the member is
a legal
practitioner.”
Despite the clear wording of this clause, the applicant applied for
legal representation when the disciplinary hearing was due
to
commence on 14 July 2011. On that day, the parties agreed that the
hearing would proceed on 8, 23 and 30 August 2011. On 25
July 2011,
Adv Sirkhot declined the application. I will return to that aspect
later.
On 5 August 2011 the applicant brought an application to review the
chairperson’s ruling on legal representation. That
application
was brought in the normal course and not on an expedited basis.
Nevertheless, in terms of prayer 2 of that application,
the
applicant sought an order to halt the internal hearing.
On 8 August the applicant, represented by a union representative,
sought and was granted a postponement to enable his chosen
union
representative to represent him at the next sitting on 23 August.
Although the applicant’s counsel, Mr
Ndziba
, argued
that the applicant’s representative also sought the
chairperson to recuse himself on 8 August, no such application
is
clear from the transcript of the proceedings.
On 19 August, 11 days later, the applicant brought an urgent
application before this Court [per Bhoola J] asking for the
following
relief:
“
Declaring
that there was malice and bias on the part of the first respondent in
its ruling no to permit the applicant legal representation
at the
disciplinary hearing;
Interdicting,
prohibiting and/or restraining the respondents from proceeding with
the disciplinary hearing of the applicant on 23
rd
and 30
th
August 2011;
Ordering
the second and third respondents to agree to an independently
appointed arbitrator from the relevant sectoral bargaining
council
appointed by the Council in terms of the provisions of clause 2.7(5)
of the SMS Disciplinary Code and Procedures (Chapter
7 of the SMS
Handbook).
On the day of the hearing on 19 August, the application was removed
from the roll at the applicant’s request to enable
him to
amend his papers. He tendered costs.
This application was launched a week later, on 26 August 2011.
Urgency
The application, comprising more than 400 pages, was delivered at
16:00 on Friday 26 August to be heard at 10:00 on Monday 29
August.
The main cause for this application is the applicant’s
purported apprehension of bias on the side of the chairperson. The
applicant first attended his disciplinary hearing on 14 July 2011, a
month and a half ago. He did not raise any apprehension
of bias
then. Mr
Ndziba
, for the applicant, says that is because the
apprehension was only triggered by the refusal to grant legal
representation on
25 July 2011. But that is in itself more than a
month ago. The reason for the delay, says Mr Ndziba, is that it is
only on 19
August, when the previous urgent application was brought
before Bhoola J, that he and the applicant realised from the
respondents’
answering affidavit in that application that the
actual relief sought – ie to order Adv Sirkhot to recuse
himself –
was not clear and that, therefore, the applicant had
to amend his papers. Yet he does not explain why it took him a week
to do
that, and then expected the respondents to respond to a
voluminous new application over the weekend.
Even if one accepts that this application was triggered only by the
ruling on 25 July, and could not have been brought in the
period
between 14 and 25 July, it is entirely self-created. The purported
cause of action was clear from 25 July; the applicant
(and his legal
representatives) only have themselves to blame for couching the
relief sought in the wrong terms in their first
application of 19
August. And even then the delay from 25 July to 19 August is not
adequately explained. The applicant says he
consulted his attorneys
of record on 8 August 2011 (and his counsel has been assisting him
since at least the commencement of
the hearing on 14 July); there is
no explanation for the delay in bringing this application (and the
one on 19 August) on such
short notice.
Rule 8 requires that the applicant sets out in his founding
affidavit the reasons for urgent relief.
1
This was not adequately done in this case. On that basis alone, the
application should be dismissed or removed from the roll.
I have
nevertheless heard full argument on the merits and will deal with
it.
Application premature?
The disciplinary hearing has commenced and some witnesses have
already been called. The chairperson has ruled on legal
representation
(on 25 July) and on the application for his recusal
(on 23 August). It would be premature for this court to order the
chairperson
to recuse himself where his ruling on that regard has
not been taken on review and the hearing is midstream.
Prima facie
right?
The applicant submits that he has a clear right to the relief
sought. With regard to the recusal of the chairperson the relief
sought is final in nature, which is presumably why he doesn’t
rely on a
prima facie
right only.
The right he asserts is the right to a fair trial. He submits that,
absent the relief sought, he will be denied that right as
the
chairperson is biased and refused to recuse himself.
In order to inquire into the question whether the applicant will be
denied that right, then, the Court has to consider whether
the
applicant has a reasonable apprehension of bias on the part of the
chairperson.
The test for recusal in judicial proceedings – and the parties
are
ad idem
that the same should apply in the disciplinary
hearing – is that the applicant has to show that he entertains
an apprehension
of bias on the part of the presiding officer; and
that the apprehension is reasonable.
2
The Constitutional Court recently formulated the test thus in
Bernert v ABSA Bank Ltd
3
:
“
The
test for recusal which this Court has adopted is whether there is a
reasonable apprehension of bias, in the mind of a reasonable
litigant
in possession of all the relevant facts, that a judicial officer
might not bring an impartial and unprejudiced mind to
bear on the
resolution of the dispute before the court.”
Is the applicant’s apprehension of bias on the side of Adv
Sirkhot reasonable? Mr Ndziba advanced four reasons for this
contention.
Firstly
, he says that the refusal of legal representation was
misguided; he goes so far as to say that Adv Sirkhot “lied”
when he said in his ruling that the applicant did not refer in his
submissions to any of the factors set out in
Hamata v
Chairperson, Peninsula Technikon Internal Disciplinary Committee &
others.
4
In
Hamata
, the SCA held that there is a residual discretion
to allow legal representation in internal hearings in certain
circumstances.
Each case would have to be considered on its own
merits, including factors such as the nature of the charges, the
degree of factual
or legal complexity, teh potential seriousness of
the consequences of an adverse finding, and the fact that there may
be a legally
trained person presenting the case for the employer.
In
casu,
Adv Sirkhot exercised his discretion and decided not to
deviate from the prescripts of the SMS Handbook. The applicant, who
undertook
to present written submissions by 21 July 2011, did not do
so. It is against that background that Adv Sirkhot said in his
ruling
that inconsistency – which the applicant’s
representative argued on 14 July – was not a factor; and that
the
applicant did not refer to the other factors in
Hamata.
Mr
Ndziba
pointed out that he, representing the applicant on
14 July, did note that the charges are “dismissable offences”
in
terms of the SMS Handbook. But that is as far as he could take
it.
It appears to me that the chairperson reasonably exercised his
discretion not to deviate from the default position in the SMS
Handbook that no legal representation is allowed. It does not,
reasonably, point to bias on his side.
Secondly
, Mr Ndziba argues that the appointment of the
chairperson was irregular. His letter of appointment was signed by
one Malatsi,
who had previously investigated allegations against the
applicant. This issue was not raised in an application for recusal
on
14 July, even though the appointment had been made long before
that. In any event, there is no suggestion on the evidence before
me
that Malatsi had influenced Sirkhot. It appears, rather, that the
Department went out of its way to appoint an independent
outsider to
chair the hearing – as it is empowered to do in terms of the
SMS Handbook – rather than appointing a
fellow employee who
may be familiar with the applicant.
I can see no reason why a reasonable person would view Adv Sirkhot’s
acceptance of his appointment as creating a reasonable
apprehension
of bias.
Thirdly,
Mr Ndzima referred to what a called a “fight”
or an “altercation” between the applicant’s union
representative and the chairperson on 23 August 2011. He referred me
to the relevant passages in the record. It reflects no more
than a
robust debate between the chairperson and the representative. On
occasion the chairperson politely asked the representative
to
“please proceed” – with good reason, as far as I
am concerned. He pointed out that he had already made a
ruling on
legal representation and was, in effect,
functus officio
on
that point. That is not an unreasonable stance. The verbal sparring
between the two individuals, such as it was, amounted
to no more
than what occurs between judges and counsel in this Court on a
regular basis. It evinces no reasonable indication
of bias.
Fourthly,
Mr Ndzima referred to the fact that the chairperson
had presided over a previous hearing in which one Ms Mqobi had been
found
guilty of misconduct and dismissed. Mqobi had been dishonest.
The applicant indicated that he wished to call her as a witness in
her own hearing. Mr Ndzima suggested that, because the chairperson
had found her to have committed misconduct involving dishonesty
in
an unrelated hearing, he would prejudge her credibility as a
witness. The chairperson responded as follows:
“
As
regards Adv Mqobi who yes, it is true, there was a matter at the
Bargaining Council. I chaired the matter and she was dismissed.
There
is nothing personal between me and Adv Mqobi. If she testifies at a
hearing there is no need for me to draw any adverse inference
and the
fact that she was dismissed, it has got nothing to do with the
hearing of Mr Mashiya. If she testifies here, I have to
make a
decision based on the evidence that she puts before me.”
There is nothing biased about that response. As Nicholson JA pointed
out in
Irvin & Johnson
5
:
“
There
is no rule in South Africa which lays down that a judge, in cases
other than appeals from his judgment, is disqualified from
sitting in
a case merely because in the course of his judicial duties he has
previously expressed an opinion in that case. See
R
v T
1953
(2) SA 478
(A) at 482G-483G. The court held in that case that in the
case of a trained judicial officer the mere possibility of bias not
based
on a previous extra-judicial opinion in relation to the case he
is going to try or on his hostility or relationship to or intimate
friendship with one of the parties or on an interest in the case,
does not disqualify him from trying the case. In that case a
magistrate, who had convicted the female accused of contravening s 2
of Act 5 of 1927 (the Immorality Act), had thereafter refused
to
recuse himself from trying the case against the male accused in which
the convicted female was a witness. It was held that such
magistrate
was not disqualified from trying the case.”
In conclusion, I can see nothing unreasonable in the chairperson’s
refusal to recuse himself. The applicant may subjectively
have
formed a suspicion of bias, but it was not a reasonable
apprehension. The applicant has not shown a
prima facie
right,
much less a clear right, for the chairperson to recuse himself.
Apprehension of irreparable harm?
Mr Ndziba argues that the applicant
may
be found to have
committed the serious and dishonest misconduct that the Department
alleges; if so, he
may
be dismissed; and if he is dismissed,
he will have to vacate the house he occupies on the Leeuwkop
premises.
Not all employees have the benefit of housing provided by their
employer (or the state), but all employees run the risk of being
dismissed if they are found to have committed serious misconduct.
That harm is not irreparable. If the dismissal was not for
a fair
reason or in accordance with a fair procedure, they can claim unfair
dismissal at the CCMA or the relevant bargaining
council. The same
goes for the applicant.
As this Court has pointed out in
Jiba
6
:
“
Although
the court has jurisdiction to entertain an application to intervene
in uncompleted disciplinary proceedings, it ought not
to do so unless
the circumstances are truly exceptional. Urgent applications to
review and set aside preliminary rulings made during
the course of a
disciplinary enquiry or to challenge the validity of the institution
of the proceedings ought to be discouraged.
These are matters best
dealt with in arbitration proceedings consequent on any allegation of
unfair dismissal, and if necessary,
by this court in review
proceedings under s 145.”
I agree. The applicant has not shown any apprehension of irreparable
harm. Even if his worst fears prove to be correct, he has
other
remedies available to him.
Balance of convenience
The disciplinary hearing is already underway. It is in the interests
of expeditious dispute resolution that it is brought to
finality.
Adv Sirkhot has already heard the matter on 14 July, 8 August and 23
August, and has been retained to continue today,
30 August. The
balance of convenience favours the respondents.
Alternative remedy
As I have pointed out above with reference to
Jiba
, the
applicant has an alternative remedy available to him, should it
prove necessary at the conclusion of the disciplinary hearing.
The Labour Appeal Court has pointed out in
Booysen v Minister of
Safety and Security
7
that it is only in exceptional circumstances that this Court will
interdict any unfair conduct including disciplinary action.
In this
case, the applicant has not shown any unfair conduct on the part of
the respondents; nor are there exceptional circumstances
present.
Conclusion
The application is not urgent; but even if it were, the applicant
has not made out a case for the relief sought.
Costs
Both parties asked for costs to follow the result. In law and
fairness, I can see no reason not to heed that request.
Order
The application is dismissed with costs, including the costs of
counsel.
_______________________
A J Steenkamp
Judge
APPEARANCES
APPLICANT: Adv M Ndziba
Instructed by Grosskopf attorneys.
RESPONDENTS: Adv LD Halam
Instructed by the State Attorney.
1
Jiba
v Minister: Dept of Justice & Constitutional Development &
Others
(2010) 31
ILJ
112 (LC) para [18].
2
SACCAWU
7 others v Irvin & Johnson Ltd
(2000)
21
ILJ
330
(LAC) para [25].
3
[2011]
4 BLLR 329
(CC) para [29].
4
(2002)
23
ILJ
1531
(SCA).
5
Supra
para [26] at 337 A-C
6
Supra
para [17].
7
[2011]
1 BLLR 83
(LAC) para [54]