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[2011] ZALCJHB 151
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Hlabangwane v MEC for Public Works, Roads, Transport, Mpumalanga Provincial Government and Others (J 2170/11) [2011] ZALCJHB 151 (24 October 2011)
Reportable
Of interest to other
judges
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case No: J 2170/11
In the matter between:
WASENAAR BOESMAN HLABANGWANE
....................................................
Applicant
and
MEC FOR PUBLIC WORKS, ROADS AND
TRANSPORT
-MPUMALANGA PROVINCIAL GOVERNNMENT
................................
1
st
Respondent
MINISTER –NATIONAL
DEPARTMENT
OF
PAUBLIC WORKS
..........................................................................
2
nd
Respondent
SAM MASINA N.O
.................................................................................
3
rd
Respondent
MATTEW KGOPANA MOHLASEDI
......................................................
4
th
Respondent
Date of hearing: 17 October 2011
Date of judgement: 24 October 2011
Summary: Urgent interdict.
Interdicting the provincial government from instituting or proceeding
with disciplinary hearing subsequent
to the transfer of the employee
to another department. Disciplinary proceedings against employees for
misconducts committed before
the transfer governed by section 14B(4)
of the Public Service Act of 1994. Court has jurisdiction to
entertain incomplete disciplinary
hearings. Court will exercise power
to intervene in special circumstances.
JUDGMENT
Molahlehi J
Introduction
This is an application in terms of
which the applicant on an urgent basis seeks an order interdicting
and restraining the third
and fourth respondent from proceeeding
with the disciplinary inquiry scheduled for the 10 to 11 October
2011. In the main prayer
the applicant seeks a final order and a
rule nisi in the alternative.
The applicant seeks to interdict the
disciplinary hearing on the basis that the first and fourth
respondents (in the judgement
first respondent is used to refer to
both) has no authority in instituting the disciplinary hearing in
terms of the provissions
of the Public Service Act of 1994. The
contentioin is that the first respondent lost the authority to
directly discipline the
applicant after he was transferred to the
National Department of Public Works ( hereinafter referred to as the
national department).
In terms of the transfer arrangements the last
working day of the applicant was the 30 June 2011. The charges
proffered against
him by the first respondent were served on him on
the 28 July 2011, close to a month after the transfer took efffect.
Backgrouns facts
The applicant was prior to his
transfer to the national department employed by the first respondent
as the General Manager: Professsional
and Project Management
Service. As indicated above his employment with the First Respondent
ended on 30 June 2011 when he took
a transfer to the national
department. He commensed his employment with the national department
on 1 July 2011.
The two charges which the first
respondent served on the applicant on 28 July 2011, mainly relate to
the allegation that the applicant
committed misconduct in that he
intentionally and negligently recomnmended to the first respondent a
deviation from the laid
down procedure in the procurement of a
Disaster Management Centre for the Mpumalange Province. The second
aspect of the charge,
which also ovelaps in a sense with the first
charge is that, because of the negligent conduct of the applicant in
the manner
he handled the recomendation of the Disater Management
Centre, caused the first responden to incure fruitless expenditure.
The applicant says that he was
previously charged with the same offenses and was found not guilty
by the chairperson at the disciplinnary
hearing. And when this
matter served before the chaiperson at the diciplinnary hearing on
11 August 2011, the applicant raised
a point
in limine
concerning the legality of the diciplinary hearing including the
jurisdiction of the chairpeson to entertain the matter. The
chairperson dismissed the points raised by the applicant.
Mr Mkhari SC, for the respondents
argued that the procedure adopted by the applicant was improper in
that what he should have
done was to have instituted review
proceedings against the decision of the of the chairperson of the
disciplinnary hearing.The
other point raised on behalf of the first
respondent is that the Court does not have jurisdiction to entertain
the matter.
The issue of whether the Labour Court
has jurisdiction to entertain the matter in cases involving
incomplete disciplinary hearings
received attention in
Booysen
v SAPS
.
1
In that case Tlaletsi JA writting a
unanimous judgement in overuling the decision of the Court a quo,
deals with the provisions
of sections 157
2
of the Labour Relations Act
(the LRA).
3
In addressing the issue of the Labour
Court’s jurisdiction in incomplete disciplinary hearing the
learned judge says:
“
[48]
As pointed out above section 157 of the Act should be interpreted in
line with the intention of the Legislature as well as
the purpose of
the Act. It must also be interpreted in line with what was said by
the majority of the Court in
Chirwa
,
supra
,
that the intention of the Act is to subject all disputes concerning
the alleged unfair dismissal of employees and unfair labour
practices
to the one-stop dispute resolution mechanism provided by the Act
which are staffed by women and men who have experience
and knowledge
of labour and employment related issues. This could be one of the
reasons why employment related matters were taken
out of the
jurisdiction of the High Court.
[49] In my view,
section 157 must also be interpreted as a whole to fully understand
the intention of the Legislature. The majority
in
Chirwa
held further that the concurrent
jurisdiction provided for in section 157 (2) of the Act is meant to
extend the jurisdiction of
the Labour Court to employment matters
that implicate constitutional rights.
The implication of this
finding is that section 157(2) must be interpreted to have given the
Labour Court powers equal to
that of the High Court when it comes to
employment and labour matters, and not to preserve the High Court’s
jurisdiction
over disputes arising from employment and labour
relations and over the constitutionality of administrative act or
conduct by the
state in its capacity as employer, The following
remarks by the author are persuasive
;
‘
The Chirwa
majority did not venture to suggest how its interpretation of section
157(2) impacted on section 158(g), or to elaborate
on the purpose the
latter provision may serve if it does not mean what it say –
that the Labour Court may review any decision
taken or any act
performed by the State in its capacity as employer. In the face of
that unambiguous and expansive language, it
is difficult to fathom
why disciplinary action should be excluded, and, if it must, on what
grounds. Nor did Chirwa court deal
with the scope of the various
powers listed in section 158(2)(a).
But
it is equally difficult to fathom why, if the Labour Court has
exclusive jurisdiction over labour and employment disputes, it
should
not enjoy the same powers in that sphere as were previously exercised
by the High Court – including the power to interdict
unlawful
or unfair disciplinary proceedings in appropriate cases
’.
(My emphasis).
[50] Failure by the Labour Court to
exercise jurisdiction over disciplinary proceedings, which are in
fact conducted pursuant to
the employment relationship would mean
that the employee must approach the High Court to decide a matter
which might in future
serve before the Labour Court as part for
example, of a review application. At that stage the Labour Court may
be constrained to
consider whether the decision of the High Court was
correct or wrong in determining perhaps the fairness or otherwise of
the dismissal.
To allow such to happen would in my view not be in
line with the spirit of the Act and the decisions of the
Constitutional Court
referred to above.
[51] The court
a quo
held that
the judicial oversight of the conduct of disciplinary proceedings
while they are in process is costly, time consuming,
disruptive and
duplication of proceedings. That may well be so. However, judicial
intervention may prove to be time saving, and
less costly if the
process is not proceeded with. It may also prevent costly litigation.
The very fact that the Labour Court has
the power to issue
interdictory relief suggests that the Legislature was aware that the
exercise of such power might interfere
with the freedom of employer’s
to contract and the employer’s business in deserving cases.”
As concerning the test to apply in
determining whether to intervene in incomplete disciplinary
proceedings the learned judge says:
“
54 To
answer the question that was before the court
a
quo
,
the Labour Court has jurisdiction to interdict any unfair conduct
including disciplinary action. However, such an intervention
should
be exercised in exceptional cases. It is not appropriate to set out
the test. It should be left to the discretion of the
Labour Court to
exercise such powers having regard to the facts of each case. 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. The list
is not exhaustive.”
I align myself fully with the above
decision of the Labour Appeal Court, and accordingly find that this
Court does have jurisdiction
to entartaing the applicant’s
application.
Turning to the key issue, I am of the
view that this matter turns on the legality of the power used by the
first respondent to
institute and seeking to continue with the
disciplinary hearing after the applicant took transfer with the
national department.
4
It is now well extablished that in
our law the priciple of legality is core to the value of our
Constitution and fundamental to
the maintance of the rule of law.
5
The concept of legality is explained
by Steenkamp J in
POPCRU v
Minister of Correctional Services & another,
6
as follows:
“
[15]
Hoexter
explains
that the fundamental idea underlying the principle of legality is
that the Legislature and executive in every sphere of
government are
constrained by the principle that it may exercise no power and
perform a function beyond that conferred by law.
It may only act
within the powers lawfully conferred on it and the exercise of public
power is only legitimate when it is lawful.
It is the obverse facet
of the
ultra
vires
doctrine
and an aspect of the rule of law.” (footnotes omitted).
The principle that the legislature
and the executive may exercise no power or perform any function
beyond that provided for in
law was approved by the Counstitutional
Court in
Fedsure Life
Assurance Ltd and Others v Greater Johannesburg Transitional
Metropolitan Council and Others.
7
The Court further held that the
principle of legality was implied within the terms of the interim
Constitution. The Court explained
further that:
“
[59]
There is of course no doubt that the common-law principles of
ultra
vires
remain
under the new constitutional order. However, they are underpinned
(and supplemented where necessary) by a constitutional
principle of
legality. In relation to “administrative action” the
principle of legality is enshrined in section 24(a).
In
relation to legislation and to executive acts that do not constitute
“administrative action”, the principle of legality
is
necessarily implicit in the Constitution.
Therefore, the question whether the various local governments acted
intra
vires
in
this case remains a constitutional question.” My emphasis.
The
same approach was followed in
Affordable
Medicine Trust & others v Minister of Health & Others
8
where
the Constitutional Court held that:
“
48
Our constitutional democracy is founded on, among other values, the
supremacy of the constitution and the rule of law. The very
next
provision of the Constitution declares that the Constitution is the
supreme law of the Republic; law or conduct inconsistent
with it is
invalid. And to give effect to the supremacy of the Constitution,
courts must declare that any law or conduct that is
inconsistent with
the Constitution is invalid to the extent of its inconsistency. This
commitment to the supremacy of the Constitution
and the rule of law
means that the exercise of all public power is now subject to
constitutional control.
The exercise of
public power must therefore comply with the Constitution, which is
the supreme law, and the doctrine of legality,
which is part of that
law. The doctrine of legality, which is an incident of the rule of
law, is one of the constitutional controls
through which the
exercise of public power is regulated by the Constitution. It
entails that both the legislature and the executive
are constrained
by the principle that they may exercise no power and perform no
function beyond that conferred upon them by law.
In this sense the
Constitution entrenches the principle of legality and provides the
foundation for the control of public power.
”
Although
the case of the applicant in the present matter is not based on
Promotion of Administration of Justice Act (PAJA)
9
,
the principle of legality is applied in the context of it being
implicit in the Constitution.
In
respect of the issue of whether the employment relationship changes
in the public service when an employee is transferred from
one
department to the other, it was correctly pointed out that in the
public service there is only one employer who has the right
to
discipline employees.
10
The
employer in the public service is the state. It was on this basis
incorrectly contended that the first respondent had the
right and
the power to discipline the applicant even after his transfer to the
national department.
The issue of who the
employer of the applicant is does not arise in this matter and in
fact has no bearing on the core issue to
be determined. The
applicant as a public servant remains the employee of the state even
after his transfer to the national department.
In my view the core
issue in this matter has to do with the lawfulness or otherwise of
the action taken by the first respondent
in instituting and
proceeding with the disciplinary action after the transfer of the
applicant. The other issue to consider if
found that the first
respondent does not have the power to institute and or continue with
the disciplinary hearing after the
transfer is whether there is a
basis for this Court to intervene.
The question of whether
the first respondent has the power to institute and proceed with the
disciplinary hearing depends on the
interpretation of section 16B
(4) of the Public Service Act of 1994 (the PSA). Section 16B (4) of
the PSA reads as follows:
(4) If an employee of a department in
this subsection referred to a ’ the new department), is alleged
to have committed misconduct
in a department by whom he she was
employed previously (in paragraph(b) referred to as ’the
former), the head of the new
department-
may institute or continue
disciplinary steps against that employee; and
shall institute or continue such
steps if so requested:
by the former executive authority if
the relevant employee is the head of the department; or
by the head of the former department,
in the case of any other employee.
(5) In order to give effect to
sub-section 4, the two relevant departments shall co-operate, which
may include exchanging documents
and furnishing such written and oral
evidence as may be necessary.”
It is clear from the
reading of section 16 B (4) of the PSA that the state does have the
right to discipline an employee after
the transfer from one
department to other. It is also clear from the plain language of
section 16 B (4) of the PSA that the legislature
had deemed it
necessary to regulate disciplinary proceedings against employees who
have been transfered from one department to
other. In this regard
the legislature makes provision for dealing with discipline of an
employee who has transferred from one
department to the other. The
legislature has provided two ways in which disciplinary proceedings
against a transferred employee
may be instituted or where it has
commenced at the time of the transferee may be continued with.
In the first instance
the head of the new department being the department to which the
affected employee would have been transferred
to, may institute the
disciplinary proceedings concerning misconduct that may have been
committed whilst an employee was employed
by the former department.
The role of the former department is limited to corpora ting by
making available relevant information
which may include both
documents and oral evidence concerning the charges that may have
been proffered against such an employee.
The other way in terms
of which an employee who has taken a transfer may be disciplined
concerning offences committed during his
employment with the former
department is through the request from the head of the former
department to the head of the new department
to institute or proceed
with the disciplinary hearing if they had already commenced at the
time of the transfer. Once the request
is made the head of the new
department is obliged to institute the disciplinary hearing.
It is clear from the
reading of section 16 B(4) of the PSA that the power of the former
department to institute or even to proceed
with the disciplinary
hearing after the transfer has taken place is taken away. In other
words the former department loses the
right to continue with
disciplinary proceedings when the transfer takes effect.
In my view the first
respondent in seeking to continue the disciplinary hearing after the
transfer of the applicant is exercising
the power he or she does not
have and thus acting
ultra vires
his or her powers.
In the circumstances it
would be failing the principles of legality if this Court was not to
intervene and stop what is clearly
unlawful conduct on the part of
the first respondent. It is important to note that the applicant is
not challenging the right
of the state to discipline him for the
misconduct he is alleged to have committed whilst under the
authority of the first respondent.
In my view failure by the Court
to intervene will result in an injustice which belief would not be
addressed by any subsequent
unfair dismissal remedy. It may well be
that if dismissed the applicant may have remedy in the form of
unfair dismissal, however
this will not in my view address the
injustice that he would have suffered as a result of an unlawful
conduct of the first respondent.
In the circumstances of
this case I find that the applicant has shown that exceptional
circumstances exist for this Court to intervene
and stop the first
respondent from subjecting him to unlawful disciplinary proceedings.
The first respondent in acting in the
manner he /she did as a
functionary exceeded his /her statutory powers and thus his/her
conduct is invalid under the Constitution.
I do not agree with the
contention that the unfair dismissal remedy would address the right
of the applicant not to be subjected
to the use of power which the
first respondent does not have.
In the premises the
following order is made:
First and fourth
respondents are interdicted from instituting or proceeding with
the disciplinary hearing against the applicant.
The first and the
fourth respondents are to pay the costs of this application the
one paying the other to be absolved.
Molahlehi J
Judge of the Labour Court of South
Africa.
Representation
For the Applicant: Mr A Moosam
instructed by Bowman Gilfillan Inc
For the Respondent: Mr Mkhari
instructed by Werksmans Attorneys.
1
[2011]
1 BLLR 83
(LAC)
2
Section
157 of the LRA reads as follows:
3
66
of 1995.
4
5
See
MEC Department of Education: KwaZulu Natal v Khumalo & Another
2011 (1) BCLR 91
(LC).
6
[2011]
JOL 27420
(LC).
7
1998
(12) BCLR 1458
(CC).
8
[2005] ZACC 3
;
2006
(3) SA 247
(CC).
See also
9
3
of 2000.
10
Section
213 of the LRA defines
public service to mean the national
departments, provincial administrations, provincial departments and
organisational components
contemplated in section 7(2) of the
Public
Service Act, 1994.”
11