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[2011] ZALCJHB 243
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Mashiya v Sirkhot NO and Others (J1744/11) [2011] ZALCJHB 243 (3 November 2011)
Not reportable
Of interest
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
case
no: J1744/11
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
Delivered
:
3 November 2011
RULING ON LEAVE TO APPEAL
STEENKAMP J
Introduction
The applicant seeks leave to appeal against my judgment of 30 August
2011. The judgment was handed down on an urgent basis pursuant
to an
urgent application concluded at 17:00 the previous day. The parties
delivered their submissions in this application on
28 October 2011.
The applicant sought to interdict the respondents from proceeding
with a disciplinary hearing on 30 August 2011; and a mandamus
ordering that the chairperson of the disciplinary hearing recuse
himself. In my judgement, I held that the application was not
urgent; that the applicant had not established a prima facie right
or an apprehension of irreparable harm; that the balance of
convenience favoured the respondents; and that the applicant had an
adequate alternative remedy available to him. I dismissed
the urgent
application with costs.
Grounds of appeal
The applicant appears to rely on the following possible grounds of
appeal:
that I erred in referring to 19 August 2011, being the date on
which the applicant brought an earlier urgent application before
Bhoola J, as a point of reference for deciding the question of
urgency;
that I erred in referring to the chairperson of the disciplinary
hearing's ruling on 25 July 2011 not to permit legal representation
as the applicant’s purported cause of action for its urgent
application;
that I erred in finding that the chairperson exercised his
discretion and decided not to deviate from the prescripts of the
SMS handbook that no legal representation is permitted;
that I erred in finding that there was nothing improper in the
manner in which the chairperson was appointed;
that I erred in finding that the Department went out of its way to
appoint an independent outsider to chair the hearing;
that I erred in finding that the applicant had not established a
reasonable apprehension of bias; and
that I erred in finding that the applicant has not shown any
apprehension of irreparable harm as he has other remedies available
to him.
At the outset, I must point out that the applicant is not entitled
to proceed, as of right, with the application for leave to
appeal
against the dismissal of the recusal application.
The Constitutional Court had the following to say in this regard in
SACCAWU and others v Irvin & Johnson Ltd Seafoods Division
Fish Processing:
1
“
An
applicant for recusal cannot be said to be ‘entitled’ to
prosecute an appeal immediately. Two considerations suggest
the
contrary. First, though there is some early authority that a decision
by an applicant for recusal to proceed with the merits
of the matter
instead of insisting on challenging the refusal to recuse by way of
appeal may constitute a waiver of the recusal
objection, it is clear
from subsequent authority that waiver in these circumstances occurs
only i fit is unambiguous. The recusal
point unless so abandoned
therefore remains good for a later appeal. There can accordingly be
no question of an ‘entitlement’
to proceed immediately.”
And
“
Whether
a court that has dismissed a recusal application permits the
applicants to bring appeal proceedings first will depend on
a range
of factors. These include the nature of the matter, the nature of the
objection to the courts composition, the prospects
of success in the
recusal, and, in the case of an appellate court, the length of the
record. The decision on these factors lies
with the court itself. The
applicants will therefore not be entitled to proceed as of right with
the application for leave to appea
The present application concerns not only a ruling on the recusal,
but also an urgent application to interdict a disciplinary
hearing.
In both of these instances exceptional circumstances would have to
be present to grant leave to appeal, given the dicta
in
Irvin &
Johnson
(supra); Jiba v Minister: Dept of Justice and
Constitutional Development & others
2
;
and
Booysen v Minister of Safety and Security.
3
First ground of appeal
The question of urgency was not dealt with on the basis of 19 August
2011 – the date of the first urgent application before
Bhoola
J – as "the point of reference." As I stated in
paragraph 16 of my judgement, even if one accepts that
the
application of 29 August 2011 was triggered only by the ruling on 25
July, any urgency is entirely self-created. The purported
cause of
action was clear from at least 25 July 2011. There is no basis for
this purported ground of appeal.
Second ground of appeal
The applicant submits that I misunderstood his cause of action,
which is that he is seeking to enforce his constitutionally
protected right to a fair hearing.
Au contraire
-- I dealt
with that in paragraphs 20-21 of the judgement. The applicant could
not show that the apprehension of bias on the part
of the chairman
was reasonable; therefore, the question whether the applicant would
be denied the right to a fair disciplinary
hearing had to be
answered in the negative.
Third ground of appeal
It is correct that the chairperson reasonably exercised his
discretion not to deviate from the default position in the SMS
handbook that no legal representation is allowed. That is dealt with
fully in paragraphs 25 and 26 of my judgement and needs no
repetition here.
Fourth ground of appeal
I do not think it is likely that another court would come to the
view that Adv Sirkhot’s acceptance of his appointment
as
chairperson was irregular, or that it could create a reasonable
apprehension of bias. His appointment was done in terms of
the SMS
handbook and was not raised at the commencement of the disciplinary
hearing on 14 July 2011.
Fifth ground of appeal
It is also unlikely that another court could come to the conclusion
that Adv Sirkhot was not an independent outsider. He is not
an
employee of the Department and the Department was fully within his
rights to appoint a person outside the public service as
a
chairperson in terms of the SMS handbook. This purported ground of
appeal also has no merit.
Sixth ground of appeal
Another court is not likely to come to another conclusion on the
question whether the applicant had shown a reasonable apprehension
of bias. As the Constitutional Court pointed out in
President of
the RSA & others v South African Rugby Football Union &
others
4
,
the test for recusal is whether a reasonable, objective and
informed person would on correct facts reasonably apprehended that
the presiding officer has not will not bring an impartial mind to
bear on the adjudication of the case. Such a person would not
have
formed such a reasonable apprehension on the facts of this case.
Seventh ground of appeal
The applicant clearly had other remedies available to him. The
Labour Appeal Court has already come to a similar conclusion on
similar facts in
Booysen (supra),
and there is no reason to
believe that it will come to a different conclusion in this case,
should leave to appeal be granted.
Conclusion
The applicant has not been able to show that another court could
reasonably come to a different conclusion on any of the seven
possible grounds of appeal raised by him.
The application for leave to appeal is refused with costs.
_______________________
A J Steenkamp
Judge
1
[2000] ZACC 10
;
2000
(3) SA 705
(CC) paras 5-6.
2
(2010)
31
ILJ
112
(LC) para 17.
3
[2011]
1 BLLR 83
(LAC) para 54.
4
[1997]
7 BCLR 725
(CC) para [48].