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[2012] ZALCJHB 146
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Ncgongo v University of South Africa and Another (J 2950/2011) [2012] ZALCJHB 146; (2012) 33 ILJ 2100 (LC) (23 February 2012)
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
case
no: J 2950/2011
In the
matter between:
ANDILE
NGCONGO
..................................................................................................
Applicant
and
UNIVERSITY
OF SOUTH AFRICA
..............................................................
First
Respondent
ANTON
BAKKER
....................................................................................
Second
Respondent
Heard:
17 January 2012
Order:
17 January 2012
Reasons:
23 February 2012
Summary:
Urgent review of a Ruling by a Disciplinary Panel allowing First
Respondent to appoint an external legal representative to act as
an
initiator at the applicant’s disciplinary hearing. Application
dismissed with costs.
JUDGMENT-REASONS FOR ORDER
AC BASSON
J
Introduction
[1] This
was an urgent application in terms of which the applicant (“Mr
Andile Ngcongo”) sought an order interdicting
the first
respondent (the University of South Africa – hereinafter
referred to as “UNISA”) from proceeding with
a
disciplinary enquiry against him on 18 and 19 January 2012. The
applicant further sought an order reviewing and setting aside
the
Ruling made by the Chairperson of the Disciplinary Panel dated 14
November 2011 allowing the employer to be represented by
an external
representative who will act as the initiator at the disciplinary
hearing of the applicant. The Court dismissed the
application with
costs including the costs of senior counsel.
Brief
exposition of the relevant facts
[2] The
facts that gave rise to this application are non-contentious. The
applicant is employed as a legal advisor in the Legal
Services
Department in the Directorate Labour Law. He is an admitted attorney
and his day to day duties include advising UNISA
on labour matters
and representing the University in CCMA hearings.
[3] On 28
October 2011, the applicant was served with a charge sheet containing
52 charges. Most of these charges deal with gross
negligence on the
part of the applicant in the performance of his duties in respect of
various legal issues involving UNISA. A
disciplinary hearing was
scheduled for 14 November 2011. The disciplinary hearing commenced on
the aforementioned date. A panel
consisting of a Chairperson,
Professor Ahmed Cachalia and two assessors was appointed. The
applicant was represented by a co-employee
Mr Ratiba - a senior
lecturer of the Department of Private law in the college of Law at
UNISA. From the transcript of the disciplinary
hearing it appears
that UNISA was represented by Mr. A Bakker (an external attorney –
the second respondent) and Ms Juliette
Grosskopf (an employee of
UNISA). The disciplinary hearing was arranged by the Legal Services
Department, Directorate: Labour Law
– the department
responsible for handling and administering formal discipline. It is
further the responsibility of this department
and the employees from
within this department to represent UNISA at internal disciplinary
hearings against employees.
[4] In
terms of paragraph 7.2.1(i)(b) of the Disciplinary Code,
1
an employee has the right to be represented by a fellow employee or a
recognised labour union representative. As already pointed
out, the
applicant was represented by Mr Ratiba and UNISA by Mr Anton Bakker.
[5] At the
commencement of the hearing, the panel was requested to rule on two
issues. Firstly the question whether UNISA was entitled
to appoint an
external legal representative as well as the question of a
postponement. The objection to Mr. Bakker representing
UNISA arose
from paragraphs 7.2.1(ii) and 2.4 of the Disciplinary Code which read
follows:
‘
[7.2.1(ii)]
ER&HR
will represent the University in the matter
;
2
alternatively,
ER&HR Pol
3
must
nominate a suitable qualified employee of the University for this
purpose. All persons representing the University must have
appropriate training and experience in conducting disciplinary
proceedings.’
‘
[2.4]
In any disciplinary proceedings instituted against an employee in
terms of this Code, such employee is entitled to representation
by a
recognised labour union representative or any permanent co-employee
of his or her choice.
External
legal representation is not permitted
.
’
4
[6] Mr
Ratiba argued that Mr Bakker should not be allowed to represent UNISA
because the Disciplinary Code does not permit external
representation.
[7] The
Panel concluded firstly that it has a discretion to consider the
issue of legal representation and secondly, on consideration
of the
complexity of the matter, the legal issues to be raised, the
prejudice to the parties and fairness, that UNISA should be
permitted
to use external legal representation. The Panel further decided that
the applicant would have the same right. The disciplinary
hearing was
thereafter postponed to 7, 9 and 12 December 2011 to enable the
applicant to secure legal representation should he
wish to do so.
[8] On 7
December 2011, the applicant was represented by Mr. Bheki Phakhati.
The applicant, however, sought a postponement of the
hearing because
the attorney he had instructed to represent him became unavailable.
The hearing was then postponed to 18 and 19
January 2012. The present
application was launched on 23 December 2011.
Ad
urgency
[9] It was
argued on behalf of UNISA that the matter is not urgent and that the
urgency was self-created. I am in agreement that
this application is
not urgent. The Ruling of the Panel that the applicant is now seeking
to review on an urgent basis was already
made on 14 November 2011.
This application was, however, only launched five weeks later. I have
perused the papers and can find
no explanation why it was not
possible to have launched the application soon after the Ruling was
made. More importantly, after
the Ruling, the applicant participated
in the hearing on 7 December 2011 and in fact indicated to the
hearing that he had instructed
an attorney to represent him but that
the attorney was unavailable.
[10] I am
of the view that the applicant, by participating in the proceedings
in the manner that he did, accepted to abide by the
Ruling. Moreover,
at the continuation of the hearing, the applicant did not indicate
that he intended to bring this application.
The applicant should
therefore not be entitled to pursue this application and more so, on
an urgent basis.
[11] I am also not persuaded that the applicant will suffer any real
prejudice if the relief sought is not granted. Firstly, the
applicant
was also granted the opportunity to obtain the services of an
attorney. As already indicated, he did at first obtain
legal
representation only to thereafter argue that he is prejudiced by the
Ruling as he ‘may not have the financial muscle
to have
‘Rolls-Royce’ legal representation’. He further
argued that there will not be ‘equality of arms’.
I am
not persuaded that this is indeed the case: Firstly, the applicant
himself is an attorney. If he decides not to appoint a
legal
representative he is able to represent himself. The applicant has
practical experience in light of the fact that he is an
admitted
attorney. He is therefore equally competent to represent himself than
any attorney representing UNISA. Secondly, as already
pointed out,
the applicant has been granted the opportunity to engage an attorney
of his choice. UNISA can hardly be held accountable
for his decision
in this regard.
[11] Moreover, even if the applicant decides not to appoint a legal
representative, the applicant is no worse off than the thousands
of
individual applicants who regularly appear in this Court without
legal representation. In almost all of these cases these individuals
have no legal qualification and often these applicants have no proper
formal schooling. Yet they often leave the doors of this
Court with a
court order in their favour.
Merits
of the application
[12] Despite the fact that I am of the view that the matter is not
urgent, I have nonetheless decided to deal with the merits in
order
to bring finality to the dispute.
[13] It is accepted that the Labour Court has jurisdiction to
interdict unfair conduct, including unfair conduct relating to
disciplinary
action or hearings. The Court will, however, not lightly
interfere with an incomplete disciplinary hearing except in
exceptional
cases. See in this regard
Booysen v Minister of Safety
and Security and Others
5
where the Court held as follows:
‘
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.
6
The
list is not exhaustive.’
See also
Mortimer v Municipality of Stellenbosch and Another
7
where the Court held as follows:
‘
Where
a person in truly extraordinary circumstances – a matter to
which I revert in considering the third issue – approaches
the
labour Court on the basis that a disciplinary enquiry was for
instance, about to commence or was conducted in the hands of
a biased
or unqualified presiding officer, or on another factual basis so
serious as to vitiate in law the enquiry, I have little
doubt that
the Labour Court would in law exercise these powers to stop it.’
Does
the panel have a discretion?
[14] In deciding whether to interfere with the Ruling, the first
question to be answered is whether the Disciplinary Code in fact
grants UNISA a discretion to employ the services of an outside legal
representative to represent it at the disciplinary hearing
as an
initiator. In order to answer this question, regard must be had to
the provisions of the Code. In paragraph 1.1 of the Code,
it is
stated that it is the ‘purpose of this Code [is] to provide
certainty and clarity with regard to the content and consequences
of
misconduct and about the efficient and fair application of
discipline’. Further in paragraph 2.3 it is stated that
‘discipline
must be as fair and efficient as possible’
and further it is stated that ‘a fair procedure must be
followed in the
application of discipline’. It is clear from
these paragraphs that the Code has been adopted to ensure that a
disciplinary
process instituted against an employee adheres to
principles of fairness.
[15] At issue here is paragraph 2.4
8
of the Code where it is stated that external legal representation is
not permitted.’
9
It was with reference mainly to this paragraph, that the applicant
submitted that UNISA is not allowed to use an external initiator
in
the matter.
[16] It is accepted that a disciplinary code is a guideline and that
employers should generally only be allowed to depart from
a code in
exceptional or appropriate circumstances. See in this regard:
Solidarity/MWU on behalf of Van Staden v Highveld Steel and
Vanadium and Another
10
‘
It
must be borne in mind that a disciplinary code is merely a guideline,
whose application depends on the circumstances of the case.’
See also
SA Tourism Board v CCMA and Others
11
where a similar view was followed:
‘
The
established principle that, ultimately, a disciplinary code is not
intended to be peremptory in its terms but rather to provide
a
guideline for fair and equitable procedure.’
See also
in general the decision in
The MEC: Department of Finance,
Economic Affairs and Tourism: Northern Province v Schoon Godwilly
Mahumani
12
where the Supreme Court of Appeal had to consider an appeal against a
finding that the respondent was entitled to legal representation
at a
disciplinary hearing. At issue in this case was clause 8 of the
Disciplinary Code and Procedures for the Public Service which
stated
that neither the employer nor the employee may be represented by a
legal practitioner unless the employee is a legal practitioner.
Patel
AJA held as follows:
‘
In the
Mosena
case it was submitted that, in the light of clause 2.8, clause 7.3(e)
of the Code should not be construed as an absolute prohibition
against legal representation at a disciplinary hearing. Wallis AJ
held that clause 2.8 is an injunction in regard to an employer’s
general approach to discipline and should not be interpreted as
authorising wholesale discretionary departures from the Code and
procedures. It should be interpreted to only authorise departures
where it would be necessary by agreement or otherwise, to depart
in
some respect from the strict terms of the procedure. He found in
clause 2.7, which provides that disciplinary proceedings do
not
replace or imitate court proceedings, a strong indication that the
parties considered clause 7.3(e) to be a fundamentally important
portion of their agreement.’
I agree with Wallis AJ that
clause 2.8 is an injunction as to the general approach that should be
followed. I, furthermore agree,
that clause 7.3(e) is a fundamentally
important provision of the agreement and that it should not lightly
be departed from. But,
there may be circumstances in which it would
be unfair not to allow legal representation (see
Hamata
and Another v Chairperson, Peninsula Technickon Internal Discplinary
Committe, and Others
2002
(5) SA 449
(SCA) at paras 12 and 13).
In terms of our common law, a
person does not have an absolute right to be legally represented
before tribunals other than courts
of law (
Dabner
v SA Railways and Harbours
1920
AD 583
at 598; and
Hamata
at para 5). However, it does
require disciplinary proceedings to be fair and if ‘in order to
achieve such fairness in a particular
case legal representation may
be necessary, a disciplinary body must be taken to have been intended
to have the power to allow
it in the exercise of its discretion
unless, of course, it has plainly and unambiguously been deprived of
any such discretion’
(per Marais JA in
Hamata
at para 23). The provisions of
the Promotion of Administrative Justice Act
13
in respect of administrative
action in general corresponds with the common law in respect of
disciplinary proceedings.
The parties, who agreed on the
Code, were intent on devising a fair procedure (see clause 2.4) and
it is reasonable to assume that
they also knew that there may be
circumstances in which it would be unfair not to allow legal
representation. In these circumstances
it is likely that they would
have intended the presiding officer to have a discretion to allow
legal representation in circumstances
in which it would be unfair not
to do so. I can find no indication in the Code to the contrary. There
is, therefore, no justification
for interpreting 'appropriate
circumstances' in clause 2.8 so as not to include circumstances,
which would render it unfair not
to allow legal representation at a
disciplinary enquiry.
It follows that, if, on a
conspectus of all the circumstances it would be unfair not to allow
legal representation the provisions
of clause 7.3(e) may in terms of
clause 2.8 be departed from. The presiding officer erred in holding
that he had no discretion
to allow such a departure. The court
a
quo
, therefore,
correctly reviewed his decision and set it aside.’
[17] Apart from the fact that I am persuaded that there are
exceptional circumstances and appropriate circumstances present
warranting
a departure from the Disciplinary Code, the applicant’s
representative (Mr. Rathiba) at the hearing also accepted during
argument that the panel has a discretion to deviate from the Code and
that the Panel may do so in exceptional circumstances.
14
At the time therefore, it was not in dispute that the Panel had a
discretion to decide whether external representation should be
allowed.
[18] Although the principle that a disciplinary code constitutes
merely a guideline and that a deviation from a disciplinary code
may
be warranted in certain exceptional and appropriate circumstances is
supported by case law, I am in agreement with Mr. Redding
that it is
unlikely that this Court will hold that legal representation can
never be permitted under any circumstances even where
the Code states
that ‘external legal representation is not permitted’.
[19] Having accepted that the Panel had a discretion to allow
external legal representation, it must now be considered whether
the
Ruling of the Panel was reasonable.
Is the
Ruling reasonable?
[20] Should the Court interfere with the Disciplinary Hearing on an
urgent basis and set aside the decision of the Panel to allow
the
employer to engage external legal representation? In reviewing the
Ruling, the Court must consider whether the Ruling was unreasonable.
In considering the reasonableness of the Ruling, the Court must
consider whether the Panel failed to consider an important and
relevant factor or whether the Panel considered an irrelevant factor
which it should have ignored and whether the Panel failed
to apply
its mind in accordance with relevant laws or principles.
[21] The chairperson’s ruling is to be found on page 87 –
95 of the transcript of the Disciplinary Enquiry. After concluding
that the Panel does indeed have a discretion to consider the
application for legal representation, it considered the merits of
the
application. In arriving at the decision, the Panel considered
whether the matter is in itself complex; whether there are ‘peculiar
legal questions which laypeople many not necessarily be able to
understand nor the people themselves be able to deal with’;
whether there is prejudice to the other party and lastly the question
of fairness. The Panel also took into account that the charge
sheet
consists of 52 charges. Some of the charges involve the issue of
prescription in that it is alleged that the applicant had
failed to
perform his duties in that he had failed to ensure that certain
claims of UNISA against certain individuals do not prescribe.
The
Panel concluded that these issues, which are of a legal nature, need
to be properly ventilated and that legal representation
should
therefore be allowed. In respect of prejudice, the Panel concluded
that the applicant will not be prejudiced because he
is also afforded
the right to engage the services of a legal representative.
[22] In order to evaluate the reasonableness of the Ruling it is
necessary to briefly consider the circumstances that led to the
application for external representation. The appointment of Mr.
Bakker as the initiator was as a result of a motivation that was
submitted to UNISA’s Management Committee for the appointment
of an external initiator. Mrs. Grosskopf and Mr Singh (the
deponent
who is the Assistant Principal of UNISA) drafted a memorandum for
consideration by the University’s Management Committee
on 6
September 2011 to appoint an initiator. According to UNISA’s
papers, an internal initiator could not be appointed from
the ranks
of UNISA for the following reasons: Firstly, it would have been
inappropriate in the present case to have used one of
the employees
of the Legal Services Department because the applicant’s
superiors within the Department (Mrs. Grosskop and
Mr van Wyk) would
be required to testify. Ms. Ringane would also not be a suitable
person given her close working relationship
with the applicant.
Secondly, consideration was given to the potential impact on the
working relationship between the applicant
and his colleagues within
the Directorate: Labour Law if one of them was to act as initiator
against the applicant and if he should
ultimately not be dismissed.
Thirdly, the hearing would involve issues relating to the practical
application of court processes
and rules as well as the manner in
which an attorney’s office operates as this is the manner in
which the Legal Services
Office is run on a daily basis.
[23] I am persuaded that the Ruling is reasonable in the present
circumstances and that no exceptional circumstances exist which
warrant the interference of this Court. I am furthermore also not
persuaded that the Ruling which allows UNISA to be represented
by an
external legal representative will lead to a grave injustice. I am
particularly not persuaded that the applicant will suffer
prejudice.
I am also not persuaded by the argument that in order to ensure
‘equality of arms’ he will have to incur
costly legal
representation. The applicant has the choice to appoint an external
legal representative and even should he decide
not to do so, he as an
in-house professional lawyer will not be prejudice. The applicant
does not state in his papers that he is
not able to deal with the
issues because they are complex. In fact, he himself states that the
case does not present any legal
complexity.
[24] During argument, however, it became apparent that the real issue
is the fact that the appointment of an attorney will have
financial
implications for the applicant. In fact, counsel on behalf of the
applicant conceded that the matter would not have been
before this
Court if UNISA had offered to pay for the applicant’s legal
representation. This concession came, to say the
least, as a
surprise. The applicant complains about the financial implications of
the Ruling yet there is nothing on the papers
to suggest that the
applicant has approached UNISA with a request for financial
assistance. I have already pointed out that even
if the applicant
should decide not to appoint a legal representative it does not mean
that he will not be able to defend himself.
He is, after all an
admitted attorney. In any event, even if it was so that there is no
‘parity of arms’ that in itself
does not point to an
injustice. See in this regard
Volschenk and Another v Morero NO
and Others
:
15
‘
The
main authorities on the question of legal representation in internal
enquiries do not dictate that there must be a parity between
the
ability and expertise of representatives, but only that the procedure
should be fair.’
[25] In the event, it is concluded that the Ruling of the Panel is
reasonable. The application is therefore dismissed. I can find
no
reason why costs (including the costs of senior counsel) should not
follow the result. In this regard it was taken into account
that the
decision of this Court in respect of this matter is of crucial
importance to UNISA and that it necessitated representation
by senior
counsel.
_______________________
AC BASSON J
Judge of the Labour Court
APPEARANCES:
FOR APPLICANT: Mr Sizwe Snail of Snail Attorneys
FOR RESPONDENT: Advocate A Redding SC
Instructed by Bakker Attorneys
.
1
Approved
by UNISA’s Council on 23/03/2010.
2
Court’s
emphasis.
3
An
acronym for the Directorate: Employee Relations and HR Policy.
4
Court’s
emphasis.
5
(2011)
31 ILJ 112 (LAC) at para 54.
6
Wahlhaus
and Others v Additional Magistrate, Johannesburg and
Anothe
r
1959 (3) SA 133
(A).
7
Unreported
matter of the WCC (case no 18243/2008).
8
Quoted
in paragraph [5] above.
9
Court’s
emphasis.
10
(2005)
26 ILJ 2045 (LC) at para 14.
11
[2004]
3 BLLR 272
(LC).
12
[2005]
2 All SA 479
(SCA) at para 9-13.
13
3
of 2000.
14
At
paragraph 6.2 of the Founding Affidavit.
15
[2010]
JOL 26457
(LC) at para 12.