About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2012
>>
[2012] ZALCJHB 135
|
|
Bula v Premier of the Northern Cape Government and Others (JR448/05) [2012] ZALCJHB 135 (15 March 2012)
9
REPUBLIC
OF SOUTH AFRICA
the labour court of
South Africa, Johannesburg
judgment
Not Reportable
Case no: JR448/05
In the matter between:
RLN BULA
Applicant
and
THE PREMIER OF THE NOTHERN CAPE
GOVERNMENT
First
Respondent
GENERAL PUBLIC SERVICE SECTORAL
BARGAINING COUNCIL
Second
Respondent
ME MARAIS NO Third Respondent
Heard on:
15 December 2011
Delivered on:
15 March 2012
Summary:
The applicant
challenged the commissioner’s award that he was properly
discharged from service as the Head of the Department
and not the
Chief Director. The review application failed because of the
documentary evidence pointing to the applicant’s
position as
the HOD and not the Chief Director as the applicant alleged.
JUDGMENT
SESELE AJ
Introduction
[1] This is an application for the
review and setting aside of the arbitration award and for an order
substituting the award with
an order that the dismissal of the
applicant was procedurally and substantively unfair. Alternatively,
that the matter be referred
back to the second respondent to be heard
by a commissioner other than the third respondent and costs against
the first respondent.
Background facts
[2] The applicant was the Head of the
Department for the Department of Public Works, which included the
Department of Safety and
Security.
[3] The first respondent discharged
the applicant from service effectively from 1 July 2004 in terms of
section 12 of the Public
Service Act, (the “PSA”).
1
[4] At the arbitration hearing, the
applicant’s case was that he was no longer the Head of the
Department at the date of his
discharge from service. The first
respondent’s case was to the contrary.
[5] The third respondent found in her
award that the applicant was indeed the Head of the Department and
that the dismissal was
therefore properly effected in terms of
section 12 of the PSA.
Grounds for review
[6] The applicant contends that the
third respondent committed misconduct in relation to the duties of a
commissioner in that she
failed to duly and properly apply her mind
and failed to consider the law of evidence and the burden of proof
during the arbitration
proceedings.
[7] The third respondent is alleged to
have based her finding that the applicant was the Head of the
Department solely on documents
handed in by the first respondent’s
representative without there being any witness’ testimony to
that effect.
[8] The applicant also contends that
the third respondent committed gross irregularity by not applying her
mind to the applicant’s
evidence on why the applicant referred
to himself as the Head of the Department in the proceedings before
the Northern Cape High
Court, Kimberley.
[9] the last contention is that the
third respondent grossly erred by not considering that the
applicant’s position of Head
of the Department was withdrawn
and that the applicant remained the Chief Director on instructions
from the responsible Member
of the Executive Council.
Submissions
[10] The applicant contends that he
was the Chief Director and not the Head of the Department as defined
in terms of Section 12(1)(a)
of the PSA thus making material error
of law by finding that section 12 of the PSA was applicable to the
applicant.
[11] The first respondent submits that
the applicant, in his letter of 16 October 2001 disputed
that he is the Head of
the Department in terms of section
12(1)(a)(i)(aa) but is an officer referred to in section
12(1)(a)(i)(bb) of the PSA.
[12] The applicant further regarded
himself as the Head of the Department in the affidavit which he
deposed to on 26 May 2003 in
the proceedings before the High Court.
[13] The applicant contends that the
third respondent only had the applicant’s evidence under oath
and none from the first
respondent at the arbitration hearing. The
third respondent refused to accept the applicant’s uncontested
evidence but accepted
the first respondent’s version without
providing any reasons.
[14] The first respondent contends
that the applicant’s evidence at the arbitration proceedings is
in direct contrast to the
position he took in the letter of
16 October
2001 and the affidavit in the High
Court to the effect that he was the Head of the Department.
[15] The applicant
submits that the third respondent accepted a document and arrived at
a decision based on the document without
any witness laying the basis
for the document.
[16] The first
respondent contends that the documents formed part of the bundle
handed in at the arbitration hearing and there was
no objection
thereto. The documents also formed part of documents which were
attached to the applicant’s founding affidavit.
It is not
irregular for the third respondent to consider the correspondence
addressed to the applicant and his response thereto.
[17] The applicant
contends that the third respondent failed to interpret the documents
correctly and apply her mind to the
rationale
of the letter and its context.
[18] The third
respondent failed to consider that the first respondent did not
present the five year employment contract but solely
relied on the
disputed documents.
[19] The first
respondent submits that the applicant’s evidence in chief is
improbable in light of the documents and correspondence
attached to
his founding affidavit.
[20] The first respondent submits that
the applicant was the officer referred to in terms of section
12(1)(i)(bb) of the Public
Service Law Amendment Act of 1997 and his
position as the Head of the Department had expired and the applicant
was thereafter retired
in terms of section 16(3)(a).
Analysis
[21] It is trite
that the test for review is formulated
in
Sidumo and Another v Rustenburg Platinum Mines LTD and Others
2
as
whether a reasonable decision-maker would have arrived at the
conclusion reached by the commissioner based on the evidence
presented.
[22] Whether a
mistake in law may sustain a successful review application it was
held in
Purefresh
Foods Pty Ltd v Dayal and Another
3
that
a mistake must have perpetrated an injustice. If a party was deprived
of a fair hearing or a commissioner did not apply his
mind to the
matter before him or her or that the commissioner ignored direct
evidence and relied on evidence that is not placed
before him, such a
mistake may be a ground for review.
[23.] In one of the
judgments delivered after
Sidumo
,
namely
Edcon
Ltd v Pillemer NO and Others
4
it
was said that the determination of reasonableness of the award
focuses on the conclusion of the commissioner based on the evidence
placed before the commissioner.
[24] Where a party
in a review application avers that the commissioner relied on hearsay
evidence in arriving at a particular conclusion,
the Court in
Naraindath
v CCMA and Others,
5
said
that it is not an irregularity if the commissioner has satisfied
himself or herself on proper grounds that the particular evidence
is
reliable. The commissioner’s conduct will not be reviewable.
[25] In the case under consideration,
the responsible Member of the Executive Council (the “MEC”)
advised the applicant
in writing on 15 October 2001 that the latter’s
five year term of employment as the Head of the Department in terms
of section
12(1)(a)(aa) of the PSA expired on 1 July 2001. Further
that the applicant would remain employed as the Chief Director. In
response
thereto the applicant pointed out to the MEC on 16 October
2001 that the latter misunderstood section 12 of the PSA as the
applicant
claimed to fall under section 12(1)(a)(i)(bb) and not
section 12(1)(a)(i)(aa) as the MEC alleged.
[26] On 24 October 2001, the MEC
suspended the applicant by a letter addressed to the applicant as the
Chief Director.
[27] On 12 November 2001, the Premier
issued a notice of a disciplinary hearing to the applicant in which
the following paragraph
appears to shed some light on the position of
the applicant at the material time: ‘WHEREAS you are a Senior
official and
was the head of the department of Safety and Liason,
Northern Cape Province...’
This notice was issued within
less than a month after the MEC had suspended the applicant who the
MEC regarded as the Chief Director
in the letter of 24 October 2001.
It therefore means that in November 2001 the Premier regarded the
applicant as the Head of the
Department.
[28] On 14
th
July 2004, the
Chief State Law advisor wrote a letter to the Acting HOD, Safety and
Liason to the effect that the term of office
of the applicant as the
Head of Department ended on 30 June 2004.
[29] On 15 July 2004, the Premier
wrote the letter to the applicant which I quote hereunder:
‘
EXPIRY
OF TERM OF OFFICE AS HEAD OF DEPARTMENT
You
are hereby informed that in accordance with section 12 of the Public
Service Act, 1994 (the Act) you were appointed for a period
of 5
years as from the date of commencement of the Public Service Laws
Amendment Act (i.e. 1 July 1999).
The
said period having expired, section 16(3)(b) of the Act applies,
which stipulates that the Head of the Department must be deemed
to be
discharged in terms of section 17(2)(b) of the Act.
You
are accordingly discharged in terms of the above provisions.’
[30] The applicant himself on 26 May
2003 in the affidavit before the Northern Cape High Court Kimberley
says in paragraph 6.3:
‘
Presently
I occupied a post of Chief Director and Head of Department: Safety
and Liason, Nothern Cape Government.’
[31.] The applicant’s
explanation at the arbitration hearing is that the incident of sexual
harassment took place during 2000
when he was Head of the Department.
The applicant however deposed to the affidavit on 26 May 2003 and
confirmed that he is the
Head of the Department on the said date. It
is improbable that the applicant would have described himself as the
Head of the Department
if the MEC had removed him from the position
of the Head of the Department.
[32.] In my view, it is apparent from
the MEC’s letters to the applicant that the former wanted to
change the applicant’s
position to that of the Chief Director.
This did not materialise. What is decisive is that the Premier in the
letter of the discharge
of the applicant referred to the applicant as
the Head of the Department.
[33] The applicant’s position as
the Head of the Department, so the third respondent found, did not
change at any stage prior
to 1 July 2004 on which date the Premier
discharged the applicant from service. The third respondent made this
conclusion based
on the documentary evidence presented before her.
This decision is, in my view, a decision which a reasonable
decision-maker would
have arrived at
(Sidumo and Another v
Rustenburg Platinum Mines LTD and Others
[2007] 28 ILJ 2405
(CC)).
[34] I am also satisfied that the
third respondent relied on the documents placed before her after
satisfying herself as to the
reliability of such documents before
making the decision and that the conduct of the third respondent in
this regard is therefore
not reviewable (
Naraindath v CCMA and
Others
[2000] 6 BLLR 716
(LC). Some of the documents
namely the letter of 16 October 2001 to the MEC and the
affidavit before the High Court were
written by the applicant or on
his instructions. The third respondent did not make a mistake of law
or fact insofar as the position
of the applicant was concerned. The
circumstances of the case are such that I did not consider it fair to
make a cost order.
[33]
Order:
(1) The application to review and set
aside the award of the third respondent under case number:
PSGA534-04/05 issued on 17 January
2005 is dismissed; and
(2) There is no order of costs.
_____________
SESELE AJ
APPEARANCES:
FOR THE APPLICANT: Adv. Grobler
instructed by Lovius Block Attorneys
FOR THE RESPONDENT: Adv. C Malema
instructed by the State Attorney
1
103 of 1994.
2
[2007] 28 ILJ 2405 (CC).
3
[1999] 5 BLLR 518
(LC).
4
[2007] ZALC 101
;
[2008] 5 BLLR 391
(LAC).
5
[2000] 6 BLLR 716
(LC).