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[2012] ZALCJHB 68
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Breytenbach v National Director of Public Prosecutions (J1397/12) [2012] ZALCJHB 68 (18 July 2012)
21
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Of interest to other
judges
Case no: J1397/12
GLYNNIS BREYTENBACH
…..........................................................................
Applicant
and
NATIONAL DIRECTOR OF
PUBLIC PROSECUTIONS
…..........................
Respondent
Heard on: 25 June 2012
Delivered on: 18 July
2012
Summary:
The
grant of interdict to set aside precautionary suspension of a senior
manager on urgent basis – applicability of the audi
alteram
partem rule – striking out of disputed evidential material
.
___________________________________________________________________
JUDGMENT
CELE
J
Introduction
[1] The applicant
approached this Court on urgent basis in term of section 158 (1) (a)
(ii) of the Act
1
and rule 8
2
seeking to be granted an
order in the following terms:
that this matter be
dealt with as one of urgency. Insofar as the applicant has not
complied with the rules of this court, her
failure to do so is
condoned.
that the respondent’s
suspension of the applicant on 30 April 2012 is declared to have
been unlawful.
that the respondent’s
suspension of the applicant on 30 April 2012 is set aside. The
respondent is directed to reinstate
the applicant and to allow her
to resume the normal duties in which she was engaged at the time of
her suspension.
that the respondent is
ordered to pay the applicant’s costs.
that the applicant is
afforded further and/or alternative relief.
[2] The application has
been opposed by the respondent in its capacity as the employer of the
applicant.
Factual background
[3] The applicant is a
Senior Deputy Director of Public Prosecutions and the head of the
Pretoria Regional Office of the Specialised
Commercial Crime Unit
(SCCU) of the National Prosecuting Authority (NPA). The respondent is
the National Director of Public Prosecutions
(NDPP). She is the head
of the NPA in terms of section 179(1)(d) of the Constitution of the
Republic of South Africa, 1996 read
with the
National Prosecuting
Authority Act 32 of 1998
. The incumbent in the office of NDPP is
Advocate Nomgcobo Jiba as the Acting NDPP with effect from 28
December 2011.
[4] The applicant is an
experienced prosecutor and advocate since 1987 and 1992 respectively.
She has since 1990 specialised in
the prosecution of commercial
crimes, working in various levels. From 1998 to 1999 she worked as a
Senior State Advocate in the
Office of the Director of Public
Prosecutions in Pretoria. She progressed to various levels and is
currently a Senior Deputy Director
of Public Prosecutions.
[5] Since 2007,
she is the Head of the Regional Office
of the SCCU which specialises in the investigations and prosecutions
of complex commercial
crimes. As such head, she is in charge of the
overall prosecutions done by her staff in the regional office of the
SCCU. She personally
handles the most complex cases and those that
she deems to warrant her personal attention for whatever reason. She
is employed
by the NPA in terms of sections 15 and 19 of the NPA Act
read with the Public Service Act, 1994 and the Public Service
Regulations,
2001. Her post is classified as part of the Senior
Management Service (SMS) subject to the provisions of Chapter 4 of
the Public
Service Regulations. The rules applicable to the SMS are
published in the SMS Handbook in terms of Regulation D of Part I of
Chapter
4 of the Public Service Regulations.
[6] On 31 October 2011,
an attorney, Mr Ronald Mendelow,
acting on behalf of his client Imperial Crown Trading 289 (Pty)
Limited (ICT), laid a complaint
against the applicant with the NDPP.
The complaint has a genesis from a
civil
dispute which arose between the
Department
of Mineral Resources
,
Kumba
Iron Ore Limited with its subsidiary Sishen Iron Ore Co (Pty) Limited
(Sishen)
,
Arcellor
Mittal SA Limited
(Mittal)
and
ICT
.
This dispute is the
subject matter in the High Court judgment in
Sishen
Iron Ore Co and others v The Minister of Mineral Resources and
others, case 28980/10
,
handed down on 15 December 2011.
[7] Sishen held 78,6% and
Mittal 21,4% of the old order iron ore mining rights in land in the
Kuruman district in the Northern Cape.
Sishen operated an opencast
iron ore mine on the land in terms of an agreement with Mittal. It is
one of the largest opencast iron
ore mines in the world. The Mineral
and Petroleum Resources Development Act 28 of 2002 (MPRDA) came into
operation on 1 May 2004.
It created a new mineral rights regime. Item
7 of Schedule II allowed the holders of old order mining rights to
apply to the Minister
of Mineral Resources within five years, that
is, until 30 April 2009, for conversion of their old order mining
rights into new
order mining rights under the MPRDA. If they failed
to do so, their old order rights lapsed and became available for
allocation
to others on a first-come-first-served basis.
[8] Sishen duly applied
for the conversion of its old order mining rights. Mittal however
omitted to do so. When it became apparent
that Mittal’s old
order mining rights would lapse on 30 April 2009, both Sishen and ICT
applied to the Minister at the offices
of the Department of Mineral
Affairs in Kimberley, for new order mining rights which were thought
to become available for allocation
to third parties when Mittal’s
old order mining rights lapsed. Sishen applied for new order mining
rights and ICT for new
order prospecting rights.
[9] In due course the
Minister granted ICT’s application and refused Sishen’s
application. Sishen took the Minister’s
decisions on review to
the High Court. which held that, on conversion of Sishen’s old
order rights, it acquired 100% of the
new order mining rights on the
land (despite the fact that it had only held 78,6% of the old order
mining rights). There were consequently
no longer any new order
mining rights available for allocation to Sishen or ICT. The
Minister’s grant of prospecting rights
to ICT was thus invalid.
[10] On 21 September
2010, while the application for review was pending, Sishen lodged a
criminal complaint of fraud and forgery
against ICT with the Serious
Economic Offences Unit of the Hawks in Pretoria. The essence of its
accusation against ICT was that
it had forged a title deed and had
made fraudulent misrepresentations in its application for prospecting
rights. This case against
ICT was initially taken to a prosecutor in
Kimberley but was later moved to the SCCU in Pretoria. The applicant
took charge of
the case on the basis that she regarded it as too
complex to allocate to any of her junior staff. The investigating
officer was
Captain Irene van Rensburg who resigned and Lieutenant
Colonel Sandra van Wyk of the Serious Economic Offences Unit of the
Hawks
took over.
[11] ICT had also lodged
a fraud complaint with the Serious Economic Offences Unit of the
Hawks against Sishen’s holding company,
Kumba. Superiors at the
Economic Offences Unit wanted the Kumba case to be dealt with
separately from the ICT case. The applicant
was not responsible for
the investigation of the complaint against Kumba. ICT later
complained that the applicant was not even-handed
in her handling of
the complaints against ICT and Kumba.
[12] Sishen appointed
Advocate Michael Hellens to advise them and to protect their
interests in the ICT case. The applicant invited
him and his attorney
to her office to explain aspects of the civil dispute to her and
Captain Van Rensburg. When Lt-Colonel Van
Wyk later took over as
investigating officer, she again invited him and his attorney to her
office to give her the same explanation.
She did so believing that
the civil dispute had generated a large body of evidence which had in
turn given rise to very complex
issues of fact and law.
[13] In the course of
investigating the ICT case, the applicant and Lt-Colonel Van Wyk
applied for a search warrant in terms of
section 21
3
,
to search certain premises including those of ICT. They asked for Mr
Hellens’ assistance with the preparation of the application
for
the search warrant. The search warrant was issued by a magistrate in
Kimberley on 26 July 2011 and was executed by SAPS. They
seized a
large volume of evidence including documents and electronic evidence
downloaded from a computer and two cellular telephones
at ICT’s
offices.
[14] On Friday 19 August
2011,
ICT
launched an urgent application in the Kimberley High Court for the
search warrant to be set aside and for the return of evidence
seized
under it. An interim default order was granted, in terms of which
SAPS had to deposit all the evidence seized under the
warrant with
the Registrar of the High Court for safekeeping pending the
determination of the remainder of the application. The
SAPS opposed
ICT’s application. Sishen and Kumba also sought and obtained
leave to oppose it. All the respondents filed affidavits
in
opposition to ICT’s application.
[15] The applicant also
participated in the litigation in Kimberly including filing
affidavits, taking legal advice from Mr Hellens
on the proper cause
of action to take. At that time, Lt-Colonel Van Wyk had deposed to an
affidavit in the Kimberly High Court
dispelling the allegation by ICT
that Mr Hellens was conducting and directing the investigation.
Lt-Colonel Van Wyk had said that
Mr Hellens was not involved and that
application for a search and seizure warrant was prepared by her
assisted by the applicant.
Mr Hellens was not mentioned. At that time
both the applicant and Lt-Colonel Van Wyk downplayed the extent of Mr
Hellens involvement
in the criminal investigation. According to the
respondent, it was also alleged that during the search and seizure,
Mr Hellens,
as Sishen/Kumba counsel, was granted unfettered and
unhindered access to the premises and the seized documents.
[16] The ICT case came
before the High Court but was postponed several times. On 28 October
2011,
the applicant was in
attendance. Representatives of Sishen and Kumba also attended as
respondents in ICT’s application and
the complainants in the
underlying criminal investigation. Mr Hellens accompanied his clients
as he held a watching brief in the
matter.
[17] On 25 November 2011,
the applicant was called to a meeting
with Advocate Karen Van Rensburg, the Acting CEO of the NPA, Advocate
Mzinyathi, and Dr Ramaite,
a Deputy NDPP. Advocate Van Rensburg told
her that they had received a complaint against her, without divulging
the nature of the
complaint or even the identity of the complainant.
She said that they proposed to transfer the applicant to the office
of the DPP,
North Gauteng. The applicant protested, saying if they
did so, it would be tantamount to a conviction without a hearing and
that
she would resign in protest with immediate effect. Advocate Van
Rensburg asked her to leave the room for them to consider her
response.
[18] When she was called
back in, Advocate Van Rensburg said that the applicant could continue
with normal duties but had to withdraw
from the ICT case. She agreed
to do so. Particulars of the complaint against her and the steps
proposed to be taken to investigate
it were to be sent to her. After
the meeting, she arranged with Advocate Paul Louw of her office to
take over from her as the prosecutor
in the ICT case. He did so.
[19] On 2 December 2011,
Mr Wasserman, an Acting Senior Manager in the NPA’s Integrity
Management Unit, was appointed to head
a team to conduct a
preliminary investigation against the applicant. In January 2012, Mr
Wasserman’s investigation team said
it had found that a
prima
facie
case of misconduct by the applicant existed. On the
strength of the preliminary findings by Mr Wasserman’s team, on
01 February
2012, the NPA decided to initiate the process for the
possible suspension of the applicant. On 1 February 2012, the NPA
issued
a notice of intention to suspend the applicant. She received
the notice on 2 February 2012. Also, on 1 February 2012 the applicant
heard that NPA had publicly announced that she had been suspended
from duty. The media reported the announcement on the following
day.
[20] An article in the
City Press reported that the applicant had been suspended and quoted
an NPA spokesperson Mr Mthunzi Mhaga
as having said that all cases
she was handling would be re-assigned to other equally capable
prosecutors within the NPA. Mr Mhaga
also confirmed in an interview
with Talk Radio 702 on 2 February 2012 that the applicant had been
suspended. While the respondent
conceded to having issued the public
statement about the suspension of the applicant, it contended that a
communication error had
taken place resulting in such unintended
announcement.
[21] The applicant
consulted with and briefed an attorney, Mr Gerhard Wagenaar, who was
to find out from the NPA whether she had
indeed been suspended. He
met with Mr Ronnie Pather of the NPA on 2 February 2012. Mr Pather
gave him a letter for the applicant
from Advocate Van Rensburg dated
1 February 2012. It stated that the NPA intended to suspend her and
gave her 48 hours to give
reasons why she was not to be suspended.
The only reason she gave for their intention to suspend her was that
she had abused her
powers in execution of her duties as a Senior
Deputy Director of Public Prosecutions in an investigation under the
Kimberley or
the ICT case.
[22] Mr Wagenaar
addressed a letter to Advocate Van Rensburg on 6 February 2012,
enquiring whether it was true that the decision
to suspend the
applicant had already been taken and he asked for a copy of the
complaint as the applicant felt she could not otherwise
meaningfully
respond to it. Advocate Van Rensburg responded on the same day but to
no satisfaction to the applicant and her attorney.
She felt that she
had not been given any meaningful explanation of the allegations
against her to so as to respond accordingly.
The applicant did not
submit any reasons within the 48 hours given to her of why she was
not to be suspended. All that NPA had
from the applicant was her
affidavit of 8 February 2012 in which she responded to the same
accusations made in the ICT’s
replying affidavit in the
Kimberly matter.
[23] The NPA’s
public announcement that the applicant had already been suspended,
Advocate Van Rensburg’s failure to
confirm whether that was so
and her refusal to give the applicant a copy of the complaint or any
meaningful particulars about it,
made the applicant feel that the NPA
had decided and was determined to suspend her and was merely paying
lip service to the requirement
that she be afforded an opportunity to
put her side of the case.
[24] On 14 and 17
February 2012, Mr Wagenaar addressed further letters to Advocate Van
Rensburg, in which he asked her as a matter
of urgency, to furnish a
copy of the complaint or particulars of it. The request was not
favourably met.
[25] On 8 February 2012,
after seeking and obtaining permission from Advocate Mrwebi, the
applicant deposed to an affidavit for
the Kimberly High Court matter.
For the first time the applicant admitted the involvement of Mr
Hellens in the drafting of the
search and seizure warrant, but said
that it was not uncommon in complex matters for the State or
prosecution to solicit the assistance
of outside counsel. According
to the respondent, Mr Hellens had no business in drafting and
settling affidavits on behalf of the
State, including affidavits
deposed to by the applicant and Colonel Van Wyk. Mr Hellens was not
counsel for the State. He was counsel
for Sishen/Kumba, an adversary
of ICT in the criminal investigation.
[26] The essence of the
complaint lodged against the applicant and Captain Van Wyk was that
they had aligned themselves with Mr
Hellens and his clients. ICT’s
complaint was further that the applicant did not consider certain
Sishen and Kumba officials
to be suspects in the investigation of the
criminal complaint ICT had laid against them. They said that the
applicant had clearly
become involved in that investigation,
and yet her conduct and that of Mr
Hellens at court on 28 October 2011, supported their suspicion that
she had no true intention
to investigate ICT’s complaint
against Sishen and Kumba. The allegations that were made against the
applicant questioned
her impartiality, objectivity and whether the
applicant was in contravention of section 32 of the NPA Act. The NPA
regarded the
allegations as serious given the role of the NPA and its
prosecutors in the prosecution of crime. They are required by section
32 of the NPA Act and the code of conduct for prosecutors and the
prosecution policy to act impartially, and without fear, favour
or
prejudice.
[27] On 7 February 2012,
Mr Wasserman requested the applicant to surrender the NPA laptop
allocated to her, so that he could conduct
investigations into the
ICT complaints. The applicant undertook to make the laptop available
and to allow the making of a copy
of the harddrive on the assurance
by NPA that it would have access only to official and not private
information, asserting a claim
that she had a right to the protection
of her private material on her computer. The applicant was however,
not suspended then and,
with the exception of the exchange of
correspondence between her attorney and Advocate Van Rensburg no
further developments of
note took place until April 2012.
[28] On 18 April 2012, Mr
Wasserman met with the applicant and Mr Wagenaar, as her attorney. Mr
Wasserman handed them a copy of
ICT’s original letter of
complaint of 31 October 2011 and a letter from Mr Wasserman dated 18
April 2012. His letter informed
her of the NPA’s intention to
suspend her and invited her written response by 25 April 2012. ICT’s
complaint made the
same accusations as those made in the Kimberly
High Court matter to which the applicant had responded in her
affidavit. She then
gave Mr Wasserman a copy of that affidavit. She
was informed for the first time of the nature of the complaint
against her but
she felt she was still not informed of the reasons
why the NPA considered suspending her. She felt she could, for the
first time,
make meaningful representations about the complaint
against her but still could not make any representations on the
proposed suspension
and she consulted with her attorney.
[29] On Monday 30 April
2012, when the applicant arrived at her office she was met by two NPA
officials who handed to her the letter
of suspension from the Acting
NDPP dated 23 April 2012. The letter said in paragraph 3 that: ‘After
careful consideration
of the facts at our disposal, you are hereby
precautionary suspended’. She was to adhere to the directive of
the letter of
suspension that she had to refrain from any contact
with any of the staff of the NPA. The NPA further issued a public
statement
of that suspension on which the media reported later the
same day.
[30] Mr Wagenaar
addressed further letters to the NPA on 2 and 3 May 2012
, inter
alia,
asking for the facts leading to and the reasons for the
decision to suspend the applicant and he also asked the NPA for an
undertaking
that it would adhere to the prescribed limit of 60 days
within which her disciplinary enquiry would be held. He asked for a
list
of witnesses with whom the applicant was not to have contact.
[31] The Acting NDPP
responded to Mr Wagenaar’s letter of 2 May 2012 in a letter
dated 4 May 2012 saying that the decision
to suspend the applicant
was based on the seriousness of the allegations against her and the
NPA’s belief that her continued
presence at work might
jeopardise the investigation into the allegations against her. She
declined to identify the NPA witnesses
with whom the applicant was
not allowed to have contact and merely said that this prohibition was
a precautionary step to avoid
possible interference with the
investigation. She said the information to which she had had regard
in her decision to suspend the
applicant comprised ICT’s
complaint and the applicant’s and Colonel Van Wyk’s
affidavits made in response to
ICT’s accusations in its
replying affidavit.
[32] The applicant
initially regarded the complaint against her as spurious, baseless
and wholly unsubstantiated. On 1 June 2012,
the applicant launched
this application. On 11 June 2012, the applicant was served with a
notice to attend her disciplinary enquiry
which was scheduled to take
place on 19 June 2012. The charges levelled against her were detailed
in the charge sheet which on
18 June 2012 was later amended in order
to provide further particulars to the allegations levelled against
her.
[33] The Applicant
launched this application principally on the grounds that her
suspension was for an ulterior motive, was unfair
and had therefore
to be set aside. She alleged that her suspension related to the role
she played as a prosecutor in the matter
involving Lt General Mdluli.
The applicant contended that she was suspended in order to protect
General Mdluli from prosecution.
Advocate Jiba was said to have
merely used the ICT complaint against the applicant as an excuse to
suspend her. In response to
these submissions, the respondent said
that the applicant had recklessly and falsely made serious
allegations against Advocate
Jiba. That was said to have been
carefully devised by the applicant to divert attention from the
serious allegations she was facing
regarding her conduct, which
conduct was said to have tarnished the good name of the NPA and
brought the NPA into disrepute. The
applicant was said to have
persisted with serious unsubstantiated allegations in circumstances
in which she knew that those allegations
were false and were a ploy
on her part devised to divert attention from the serious allegations
levelled against her.
[34] The respondent
denied that the allegations contained in the applicant’s
affidavit relating to the criminal investigations
against General
Mdluli were relevant to these proceedings. It submitted that the
allegations were frivolous, irrelevant and vexatious.
The conduct of
the applicant in this matter was said to amount to an abuse of the
processes of the court. The respondent contended
that it would be
seriously prejudiced if the allegations contained in the applicant’s
affidavit were not struck out in the
sense that the respondent would
be required to deal with irrelevant allegations which were never
considered when the decision to
suspend the applicant was made.
[35] A summary of the
facts alleged by the respondent to be frivolous, irrelevant and
vexatious with the result that the respondent
would be seriously
prejudiced if the allegations contained in the applicant’s
affidavit were not struck out follows hereunder.
[36] Two members of staff
working under supervision of the applicant, Advocate Jan Ferreira and
Advocate C B Smith were in charge
of investigations for fraud and
corruption against a very senior member and head of the Crime
Intelligence Unit of the SAPS, one
Lieutenant General Richard Mdluli.
The investigating officer in the matter was Colonel Kobus Roelofse, a
senior officer of the
SAPS’ special investigations known as the
Hawks.
[37] On 24 October 2011,
General Mdluli was arrested on the fraud and corruption charges. It
seems that after his arrest, some members
of the Crime Intelligence
Unit working under him came forward with incriminating evidence which
led to further investigations of
fraud and corruption charges against
him.
[38] On 17 November 2011,
General Mdluli’s attorneys, Messrs Maluleke Seriti Makume
Matlala Inc, handed written representations
to Advocate Lawrence
Mrwebi, as the Special Director of Public Prosecutions and National
Head of the SCCU. They asked for the fraud
and corruption charges
against General Mdluli to be withdrawn. On 21 November 2011, Advocate
Mrwebi forwarded the representations
to the applicant, asking for a
full report on the matter by 25 November 2011. The applicant
henceforth took charge of the matter.
She asked her colleague
Advocate Smith to prepare the report requested by Advocate Mrwebi.
Advocate Smith prepared such a report
dated 22 November 2011,
refuting the allegations on which General Mdluli’s
representations were based.
[39] She forwarded
Advocate Smith’s report
per
memorandum dated 24 November
2011 to Advocate Mzinyathi, the DPP North Gauteng, and to Advocate
Mrwebi, pointed out that General
Mdluli’s representations were
based on wild and unsubstantiated allegations and recommended that
his prosecution be continued
so that a court could decide on his
guilt or innocence.
[40] On 28 November 2011,
the applicant received a further memorandum from Advocate Mrwebi,
copied to Advocate Mzinyathi. He was
dissatisfied with Advocate
Smith’s memorandum and required a summary of the docket, an
analysis of the evidence and an analysis
of the applicable law
together with the entire docket by no later than 2 December 2011. She
asked Advocate Smith to prepare the
report required by Advocate
Mrwebi. He did so in a memorandum dated 30 November 2011 and attached
an electronic copy of the docket
to it. She forwarded the memorandum
to Advocate Mzinyathi and copied it to Advocate Mrwebi in a
memorandum dated 30 November 2011.
[41] On 4 December 2011,
the applicant received two memoranda from Advocate Mrwebi. The first
was a covering memorandum which referred
to the second as a
consultative note. Advocate Mrwebi instructed in the covering
memorandum that, for the reasons set out in the
consultative note,
the charges against Lt-General Mdluli and Colonel Barnard were to be
withdrawn immediately. From the consultative
note the applicant
understood the only reason for the withdrawal of the charges to have
been that, Advocate Mrwebi was of the view
that the investigation of
the fraud and corruption charges against General Mdluli was the
exclusive preserve of the Inspector General
of Intelligence in terms
of section 7(7) (cA) of the Intelligence Services Oversight Act 40 of
1994. The applicant totally disagreed
with the decision taken and
reasons proffered by Mr Mrwebi for the withdrawal of charges against
Lt-General Mdluli. She consulted
with Mr Mzinyathi as her immediate
superior. On 14 December 2011, the fraud and corruption charges
against General Mdluli were
withdrawn.
[42] When the Inspector
General of Intelligence was to an extent involved in this matter, he
issued a letter received by the applicant
under cover dated 23 March
2012 from General Dramat of the SAPS, stating that the matter fell
out of his scope of operation in.
The contents of that letter were a
subject of subsequent discussion held by the applicant and Mr Mrwebi
on 26 March 2012.
[43] On 27 March 2012,
the applicant received a memorandum from Advocate Mrwebi calling on
her to explain how and why his consultative
note of 4 December 2011
had been disclosed to General Dramat and to the Inspector General of
Intelligence. The applicant explained
that she had given a copy of
his consultative note to Brigadier Moodley of the Hawks, the superior
officer of the investigating
officer Colonel Roelofse. Advocate
Mrwebi responded to the letter from the Inspector General of
Intelligence. He did not contest
the views expressed by the Inspector
General of Intelligence and no longer insisted that the latter had
the sole preserve to investigate
the fraud and corruption charges
against General Mdluli. He did not attempt to defend this proposition
which had been the sole
basis of his instruction of 4 December 2011
that the fraud and corruption charges against General Mdluli be
withdrawn. He however
refused to reconsider his decision.
[44] The applicant and
Advocate Ferreira prepared a memorandum dated 13 April 2012 for
submission to Advocate Jiba to persuade her
to reinstate the charges
withdrawn by Mr Mrwebi against General Mdluli and that an instruction
that the prosecution of General
Mdluli be withdrawn, was a mistake.
The memorandum was delivered to Advocate Jiba, the Deputy NDPPs and
Advocate Mrwebi only on
24 April 2012. Six days later the applicant
was served with a letter of suspension from Advocate Jiba dated 23
April 2012.
The application to
strike out
[45] The respondent
submitted that the applicant was suspended on the basis of her
alleged misconduct relating to the investigations
into the criminal
complaint laid against ICT by Sishen/Kumba and that she was aware of
the true reason for her suspension. In her
affidavit, the applicant
sets out in detail the nature of the criminal investigations against
General Mdluli, the role she played
in the case and the reasons why
she believes that she was suspended in order to sidetrack the
prosecution of General Mdluli. It
was submitted that the respondent
had proved the two requirements for the success of a striking out
application being that:
the allegations
contained in the paragraphs which are subject to this application
are scandalous, vexatious or irrelevant.
severe prejudice if the
allegations contained in the offending paragraphs are not struck
out.
[46] Had the respondent
sought to discipline the applicant for her role in the General Mdluli
matter by having recourse to the ICT
matter, the respondent would
probably not have confessed to it. Accordingly this issue is not as
simple as the respondent would
have court believe. As alluded to
before, on 25 November 2011, the applicant was called to a meeting
with Advocate Karen Van Rensburg,
the Acting CEO of the NPA, Advocate
Mzinyathi, and Dr Ramaite. The four officials must have had a prior
discussion of the matter
for which they came to see the applicant. If
not, it begs the question who selected them and why they would take
the trouble to
participate in an anonymous meeting. On 1 February
2012, NPA issued a notice of intention to suspend the applicant and
publicly
announced it. An article in the City Press reported that the
applicant had been suspended and quoted Mr Mhaga as having said that
all cases she was handling would be re-assigned to other equally
capable prosecutors within the NPA. Mr Mhaga also confirmed in
an
interview with Talk Radio 702 on 2 February 2012 that the applicant
had been suspended. Mr Mhaga would have had a discussion
with a
certain NPA official or officials on this matter to have erroneously
issued the press statement. The letter of suspension
of the applicant
dated 23 April 2012, issued by Advocate Jiba, sought to operate with
immediate effect and yet it was handed to
her one week later.
Advocate Jiba has offered her explanation on this delay.
[47] When the totality of
these circumstances and facts are seen together, they create a
serious doubt on the probabilities the
explanation proffered by the
respondent in respect of them. When the applicant initiated this
application she did not know the
misconduct with which the respondent
would charge her and the details thereof. To aver that she sought to
detract attention away
from that charge therefore has no merits at
all. It has to be remembered that she did to seek to attack the
charge or charges against
her in this application but rather to have
the suspension set aside. There is therefore no room for confusion.
[48] Accordingly
therefore, the application to strike out identified portions of the
evidence of the applicant contained in her
founding affidavit is
dismissed.
The suspension
[49] In the main, the
application to set aside the suspension is premised on the
submissions that:
an employee in the state
service has a contractual right to procedural fairness in terms of
the
audi alteram partem
rule,
the principle of
audi
alteram partem
rule includes the right to sufficient information
so that the employee can make meaningful representations and an
obligation
on the employer to consider the representations and that
the respondent, as the
employer, failed completely in these regards.
[50] The circumstances
under which the respondent is said to have denied the applicant her
right to the applicability of the
audi alteram partem
rule as
a consequence of which its conduct is said to be unlawful are
detailed in the main and the supplementary heads of argument.
[51] The rules applicable
to the SMS are published in the SMS Handbook in terms of Regulation D
of Part I of Chapter 4 of the Public
Service Regulations. Chapter 7
deals with misconducts and Incapacity. Section 2 of Chapter 7 of the
SMS Handbook deals with disciplinary
matters and paragraph 2.7(2)(a)
thereof provides that:
‘
The employer
may suspend or transfer a member on full pay if –
the member is alleged to have
committed a serious offence; and
the employer believes that the
presence of a member at the workplace might jeopardise any
investigation into the alleged misconduct,
or endanger the well
being or safety of any person or state property.’
[52] Paragraph 2.7(2)(c)
states that, if a member is suspended as a precautionary measure,
‘the employer must hold a disciplinary
hearing within 60 days’
but that the chair of the hearing ‘may then decide on any
further postponement’
Applicable legal
principles
Urgency of this
application
[53] The applicant did
not wait for the lapse of 60 days within which the respondent had an
option to hold a disciplinary hearing.
She waited for about 30 days
after the letter of her suspension was handed to her. The period is
about 38 days from the date of
issue of the letter of suspension,
which was to operate with immediate effect. In my view, the
diminution of 60 days could reasonably
be construed as the
commencement of urgency in the matter as the days within which the
respondent could lawfully and fairly discipline
its employee were
running out.
T
he applicant
raised reputational damage as a basis for lifting the suspension or
for granting a declaratory order as on urgent basis.
She averred that
the suspension should not be perpetrated any longer than was
absolutely necessary, thus alluding to the matter
being what is often
referred to as semi-urgent. The 30 to 38 days waiting period could
therefore not be construed as unacceptable
as contended by the
respondent.
The audi alteram
partem rule
[54] The applicant
contended that she had a right to be heard before she could be
suspended and she relied on the applicability
of the
audi
alteram parte
rule.
She referred court to a
number of decisions. In
Muller
and Others v Chairman of the Ministers’ Council: House of
Representatives and Others,
4
the court said at 775H -
776A:
‘
Such
suspension unquestionably constitutes a serious disruption of his
right. The implications of being deprived of one’s
pay are
obvious. The implications of being barred from going to work and
pursuing one’s chosen calling, and of being seen
by the
community round one to be so barred, are not so immediately realised
by the outside observer and appear, with respect, perhaps
to have
been underestimated in the
Swart
and
Jacobs
cases. There are indeed substantial social and personal implications
inherent in that aspect of the suspension. These considerations
weigh
as heavily in South Africa as they do in other countries.’
[55] From the onset, it
needs to be observed that an employer has a general right to
discipline its employees. It will only be in
exceptional cases that
this Court will intervene in uncompleted disciplinary proceedings
5
.
Ordinarily precautionary suspension is not an end to itself. It
should be followed by a decision to charge an employee with acts
of
misconduct or the setting aside of suspension where evidence could
not sustain the suspicion earlier formed, on the basis of
which
suspension was resorted to in the first place. The disciplinary
hearing, if held, provides the employee the first opportunity
to deal
with the charge or charges and the circumstances of the suspension.
This aspect distinguishes suspension measures from
those
administrative procedures in which the principle of
audi
alteram partem
rule
was held to be applicable
6
.
[56] In the present
matter though, the respondent is better advised to thread with very
great circumspect in exercising its right
to discipline the
applicant. In light of the
the
North Gauteng High Court (per Makgoba J) in an application brought by
Freedom Under Law against General Mdluli,
there
is a real likelihood that by exercising that right it might be found
to be flouting and frustrating the aims and objects of
the
investigations ordered by that court to be conducted thus being
contemptuous towards that decision. It has been shown in these
proceedings that the applicant will probably be a vital official in
that probe. If she is found guilty and is dismissed she will
be
handicapped from utilising the tools of trade she might need in those
investigations. The justice sought to be striven for in
the matter of
General Mdluli would have been seriously compromised.
[57] In opposing this
application the respondent has relied on the decision in
Member
of Executive Council for Education, North West Provincial Government
v Errol Randal Gradwell
7
.
In respect of a right to be heard before the employer decides to
suspend an employee, the following was said:
‘
[42]
There is nevertheless a noticeable lack of clarity in the case law
about the basis upon which the
audi
alteram partem
rule
applies. Since
Chirwa
it
is irrefutable that the Labour Court may not review a suspension of
an employee in terms of section 6(2)(c) of PAJA on the grounds
of
procedural unfairness. As I have mentioned, the MEC’s main
criticism of the court
a
quo’s
reasoning
is that it assumed without justification that the contract of
employment contained an implied term, as part of a duty
of fair
dealing perhaps, providing for a right to be heard prior to the
imposition of a precautionary suspension. As far as I am
aware, there
is no decided case, and we were referred to no other authority, in
which it has been held or argued that the common
law contract of
employment has developed to the point that a right to a hearing prior
to suspension forms one of the
naturalia
of
the contract, being “an unexpressed provision of the law of
contract which the law imports therein, generally as a matter
of
course, without reference to the actual intention of the parties”.
A court, in an appropriate case, could legitimately
rule that
contemporary constitutional
mores
endorse
the incorporation of a right to a hearing before suspension as an
implied term...
[44] The proposition that all
suspensions should be procedurally fair to avoid the stigma of an
unfair labour practice, on the other
hand, requires some
qualification. Fairness by its nature is flexible. Ultimately,
procedural fairness depends in each case upon
the weighing and
balancing of a range of factors including the nature of the decision,
the rights, interest and expectations affected
by it, the
circumstances in which it is made and the consequences resulting from
it.
[45] The right to a hearing prior to a
precautionary suspension arises therefore not from the Constitution,
PAJA or as an implied
term of the contract of employment, but is a
right located within the provisions of the LRA, the correlative of
the duty on employers
not to subject employees to unfair labour
practices. That being the case, the right is a statutory right for
which statutory remedies
have been provided together with statutory
mechanisms for resolving disputes in regard to those rights.
[46] Disputes concerning alleged
unfair labour practices must be referred to the CCMA or a Bargaining
Council for conciliation and
arbitration in accordance with the
mandatory provisions of section 191(1) of the LRA. The respondent in
this case instead sought
a declaratory order from the labour court in
terms of section 158(1)(a)(iv) of the LRA to the effect that the
suspension was unfair,
unlawful and unconstitutional. A declaratory
order will normally be regarded as inappropriate where the applicant
has access to
alternative remedies, such as those available under the
unfair labour practice jurisdiction. A final declaration of
unlawfulness
on the grounds of unfairness will rarely be easy or
prudent in motion proceedings, except perhaps in extraordinary or
compellingly
urgent circumstances. When the suspension carries with
it a reasonable apprehension of irreparable harm then, more often
than not,
the appropriate remedy for an applicant will be to seek an
order granting urgent interim relief pending the outcome of the
unfair
labour practice proceedings.’ [Footnote omitted]
[58] It follows from the
Gradwell
decision that suspension
of an employee if challenged, gives rise to a labour dispute relating
to unfair labour practice. Section
185(b) read with 186(2) of the Act
categorizes a suspension as an unfair labour practice. Unfair labour
practice disputes must
be referred to the Commission for
Conciliation, Mediation and Arbitration, (CCMA) or a Bargaining
Council for conciliation and
arbitration
8
.
This Court does not have jurisdiction to adjudicate on a suspension,
whether categorized as unlawful or unfair, which the Act
has
conferred exclusive jurisdiction on the CCMA and Bargaining Council.
The facts of this matter appear to be in all fours with
those in the
Gradwell
decision and the legal
principles outlined therein must therefore be followed by this Court.
[59] The applicant has
not shown the existence of any extraordinary or compelling urgent
circumstances to justify a final declaration
of the unlawfulness of
her suspension. There are reasonable prospects that if the
disciplinary hearing against her is persisted
with, it will be
finalised within a reasonable time period. If not, she may refer an
unfair labour practice dispute.
[60] Having reflected on
the fairness and appropriateness of the costs order, the following
order shall issue:
The application is
dismissed.
No costs order is made.
_____________
Cele J
Judge of the Labour
Court.
APPEARANCES:
FOR THE APPLICANT:
Advocates Redding SC and Grundlingh
Instructed by Gerhard
Wagenaar Attorneys
FOR THE RESPONDENT:
Advocate Mokhari SC with M Zulu and T Motloenya instructed
by
the State
Attorneys
1
The
Labour Relations Act Number 66 of 1995.
2
of
the rules for the proper conduct of proceedings in this Court.
3
of
the
Criminal Procedure Act No 51 of 1977
.
4
(1991)
12 ILJ 761 (C). See also
SA Post Office v van Vuuren NO and
Others
(2008) 29 (LC);
Mogothle v Premier of the Northwest
Province and Another
(2009) 30 ILJ 605 (LC);
Lebu v Maquassi
Hills Local Municipality and Others
(2) (2012) 33 I
LJ
653 (LC) and
Minister of Home Affairs
and Others v Watchenuka and Another
2004
(4) SA 326
(SCA).
5
Booysen
v SAPS and Another
[2008] ZALC 87
;
[2008] 10 BLLR 928
(LC).
6
A
number of such decisions were relied on by this court in
Baloyi
v Department of Communications and Others (
2010)
31 ILJ 1142 (LC).
7
Yet
unreported Case number JA 58/10 delivered on 25 April 2012 (LAC).
8
See
section 191 of the Act.