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[2013] ZALCJHB 100
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Khumalo v Minister of Transport and Others (J 2300/2011) [2013] ZALCJHB 100 (12 April 2013)
REPUBLIC OF SOUTH AFRICA
tHE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not Reportable
case no: J 2300/2011
In the matter between:
VELILE
BENNET KHUMALO
....................................................................................
Applicant
and
MR
JOEL SIBUSISO NDEBELE
MINISTER
OF TRANSPORT
........................................................................
First
Respondent
MR
GEORGE MAHLALELA
DIRECTOR
GENERAL: DEPARTMENT OF
TRANSPORT
...........................................................................................
Second
Respondent
ROAD
TRAFFIC MANAGEMENT CORPORATION
...................................
Third
Respondent
CHAIRPERSON:
RTMC
............................................................................
Fourth
Respondent
SHAREHOLDERS
COMMITTEE
..................................................................
Fifth
Respondent
LETSOALO
COLLINS N.O (ACTING CEO: RTMS)
...................................
Sixth
Respondent
REBAONE
GAORAELWE N.O (CHAIRPERSON:
DISCIPLINARY
COMMITTEE)
...............................................................
Seventh
Respondent
Heard: 19 February 2013
Judgment: 12 April 2013
Summary: Application to declare the appointment of the sixth
respondent unlawful and an application to declare the decision of the
sixth respondent to investigate and institute disciplinary action
against the applicant to be unlawful and invalid. Application
dismissed with costs.
judgment
AC BASSON, J.
Introduction
This is an application for an order declaring the dismissal of the
applicant (Mr Velile Bennet Khumalo) unlawful and for an order
compelling the Third Respondent to reinstate him and to pay him his
salary and all benefits lost from the date of dismissal to
date of
reinstatement. The applicant also seeks an order declaring the
appointment of the Sixth Respondent as CEO unlawful.
The applicant in this matter was previously employed as Manager:
Internal Audit at the Road Management Corporation (“the
RTMC
or the Corporation”). The RTMC is an Organ of State
established in terms of the Road Traffic Management Corporation
Act,
20 of 1999 (hereinafter referred to as “the Act”). The
applicant’s appointment was to run for a five year
period
ending on 30 April 2013.
The applicant was charged with gross misconduct on 3 May 2010 and
was subsequently found guilty by a disciplinary enquiry. I
do not
intend to record what the charges against the applicant were or what
the reasons for his guilty finding were as the applicant
has elected
in these proceedings not to attack the findings of the Chairperson
of the disciplinary hearing. Instead, the applicant
has now elected
to attack the validity of the appointment of the acting CEO who was
the person who took a decision to institute
disciplinary action
against him. In essence, his contention is that because the
appointment of the acting CEO is invalid, the
decision to institute
disciplinary action against him was, therefore,also invalid.
The date of the applicant’s dismissal was 11 October 2010,
being the date onwhich an appeal hearing dismissed his appeal.
The
applicant referred his unfair dismissal dispute to the CCMA but
later removed the dispute from the jurisdiction of the CCMA
and
instead decided to refer his dispute to this Court.
The applicant contended that the appointment of the acting CEO (Mr
Letsoalo – the sixth respondent – hereinafter
referred
to as “Letsoalo”) was irregular for want of compliance
with the Act. It was further submitted on behalf
of the applicant
that the decision to appoint Letsoaloand all the decisions taken by
him thereafter are reviewable under section
6 of the Promotion of
Administrative Justice, Act.
1
The decisions of Letsoalo, according to the applicant, to
investigate charges of misconduct against him,institute disciplinary
action against him and to dismiss him were
ultra vires
and,therefore,has no legal effect.
It is clear from the papers that the applicant is attacking his
dismissal on the basis of the alleged “unlawfulness”
of
the appointment of the acting CEO (Letsoalo) and not by reason of
any attack on the decision of the chairperson who dismissed
him. The
applicant has also withdrawn any attack on the fairness of his
dismissal from the jurisdiction of the CCMA. Whilst the
applicant
disputes that he is guilty of the charges, he did not content in
these proceedings that there was anything irregular
about the
conclusion reached by the Chairperson of the disciplinary hearing.
Mr Ellis SC appeared on behalf of the first, second and fourth
respondents. Mr Hulley appeared on behalf of the third and sixth
respondents. Although Mr Ellis SC advanced certain additional
arguments, the first, second and fourth respondents made common
cause with the submissions advanced by Mr. Hulley. I will refer to
the submissions advanced on behalf of the all respondents
without
distinguishing between the submissions made by Mr Hulley and those
made by Mr Ellis SC.
Locus Standi
2
It was contended on behalf of the respondents that the applicant
does nothave neither any
locus standi
nor interest in
declaring the appointment of Letsoalo as the acting CEO to be
unlawful. This is a valid point and one which is,
in my view,
dispositive of the present application. The legal position appears
to have been first set out in
Patz v Green and Co
3
where the Court relied upon the English case of
Chamberlain v
Chester and Birkenhead Railway Company
where the legal position
was set out as follows:
‘
Where
a statute prohibits the doing of a particular act affecting the
public, no person has a right of action against another merely
because he has done the prohibited act. It is incumbent on the party
complaining to allege and prove that the doing of the act
prohibited
has caused him some special damage, some peculiar injury beyond that
which he may be supposed to sustain in common with
the rest of the
Queen’s subjects by an infringement of the law. But where the
act prohibited is obviously prohibited for
the protection of the law.
But where the act prohibited is obviously prohibited for the
protection of a particular party, there
it is not necessary to allege
special damage.’
The first part of the English law rule as imported into South
African law in the
Patz-
was modified by the Court
Dalrymple
v Colonial Treasurer
.
4
The Court in the latter case held that it is not necessary as was
set out in English law that a plaintiff who seeks to enforce
legislation enacted in the public interest must have an interest
greater than that enjoyed by other members of the public. The
Court
held that South African law ‘did not require that the interest
of the person suing should be greater or more special
than of other
members of the public’. In respect of the second part of the
rule, the Appellate Division in
Roodepoort-Maraisburg Town
Council v Eastern Properties (Prop) Ltd
,
5
held that:
‘
[w]here
it appears either from a reading of the enactment itself or from that
plus a regard to surrounding circumstances that the
legislature has
prohibited the doing of an act in the interest of any person or a
class of persons, the intervention of the court
can be sought by any
such person to enforce the prohibition without proof of special
damage.’
The rule relating to
locus standi
of a party to prevent any
breach of a statute,
6
therefore, appears to be as follows: Firstly, where it appears
either from a reading of an enactment or from the surrounding
circumstances that the Legislature has prohibited the doing of any
act either wholly or partly in the interest of any person
or class
of persons, any such person can claim an interdict to enforce the
prohibition without proof of damage. Secondly, where
the doing of an
act is prohibited in the public interest, any member of the public
who can prove damage or well-founded apprehension
of damages, can
claim an interdict to enforce the prohibition. An applicant
contesting any breach of a statute must either be
a member of a
special or general class of persons for whose benefit the statute
was promulgated. If the applicant does not fall
in either category
he has no legal standing to enforce the terms of the statute.
I have considered the above and I am of the view that the applicant
does not have the necessary
locus standi
to bring the present
application. The applicant is not a member of a special or general
class of persons for whose benefit the
statute was prohibited.
Moreover, I am in any event not persuaded that the appointment of
Letsoalo was unlawful. I will now briefly
consider the lawfulness of
his appointment. (I will return to the
locus standi
argument
hereinbelow.)
Lawfulness of the appointment of Letsoalo
Was the appointment of Letsoalo unlawful? I am of the view that, on
the facts before this Court, the appointment of the acting
CEO was
in anyevent not unlawful. Furthermore, as will be pointed out herein
below, even if his appointment was initially unlawful,
his
appointment was subsequently, ratified and all decisions taken by
him retrospectively ratified by the Shareholders Committee.
Accordingly, it is concluded that there exists no basis on which to
conclude that the appointment of the acting CEO was invalid.
Consequently, there exists no basis upon which to conclude that the
decision to investigate and to institute disciplinary action
against
the applicant was
ultra vires
and of no legal effect.
For reasons irrelevant to theseproceedings, the Board of the third
respondent was dissolved and the CEO (Mr Rakgoale) suspended
pending
the outcome of a disciplinary enquiry. Rakgoale has since resigned.
The Minister of Transport appointed an acting CEO (Letsoalo) in
place of Rakgoale.It is important to note that Letsoalo was only
appointed as the acting CEO and not as the permanent CEO. The
Minister informed Letsoalo in a letter that‘this serves to
inform you that you are hereby appointed as acting Accounting
Authority for the Corporation’.
The Minister has, in terms of section 20(3) of the Act, the power to
make available the services of an official in the employ
of the
Department of Transport to the Corporation. Before the Minister may
do so, he or she must consult with the Shareholders
Committee and
the Director-General of the Department of Transport. Furthermore,
the official who is made available (in this case
Letsoalo) to the
Corporation must give his or her written consent. Once the
consultation process has been followed, an official
from the
Department of Transport may be seconded to the RTMC.
According to the papers,the first respondent (“the Minister”)
consulted with the Director-General and the consent
of Letsoalo was
obtained after an invitation was extended to him to take up the
position. It, further,appears from the papers
that because of the
pressing nature of the appointment, the Shareholders Committee was
not consulted before the appointment was
made. However, on 1 April
2011, in order to put an end to any suggestion that Letsoalo’s
appointment was irregular, the
Shareholders Committee (consisting of
the Minister of Transport as Chairman, nine provincial members of
the Executive Councils
of Transport of the various provinces and two
Local Government delegates) resolved to ratify and confirm the
appointment of Letsoalo
with effect from 11 February 2010.
The contention on behalf of the respondents is that the appointment
of Letsoalo as the acting CEO was valid and that it was not
necessary to have complied with the formalities required for the
appointment of a permanent CEO. I will return to this point
hereinbelow. What is important, in order to decide this matter, is
to determine what the powers of the Shareholders Committee
are. The
role of this Committee is set out in section 7 of the Act and in
terms of section 15(1) of the Act, the Shareholders
Committee must
appoint a CEO. As will be pointed out herebelow, it is, in my
view,clear that section 15(1) of the Act (and the
procedures set out
in this section) is only applicable where a permanentCEO is
appointed. However, the Act (in section 7) also
provides for the
appointment of personnel to ensure the proper function of the
Corporation in the public interest. There is,
therefore, in my view,
nothing which prevents the Shareholders Committee from appointing an
acting CEO as this would ensure the
proper functioning of the
Corporation in the public interest.
In essence, the applicant’s contention is that, when an acting
CEO is appointed, the proceduresas contemplated in section
15 of the
Act had to be followed and that the failure to follow those
procedures rendered the appointment of Letsoalo invalid.
I do not
agree for the reasons already stated: Section 15 of the Act is, in
my view, directed at the appointment of a permanent
CEO and not at
the appointment of an acting CEO. The contention on behalf of the
respondents also is that the procedures as contained
in section 7(2)
of the Act is applicable when appointing an acting CEO and that it
was therefore not necessary to have followed
the cumbersome
advertising process provided for in section 15 of the Act.
I have considered both sections. Section 15 of the Act deals with
the appointment of the CEO of the Corporation and an appointment
may
only follow upon an advertising process. Section 7(1), as already
pointed out empowers the Shareholders’ Committee
to ensure the
proper functioning of the Corporation. In my view,this implies the
power to appoint an acting CEO. Accordingly,
I am, therefore, of the
view that there is no merit in the contention that the appointment
of Letsoalo as acting CEO was invalid.
Turning back to the
locus standi
argument, even assuming that
the appointment of Letsoalo was irregular either under section 7(2)
or section 15 of the Act, I
fail to see what the interest of the
applicant is in disputing the appointment. Had the applicant sought
an order setting aside
the appointment of Letsoalo on the basis that
he (the applicant) was running for the post and ought to have been
appointed, the
position may have been different. Furthermore, if the
complaint of the applicant is carefully analysed, it is clear that
he is
not so much concerned with the appointment of Letsoalo as
acting CEO but rather with his decision to cause disciplinary action
to be instituted against him which had resulted in his dismissal. It
is, accordingly, on that basis that he attacks Letsoalo’s
appointment.
I am also not persuaded that the provisions of section 7(2) and
section 15 of the Act were promulgated for the benefit of any
special or general class of persons to which the applicant belongs.
Accordingly, I am in agreement with Mr Hulley (as already
pointed
out) that the applicant has no
locus standi
to attack the
lawfulness of the appointment of Letsoalo.
In conclusion, I am not persuaded that section 15 applies to the
appointment of an acting CEO as contended by the applicant simply
because the process contemplated in this section is cumbersome and
time-consuming. In the present instances, exigencies demanded
the
appointment of an acting CEO to take over the reins in the temporary
absence of the CEO. Because the Shareholders’
Committee is
responsible for directing and guiding “the proper functioning”
of the Corporation, it is therefore,
in my view, competent for the
ShareholdersCommittee to appoint an acting CEO as the appointment of
an acting CEO is crucial to
the proper functioning of the
Corporation. If regard is had to the important functions of a CEO as
set out in section 6(5); section
14(2), section 19 and section 20(1)
of the Act, it is clear that it must be in the powers of the
Shareholders Committee to be
able to appoint an acting CEO to fulfil
these important duties on a temporary basis until the appointment
process for a permanent
CEO can be followed. Of particular
importance is also the provisions of section 25(1) and section 29(1)
of the Act which provides
that the CEO is the accounting officer of
the Corporation and responsible for managing and controlling the
day-to-day affairs
of the Corporation. What is further clear from
the aforegoing provisions is the fact that the Corporation cannot
properly function
without the office of the CEO (or an acting CEO in
the absence of a permanent CEO). I am, therefore, of the view that
the appointment
of Letsoalo was not invalid.
However, even if Letsoalo’s appointment was invalid as
contended by the applicant, I am not persuaded that his decision
to
institute disciplinary proceedings against the applicant was null
and void. I am in agreement with Mr Hulley that it cannot
merely
follow that because the appointment of the CEO was invalid that the
Legislature also intended that all decisions taken
by him are
likewise invalid. Can it be said that in the event Letsoalo’s
appointment was invalid that the subsequent decision
to institute
disciplinary action was also invalid? I am of the view that, in the
present circumstances, this is not necessarily
the case. Firstly,
there is no direct prohibition in the Act against the appointment of
an acting CEO and secondly, to declare
invalid all decisions taken
by the acting CEO, will have dire consequences for the Corporation.
Lastly, a point overlooked by the applicant is the fact that the
ultimate decision to dismiss him was not taken by Letsoalo but
by an
independent chairperson. Letsoalo’s role was, therefore, at
best tangential. Furthermore, the applicant surprisingly
does not
attack the decision of the chairperson.So, in my view, that decision
should stand.
In respect of costs, I can see no reason why costs should not follow
the result including the costs of two counsel. In arriving
at a
decision in respect of costs, I also considered the fact that the
applicant has an alternative remedy at his disposal which
is to have
approached the CCMA for relief. Instead of approaching the CCMA,
which is the most effective and speedy process, to
contest the
fairness of his dismissal, the applicant elected to approach this
Court with an application that is devoid of any
merit.
[26] In the event, the following order is made:
26.1 The application is dismissed.
26.2 The applicant to pay the costs of both counsel including the
costs of one senior counsel.
_______________________
AC BASSON, J
Judge of the Labour Court
APPEARANCES:
For the Applicant: Advocate MS Mphahlele
Instructed by: Mafuyeka Attorneys
For the third Respondent: Advocate GI Hulley
Instructed by: Verveen Attorneys
For the first, second and
fourth Respondents: Advocate P Ellis SC
Instructed by: The State Attorney
1
Act
3 of 2000.
2
I
have liberally quoted from Herbstein and Van Winsen
The Civil
Practice of the High Courts of South Africa
(5
th
Edition) Cillliers (eds)
et al
at page 192 – 103 in
summarising the legal position.
3
1907
TS 427
at 433.
4
1910
TS 372
at 380 – 381.
5
1933
AD 87
at 96.
6
Where
the matter is not concerned with the promotion or protection of
constitutional rights.