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[2013] ZALCPE 14
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Dukada v MEC for Department of Provincial Planning and Treasury Province - Eastern Cape and Others (P 27/13) [2013] ZALCPE 14; [2013] 10 BLLR 994 (LC); (2013) 34 ILJ 3220 (LC) (28 March 2013)
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, IN PORT ELIZABETH
JUDGMENT
Reportable
Case no: p 27/13
In the matter between:
MENDOE DUKADA
Applicant
and
THE MEC: DEPARTMENT OF PROVINCIAL PLANNING AND TREASURY-
PROVINCE OF EASTERN CAPE
First Respondent
THE HOD DEPARTMENT OF PROVINCIAL PLANNING AND TREASURY-PROVINCE
EASTERN CAPE
Second Respondent
MR WESLEY PRETORIUS
Third Respondent
Heard
:
8 FEBRUARY 2013
Delivered
:
28 MARCH 2013
Summary: When the respondent has successfully proved that the
matter in the founding affidavit is irrelevant and prejudicial to its
defence, its application to strike out such matter must succeed. The
presiding officer’s failure to find a competent representative
for the Department inside and outside the civil service who is not a
legal practitioner is a manifestation of his failure to apply
his
mind and renders such decision reviewable.
JUDGMENT
LALLIE, J
Introduction
This application was brought on an urgent basis for an order
reviewing and setting aside the ruling of the third respondent in
which he granted the Department of Provincial Planning and Treasury
of the Eastern Cape (the Department) and the applicant leave
to be
legally represented in a disciplinary enquiry investigating
allegations of misconduct against the applicant.
Background Facts
The applicant is employed as Deputy Director General: Assets and
Liability Management at the Department. The finances of the
Eastern
Cape Province (the Province) are her main responsibility. The
applicant was placed under precautionary suspension on
20 September
2012 pending the finalisation of the investigation into alleged acts
of misconduct levelled against her
In the notice of intention to suspend the applicant she was informed
that the reason for her suspension was gross insubordination
for her
alleged refusal to obey a lawful and reasonable instruction of the
Provincial Coordinating Monitoring Team (PCMT) committee
and/or
Superintendent General for Provincial Treasury for her deliberate
failure to process the appointment of doctors. On 15
November 2012
the applicant was served with a notice of disciplinary hearing
containing the following charges:
‘
3.1
Charge 1
Gross insubordination in that on
or about 5 September 2012 you deliberately refused to obey lawful and
reasonable instructions of
the Superintendent-General of Provincial
Treasury and/or the PCMT Committee in that you failed to process the
appointment of certain
doctors, which appointments were duly
authorised.
In so doing your actions
prejudiced the administration and efficiency of the department and
/or caused embarrassment to your employer.
3.2. Charge 2
Intimidation and /or
victimisation of fellow members/employees, more particularly
management and staff in programme 3 including
conduct which displayed
disrespect towards others in the workplace amounting to abusive and
/or insolent behaviour, in that:
3.1.1. You have repeatedly
belittled managers in programme 3 including chief directors, in
management and other meetings, referring
to such employees as
“incompetent” and/or “useless” and/or lazy in
the presence of their peers and/or subordinates.
3.1.2. Forcing senior managers
to agree to unrealistic and unfair performance targets in their
annual performance agreements and
conducting unfair performance
appraisals in the last formal assessment of such employees.
3.1.3. Unnecessary and/or
unwarranted and/or obstructive interference in the task, duties and
outputs of managers in programme 3,
more particularly by refusing to
authorise necessary expenditure and /or constantly and unnecessarily
changing outputs and deliverables
and/or instructing managers to
perform task outside of their duties and the programme and/or
preventing managers from interacting
with stakeholders departments
and/or refusing valid leave requests and/or taking away the decision
making powers and functions
of managers within the programme.
3.3 Charge 3
Displaying disrespect towards
managers in other stakeholder departments and/or behaving in an
unprofessional manner thereby bringing
the department into disrepute,
(including complaints from the senior managers at the Eastern Cape
Department of Health and its
Head of Department)
Incapacity
Alternatively to charge 1,2 and
3 aforesaid it is alleged that you are unable to work in harmony with
your colleagues and/or to
fit into the employer’s corporate
culture. In the circumstances it is alleged that this is an
irremediable breakdown in the
working relationship premised on
incompatibility.’
The disciplinary enquiry with the third respondent as the
chairperson sat on 20 November 2012. It was adjourned and reconvened
on 14 January 2013. The Department applied for legal representation.
The application was opposed the applicant. On 22 January
2013 the
third respondent issued a ruling in which he granted the
Department’s application and extended the right to be
legally
represented to the applicant. It is that ruling which is the
subjects of this application.
Application to strike out
The first and second respondents made an application to strike out
certain paragraphs of the founding affidavit on the grounds
that
they are scandalous and vexatious. The relevant paragraphs are the
following:
‘…
will
result in a protracted and exceedingly legalistic, forced and
artificial disciplinary case which will not be concerned with
the
simple question as to whether or not I have misconducted myself and
if so, whether or not continued employment remains feasible.
It is
apparent that the instruction is to secure my dismissal at all costs
and a legal team has been employed to give effect to
that
instruction. So much ought to be apparent from the following
statement contained in the Department’s submissions in
support
of its application to be granted legal representation.
Incompatibility is an extremely
complex and developing concept and technical expertise is required to
establish its existence. Extensive
and effective consultation will be
required with these witnesses and their evidence will have to lead
(sic) by seasoned and experienced
labour law practitioner in a
coherent and orderly fashion, in order to link up the factual premise
of the complaint to the applicable
legal principle.
5.1. Paragraph 10.5: In fact it
is common cause (or at least it was not disputed), that such exposure
to legal fees will in all
probability be in the region of hundreds of
thousands of rands. Given personal experience and the nature of my
position within
the government I also know that this is an objective
fact;
5.2. Paragraph 10.34: Should I
appoint a reasonably “seasoned and experienced” legal
representative (not a legal team
as the Department did, I might add)
to assist me in the meeting this is highly technical and (in my view)
artificial case and in
order to ensure that I receive a reasonably
fair disciplinary hearing, I will inevitably be exposed to massive
legal costs.
5.3. Paragraph 15: It should
immediately be noted that in a province where a financial control is
notoriously poor and where there
is an unfortunate tendency to incur
financial debt contrary to the law I often find myself in conflict
with official and/or politicians
in executing my primary function,
i.e. ensuring that proper financial control is maintained in
accordance with the law.
5.4. Paragraph 16: Unfortunately
it should also be noted that in a rampant culture of corruption and
self-enrichment there are many
individuals who consider it as an
obstacle to their personal agendas that proper financial control is
maintained in respect of
public funds.
5.5. Paragraph 17: I verily
believe that both of the aforesaid two factors are underlying to the
actions and treatment I am currently
being exposed to. However, I am
advised that these underlying motives are issues which should be
properly raised during the disciplinary
hearing and that it is
neither necessary nor appropriate to deal with the same in any
details during these proceedings.
5.6. Paragraph 18: I am of
course also aware of the fact that irrespective of any sinister
motives underlying to the disciplinary
action against me, it remains
incumbent upon me to established my innocence in respect of the
actual disciplinary charges. I indeed
have every intention to do so.
5.7. Paragraph 33: The
additional charges are a clear indication that the disciplinary
proceedings against me are not bona fide
and that same are informed
by ulterior motives. Self-evidently I have been subjected to nothing
but a witch-hunt and it is rather
shocking that the opportunity was
utilised to provide certain disgruntled subordinates who are in fact
under performance management,
with an opportunity to discredit their
superior and to deflect attention away from their own incompetence
and poor work performance.
I shall, to the extent necessary, deal
with these issues in the disciplinary hearing
5.8. Paragraph 35:Against the
background of my belief that the disciplinary proceedings against me
are not bona fide actions in
response to bona fide allegation of
misconduct, I was immediately concerned with the fact that the third
respondent was appointed
to chair the disciplinary hearing given
that:
5.8.1. It is known to me the
Third Respondent has a business relationship with several government
departments in the Eastern Cape
and more specifically that he is
doing a lot of work for the Department of Health (the
Superintendent-General of which is the main
complainant in respect of
the subordination charge and who has in fact secured the Third
Respondent’s services for the Department
in somewhat
controversial circumstances);
5.8.2. It was my understanding
that the Third Respondent and the Department’s appointed
initiator often acted interchangeably
as chairperson and initiator in
disciplinary proceedings within the public sector; and
5.8.3. The Third Respondent had
previously represented me in a disciplinary matter with the
Department and I considered it inappropriate
for him to function as a
Disciplinary Chairperson in a matter where his former client is the
accused.
5.9. Paragraph 36: For the
reasons to be dealt with more fully below, I was of course also most
dissatisfied with the fact that
the Department intended to utilise
legal representation in the disciplinary hearing.
5.10. Paragraph 37: I
accordingly instructed my attorney to write a letter to the second
respondent inter alia objecting to the
appointment of a legal
representative as the initiator and objecting to the third
respondent’s appointment as a Chairperson.
A copy of the said
letter dated 19 November 2012 is attached as Annexure MD-5.
5.11. Paragraph 38: At the
disciplinary hearing which convened on 20 November 2012 the
proceedings were adjourned for the purposes
of me bringing a formal
application for the recusal of the third respondent as chairperson.
5.12. Paragraph 39: I shall not
burden not burden the Honourable Court with the various papers filed
in this regard. Suffice to
state that the Chairperson dismissed the
recusal application and that I have subsequently recorded that my
further participation
in the hearing is under protest and with full
reservation of rights.
5.13. Paragraph 40: Likewise I
shall not burden the Honourable Court with the various further
correspondences between the legal
representatives and the third
respondent and the third respondent’s ruling in respect of
issues not directly relevant to
the issue now serving before the
court.’
[6] The first and second respondent’s main reason for seeking
to strike out the matter refer to above is that it consist
of
irrelevant allegations which do not take the applicant’s case
further. It also clouds the issues. The applicant’s
basis for
opposing the application to strike out is that the paragraphs in
question are relevant and provide the court with enough
information
to make its determination. Without them she will be prejudiced in her
effort to prove her case.
[7] Rule 6(3)(c) requires the founding affidavit to clearly and
concisely set out a statement of material facts, on which the
application is based. For facts to be material they must be essential
and relevant to the application. The application before me
is an
application to review and set aside the third respondent’s
ruling allowing legal representation in the applicant’s
disciplinary enquiry. While the applicant’s intention of
including the paragraphs in question are good, when scrutinised
they
do not pass the test of relevance. The applicant’s fear that in
their absence her application will lack the necessary
allegations has
no basis. When the applicant’s founding affidavit is read
without the paragraphs in question, it still contains
all the
necessary allegations on which she relies for the relief she is
seeking.
[8] The allegations in question are mainly attacks on the third
respondent which are of no relevance to the review application
as the
applicant is not seeking an order for the setting aside of the third
respondent’s decision not to recuse himself.
They include
attacks on the conduct of politicians and government officials. They
do not assist the applicant in proving her claim.
The first and
second respondents will be prejudiced in the conduct of their defence
if their application is not granted. In the
premises, the application
to strike out is granted.
The Ruling
[9] In the Ruling the third respondent states that the grounds on
which the Department relied upon in its application for legal
representation are mainly that as the chairperson of the disciplinary
enquiry, the third respondent had the discretion to determine
whether
or not to allow legal representation. It was also the Department’s
submission that given the particular circumstances
of the matter
before the third respondent, it would be unfair to deny it legal
representation.
[10] The applicant opposed the application on the basis that, it was
premature, provision of the disciplinary code prohibits legal
representation, the third respondent did not have any residual
discretion to allow legal representation and that the Department
had
waived its right to legal representation. The applicant further
submitted that legal representation was not warranted in the
particular circumstances of the matter before the third respondent.
The applicant’s argument was based on clause 2.7(3)(e)
of the
Senior Management Services Handbook (the SMS handbook or the
handbook) which provides as follows:
‘
In
disciplinary hearing, neither the employer not the member may be
represented by legal representative practitioner, unless the
member
is a legal practitioner.’
[11] The third respondent decided that the provisions of the handbook
constitute guide lines which may be departed from and found
that the
circumstances of the matter before him warranted such departure. He
also found that he had discretion to allow legal representation
and
that the Department did not waive its right to legal representation.
Finally, he found the Department entitled to legal representation
and
the applicant similarly entitled.
Grounds for review
[12] The applicant submitted that the third respondent’s ruling
is
ultra vires
and/or unlawful in that he erred in not
adopting the approach that he was obliged to follow the clear,
unambiguous and plain language
of the handbook which provides that in
a disciplinary enquiry neither the employer nor the member may be
legally represented unless
the member is a legal practitioner.
Chapter 7 of the handbook provides that the procedures contained in
it must be followed in
disciplinary matters. A legal practitioner is
defined in the handbook as a person who is admitted to practise as an
advocate or
an attorney in South Africa.
[13] The applicant submitted that the third respondent did not
properly apply his mind to a number of issues in reaching his ruling.
The issues include the virtually unlimited pool of initiators who are
not legal practitioners at the Department’s disposal
as the
code permits the appointment of an initiator from both the entire
civil service and the South African population. The perceived
seriousness of the charges against the applicant which could lead to
her dismissal did not justify the departure from the prohibition
against legal representation as the charge the third respondent based
his reasoning on seriousness is incompatibility. It is incorporated
to the alternative charge of incapacity and in terms of the
applicant’s conditions of employment the Department may not
pursue incapacity proceedings against her by way of misconduct
proceedings. The applicant will be prejudiced if she elects not to
be
legally represented and should she chose otherwise she will be
equally prejudiced by the astronomic legal fees involved.
[14] A further ground the applicant sought to rely upon is that if
the third respondent had a discretion to exercise, he exercised
it
incorrectly and in a grossly unreasonable manner which infringed upon
her rights in terms of her conditions of service, subordinate
legislation and her general right to a fair process.
[15] The applicant’s submission that the third respondent
lacked the discretion to determine legal representation is based
on
her interpretation of clause 2.7(3) (e) of the handbook. The
applicant argued that the handbook constitute subordinate legislation
which the third respondent should not have easily departed from. The
departure was unwarranted and ultra vires as the unambiguous
language
used in the handbook should have been given its literal
interpretation. She sought to rely,
inter alia
, on
Mosena
and Others v Premier Northern Province and Other
1
MEC: Department of Finance, Economics Affairs and Tourism,
Northern Province v Mahumani
2
and
SA Police Services v Public Servant Association
.
3
The first and second respondents correctly argued that the present
matter can be distinguished from the cases the applicant sought
to
rely on in which legal representation was prohibited by a collective
agreement binding on both parties.
[16] In determining whether the third respondent acted ultra vires
and unlawfully in deciding that he had the necessary discretion
to
make the determination. I have considered the validity of the
applicant’s argument that the correct interpretation of
clause
2.7 (3) (e) is that the Minister can unilaterally decide to deny
parties in a disciplinary enquiry of the right to legal
representation. In
Hamata and Others v Chairperson, Penensula
Technikon Internal Disciplinary Committee and Others,
4
the court acknowledge that there may be administrative organs which
are faced with issues, and whose decision may entail consequences,
which range from the relatively trivial to the most grave. Any rule
requiring the organ to reject requests for legal representation
in
all circumstances was found unacceptable. In
MEC: Department of
Finance, Economic Affairs and Tourism, Northern Province v Mahumani
(supra)
notwithstanding the provisions of a collective agreement
against legal representation in disciplinary inquiry, the court held
that
in cases where an accused employee seeks legal representation
such request should be seriously considered. In
Sidumo and Others
v Rustenburg Platinum Mines Ltd and Others
5
the
constitutional court highlighted the right to administrative action
that is procedurally fair.
[17] The above decisions demonstrate the necessity for the parties to
at least request legal representation. A literal interpretation
of
clause 2.7 (3) (e) may find themselves having to represent their own
cases in circumstances where they lack the necessary ability
leading
to miscarriage of justice. The ruling reflects that the third
respondent based his decision not only on a few clauses of
the
handbook but on the entire relevant chapter a proper reading of which
justifies the ruling. The third respondent’s interpretation
that a proper construction of clause 2.7 (3) (e) does not obliterate
his discretion to determine legal representation is consistent
with
the spirit of the handbook, the constitution and decisions of our
courts. It is therefore lawful and not
ultra vires
[18] On the issue of the reasonableness of the manner in which the
third respondent exercised his discretion the Department submitted
because of the complexity of the charges proffered against the
applicant it lacked internal capacity to present its case
competently,
and it was the public interest that it will be legally
represented. The applicant’s version was that the Department’s
submissions were without merits.
[19] Clause 2.7(3) (e) of the handbook allows the Department to be
represented by any person other that a legal practitioner. This
means
that it can select its representative from the entire civil service
or adult population of the Republic of South Africa.
The pool
includes senior managers, labour law practitioners who are not legal
practitioners and academics. The third respondent’s
decision
implies that from this pool of people he could identify no one with
the necessary ability to represent the Department
competently. This
decision falls outside the bounds of reasonableness. It illustrates
that the third respondent did not apply his
mind.
[20] In reaching his decision to allow legal representation the third
respondent accepted that the cost of legal representation
is felt
more acutely by an individual as opposed to a government department.
He, however, concluded that it is regrettably not
the kind of
prejudiced which he could take into account. What is regrettable is
the third respondent’s unreasonable refusal
to deal with the
prejudice caused by the inability to pay legal costs. There is no
value in extending the right to legal representation
to a person who
cannot afford to pay legal costs. The third respondent unreasonably
disregarded the reasons furnished by the applicant
for preferring to
incur legal costs at the arbitration stage and trivialised the
effects of having a disciplinary record. The third
respondent’s
failure to apply his mind to this important part of the application
before him rendered his finding susceptible
to review. For these
reasons the third respondent’s ruling stands to be reviewed and
set aside.
[21] I could find no reasons both in law and fairness for costs not
to follow the result.
Order
[22] In the premises, the following order is made
22.1. The application to strike out is granted.
22.3. The ruling of the third respondent dated 22 January 2013
allowing legal representation at the applicant’s disciplinary
enquiry is reviewed and set aside.
22.3. The matter is remitted to the Department of Provincial Planning
and Treasury-Province of the Eastern Cape for the disciplinary
enquiry to be conducted without legal representation.
22.4. The first and second respondents to pay the applicant’s
costs of this application jointly and severally one paying
the other
to be absolved.
____________________
Lallie, J
Judge of the labour Court
APPEARANCES
For the Applicant: Mr Minnaar Niehaus of Minnaar Niehaus Attorneys
For the Respondents: Advocate Buchanan SC with Advocate Schultz
Instructed by: Smith Thabata Inc
1
U
nreported
case number 1401/2000(LC),
2
(2004)
25 IL
J
2311 (SCA)
.
3
2007
(3) SA 521
(CC)
.
4
(2002)
23 ILJ 1531 (SCA)
at para 12.
5
(2007)
28 ILJ 2405 (CC)
.