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[2014] ZALCCT 75
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Golding v HCI Manageral services (Pty) Ltd and Others ([2015] 1 BLLR 91 (LC); (2015) 36 ILJ 1098 (LC)) [2014] ZALCCT 75; [2014] ZALCCT 52 (27 October 2014)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
CASE
No: C 933/2014
DATE:
27 OCTOBER 2014
Reportable
Of
interest to other judges
In
the matter between:
Marcel
Golding
............................................................................................
Applicant
And
HCI
Managerial Services (Pty)
Ltd
...................................................
First
respondent
HOSKEN
CONSOLIDATED INVESTMENTS LTD
.....................
Second
respondent
SABIDO
INVESTMENTS (PTY)
LTD
.............................................
Third
respondent
e
tv (Pty)
Ltd
................................................................................
Fourth
respondent
REMGRO
LTD
................................................................................
Fifth
respondent
Heard:
24 October 2014
Delivered:
27 October 2014
Summary:
Application for urgent interdict of disciplinary hearing and
suspension on the grounds that it is unlawful. Held that disciplinary
action is not unlawful and that employee must pursue the remedies
prescribed by the LRA.
Judgement
STEENKAMP
J
Introduction
[1]
Marcel
Golding is the executive chairman of Hosken Consolidated Investments
(Pty) Ltd (HCI).
[1]
He is also
the chief executive officer (CEO) of Sabido Investments (Pty) Ltd and
e tv.
[2]
And he is a director of
HCI Managerial Services (Pty) Ltd
[3]
,
the entity that pays his considerable salary. HCI has notified him of
a disciplinary hearing into allegations of misconduct to
commence
today, Monday 27 October 2014. He seeks to interdict that hearing, as
well as his suspension, on the grounds that it is
unlawful. He also
seeks ancillary interim relief.
Background
[2]
Golding and his then comrade from the days
when they both occupied senior positions in the trade union movement,
Johnny Copelyn,
founded HCI in 1997. It appears that the empire that
they eventually built up was based primarily on a gentlemen’s
agreement.
But the agreement has fallen apart and their relationship
has deteriorated to the extent that decidedly ungentlemanly behaviour
is displayed on the court papers. One of the startling facts of this
case is that there is no written contract of employment between
Golding and any of the respondents. And as will become clear, a
central issue in this case is the question of who Golding’s
employer or employers is or are.
[3]
HCI Managerial Services is the company
secretary of HCI. One of the functions it fulfils is to pay salaries.
Its directors are Golding,
Copelyn and Theventheram Govender.
[4]
HCI and Remgro hold shares in Sabido. HCI
holds its shares through Seardel Investments Ltd and HCI has the
controlling interest
in Sabido. Sabido is an investment vehicle for
its shareholders and it possesses both media and non-media assets. It
owns e tv.
[5]
HCI’s single largest beneficial
shareholder is the Southern African Clothing and Textile Workers’
Union (SACTWU).
[6]
The good relationship between Golding on
the one hand and Copelyn and other board members on the other hand
has deteriorated over
the last year. Golding attributes this partly
to the increasing role and influence of Yunis Shaik, who represents
SACTWU on the
HCI board. Like Copelyn, Shaik previously worked for
the union. Golding accuses Shaik of attempting to influence e tv’s
editorial
content. For example, on 24 March 2014 Shaik sent Golding
and his wife, Bronwyn Keene-Young -- who is employed as chief
operating
officer of Sabido – an email in the following terms:
“
Marcel,
I
got a call from Minister Patel
[4]
today. He says that President Zuma this day opened a new dam. The
building of dams is a big issue and has big impact on our country
for
supply of water etc. He wants for us to cover it tonight.
They
have sent as the feed and want for us to use it. As this is a big
story, it might be a good lead story of the day. Please raise
with
newsdesk.”
[7]
Also during March 2014, Golding bought some
R24 million worth of shares in Ellies Ltd, a listed company on the
Johannesburg Stock
Exchange (JSE). He saw it as a good investment
opportunity because one of the Sabido subsidiaries is a free to air
satellite platform
which is dependent on the distribution of set top
boxes. Ellies is a distributor of set top boxes. Golding did not
disclose the
purchase to the board of HCI or Sabido. The shares were
held in a nominee account at Investec. Although Investec is HCI’s
securities broker and primary banker, Golding says the shares were
held in the nominee account for the benefit of Sabido.
[8]
Golding only informed Copelyn and Govender
of the share purchase on 6 August 2014, on the eve of a Sabido board
meeting. They did
not support the purchase. It is that share purchase
without authorisation that led to the pending disciplinary hearing
that lies
at the heart of this application.
[9]
At about this time, the relationship
between the parties deteriorated to the extent that they reached an
in principle agreement
that Golding would step down from HCI and
retain control of only the media assets.
[10]
The parties could not reach a final
agreement, mainly because SACTWU did not agree on either of the
options proposed by Golding
and Copelyn.
[11]
On 8 October 2014 the HCI board constituted
a special investigative committee to investigate alleged misconduct
by Golding concerning
the unauthorised Ellies share purchase. Golding
attended the board meeting where it was agreed to establish the
special committee.
He cooperated with and appeared before the
committee.
[12]
On 13 October 2014 the non-executive
director of HCI who chaired the committee, Velaphi Mphande, wrote to
Golding in the following
terms:
“
Dear
Marcel
Thank
you for your cooperation with the Board’s Investigation
Committee.
After
thorough deliberations by the committee of all the facts before them
by all parties, the committee has come to the following
conclusion
and decision:
1.
This matter (Ellies transaction) is very
serious and as such requires an immediate disciplinary action.
2.
The committee appoints company lawyers ENS
to conduct this enquiry.
3.
You will be presented with the charge sheet
by Tuesday, 14 October 2014.
4.
You are suspended with full pay pending the
outcome of this enquiry.
Your
cooperation in this matter will be highly appreciated.”
[13]
The next day, 14 October 2014, Mphande sent
Golding a further email including the “charge sheet” and
stating:
“
Further
to the communication I sent to you on 13 October 2014, find attached
herewith the charge sheet as stated. Also note that
Koos Pretorius of
ENS (Africa) shall chair the proceedings.
You
will be required to present yourself at the offices of ENS Cape Town
from 27
th
of October to 31 October 2014, during these
proceedings, to answer to the alleged misconduct levelled against
you.”
[14]
The “charge sheet” reads as
follows:
“
YOUR
CONDUCT
During
or about March 2014, you:
1.
Instructed INVESTEC SECURITIES to buy
shares in ELLIES HOLDINGS LTD on terms and conditions within your
peculiar knowledge.
2.
Acting on your specific instruction,
INVESTEC SECURITIES acquired approximately 5 998 660 m
shares in ELLIES HOLDINGS
LTD at the approximate cost of R24m which
shares were held in an un-allocated and unassigned account to be
assigned and allocated
at your discretion.
3.
This instruction to INVESTEC SECURITIES and
the acquisition of ELLIES HOLDINGS LTD was effected without the
necessary authority
and mandate of the board of SABIDO INVESTMENTS
(PTY) LTD and or its shareholders.
4.
Subsequently, you refused, failed or
neglected to make a full and complete declaration and disclosure of
the transaction to the
management and board of SABIDO INVESTMENTS
(PTY) LTD and its shareholders.
5.
In the result, and for a period, the
monthly and financial statements of SABIDO INVESTMENTS (PTY) LTD may
contain miss-statements
[
sic
]
which you were well aware of and failed to effect a correction
thereof.
6.
As a result of your conduct you have
wilfully caused for the shareholders agreement and the covenants set
out therein to be breached
and in particular the Specially Protected
Matters provisions of that agreement.
THE
CHARGES:
Arising
out of your conduct aforesaid you are charged with the following acts
of misconduct:
1.
DERELICTION OF DUTY:
The
wilful breach of your mandate and authority to manage SABIDO
INVESTMENTS (PTY) LTD in a manner diligent, regular and proper
and in
accordance with the provisions of the Specially Protected Matters
aforesaid.
2.
GROSS NEGLIGENCE:
The
wilful breach of your duty of care for the preparation and fair
presentation of annual financial statements that are free from
misstatements and the letter of representation to the auditors of
SABIDO INVESTMENTS (PTY) LTD.
3.
DISHONESTY
The
wilful concealment of the transaction following the acquisition of
the shares of ELLIES HOLDINGS LTD from:
(a)
the management and board of directors of
SABIDO INVESTMENTS (PTY) LTD
(b)
the management and board of directors of
HCI LTD for an extended period of time.
4.
BREACH OF FIDUCIARY DUTY:
(a)
for failing to present a corporate
opportunity for consideration;
(b)
for having prejudiced the consideration of
the corporate opportunity;
(c)
for acting in a manner that has resulted in
a conflict of interest;
(d)
for using information acquired during the
course and scope of your employment for personal benefit.
5.
BREACH OF THE ETHICS POLICY
Your
conduct is in breach of the ethics policy that has the result of
undermining the commitment to good corporate governance.”
[15]
On 16 October 2014 Golding was locked out
of his office.
[16]
On 17 October 2014 Golding’s
attorneys addressed a lengthy letter to HCI’s board of
directors. They set out their view
that only the boards of Sabido and
e tv have the authority in law to charge and suspend him. They
demanded that HCI withdraw the
suspension and disciplinary hearing by
15:00 on Monday, 20 October 2014, “failing which urgent court
proceedings will be
instituted to obtain appropriate relief”.
[17]
HCI did not do so. Instead, Shaik wrote to
Golding’s attorneys on 20 October 2014 and stated that he is
not employed by Sabido
or e tv, but by HCI and HCI Managerial
Services, through which he renders management services to those
subsidiaries. He stated
that Golding was only suspended as an
employee and not as a director. He also called upon Golding to attend
the disciplinary hearing,
failing which it would proceed in his
absence.
[18]
Golding launched these proceedings on an
urgent basis late on Wednesday, 22 October 2014. The application –
comprising 155
pages – was served on HCI at about 1600 on that
day and filed only the next day. It was set down for hearing on
Friday 24
October 2014, and called upon HCI to deliver its answering
papers by 10:00 on 23 October 2014.
The
relief sought.
[19]
The
relief that Golding seeks is far ranging. Although it is cast in the
form of a rule nisi, it would, if granted, have the effect
of halting
the disciplinary hearing that is set to commence today, Monday, 27
October 2014. He asks for a rule nisi calling upon
the first to
fourth respondents
[5]
to show
cause on the return day, 21 November 2014, why an order should not be
granted in the following terms:
19.1
Declaring that the applicant is an employee
of Sabido and e tv;
19.2
declaring as unlawful the decision made by
HCI to convene a disciplinary hearing in respect of the matters
referred to in the charge
sheet;
19.3
directing Sabido and e tv to take such
steps as may be necessary in the circumstances to prevent HCI from
disciplining their CEO,
i.e. Golding;
19.4
declaring Golding’s suspension to be
unlawful;
19.5
declaring HCI’s conduct in
disciplining Golding “as a result of his assertion of his
beliefs with respect to freedom
of the media is inconsistent with the
Constitution and, to the extent of that inconsistency, unlawful”;
19.6
ordering HCI forthwith to restore the
applicant’s possession of the office at the premises of e tv at
Longkloof Studios, Darters
Road, Gardens, Cape Town, occupied by him;
19.7
declaring the applicant’s suspension
to be an unfair labour practice;
19.8
declaring the holding of the disciplinary
hearing to be an unfair labour practice.
[20]
The applicant further asks that
subparagraphs 1 to 5 operate as an interim interdict pending the
return day; and that subparagraphs
7 and 8 operate as interim orders
pending the outcome of the arbitration in an unfair labour practice
dispute that he referred
to the CCMA on 21 October 2014, the day
before launching the urgent application.
Urgency
[21]
The applicant asks for an order dispensing
with the provisions of the rules of this court relating to the time
and manner of service
and disposing of the matter as one of urgency
in accordance with rule 8.
[22]
Mr
Pretorius
,
for HCI
[6]
, argued that any
urgency is self-created. The applicant was informed of the
disciplinary hearing, due to commence on 27 October,
on 14 October.
He waited nine days to launch the application. He gave HCI, in
effect, four court hours in which to file answering
papers responding
to an application comprising more than 150 pages and addressing
complex factual issues and questions of company
law and employment
law.
[23]
In
support of his argument that this amounted to an abuse of court
process, Mr Pretorius cited the case of
Gallagher
v Norman’s Transport Lines (Pty) Ltd
.
[7]
In that case, Flemming DJP expressed the view that allowing only two
working days for the delivery of answering affidavits in an
urgent
application was inadequate. In the case before me, the applicant took
nine days to draft its founding papers and then afforded
HCI less
than one day to deliver answering papers. Mr
Kahanovitz
argued that the application is urgent by its very nature. The matter
was heard on Friday. The disciplinary hearing is due to commence
today. He says that the relief sought is in the form of a rule nisi;
and that, in any event, the respondents could have asked for
more
time. But had they done so, it would in any event have had the
desired effect for the applicant, i.e. to prevent the hearing
from
going ahead today.
[24]
As
Prest
[8]
points out, a matter
which is inherently urgent may be rendered not urgent and fall
outside the provisions of the [High Court]
rules where an applicant
delays in bringing the application as one of urgency. A delay of nine
days may not appear to be lengthy,
given the deploringly slow pace at
which the wheels of justice often turn; but in circumstances where
the applicant knew when the
disciplinary hearing was due to commence
and yet gave the respondents less than one day before this
application was to be heard
to file answering papers, having taken
nine days to draft his own lengthy founding papers, I agree with Mr
Pretorius
that the urgency is self-created.
[25]
The application should be struck from the
roll for this reason alone. I will nevertheless deal with the merits.
The
requirements for urgent interim relief
[26]
The
requirements for urgent interim relief are well known. It is that is
that contained in
Webster
v Mitchell.
[9]
The
applicant must show:
26.1
a
prima facie
right (although open to some doubt) to
the final relief that will be sought in due course;
26.2
an apprehension of irreparable harm, if the
application is not granted and the applicant ultimately establishes
his claim;
26.3
that the balance of convenience favours
him; and
26.4
the absence of any other satisfactory
remedy.
[27]
In considering whether the applicant has
established a
prima facie
right, I shall deal with each of the elements of the relief that he
seeks and the right upon which he relies.
Is
the decision to discipline unlawful?
[28]
The applicant’s principal argument in
support of his claim that HCI’s decision to discipline him is
unlawful, is that
he is not employed by HCI, but by Sabido and e tv.
The principal question to answer in this case is whether HCI is his
employer
and thus has the power to discipline him.
Who
is the employer?
[29]
Golding says he is employed by Sabido and e
tv, and not by HCI. In support of this argument, he explained that
his productive capacity
is placed mainly at the disposal of those
entities. The office he occupies is in the e tv office building, but
as his counsel says
in his heads of argument, “he occupies this
office not only as an employee of e tv but also as director of the
holding company
[HCI] in which he also owns substantial shares.
Golding has only ever held one office per location and, at August
2014, the offices
of HCI and e tv were contained in the same building
in Gardens. Until the move of HCI’s offices to Sea Point,
Golding occupied
an office in the HCI office suite and only moved
into a new office in the e tv suite when HCI moved into its own
building.”
[30]
Sabido
and e tv are subsidiaries of the holding company, HCI. The Companies
Act
[10]
defines a “group
of companies” as a holding company and all of its subsidiaries;
and a “holding company”,
in relation to a subsidiary,
means a juristic person that controls that subsidiary. The parties in
this case have not placed sufficient
evidence before the Court to
show decisively that HCI controls Sabido and e tv as its subsidiaries
as contemplated in ss 2(2)(a)
and 3 of the Companies Act. But at the
very least, applying the rule in
Plascon-Evans
[11]
,
the evidence shows that Sabido and e tv are subsidiaries of HCI.
[31]
Golding,
as CEO, is clearly an employee of Sabido and of e tv. But that does
not mean that he is not an employee of HCI. The Labour
Appeal Court
and the Supreme Court of Appeal have held that highly placed
employees in a group situation who perform services on
behalf of a
number of entities usually have more than one employer.
[12]
That is clearly the case in this instance.
[32]
The
Labour Relations Act
[13]
defines an “employee” as –
“
(a)
any person, excluding an independent contractor, who works for
another person or for the State and who receives, or is entitled
to
receive, any remuneration; and
(b)
any other person who in any manner assists
in carrying on or conducting the business of an employer.”
[33]
The first question to ask, then, is from
whom Golding receives his substantial remuneration. HCI has attached
his payslip to its
answering papers. It reflects a gross monthly
salary of R480239, 00 paid by HCI Managerial Services. He does not
receive any remuneration
from Sabido or e tv. With regard to income
tax, the only IRP5 issued to Golding reflects payments and
remuneration received from
HCI Managerial Services. And as recently
as 22 September 2014, Golding accepted an offer to participate in the
HCI employee share
scheme. That scheme is open only to ‘selected
full-time employees of Hosken Consolidated investments Ltd
(“Company”)
and its subsidiaries (“Group”)
with the opportunity to become shareholders of the Company, thereby
ensuring that such
employees are encouraged and motivated to pursue
continued employment with the company in the Group that employs them
(“Employer
Company”) and to contribute to the growth and
profitability of the Employer Company and the group as a whole.’
The
“Employer Company”, in turn, is HCI Management
Services.
[34]
It
is common cause that Golding is the executive chairman of HCI. That
implies, of necessity, that he is also an employee of HCI.
As the
court pointed out in
Fisheries
Development Corporation of SA Ltd v Jorgensen
[14]
,
there
is ‘a difference between the so-called full-time or executive
director, who participates in the day-to-day running of
the company’s
affairs or of a portion thereof, and the non-executive director who
has not undertaken any special obligation’.
[35]
I am persuaded on the evidence before me
that Golding is an employee of HCI. The decision of the first and
second respondents to
discipline him is not unlawful. Of course, I
express no view on the merits of the allegations of misconduct.
Ulterior
motive?
[36]
Golding alleges that the only reason that
HCI is taking disciplinary action against him is because of an
ulterior to force him out.
That is not borne out by the evidence. On
the face of it, he is being charged with serious misconduct arising
from the unauthorised
purchase of Ellies shares. Whatever the merits
of that allegation, it does not point to any ulterior motive.
[37]
The allegations by Golding about
interference in the editorial independence of e tv are serious and,
on the face of it, not without
substance. It is indeed startling and
harks back to the tragic time in our history when ministers of the
apartheid regime sometimes
dictated the contents of news broadcasts
on the SABC, that a director of HCI should suggest to the directors
of e tv what they
should carry as a lead story on the evening news at
the behest of a cabinet minister. But the charges forming the basis
of the
disciplinary hearing that the applicant seeks to interdict
have no bearing on editorial content.
[38]
The applicant has made out to no case to
show that HCI’s conduct in disciplining him is “as a
result of his assertion
of his beliefs with respect to freedom of the
media”. He has not shown a
prima
facie
right to have the disciplinary
hearing declared unlawful because it is inconsistent with the
Constitution.
Unlawful
or unfair suspension?
[39]
For the reasons set out above, I also found
that HCI had the power to suspend Golding. The actions of the first
and second respondents
in that regard are not unlawful.
[40]
Golding nevertheless argues that his
suspension was also unfair because he was not given a hearing before
the decision was made.
[41]
This
allegation may have some merit. Murphy AJA
[15]
has held that, when dealing with holding operation suspension (as in
this case) as opposed to a suspension as a disciplinary sanction,
the
right to a hearing may legitimately be attenuated. That is so
because, as in this case, precautionary suspensions tend to be
on
full pay with the consequence that the prejudice flowing from the
action is significantly contained and minimised. Secondly,
the period
of suspension often will be for a limited duration. In this case,
Golding will only be suspended until the finalisation
of the
disciplinary hearing, envisaged to be in a week’s time.
Provided the safeguards of no loss of remuneration and a limited
period of operation are in place, Murphy AJA held that the balance of
convenience in most cases will favour the employer.
[42]
But in this case, Golding was not given the
opportunity to make any representations at all before he was
suspended. That may well
be unfair in itself, despite the fact that
he has been suspended on full pay and that it will be of a limited
duration.
[43]
However,
he faces a further hurdle. That is that he has an alternative remedy.
As Murphy AJA also pointed out in
Gradwell
[16]
:
“
Section
186(2) of the LRA defined an unfair labour practice to mean inter
alia any unfair act or omission that arises between an
employer and
an employee involving the unfair suspension of an employee. Grogan
Workplace Law
suggests that the term ‘suspension’ in s 186(2) refers
only to suspension imposed as a disciplinary penalty and not
to the
situation when an employer suspends an employee pending a
disciplinary hearing. I assume his interpretation rests on the
express wording of s 186(2)(b), which reads: ‘the unfair
suspension of an employee or any
other
unfair disciplinary action short of dismissal in respect of an
employee’ (emphasis added).
The
prohibition evidently targets unfair disciplinary action. That
purpose, however, does not operate to exclude unfair acts or
omissions in relation to precautionary suspensions. As Grogan rightly
points out, in so far as a precautionary suspension invariably
forms
part of the procedure leading to disciplinary action, it is
inherently disciplinary in nature. Consequently, the dictates
of
fairness (procedural and substantive) apply to all suspensions
equally, regardless of the form a particular suspension takes,
be it
employed as a holding operation or as a disciplinary sanction or
penalty.
…
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 s 191(1) of the LRA. The
respondent in this case instead sought a declaratory order
from the
Labour Court in terms of s 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 when 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. The determination of the unfairness of
suspension will usually be better accomplished
in arbitration
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.”
[44]
In
this case, the applicant does seek an order granting urgent interim
relief pending the outcome of the unfair labour practice
dispute that
he referred to the CCMA. But he referred that dispute belatedly, one
day before launching this urgent application.
He has not taken any
steps to have the arbitration before the CCMA expedited. And he has
not shown any irreparable harm. The harm
to his reputation that he is
undoubtedly suffering will be vindicated if he attends the
disciplinary hearing and it is found that
it did not commit the
misconduct complained of. He is not suffering any financial harm. The
hearing is set to take place this week.
Should he cooperate with the
hearing, the suspension – and thus his reputational harm if he
did not commit the misconduct
– will be short-lived. He has not
shown any exceptional circumstances why this Court should intervene,
as required by
Booysen
.
[17]
Spoliation
[45]
Given my view on the identity of the
employer and the lawfulness of its actions, I am not persuaded that
the applicant is entitled
to have the possession of his office
restored to him. He has been lawfully suspended pending the
finalisation of the disciplinary
hearing. During that period of
suspension, he is not entitled to attend the workplace and to occupy
his office.
Balance
of convenience
[46]
The applicant contends that the
disciplinary proceedings are “likely to be long”, that
the harm to the companies of
which he is the CEO will be grave, and
that his continued suspension will gravely affect his standing in the
community. But he
offered no evidence for the contention that the
disciplinary proceedings are likely to be long. It is set down for
one week. The
allegations of misconduct are relatively simple. There
should be no reason for the proceedings to be drawn out if everyone
concerned
cooperates. It is by no means certain that the chairperson
will find in HCI’s favour; even if he does, it is by no means
certain that he will recommend dismissal as a sanction; and even if
he does, the applicant will have recourse to the dispute resolution
procedures prescribed by the LRA and available to any other dismissed
employee.
[47]
The
applicant has also cast doubt on the independence of the chairperson,
Koos Pretorius
[18]
. I share
his concern that the hearing will be chaired by HCI’s attorney.
But, as HCI’s counsel pointed out, in almost
every disciplinary
hearing a representative of the employer acts as the chairperson. It
would have been preferable for the parties
to agree to a truly
independent chairperson, such as a senior attorney or advocate who is
not beholden to either of them; or even
better, to an enquiry by an
arbitrator in terms of section 188A of the LRA. But the appointment
of an ENS attorney to chair the
disciplinary proceedings does not
vitiate those proceedings; and in any event, should the applicant be
able to show a reasonable
apprehension of bias, he can ask for the
recusal of the chairperson at the beginning of those proceedings.
Conclusion
[48]
The applicant has not made out a
prima
facie
right to the relief that he
seeks. The balance of convenience does not favour him and, in any
event, he has adequate alternative
remedies at his disposal as
provided for in the LRA. Any harm that he may suffer is not
irreparable: he will have a full opportunity
to be heard at the
disciplinary hearing, and even should his fears of dismissal be well
founded, he may use the dispute resolution
remedies prescribed by the
LRA.
Costs
[49]
This
court has a discretion to award costs according to the requirements
of the law and fairness.
[19]
The applicant has been unsuccessful. But there is still an ongoing
relationship between the parties, acrimonious as it may be.
An
adverse cost order at this stage, on the first day of the
disciplinary hearing, may well jeopardise any hope of restoring the
relationship. In fairness, I do not think that a cost order is
appropriate.
Order
The
application is dismissed.
Anton
Steenkamp
Judge
APPEARANCES
APPLICANT:
Colin Kahanovitz SC
(with
S e Câmara and AA Brink)
Instructed
by Herold Gie.
FIRST
AND SECOND RESPONDENTS: Paul Pretorius SC
Instructed
by Edward Nathan Sonnenbergs .
[1]
The first respondent.
[2]
The second and third respondents.
[3]
The first respondent.
[4]
[4]
A reference to the Minister of Economic Development, Ebrahim Patel,
a former SACTWU general secretary.
[5]
He seeks no relief against Remgro.
[6]
Mr Pretorius appeared for the first and second respondents. I will
refer to them jointly as “HCI” except where it
is
necessary to distinguish HCI Management Services.
[7]
1992 (3) SA 500 (W).
[8]
C B Prest,
The
Law & Practice of Interdicts
(Juta 1996) at 260.
[9]
1948 (1) SA 1186
(W). See also
Setlogelo
v Setlogelo
1914 AD 221.
Recently, in
National
Treasury and Others v Opposition to Urban Tolling Alliance and
Others
(CCT
38/12)
[2012] ZACC 18
(20 September 2012)
the
Constitutional Court endorsed the applicability of the
Setlogelo
test.
[10]
Act 71 of 2008.
[11]
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
[1984] 2 AllSA 366
(A);
1984 (3) SA 623
(A) at 634 H-I.
[12]
Board
of Executors v McCafferty
(1997)
18
ILJ
949
(LAC), upheld on further appeal to the SCA on 29 November 1999 (SCA
case no 442/97, unreported).
[13]
Act 66 of 1995 s 213.
[14]
1980
(4) SA 156
(W) 165H, cited with approval in
Mpofu
v South African Broadcasting Corporation Limited (SABC) and Others
(2008/18386)
[2008] ZAGPHC 413
(16 September 2008) at footnote 8.
[15]
In
MEC
for Education, North West Provincial Government v Gradwell
(2012)
33
ILJ
2033 (LAC);
[2012] 8 BLLR 747
(LAC) paras 44-46.
[16]
[16]
Supra paras 43 and 46.
[17]
Booysen
v Minister of Safety
&
S
ecurity
(2011) 32
ILJ
112 (LAC) par [54].
[18]
No relation to HCI’s counsel.
[19]
LRA s 162.