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[2014] ZALCPE 23
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Moleko v Joe Grabi Economic Development Agency (Pty) Ltd and Another (P240/14) [2014] ZALCPE 23 (1 August 2014)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
Not
Reportable
Case
No: P240/14
In
the matter between:
NTHABISENG
MOLEKO
Applicant
and
JOE
GQABI ECONOMIC
DEVELOPMENT
AGENCY (PTY)
LTD
First
Respondent
Z
MTYOBO
Second
Respondent
Heard:
29 July 2014
Delivered:
1 August 2014
Summary:
Both the law and fairness require that a costs order be granted in
favour of an applicant who would have
been the successful litigant
but for her dismissal.
Awarding
costs in terms of section 162 of the LRA.
JUDGMENT
LALLIE, J
[1]
The applicant launched this urgent
application for an order staying the disciplinary enquiry against her
and interdicting the respondents
and any person acting under their
direction from finalising the disciplinary enquiry, pending the
finalisation of the review application
in part B of the application.
The application is opposed by the first respondent.
[2]
The brief factual background of this application is that the
applicant was employed as the Chief Executive Officer (CEO) of
the
first respondent. Pursuant to allegations of misconduct against her,
she was suspended from work and charged with a number
of acts of
misconduct. Her disciplinary enquiry was held on 16 and 25 April
2014, 24 May 2014, 21 June and 7 July 2014. On 7 July
2014, the
parties reached an agreement that the second respondent who was the
chairperson of the disciplinary enquiry should determine
whether the
conduct described by the captured facts constituted misconduct. They
also agreed to file closing arguments. Subsequently,
the second
respondent issued his findings in which he found the applicant guilty
of the first three charges which had been preferred
against her. He
required the applicant and the first respondent to submit mitigating
and aggravating circumstances by 25 July 2014.
[3]
The applicant’s legal representatives received the findings on
22 July 2014 and launched this application on 24 July 2014.
This
matter was enrolled for 29 July 2014. However, on 28 July 2014, the
first respondent delivered the applicant’s dismissal
letter at
the offices of her attorney. On 29 July 2014, the applicant filed a
notice in terms of Rule 13 withdrawing the application
on the grounds
that her dismissal had rendered the application obsolete. She,
however, sought a costs order on the attorney and
client scale on the
basis that but for the dismissal, her urgent application would have
been successful.
[4]
It was argued on behalf of the applicant that her application was
effectively unopposed as the chairperson of the first respondent’s
board who attested to the answering affidavit opposing her
application had no authority to litigate on the first respondent’s
behalf. In terms of the first respondent’s memorandum of
incorporation (memorandum), it is the CEO who is authorised to
institute or defend formal legal proceedings on the first
respondent’s behalf. Other than stating that she is the
chairperson
of the first respondent who possesses authority to depose
to the answering affidavit, she did not disclose the source of her
authority.
[5]
The first respondent is a juristic person. Anyone defending legal
proceedings on its behalf needs the necessary authority. The
deponent
did not disclose the basis for alleging that she had the necessary
authority. In the circumstances, I accept the applicant’s
submission based on the memorandum that the deponent had no authority
to defend these proceedings on behalf of the first respondent
and
attest to the answering affidavit. In the circumstances, the
application would have been unopposed.
[6]
Another argument that the applicant sought to rely on is that the
second respondent infringed her right to be heard and exceeded
the
powers vested in him in the agreement in finding her guilty of the
first three charges. He, therefore, acted
ultra vires
and his
finding that she had waived her right to present her case was
therefore invalid. The second respondent’s conduct
constituted
a reviewable irregularity. She submitted that to be subjected to
disciplinary enquiry presided over by a chairperson
who misconstrued
his powers resulted in frustration and hurt feelings. Her future
career was entrusted in a person who demonstrated
lack of
appreciation for its importance.
[7]
It was argued on behalf of the applicant that this court may
interdict an uncompleted disciplinary enquiry pending the
finalisation
of an application to review and set aside the decision
of the chairperson of a disciplinary enquiry. The applicant relied on
section
158 (1) of the Labour Relations Act 66 of 1995 (“the
LRA”),
Booysen
v Minister of Safety and Security and Other
[1]
and
Dladla
v Council of Mbombela Local Municipality and Another
.
[2]
[8]
I have considered the provisions of the LRA which prescribe the
conflict resolution procedures between employers and employees.
I
have also taken into account the authorities which express the view
that this court should act with restraint when asked to intervene
in
uncompleted disciplinary enquiries and arbitrations. They are
articulated as follows in
Jiba
v Minister of Justice and Constitutional Development
.
[3]
‘
I
wish to deal with the application in so far as it relates to the
chairperson’s ruling on a more preliminary basis. Exceptional
circumstances aside, it is undesirable for this court to entertain
applications to review and set aside rulings made in uncompleted
proceedings. In
The Trustees for the
Time Being of the National Bioinformatics Network Trust v Jacobson
and other
(unreported, C249/09,14 April
2009) [reported at
[2009] 8 BLLR 833
(LC) – Ed], I said the
following in relation to the review of interlocutory rulings made by
commissioners:
“
There
are at least two reasons why the limited basis for intervention in
criminal and civil proceedings ought to extend to uncompleted
arbitration proceedings conducted under the auspices of the CCMA, and
why this court ought to be slow to intervene in those proceedings.
The first is a policy related reason – for this court to
routinely in uncompleted arbitration proceedings would undermine
the
informal nature of the system of dispute resolution established by
act. The second (related) reason is that to permit applications
for
review on a piecemeal basis would frustrate the expeditious
resolution of labour disputes. In other words, in general
terms, justice would be advanced rather than frustrated by permitting
CCMA arbitration proceedings to run their course without
intervention
by this court.”’
[9]
In
Booysen
(
supra
), this court’s jurisdiction to
interdict unfair disciplinary actions in exceptional cases was
confirmed. The second respondent
found the reaching of the agreement
by the parties strange. I wish to add that the terms of the agreement
are equally strange.
Their validity is, however, not affected by
their nature. The second respondent did more than he was required to
do in terms of
the agreement and made findings on the applicant’s
guilt. He effectively denied the applicant of the right to state a
case
before a decision that she was guilty of some of the charges
which had been preferred against her was taken. This is the kind of
unfairness and exceptional case referred to in
Booysen
(
supra
).
Even in
Jiba
(
supra
) in expressing the undesirability
of the Court’s intervention, the Court acknowledged its
necessity in exception circumstances.
[10]
The fundamental difference between the matter at hand and a number of
cases where the intervention of this Court in uncompleted
disciplinary enquiries including
Jiba
(
supra
)
is that the applicant does not seek an interdict based on a
chairperson’s ruling on a preliminary
issue.
Her application is based on the merits of her case which involve
findings that she is guilty of serious acts of misconduct.
[11]
It is not fair to assume that the applicant waived her right to be
heard. Waiver is not inferred easily. The agreement
concluded
by the
applicant
and the first respondent neither makes reference to nor constitute
waiver.
[12]
The applicant had no alternative effective remedy and she would have
suffered more prejudice than the first respondent had
this
application been refused. Had the applicant not been dismissed after
moving this application but before it was heard, her
application for
an interdict would have been successful. The law and fairness justify
a costs order against the first respondent
because the applicant
should not be out of pocket as a result of the first respondent’s
unfair conduct.
[13]
In the premises, the following order is made:
13.1
The First Respondent pay the applicant’s costs
____________
Lallie
J
Judge
of the Labour Court of South Africa
Appearances
For
the Applicant:
Advocate
Nduzulwana
Instructed
by:
Ntwendala Attorneys
For
the First Respondent: Mr Mama of Java Mama
Attorneys
[1]
[2011] 1 BLLR 83 (LAC).
[2]
[2010] 6 BLLR 361.
[3]
[2005] ZALC 15
;
[2009] 10 BLLR 989
(LC) at para 11.