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[2015] ZALCJHB 110
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Lerefolo v Safety And Security Sectoral Bargaining Council and Others (JR1046/07) [2015] ZALCJHB 110 (26 March 2015)
REPUBLIC OF SOUTH AFRICA
IN THE LABOUR COURT OF SOUTH AFRICA,
JOHANNESBURG
JOHANNESBURG
Case No: JR1046/07
DATE: 26 MARCH 2015
Not Reportable
In the matter between:
MATHLODI GLORIA
LEREFOLO
......................................................................................
Applicant
And
SAFETY AND SECURITY SECTORAL BARGAINING
COUNCIL
....................
First
Respondent
COMMISSIONER JOYCE TOHLANG SOLUTIONS
CC
.................................
Second
Respondent
SECRETARIAT FOR SAFETY AND
SECURITY
.................................................
Third
Respondent
Heard: 18 August 2014
Delivered: 26 March
2015
Summary:
A review
application brought in terms of
section 145
of the
Labour Relations
Act 66 of 1995
. Question as to whether the labour court has
jurisdiction bearing in mind that the matter emanates from the public
sector, and
particularly a public sector disciplinary hearing in
terms of an applicable collective agreement. Action constituting
administrative
action and accordingly the labour court has
jurisdiction. Application however dismissed on the facts.
JUDGMENT
SNIDER AJ
[1] This is an application
in terms of which the applicant seeks to review and set aside a
finding of a disciplinary enquiry (“the
finding”) dated
13 March 2007 issued by the second respondent.
Point
in limine
[2] Before dealing with
the merits of the matter, there is a legal issue which requires
determination.
[3] The third respondent
wishes this point to be heard as a point
in limine
however, it
has not been properly raised as such.
[4] The point, as set out
below, goes to the jurisdiction of this Court to adjudicate the
matter as a whole and accordingly, regardless
of the manner in which
the third respondent has conducted itself, the point has to be
decided.
[5] In terms of a
resolution of the Public Service Co-ordinating Bargaining Council,
being resolution number one of 2003, (“the
resolution”)
[1]
,
which the parties are
ad idem
applies to both the applicant and the third respondent, the following
provision is made –
‘
The
employer and the employee charged with misconduct may agree that the
disciplinary hearing will be chaired by an arbitrator from
the
relevant Sectoral Bargaining Council appointed by the council. The
decision of the arbitrator will be final and binding and
only open to
review in terms of the
Labour Relations Act, 1995
. All the
provisions applicable to disciplinary hearings in terms of this code
will apply for purposes of these hearings.
The employer will be
responsible to pay the costs of the arbitrator’.
[6] In broad terms, the
point raised by the third respondent, which was of concern to me upon
perusal of the papers, is, whether,
in terms of such an agreement,
the parties, specifically the applicant and third respondent can
clothe this Court with jurisdiction
to hear a review of the
arbitrator’s decision without the matter following the usual
course through conciliation, mediation
and arbitration.
[7] This question is the
source of a plethora of jurisprudence in our law and has been
pronounced upon by the Labour Court, the
Labour Appeal Court, the
Supreme Court of Appeal and the Constitutional Court.
[8] A useful point
of departure which sets out, with respect, succinctly the argument in
favour of this Court not having jurisdiction
to hear the matter is
the judgment of the Honourable Judge Molahlehi in
Mayedwa
v General Public Services Sectoral Bargaining Council and Another
.
[2]
This decision is for the purposes of deciding the point,
indistinguishable, factually, from the current matter.
[9] As in the
current situation, the disciplinary enquiry was conducted under the
auspices of the Bargaining Council in terms of
resolution 1 of 2003
of the Public Service Co-ordinating Bargaining Council. The second
respondent, in that matter, raised a point
in
limine
concerning the jurisdiction of
the court, the essence of which was that the court did not have
jurisdiction because of the jurisdictional
factors envisaged in
section 157(4)(a) of the Labour Relations Act
[3]
(“the LRA”).
[10] The second
respondent in that matter further contended that by relying on the
provisions of resolution 1 of 2003, the applicant
was seeking to
impose jurisdiction on the court by consensus between the parties. In
this regard reliance was placed on
Bargaining
Council for
Hairdressing
and Cosmetology Trade (Pretoria) v Smit t/a Hair Mistique
.
[4]
The Learned Judge followed the Cosmetology decision (
supra)
as well as the decision in
Minister
of Safety and Security v Safety and Security Sectoral Bargaining
Council and Others
.
[5]
[11] All of these
decisions are to the effect that parties cannot confer jurisdiction
on a court of law by agreement.
[12] However, the matter
does not end here. These cases are simply authority for the
proposition above, that parties cannot, by
way of agreement, confer
jurisdiction on this court. They go no further.
[13] There is a different
aspect of this question which was raised on behalf of the applicant
and must be considered in determining
whether this Court has
jurisdiction to consider the review.
[14] This line of argument
is premised on the proposition that the decision of the second
respondent constituted administrative
action as the decision of a
disciplinary tribunal in the public sector constitutes administrative
action and is accordingly subject
to review.
[15] Again there are
a number of decisions on this point including
Minister
of Safety and Security v Safety and Security Sectoral Bargaining
Council and Others
; Booysen v Minster
of Safety and Security and Others;
Provisional
Commissioner Petros NO v Director Joubert NO and Another
[6]
,
Ntshangase
v MEC: Finance, Kwa Zulu
Natal and Another
,
[7]
Chirwa v Transnet Limited and Others
[8]
,
and
Gcaba v Minister of Safety and
Security and Others
.
[9]
[16] The most apposite
analysis of the relevant jurisprudence, for the purposes for this
matter, appears, with respect, from the
judgment of his Lordship
Judge Steenkamp in Booysen
(supra).
[17] The decision in
Booysen
(supra)
is based on a very similar term in a
collective agreement between the SAPS and the various unions which
bound,
inter alia
, the individual employee.
[18] The ultimate
conclusion reached in Booysen (
Supra
) was that since the
actions of the officials concerned in that case constituted
administrative action, the court was bound by the
decision in
Ntshangase
(supra)
and that being so, such decisions
must be lawful, reasonable and procedurally fair. They were,
therefore reviewable in terms of
section 158(1)(h) of the LRA.
[19] Whilst this matter is
not phrased as a review in terms of section 158(1)(h) of the LRA, in
fact, it is explicitly described
by the applicant as a review in
terms of section 145 of the LRA, I do not believe that the label
which the applicant attaches to
it is necessarily determinative of
its nature.
[20] There can be no
question that the action of the second respondent, as per Ntshangase
(
supra
) constituted administrative action in the sense of the
nature of the power exercised, its subject matter, and that it
entailed
the exercise of a public duty.
[21]
Ntshangase
(
supra
)
is direct authority for the proposition that decisions of a
disciplinary tribunal in the public sector constitute administrative
action and are accordingly subject to review. The test, per
Booysen
(
supra
)
remains
that set out in
Sidumo and Another v
Rusternberg Platinum Mines Ltd and Others.
[10]
In
Ntshangase (supra)
the Learned Acting Judge of Appeal Bosielo, writing the unanimous
judgment of the Court, analyses the position with section 33(1)
of
the Constitution of the Republic of South Africa 1996 as his point of
departure. Section 33(1) provides that –
‘
Everyone
has the right to administrative action that is lawful, reasonable and
procedurally fair’
.
[22] The Learned
Judge then analyses the meaning of the concept “administrative
law” and cites,
inter alia
,
President of the Republic of RSA and
Others v South Africa Rugby Football Union and Others
[11]
and comes to the conclusion, which is
factually and legally on all fours with the current facts, that the
decision of the disciplinary
tribunal in the Public Sector
constitutes administrative action. The Learned Judge follows this
conclusion with a reference to
section 158(1)(h) of the LRA which
provides that –
‘
the
Labour Court may review any decision taken or any act performed by
the State in its capacity as employer, on such grounds as
are
permissible in law’.
[23] Accordingly, it is
found that such a decision, which is indistinguishable from the one
in this matter, can be reviewed by this
Court.
[24] I accordingly, find
that this Court has jurisdiction to entertain the applicant’s
review application and consider same
hereunder.
[25] I then turn to the
merits of the review application itself.
[26] I must at this
juncture, state that the manner in which this application has been
dealt with by the applicant is far less than
satisfactory.
[27] The references in
both the affidavit and in the applicant’s heads of argument are
not annotated and, to the extent that
there is one, it is extremely
difficult to follow the case for the applicant.
[28] The grounds of
review are set out in the founding affidavit
[12]
a perusal of the said grounds swiftly reveals that there is nothing
upon which a review application can be based without, at the
very
least, drawing a proper connection between the grounds referred to,
the evidence, the award of the finding and any conduct
on the part of
the second respondent which may render the award reviewable.
[29] Briefly the supposed
grounds relied upon by the applicant are the following that –
29.1
the arbitrator failed to apply the
cautionary rule;
29.2
failed to accept evidence of the applicant
as reasonably and possibly true;
29.3
curtailed proceedings and denied the
applicant the right to a postponement so as to secure the attendance
of her witnesses;
29.4
paralysed the proceedings in that she did
not realise the effect of proceeding with an unrepresented applicant
facing allegations
of this nature;
29.5
over exercised her power by imposing the
maximum sanction of dismissal; and
29.6
disregarding the fact the applicant is a
first offender and not taking into account mitigation.
[30] In respect of the
cautionary rule it is clear that the witness on behalf of the third
respondent, one Meshack Mogotusi gave
comprehensive and cogent
evidence in relation to the charges against the applicant; the
evidence surrounding her absenteeism was
thorough and complete. There
is no reason to interfere with the finding in this regard.
[31] The cautionary
rule is, in any event, a concept which applies to the criminal law
and not to evidence in civil cases.
[13]
[32] The ground that the
arbitrator failed to accept evidence of the applicant as reasonably
and possibly true is simply far too
broad and non-specific upon which
to find that the award should be reviewed.
[33] It is clear
from the award itself that as far as postponements and the calling of
witnesses are concerned, the arbitrator was
accommodating up to a
point, but then did not allow the applicant to delay the proceedings
any further. The arbitrator clearly
had a discretion in this regard
and, from what one can observe from the award, exercised same in a
judicial manner.
[14]
[34] The same goes for the
applicant’s dismissing her legal representative which the
second respondent, once again, in her
discretion, regarded as a
delaying tactic and proceeded with the arbitration.
[35] In the exercise of
her powers, the arbitrator dismissed the applicant. This cannot be
regarded as unreasonable within the meaning
of that phrase as set out
in
Sidumo
(
supra
) which, as set out above, is the test
to be applied.
[36] The fact that the
applicant was a first offender would not necessarily, and certainly
not in this case, prevent the arbitrator
from imposing the sanction
of dismissal. Once again, the decision is not an unreasonable one.
[37] The applicant filed a
supplementary affidavit however, no discernible new grounds of review
are raised in the supplementary
affidavit.
[38] In the premises I
make the following order –
38.1
The application is dismissed;
38.2
There is no order as to costs.
Snider,
AJ
Acting Judge of the Labour Court of South Africa
APPEARANCES
For the Applicant: M A
Mototusi
Instructed by: Phehello
Modise Attorneys
For the Third
Respondent: Advocate A Laka SC
Instructed by:
Attorney Mr Letagen (State Attorney Pretoria)
[1]
Page 34 of the paginated papers
[2]
(2009) 30
ILJ
2946 (LC).
[3]
Act 66 of 1995 as amended.
[4]
(2002) 23
ILJ
388 (LC) at para 2.
[5]
(2001) 22 ILJ 2684 LC
[6]
[2012] 5 BLLR 446
,
[7]
[2009] 12 BLLR 1170
(SCA)
[8]
[2008] 2 BLLR 97
[9]
[2009] 12 BLLR 1145
(CC) also reported at
2010
(1) SA 238
(CC).
[10]
[2007] 12 BLLR 1097
(CC) referred to in
Booysen
at paragraph 32 on page 454.
[11]
1992 (2) SA 14
(CC)
[12]
Page 9 paragraph [9]
[13]
Law of South Africa, volume 9 second addition;
evidence sufficiency corroboration and cautionary rules, para [830]
[14]
Pages 19 and 20