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[2015] ZALCJHB 216
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McBridge v Minister of Police and Another (J1396/15) [2015] ZALCJHB 216 (24 July 2015)
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not Reportable
Case no: J1396/15
ROBERT
MCBRIDE
Applicant
and
THE MINISTER OF
POLICE
First Respondent
P.L. MOKOENA
N.O.
Second Respondent
Heard:
23 July 2015
Judgment: 24 July 2015
Summary: Urgent
application for an interim order staying a disciplinary
hearing
pending the outcome of a constitutional challenge.
JUDGEMENT
AC BASSON, J
[1] This is an
urgent application in terms of which the applicant seeks to interdict
the disciplinary proceedings that the first
respondent (“the
Minister”) has instituted against him and scheduled to take
place on 27 July 2015 pending the final
determination of a
constitutional challenge in the High Court of the Minister’s
statutory powers to unilaterally suspend,
discipline and remove the
Executive Director of IPID from office.
[2] Due to the
constraints of the urgent court, I have indicated to the parties that
I will only give brief reasons for my order.
[3] At the outset, I
should point out that the applicant, in addition to the application
to interdict the disciplinary enquiry from
proceeding, also sought an
order reviewing and setting aside the ruling made by the second
respondent (the appointed chairperson
of the disciplinary enquiry) to
dismiss the applicant’s application to stay the disciplinary
proceedings. I have indicated
to the parties that I do not intend to
entertain the review application of the decision made by the second
respondent on an urgent
basis. The applicant has also since abandoned
its attack on the lawfulness of the appointment of the second
respondent as the chairperson
of the disciplinary hearing
[4] The High Court
has already set down the applicant’s constitutional challenge
by special allocation on an expedited basis
for hearing on 27 and 28
August 2015. This constitutional challenge is contained in Part B of
the application that served before
the High Court (per Fabricius,J)
in terms of which the applicant had sought to interdict his impending
suspension. Fabricius, J
struck Part A off the roll but held that the
application in due course under Part B (the constitutional challenge)
is not without
merit. In his judgment, Fabricius, J expressed the
view that the constitutional challenge bears reasonable prospects of
success:
‘
[7]
I do not intend dealing with the likelihood or otherwise of the
relief sought in part B
of this application be granted or not.
However, the ease mirrored in the submission that these type of
bodies should be independent,
but at the same time and also aware of
the fact that independence is one of degree, depending upon the
relevant context of the
legislation applicable….
Also, to prevent abuse of power,
which is obvious and sadly part of human nature, someone has to guard
the Guardian. “
quis
custodiet ipsos custodies
”
the Roman poet Juvenal asked in one of his Satires. I am merely
mentioning this because I do believe that part B is arguable,
and it
does have reasonable prospects of success. That is in my view one of
the requirements in the present context having regard
to the test
laid down in
Airoad
Express (Pty) Ltd v Chairman Local Road Transportation Board Durban
1986 (2) SA 663 (AD).’
[1]
[5] Before turning
to the merits of this application, it is important to point out that
the applicant does not seek to avoid disciplinary
action being taken
against him. In this regard, the applicant has made it clear that he
is prepared to face disciplinary action
provided that the
disciplinary proceedings take place in accordance with the law and
the Constitution. The applicant further states
that should his
constitutional challenge succeed, an order would be sought which
would empower Parliament as opposed to the Minister
to institute
disciplinary proceedings against him should it wish to do so and
determine whether to remove him from office. However,
because the
current disciplinary process fails to meet the requirements of the
law and the Constitution, the process, so it was
submitted, is
unlawful and unconstitutional.
[6] At the outset,
it should be pointed out that it is this Court’s view that an
employer has the right to discipline employees.
[2]
However, such a right must be exercised in a lawful and fair manner.
In the present instance, the applicant is submitting that
the present
statutory regime and disciplinary proceedings fail to meet the
requirements of the law and the Constitution and, therefore,
submits
that the disciplinary process should be interdicted pending the
outcome of the constitutional challenge. Although I am
of the view
that the disciplinary enquiry should be interdicted pending the
outcome of the constitutional challenge, this order
should not be
read to have the effect of shielding the applicant from any future
disciplinary proceedings. The employer retains
its right to
discipline once the constitutional challenge has been pronounced
upon.
Urgency
[7] It is trite that
an applicant seeking urgent relief must satisfy the Court that the
matter must be dealt with on an urgent basis,
and that the urgency is
not self-created.
[3]
It was submitted on behalf of the respondent that the present
application is not urgent and that it should, therefore, be struck
off the roll. It was also submitted on behalf of the respondent that
the application constitutes an abuse of court processes.
[8] On behalf of the
applicant, it was submitted that the matter is urgent for the
following reasons: Prior to launching this application,
the applicant
has unsuccessfully applied to the second respondent to stay the
disciplinary proceedings and to challenge the lawfulness
of his
appointment. The chairperson gave his decision on these two issues on
14 July 2015. This urgent application was instituted
on 16 July 2015
(merely two days later) It was submitted that the applicant,
therefore, only instituted these proceedings after
exhausting the
alternative remedy available to him by first approaching the
chairperson for a stay of the disciplinary proceedings
pending the
outcome of the constitutional challenge. The disciplinary proceedings
that the Minister has instituted against the
applicant are due to
proceed on Monday, 27 July 2015. It was, therefore, submitted that
the urgent application could only have
been brought after the
applicant has exhausted his internal remedies. The urgency is,
therefore, not, according to the applicant,
self-created.
[9] I am not
persuaded that urgency in this matter is self-created. In this
regard, I am in agreement with the principle that a
party should
exhaust alternative remedies before approaching this Court on an
urgent basis. It was appropriate in these circumstances
to have
approached the chairperson first prior to approaching this Court. I
have also taken note of the fact that the application
was brought
within two days after the chairperson handed down his decision.
[10] In the event,
that I am persuaded that the matter is urgent.
[11] Before I turn
to a discussion of the merits, it is necessary to briefly deal with
the following two points raised during argument.
Should
this Court grant an order which has the effect of suspending the
operation of legislation
?
[12] The point was made that this Court should not grant an order
which has the effect of suspending the operation of legislation.
I
disagree. This Court does have the power to grant an interim
interdict pending a constitutional challenge provided that it does
so
only in exceptional circumstances. As was pointed out by the Court in
President of the Republic of South Africa and
Others v United Democratic Movement (African Christian Democratic
Party and Others
Intervening; Institute For Democracy in South Africa
and Another As Amici Curiae),
[4]
the court will only grant interim relief to the
extent that it interferes as little as possible with the operation of
the legislation
and only where it is strictly necessary in the
interest of justice to do so:
‘
[32]
From the foregoing, we would hold that:
(a)
It is not
necessary in this case to decide whether a High Court has
jurisdiction to grant interim relief the effect of which is
to
suspend the operation of national or provincial legislation.
(b)
A High Court
has jurisdiction to grant interim relief designed to maintain the
status
quo
or to prevent a violation of a constitutional right where legislation
that is alleged to be unconstitutional in itself, or through
action
it is reasonably feared might cause irreparable harm of a serious
nature.
(c)
Such interim
relief should only be granted where it is strictly necessary in the
interests of justice. That is the constitutional
standard provided in
ss 80(3) and 122(3) of the Constitution and should also apply in
cases such as those presently under consideration.
(d)
In
determining the interests of justice, the Court must balance the
interests of the person seeking interim relief against the interests
of others who might be affected by the grant of such relief.
(e)
The interim
relief should be strictly tailored to interfere as little as possible
with the operation of the legislation and all
the more so where the
legislation relates to an amendment to the Constitution.’(footnote
omitted)
Should
this Court intervene in incomplete disciplinary proceedings?
[13]
The
further point was raised that the Labour Court should not intervene
in incomplete disciplinary proceedings. It is clear from
various
cases that the Labour Court is not precluded from intervening
in
incomplete disciplinary proceedings provided that the court will only
in exceptional circumstances. What these exceptional circumstances
are is left to the discretion of the Court. In this regard, the
Labour Appeal Court in
Booysen v The Minister of Safety and
Security
[5]
made it clear that this Court has the power to intervene in
incomplete disciplinary proceedings to prevent a serious injustice.
The Court will therefore only intervene “in exceptional cases”.
‘
It should be left to the
discretion of the Labour Court to exercise such powers having regard
to the facts of each case. Among the
factors to be considered would…
be whether failure to intervene would lead to grave injustice or
whether justice might be
attained by other means. The list is not
exhaustive.’
[6]
[14] The Labour
Appeal Court further expressly rejected the notion that judicial
oversight of the conduct of disciplinary proceedings
would
necessarily be “costly, time consuming, disruptive and [a]
duplication of proceedings” and recognised the fact
that
judicial intervention may in fact prove to be time-saving and less
costly:
‘…
. judicial
intervention may prove to be time saving and less costly if the
process is not proceeded with. It may also prevent
costly
litigation. The very fact that the Labour Court has the power to
issue interdictory relief suggests that the legislature
was aware
that the exercise of such power might interfere with the freedom of
employer’s to contract and the employer’s
business in
deserving cases.’
[7]
[15] The LAC in
Booysen
also specifically endorsed the decision by the Labour
Court
in Mortimer v Municipality of Stellenbosch and Another
(footnote omitted) where the court held as follows:
[8]
‘
Where a person in truly
extraordinary circumstances (…) approaches the Labour Court on
the basis that a disciplinary inquiry
was for instance, about to
commence or was conducted in the hands of a biased or unqualified
presiding officer, or on another factual
basis so serious as to
vitiate in law the enquiry, I have little doubt that the Labour Court
would in law exercise these powers
to stop it.’
[9]
[16] In principle,
therefore, there exists no absolute bar against this Court exercising
a discretion to intervene in incomplete
disciplinary proceedings
provided that exceptional circumstances exist. I will return to the
question whether this Court should
intervene in the applicant’s
disciplinary hearing where I consider the question whether the
applicant has satisfied the requirements
for an interim interdict.
Requirements for
an interim interdict.
[17] It is trite
that the four requirements for interim relief are the following:
18.1 the existence of a
prima facie
case (or
at least one open to some doubt);
18.2 a well-grounded apprehension of irreparable
harm;
18.3 there must be no other satisfactory remedy;
and
18.4 the balance of convenience must favour an
interim interdict.
[10]
Prima facie
right
[18] The
prima
facie
right on which the applicant relies on is the right to
lawful disciplinary proceedings and the right to disciplinary
proceedings
that are constitutionally valid. According to the
applicant, this right is threatened by the unconstitutional exercise
of unilateral
power by the Minister in taking disciplinary action
against the applicant and by virtue of the fact that the proceedings
are not
subjected to Parliamentary oversight. I have already
indicated that the High Court has expressed the view that the
applicant’s
constitutional challenge against the Minister’s
unilateral disciplinary powers has reasonable prospects of success.
[19] I am mindful of
the fact that the constitutional challenge is pending before the High
Court and that it would be inappropriate
for this Court to make any
findings in respect of the constitutional issues that are pending
before the High Court. The only question
before this Court is whether
the applicant has a
prima
facie
right to the protection
of the right to a lawful and properly constituted disciplinary
enquiry. I have already referred to the
fact that the applicant is
submitting that this right is threatened by the unconstitutional
exercise of unilateral power by the
Minister in taking the
disciplinary action against him. The constitutional challenge to be
launched is supported by two prospective
amici curiae (
one
which is the
Helen Suzman Foundation v President of the Republic
of South Africa
2015 (1) BCLR 1
(CC)
2015 (2) SA 1
(CC)). The
prospects in the constitutional challenge turn on a question of law.
[20] I have perused
the heads of argument that have been filed on behalf of the applicant
in the constitutional challenge. I am
of the view that the legal
basis for the contention that the Minister’s power to subject
the applicant to a disciplinary
enquiry has reasonable prospects of
success. The applicant has therefore, in my view, succeeded in
establishing a
prima facie
right. Moreover, in the context of
labour law the applicant has, at the very least, a right to a lawful
and fair disciplinary enquiry.
Although I have concluded that the
applicant has a
prima facie
right to the relief sought, the
question still remains whether this constitutes exceptional
circumstances which warrant this Court
to interfere in incomplete
disciplinary proceedings.
[21] I have already
referred to the fact that, in principle this Court may intervene in
incomplete disciplinary enquiries provided,
as already indicated,
that exceptional circumstances exist. In this matter, the applicant
seeks to interdict a disciplinary enquiry
on the basis that there is
a pending constitutional challenge against the Minister’s
statutory powers to unilaterally discipline
him as executive director
of Independent Police Investigative Directorate (“IPID”).
This constitutes, in my view, exceptional
circumstances. What makes
this matter further exceptional is the allegation that the present
disciplinary enquiry will infringe
the constitutional independence of
IPID and will infringe the applicant’s right to a lawful
disciplinary enquiry. I have
already referred to the fact that the
applicant is alleging that he has a
prima facie
right to a
disciplinary enquiry that is instituted by Parliament and not by the
Minister.
[22] This case is,
therefore, an exceptional one and I am of the view that the failure
to intervene would lead to a grave injustice.
In this matter, the
applicant is the Head of a national corruption-fighting body - the
IPID – which is expressly required
under s 206(6) of the
Constitution
[11]
to be “independent” – being subjected to a
disciplinary inquiry that is in all likelihood unconstitutional
constitutes
a violation of that independence. The High Court has
already found that the applicant’s constitutional challenge
against
the Minister’s statutory power to unilaterally
discipline him (as the Executive Director of IPID), has “reasonable
prospects of success”. The High Court has thus already found
that the applicant has a
prima facie
right to a disciplinary
inquiry that is instituted by Parliament and not by the Minister. I
have perused the judgment by Fabricius,
J and I am in agreement with
his views. There is, in my view, at least a reasonable possibility
that the conduct of the disciplinary
inquiry will infringe upon the
constitutional independence of IPID and will infringe on the
applicant’s right to a lawful
disciplinary inquiry.
[23] In the event
that it is concluded that the applicant has succeeded in establishing
a
prima facie
right and that exceptional circumstances exist
warranting this Court to intervene in an incomplete disciplinary
hearing.
Irreparable harm
[24] Linked to the
question whether the applicant has established a
prima facie
right is the question of a well-founded apprehension of irreparable
harm and prejudice should the relief not be granted.
[25] In this regard,
the applicant has raised the following four points: Firstly, there is
a constitutional challenge pending in
the High Court which is
directed at challenging the constitutional validity of the powers
that the Minister has relied upon to
institute the disciplinary
proceedings against the applicant. It follows, so it was submitted,
that should the applicant be successful
in the constitutional
challenge, the disciplinary process, irrespective of the outcome
thereof will fall to be declared invalid
and set aside. This in turn
could mean that the proceedings will have to commence afresh in terms
of the provisions of section
17DA (3) to (7) of the SAPS Act.
[12]
[26] Should the
disciplinary proceedings be declared invalid and set aside, a new
disciplinary process will in all likelihood have
to be reinstituted
against the applicant. The applicant thus faces the extraordinary
prospect of duplicate disciplinary proceedings
which in turn will
have severe financial consequences for him. Should the present
disciplinary hearing, therefore, be allowed to
proceed, all parties
involved will have incurred wasted costs in respect of the present
disciplinary hearing, cost that may not
ever be recovered. I have
perused the papers and I am persuaded having regard to the charge
sheet that complex issues of fact and
law are involved in the
disciplinary enquiry and would require significant time and legal
expertise. The Minister has appointed
both senior and junior counsel
to mount the prosecution but has rejected the applicant’s
request for financial assistance.
The applicant must therefore
finance his own defense whereas the Minister has at its disposal
public funds to prosecute the applicant.
Although the applicant has
obtained financial assistance to defend himself in the current
disciplinary enquiry, he submitted that
he does not have sufficient
funds to defend himself in a second disciplinary hearing in the event
the current hearing is set aside
on the basis that its establishment
was unlawful and unconstitutional.
[27] Secondly, it
was submitted that should the disciplinary proceedings not be
interdicted, the applicant will face the real risk
of being subjected
to cross-examination for no good reason as well as the prospect of
repeated cross-examination in subsequent
disciplinary proceedings.
This, he submitted, is inherently prejudicial.
[28] Thirdly, it was
submitted that in any event until the constitutional challenge has
been determined, the lawfulness and legitimacy
of the disciplinary
proceedings are in doubt. It was further submitted that should the
applicant be successful with his constitutional
challenge the current
disciplinary enquiry will in all likelihood be declared invalid and
set aside. In this regard, the Court
was referred to the decision of
the Constitutional Court in
Kruger v President of the Republic of
South Africa and Others
[13]
in support of the contention that decisions taken in terms of a
statute that is declared to be invalid will have the effect that
decisions that were taken in terms of that law will also be invalid.
[29] Fourthly, it
was submitted on behalf of the applicant that for as long as the
disciplinary proceedings are allowed to persist
there is an ongoing
prejudice or at least the real risk of undergoing prejudice to the
constitutionally protected status of IPID
as an independent
investigating directorate. It is therefore submitted that the
prejudice contemplated in this matter is not merely
the prejudice
that may be suffered by the applicant as an individual employee but
also the prejudice caused to the independence
of IPID by the
Minister’s exercise of unilaterally disciplinary powers against
the head of the institution.
[30] I am persuaded
that the applicant’s apprehension in regard to the prejudice
that he contends he will suffer if the interdict
is not granted, is
well-founded. I am persuaded that there is an inherent and
fundamental prejudice in being subjected to a disciplinary
enquiry
which
prima facie
is unlawful and unconstitutional. I am
further persuaded that the financial loss that the applicant will
suffer in defending himself
at the disciplinary proceedings that are
likely to be set aside will not be recoverable and that should he be
placed in a position
where he will have to defend himself in a second
disciplinary enquiry, his right to defend himself may be severely
impaired as
a result of financial constraints. I am also persuaded
that the applicant may be severely prejudiced should he be subjected
to
cross-examination in two disciplinary hearings whilst facing the
same charges.
[31] I have taken
note of the submission on behalf of the Minister that it will suffer
prejudice should the disciplinary proceedings
be stayed as this would
invariably lead to a delay in finalising the disciplinary hearing. I
have, however, taken note of the fact
that the constitutional
challenge pending before the High Court has been set down for hearing
by special allocation in little more
than one month’s time (27
and 28 August 2015). I have also taken note of the fact that
following the High Court’s determination
of the application,
the matter may directly be referred to the Constitutional Court.
[32] I have
considered the prejudice that the applicant contends he will suffer
if the interdict is not granted and weighed that
up against the
prejudice that may be suffered by the Minister by not being able to
finalise the disciplinary proceedings against
the applicant. I am of
the view that the balance of convenience favours the granting of the
interdict.
[33] I do not accept
that the effect of the interdict will be that applicant will be
immunised from accounting and answering to
the charges. I have
perused the charge sheet. The charges against the applicant are
undoubtedly of a very serious nature. The order
staying the
disciplinary hearing pending the outcome of the constitutional
challenge does not have the effect and does not intend
to have the
effect of shielding the applicant against future disciplinary
proceedings. I have also indicated at the beginning of
my judgment
that the applicant does not seek to avoid accounting for his conduct.
He is only insisting that he accounts for his
conduct in proceedings
that are lawful and do not infringe upon the independence of IPID.
Furthermore, although it is undoubtedly
accepted that it is in the
interest of justice that disciplinary proceedings against an employee
ought to be finalised expeditiously,
this principle does not outweigh
the principle at issue in these proceedings namely that the applicant
is entitled to be subjected
to proceedings that are lawful,
constitutional and proceedings that do not infringe upon the
independence of IPID. I have also
taken note of the submission that
the Minister would suffer irreparable harm as a result of placing the
applicant on suspension
with pay for four months. There is no merit
in this submission. Furthermore, I have also taken note of the fact
that should the
disciplinary process be invalidated, the Minister -
and therefore the taxpayer - would have wasted substantial funds.
Suitably
alternative remedy
[34] On behalf of
the applicant, it was submitted that he does not have a suitable
alternative remedy other than an interim interdict.
On behalf of the
respondent, it was submitted that the applicant has recourse to the
remedies provided for by the Labour Relations
Act (“the
LRA”).
[14]
Although it is undoubtedly so that the applicant in principle has the
right, if he is dismissed, to avail himself of the remedies
provided
for by the LRA this is not the end of the enquiry. The question is
not simply whether an alternative remedy is available
to the
applicant, the question is whether there is a suitable or adequate
remedy available to the applicant. I am, in the circumstances,
not
persuaded that the applicant has a suitable alternative remedy
available.
[35] I am,
therefore, persuaded that the applicant has satisfied the
requirements for an order interdicting the disciplinary hearing
pending the outcome of the constitutional challenge.
Order
[36] In the event,
the following order is made:
36.1 The disciplinary hearing in
respect of the applicant is interdicted pending the final
determination
of the constitutional challenge launched in the High
Court (Gauteng Provincial Division Pretoria) under case number
6588/15.
36.2 The first respondent is ordered to
pay the costs of this application such costs to include the
costs of
two counsel.
_____________
AC Basson
Judge of the Labour Court of South Africa
Appearances
For the Applicant:
Advocate
S Budlender with advocate
J Bleazard
Instructed by:
Adam & Adam Attorneys
For the Respondents:
Advocate W. Mokhari SC with Advocate
T. Ngukaitobi and Advocate Tulk
Instructed by:
Hogan Lovells Incorporated Attorneys
[1]
Case No: 6588/15, North Gauteng High Court, Pretoria at para 7.
[2]
Nyathi v Special Investigating
Unit
(2011) 32
ILJ
2991 (LC).
[3]
Mashiya v Sirkhot NO and others
(2012) 33
ILJ
420 (LC)
at para 16.
[4]
[2002] ZACC 34
;
2003 (1) SA 472
(CC) at para 32.
[5]
Booysen v Minister of Safety and Security and Others
[2011] 1
BLLR 83
(LAC); (2011) 32
ILJ
112 (LAC).
[6]
Ibid
at para 54.
[7]
Ibid
at para 51.
8
Ibid
at
para 53.
[9]
Mortimer v Municipality of Stellenbosch and Another
(18243/2003)
2008] ZAWCHC 306
(27 November 2008).
[10]
Eriksen Motors (Welkom) Ltd v Protea Motors, Warrenton
1973
(3) SA 685
(A) at 691C-G;
Knox D'Arcy Ltd v Jamieson
[1996] ZASCA 58
;
1996 (4)
SA 348
(A) at 372E – G.
[12]
Act 68 of 1995.
[13]
[2008] ZACC 17
;
2009 (1) SA 417
(CC): ‘
[52]
It follows that the First Proclamation is objectively irrational
because the provisions of the Amendment Act which it purported
to
put into operation were an arbitrary selection. Under the doctrine
of objective invalidity, the First Proclamation should
be regarded
as having been a nullity from the outset. It was invalid ab initio
and therefore has no effect in law. Furthermore,
if the First
Proclamation were to remain in effect, it would create a number of
legal and practical problems.’
[14]
Act 66 of 1995.