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[2015] ZALCJHB 272
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POPCRU and Another v MEC for the Department of Transport, Safety and Liaison: Northern Cape and Others (J662/15) [2015] ZALCJHB 272 (27 August 2015)
REPUBLIC OF SOUTH
AFRICA
The Labour Court
of South Africa,
Johannesburg
Judgment
Case No: J 662/15
DATE: 27 AUGUST
2015
Of Interest to
Other Judges
In the matter
between:
POPCRU
...........................................................................................................................
First
Applicant
EUBRAHIM JOHN
CROUCH
..................................................................................
Second
Applicant
And
MEC for the
Department of Transport, Safety And Liaison:
Northern
Cape
..............................................................................................................
First
Respondent
Head of
Department for Transport, Safety and Liaison:
Northern
Cape
..........................................................................................................
Second
Respondent
The Premier for
the Northern
Cape
..........................................................................
Third
Respondent
Heard: 27 May
2015
Delivered: 27
August 2015
Summary:
(Interdict – urgent – unlawful suspension and
disciplinary enquiry –conduct of respondent and costs)
Judgment
LAGRANGE, J
Introduction
[1]
This is an urgent application, which was
launched on 31 March 2015, for the following relief:
1.1
declaring that the second respondent has no
authority to institute disciplinary measures against the second
applicant when the latter
acted As Head of Department.
1.2
Interdicting and restraining the
respondents from proceeding with disciplinary action currently in
motion against the second applicant.
1.3
Ordering and directing the respondents to
uplift the second applicant’s suspension.
1.4
Ordering the respondent pay the costs of
the application.
It
was contested that both the suspension and the disciplinary
proceedings were unlawful. On 31 March 2015, the original application
was postponed by agreement to admit the filing of answering and
replying affidavits, and heads of argument. It was also agreed
that
the pending disciplinary proceedings be stayed pending the final
determination of the matter.
[2]
The applicant, Mr E J Crouch (‘Crouch’)
is employed as a director of corporate services in the Department of
Transport,
Safety and Liaison: Northern Cape. The second respondent
is Mr S Jonkers, the Head of Department for Transport Safety and
Liaison:
Northern Cape (‘Jonkers’). The first respondent
is Ms M Bartlett, the current MEC Department for Transport Safety and
Liaison: Northern Cape (‘Bartlett’). Her predecessor was
Mr P Mabilo (‘Mabilo’).
Background
[3]
From 5 December 2012 and 24 January 2013,
Crouch was appointed by Mabilo to act as Head of Department (‘HOD’)
whilst
Jonkers was on leave. It is a matter of dispute whether or not
Jonkers said, on returning to his post, that he would deal harshly
with Crouch because of a sworn statement made by Crouch to the Hawks
in connection with fraud and corruption charges in the Trifecta
case
involving the Northern Cape ANC chairperson and MEC for Economic
Development.
[4]
On 7 March 2013 Crouch was placed on
precautionary suspension by Jonkers without being given the
opportunity to make representations
why he should not be suspended.
On 15 March 2013, Mabilo overruled Jonkers and advised Crouch that
his suspension was lifted because:
1.
The Head of Department does not have any authority to suspend or act
upon any employee who has been appointed as an acting head
of
Department.
2.
The head of Department does not have any authority to suspend or act
on any employee who was performing his or her duties as
an appointed
acting head of Department.”
[5]
The security manager who claimed to act on
the instruction of Jonkers refused to give effect to Mabilo’s
letter instructing
Crouch to return to work. This prompted a further
letter being issued by Crouch on 2 April 2013, which repeated the
content of
the previous letter. Once again, Crouch was refused
permission to return to work. Jonkers does not address himself
directly to
the allegations concerning his alleged lack of authority
contained in the letter from his superior. Without stating the
reasons
why the precautionary suspension was not uplifted and in
particular why he did not obey the instruction of his superior as
conveyed
in the letters which were also circulated to him, he
claimed:
“
The
reason for not lifting the precautionary suspension where (sic)
explained in the letter dated 2 April, which was written after
the
letter referred to by the first applicant.”
No
copy of this other alleged letter was attached to the answering
affidavit. The only other effort to justify the suspension in
the
answering affidavit is a statement to the following effect:
“
On
the issue of uplifting the suspension, by the then MEC,
it
was not feasible that he could lift the suspension with positive
results
because there was a concern
that Crouch will amongst other concerns, interfere with witnesses and
evidence.”
(emphasis
added)
This
represents the only attempt by Jonkers to expressly state why the
MEC’s instruction was ignored.
[6]
On 29 April 2013, Crouch was served with
notice to attend a disciplinary enquiry on 7 May 2013. Various
objections were raised by
his union concerning the charges and at the
request of the employer the enquiry was postponed until 7 August
2013. When the enquiry
convened on that date, the employer asked for
the chairperson to recuse himself. The respondents say that the
reason for requesting
his refusal was that the chairperson was also
chairing hearings involving other officials linked to the matter at
hand. The applicants
believe the recusal application was a delaying
tactic, which the respondents deny. In any event, the chairperson
agreed to recuse
himself.
[7]
A new chairperson was appointed but the
matter did not proceed on 18 October 2013 as intended. The applicants
claim there was no
reason for this postponement and this is not
directly disputed by the respondents.
[8]
The next date for the hearing to resume was
nearly five months later on 9 April 2014, ostensibly due to the
unavailability of the
chairperson. Again the respondents do not
dispute this. The applicant claims that he received an amended charge
sheet before this
date, but the respondents dispute this claiming
that the original charge sheet still stood. Jonkers claims that it
was a working
document that was not served on Crouch, despite
evidence of a covering letter to the applicant indicating that the
document of
the amended charges was supplementary to the initial
charges received on 29 April 2013. Be that as it may, nothing turns
on the
alleged variation of the charges for the purposes of
determining this application.
[9]
However, the general nature of the charges
do need to be mentioned. They relate to alleged misconduct
committed by him on
15 and 16 January 2013 committed at a time when
he was acting as the head of the Department. Firstly, they relate to
his alleged
approval of the extension termination and new
appointments of Service providers without following SCM procedures in
contravention
of the Public Finance Management Act 01 of 1999 (‘the
PFMA’). The other charges concern his alleged disclosure of a
secret document to the media without the necessary authority or
permission and in breach of Minimum Information Security Standard
policy. In particular, Crouch was charged with failing to ensure
compliance with section 38 (1) (a) (iii) of the PFMA in the
appointment
of service providers, and in that “as the acting
Accounting Officer” he failed to ensure compliance with the SCM
procedure.
[10]
On 9 April, the enquiry was postponed yet
again until 27 October 2014. The reason for that delay according to
the respondent is
that the applicants had raised a preliminary point
and the chairperson had requested time to provide a written ruling.
[11]
The applicants alleged that in July 2014,
Jonkers also reversed a notch increase that had been approved by
Mabilo in 2012 and proceeded
to implement deductions of R 11075.78
per month from his salary over a period of 12 months, on the basis
that it was wasteful expenditure.
In doing so, Jonkers appears to
have taken the advice on the question from the Public Service
Commission. While the applicants
believe this step is another
indication of Jonkers’s alleged vendetta against him, it is not
necessary for the purposes of
this application to consider the merits
of this ancillary dispute.
[12]
At the hearing on 27 October 2014, the
applicants raised a point that the charges against Crouch should be
withdrawn on the basis
of a directive issued by the Premier in 2009
regarding powers and functions of Heads of Department. The
chairperson decided to
provisionally withdraw the charges after
considering representations from both parties. Although the
chairperson did not agree
with the argument presented by the
applicants, he raised a concern whether the necessary delegated
authority had been obtained
from the Premier to take action against
Crouch. His concern arose from section 3B of the Public Service Act,
1994, which states:
“
3B.
Handling of appointment and other career incidents of heads of
department.
—
(1)
Notwithstanding anything to the contrary contained in this Act, the
appointment and other career incidents of the heads of department
shall be dealt with by, in the case of—
(
a
)
a head of a national department or organisational component, the
President; and
(
b
)
a head of a provincial administration, department or office, the
relevant Premier.”
In
the absence of any delegation of authority provided by the employer
issued by the Premier empowering disciplinary action, the
arbitrator
was not willing to proceed with the enquiry. Accordingly, he
provisionally withdrew the charges on 19 November 2014.
[13]
The applicant’s union, POPCRU,
immediately called for the upliftment of Crouch’s suspension.
Despite the effective withdrawal
of charges, Jonkers was unmoved and
did not uplift the suspension.
[14]
It is common cause that Bartlett wrote to
Jonkers on 7 January 2014 about Crouch’s case. As with the
other important letter
of 2 April 2013 it was missing from the
documents attached to the answering affidavit of Crouch, although he
refers to it as if
it were attached to his affidavit as Annexure
“TLA3”. What is strange is that the reference number is
that of an entirely
different document and according to the numbering
sequence of documents in the answering affidavit the letter of 7
January 2014
should have been Annexure “TLA9”.
[15]
In reply to the MEC’s letter, Jonkers
‘took note” of its contents and then proceeded to defend
the course of disciplinary
action taken against Crouch. Amongst other
things he claims in the letter that the investigations had been
finalised and the hearing
had been postponed on several occasions at
the request of the initiator, employees or the chairperson. He also
claimed that a meeting
had been scheduled with all the parties to
assess the status of finalising the case. Jonkers followed this up
with a letter on
23 January 2015 in which he stated:
“
Engagements
have been conducted with the role-players (chairperson, employee
representative, and the employer representative) regarding
the
finalisation of the matter.
All
the parties were in agreement that the matter must receive urgent
attention and must be concluded before or on Friday, 27
th
of February 2015.
The
following dates have been set for the trial: 6, 11 and 12 February
2015.
If
the matter is not finalised by Friday, 27
th
of February
2015; then any other amicable resolutions will be considered for
adoption.”
[16]
In neither of these written communications
to his superior did Jonkers convey the chairperson’s ruling of
19 November 2014,
either directly or indirectly. However, in a letter
from POCRU to Jonkers and Bartlett on 26 January 2015, the withdrawal
of the
charges was mentioned and the union pointed out that there had
been no response to its letter calling for the upliftment of his
suspension. The union also claimed that the representations made by
Jonkers to Bartlett in his letters on 14 and 26
th
January to the effect that he was engaging with them on the issue had
no factual basis.
[17]
On 29 January 2015, Bartlett wrote to
Jonkers expressing her concern about the claims in POPCRU’s
letter that he had never
engaged with them as he claimed. She also
refers to a letter written by herself to Jonkers on 27 January 2015
in which she “requested”
Jonkers to reconsider Crouch’s
suspension taking into account the salary paid to him and the lengthy
period of his suspension
whilst investigations were finalised
contrary to the Public Service coordinating bargaining Council
resolution of 2003. Bartlett
ended her letter with the following plea
and instruction to her subordinate:
“
I
believe that you did not reconsider the suspension
as
I had implored you in my letter
, hence
your letter dated 23 January 2015 and that you took the decision not
uplift the suspension
and also failed to
furnish me with the reasons why the suspension is justified since the
investigation has been finalised
.
If
the matter is not finalised by the 27 February 2015 and based on the
afore-going, my instruction therefore will be for you to
uplift the
suspension of Mr Crouch with immediate effect and ensure that he
reports for duty on 2 March 2015.”
(emphasis
added)
[18]
However, the enquiry was not convened in
February and Jonkers did not comply with Bartlett’s instruction
to uplift Crouch’s
suspension. The enquiry was nonetheless
scheduled to proceed from the 30 March to 2 April 2015. Acting on
advice, the applicants
raised their objection relating to Jonkers’s
lack of authority to take disciplinary action against Crouch as the
alleged
misconduct in question was committed whilst he was acting in
the capacity of head of Department. The chairperson dismissed the
objection on 30 March 2015, which led to this application being
launched at that point.
[19]
The applicants allege that Jonkers was
acting on a frolic of his own in pursuing the disciplinary
proceedings against Crouch and
did not have the necessary powers to
do so. Jonkers rejected this allegation and claims to have dealt with
the issue elsewhere
in his affidavit. However, the most extensive
version of Jonkers’ response to the allegation that he lacked
the necessary
authority and his justification for the continuation of
the disciplinary proceedings is set out in his answering affidavit as
follows:
“
5.25
Pursuant to the withdrawal of the charges, the department then
realised the following:
5.25.1
Crouch did not plead to the charges.
5.25
.2 The department wanted to cure the defect that was created as a
result of the said ruling, which was a lack of authority
by the HOD.
5.26
Needless to say
the Department did not agree with the ruling
that the HOD did not have authority which created the defect. Upon
careful consideration and research,
the Department saw no defect
that needed to be cured by the Department in relation to the
authority of thereof by the HOD.
5.27
Furthermore, still on the issue of authority,
it was the intention
of the department to escalate the lack of authority, if indeed there
was a lack of authority by the HOD to
the MEC, should there be a need
to escalate
. Meaning that
there was a careful consideration by
the Department that if the HOD did not have the said authority, the
issue would have been escalated
to the MEC, for remedial steps and
for MEC’s intervention
.
5.28
Seeing that
the department arrived at the conclusion that HOD had
authority to Institute disciplinary proceedings
on Crouch,
charges were then reinstated on 27 November 2014. The request for a
chairperson was done on the same date.”
(
sic
– emphasis added
)
[20]
The applicants note that no steps were
taken by the respondents to challenge the findings of the chairperson
of 19 November 2014.
They also point out that there was
no further communication from the respondents about the reinstatement
of charges
following POPCRU’s letter of 20 November 2014.
Evaluation
Urgency
[21]
Obviously, the question of Jonkers’
authority to take disciplinary action against Crouch was a matter
that could have been
brought to court before the ruling of the
chairperson on 19 November 2014. However, that ruling altered the
circumstances under
which the inquiry might proceed. It was only
reasonable to expect that following her ruling no further steps would
take place in
the absence of the respondents addressing her ruling
and either rectifying the alleged lack of authority or setting it
aside. Armed
as they were with the ruling of 19 November 2014, they
would have had good reason to believe that a new chairperson would
have
taken cognizance of that ruling. In effect, at the time the
interdict was launched, Crouch was in a position he had not
previously
been in when the hearing was convened: he was in
possession of a ruling in his favour that, in the absence of steps by
the employer
to rectify the shortcoming of authority or to decisively
set aside that ruling, should have resulted at least in a stay of the
disciplinary proceedings. When the enquiry did resume without the
employer having in any way addressed the ruling, the applicants
did
the correct thing which was to raise the matter first with the newly
appointed chairperson when the enquiry sat. When he rejected
Crouch’s
claim based on the previous chairperson’s ruling, it left the
applicants with little alternative but to approach
the court at that
point. Had they not done this, they might have been accused of
failing to exhaust the most obvious internal remedy
and of not giving
the chairperson an opportunity to consider the matter first.
[22]
In the light of the new circumstances
prevailing at the enquiry when it sat on 30 March 2015, following the
previous chairperson’s
ruling, I am satisfied that the timing
of the applicants approach to the court should be evaluated in
relation to those new circumstances
and not in relation to the course
of proceedings prior to the chairperson’s ruling. Consequently,
the applicants were entitled
to approach the court on the degree of
urgency they did.
Existence
of a clear right
[23]
It is common cause that Jonkers initiated
disciplinary proceedings against Crouch for alleged misconduct
committed by him whilst
he was acting in Jonkers’s post.
Crouch’s suspension was incidental to those pending
proceedings.
[24]
The
exercise of the power to take disciplinary action, like any other
executive power, is one that must be conferred on the functionary
by
law. In
POPCRU
v Minister of Correctional Services & another
,
[1]
Steenkamp J approvingly paraphrased the learned author C
Hoexter thus:
“
[15]
Hoexter
explains that the fundamental idea underlying the
principle of legality is that the Legislature and executive in every
sphere of
government are constrained by the principle that it may
exercise no power and perform a function beyond that conferred by
law.
It may only act within the powers lawfully conferred on it and
the exercise of public power is only
legitimate when
it is lawful. It is the obverse facet of the
ultra
vires
doctrine
and an aspect of the rule of law.”
[2]
[25]
Molahlehi J also approved of this
characterisation of the legal principle in
Hlabangwe
v MEC for Public Works, Roads and Transport (Mpumulanga)
[J 2170/11 – 24/10/11] and further stated:
“
[12]
The principle that the legislature and the executive may exercise no
power or perform any function beyond that provided for
in law was
approved by the Constitutional Court in
Fedsure Life Assurance Ltd
and Others v Greater Johannesburg Transitional Metropolitan Council
and Others.
The Court further held that the principle of legality
was implied within the terms of the interim Constitution.
The
Court explained further that:
“
[59]
There is of course no doubt that the common-law principles of
ultra
vires
remain under the new constitutional order. However, they
are underpinned (and supplemented where necessary) by a
constitutional
principle of legality. In relation to “administrative
action” the principle of legality is enshrined in section 24(a)
?.
In
relation to legislation and to executive acts that do not constitute
“administrative action”, the principle of legality
is
necessarily implicit in the Constitution. Therefore, the question
whether the
various
local governments acted
intra vires
in this case remains a
constitutional question.” My emphasis.
[13]
The same approach was followed in
Affordable Medicine Trust &
others v Minister of Health & Others
8 where the
Constitutional Court held that:
“
48
Our constitutional democracy is founded on, among other values, the
supremacy of the constitution and the rule of law. The very
next
provision of the Constitution declares that the Constitution is the
supreme
law of the Republic; law or conduct inconsistent with it is invalid.
And to give effect to the supremacy of the Constitution,
courts must
declare that any law or conduct that is inconsistent with the
Constitution is invalid to the extent of its inconsistency.
This
commitment to the supremacy of the Constitution and the rule of law
means that the exercise of all public power is now subject
to
constitutional control. 49 The exercise of public power must
therefore comply with the
Constitution,
which is the supreme law, and the doctrine of legality, which is part
of that law. The doctrine of legality, which
is an incident of the
rule of law, is one of the constitutional controls through which the
exercise of public power is regulated
by the Constitution. It entails
that both the legislature and the executive are constrained by the
principle that they may exercise
no power and perform no function
beyond that conferred upon them by law. In this sense the
Constitution entrenches the principle
of legality and provides the
foundation for the control of public power.”
[26]
In this instance, the crisp issue is
whether or not Jonkers had the power to take disciplinary steps and
suspend Crouch in relation
to an alleged misconduct committed by the
latter while he temporarily occupied Jonkers’s post. Apart from
section 3B relied
on by the disciplinary enquiry chairperson in his
ruling, other pertinent provisions of the Public Service Act are the
following:
26.1
Definitions:
“ ‘
executing
authority
’
, in relation to—
(a)
the Office of the President, means the President acting on his or her
own;
(b)
the Office of the Deputy President, means the Deputy President;
(c)
a department or organisational component within a Cabinet portfolio,
means the Minister responsible for such portfolio;
(d)
the Office of the Commission, means the Chairperson of the
Commission;
(e)
the Office of a Premier of a province, means the Premier of that
province acting on his or her own; and
(
f ) a provincial department within an Executive Council portfolio,
means the member of such Executive Council responsible for
such
portfolio;…
‘
head
of a department’
or ‘
head
of the
department’
means the incumbent of a post mentioned in the second column of
Schedule 1 or 2, and includes any officer acting in such post;…”
26.2
Powers of an executing authority –
“
3(5)
Subject to the provisions of this Act, an executing authority shall
have those powers and duties—
regarding
the internal organisation of the office or department concerned,
including the organisational structure and the transfer
of functions
within that office or department;
regarding
the post establishment of that office or department, including the
creation,
grading
and abolition of posts and the provision for the employment of
persons additional to the fixed establishment where the class
of work
is of a temporary nature;
regarding
the recruitment, appointment, performance management, promotion,
transfer,
discharge and other career incidents of officer
s and
employees of that office or department,
including any other matter
which relates to such officers and employees in their individual
capacities
,
which
are entrusted to the executing authority by or under this Act
,
and such powers and duties shall be exercised or performed by the
executing authority in accordance with the provisions of this
Act.”
(emphasis
added)
26.3
Handling of appointments and other career
incidents of heads of department –
“
3B.
Handling of appointment and other career incidents of heads of
department.—(1) Notwithstanding anything to the
contrary
contained in this Act, the
appointment
and other career incidents of the heads of department shall be dealt
with by
, in the case of— (a) a
head of a national department or organisational component, the
President; and
(b)
a head of a provincial administration, department or office
,
the relevant Premier.
…
(4)
The executing authority referred to in paragraph (a) or (b) of
subsection (1)
may delegate or assign any power or duty to appoint
the head referred to in that paragraph, as well as any power or duty
regarding
the other career incidents of that head
, in the case
of—
(a)
the President, to the Deputy President or a Minister; or
(b)
the
Premier of a province, to a Member of the relevant Executive
Council.”
(emphasis
added)
26.4
Organisation of the Public Service –
“
(b)
Subject to the provisions of paragraphs (c) and (d),
a
head of department shall be responsible for the efficient management
and administration of his or her department, including
the effective utilisation and training of staff,
the
maintenance of discipline
, the
promotion of sound labour relations and the proper use and care of
State property, and he or she shall perform the functions
that may be
prescribed.”
(emphasis
added)
26.5
Power to discharge –
“
17.
Discharge of officers.—(1) (a) Subject to the
provisions of paragraph (b),
the power
to discharge an officer or employee shall vest in the relevant
executing authority, who may delegate that power to an
officer
,
and the said power shall be exercised with due observance of the
applicable provisions of the Labour Relations Act, 1995 (Act
No. 66
of 1995).
(b)
Notwithstanding paragraph (a),
the power
to discharge an officer, excluding a head of department, in terms of
subsection (2) (e), shall be vested in the head of
department
.”
(emphasis
added)
[27]
Although Jonkers had never articulated any
basis in law for his authority to take disciplinary action against
Crouch in any of the
affidavits filed in this matter, at the hearing
of the matter an argument was advanced for the first time by
respondents’
counsel,
Ms Mabena
,
which in part rested on the provisions of the Public Finance
Management Act 1 of 1999 (‘ that PFMA’). The pertinent
provisions of the PFMA are:
27.1
Accounting Officers and acting accounting
Officers:
“
36
Accounting officers
(1)
Every department and every constitutional institution must have an
accounting officer.
(2)
Subject to subsection (3)-
(a)
the head of a department must be the
accounting officer for the department
;
and
(b)
the chief executive officer of a constitutional institution must be
the accounting officer for that institution.
(3)
The relevant treasury may, in exceptional circumstances, approve or
instruct in writing that a person other than the person
mentioned in
subsection (2) be the accounting officer for-
(a)
a department or a constitutional institution; or
(b)
a trading entity within a department.
(4)
The relevant treasury may at any time withdraw in writing an approval
or instruction in terms of subsection (3).
(5)
The employment contract of an accounting officer for a department,
trading entity or constitutional institution must be in writing
and,
where possible, include performance standards. The provisions of
sections 38 to 42, as may be appropriate, are regarded as
forming
part of each such contract.
37
Acting accounting officers
When
an accounting officer is absent
or
otherwise unable to perform the functions of accounting officer,
or
during a vacancy
,
the
functions of accounting officer must be performed by the official
acting in the place of that accounting officer
.”
(emphasis
added)
27.2
Responsibilities of an accounting officer –
“
38
General responsibilities of accounting officers
(1)
The accounting officer for a department, trading entity or
constitutional institution-
(a)
must ensure that that department, trading entity or constitutional
institution has and maintains-
(i)
effective, efficient and transparent systems of financial and risk
management and internal control;
(ii)
a system of internal audit under the control and direction of an
audit committee complying with and operating in accordance
with
regulations and instructions prescribed in terms of sections 76 and
77;
(iii)
an appropriate procurement and provisioning system which is fair,
equitable, transparent, competitive and cost-effective;
(iv)
a system for properly evaluating all major capital projects prior to
a final decision on the project;
(b)
is responsible for the effective, efficient, economical and
transparent use of the resources of the department, trading entity
or
constitutional institution;
(c)
must take effective and appropriate steps to-
(i)
collect all money due to the department, trading entity or
constitutional institution;
(ii)
prevent unauthorised, irregular and fruitless and wasteful
expenditure and losses resulting from criminal conduct; and
(iii)
manage available working capital efficiently and economically;
(d)
is responsible for the management, including the safeguarding and the
maintenance of the assets, and for the management of the
liabilities,
of the department, trading entity or constitutional institution;
(e)
must comply with any tax, levy, duty, pension and audit commitments
as may be required by legislation;
(f)
must settle all contractual obligations and pay all money owing,
including intergovernmental claims, within the prescribed or
agreed
period;
(g)
on discovery of any unauthorised, irregular or fruitless and wasteful
expenditure, must immediately report, in writing, particulars
of the
expenditure to the relevant treasury and in the case of irregular
expenditure involving the procurement of goods or services,
also to
the relevant tender board;
(h)
must take effective and appropriate
disciplinary steps against any official in the service of the
department
, trading entity or
constitutional institution who-
(i)
contravenes or fails to comply with a
provision of this Act
;
(ii)
commits an act which undermines the
financial management and internal control system of the department
,
trading entity or constitutional institution; or
(iii)
makes or permits an unauthorised expenditure, irregular expenditure
or fruitless and wasteful expenditure; …”
(emphasis
added)
[28]
The first of the novel arguments advanced
on behalf of the respondents was that a Head of Department in terms
of the PFMA is always
the accounting officer because the definition
of an accounting officer does not include an acting accounting
officer, unlike in
the case of the definition of a Head of Department
in the PSA which includes a person acting in the post. Consequently,
Jonkers
in his uninterrupted capacity as accounting officer was
always responsible for taking disciplinary action against any
officer,
including Crouch, even when he was occupying and performing
Jonkers’ functions of Head of Department during his leave in
December 2012 and January 2013. Furthermore, section 38 (1) (h) of
the PFMA required Jonkers to take steps against “any official”
committing the misconduct identified in that section.
[29]
The first argument is somewhat contrived.
It is clear from section 37 that the official acting in the place of
the accounting officer
is responsible for performing the accounting
officer’s functions. Importantly, that occurs amongst other
occasions when the
accounting officer is absent or when a vacancy
occurs. There is nothing to suggest that a person acting in the place
of the accounting
officer has less responsibility and authority when
they are acting because the post is vacant or simply because the
accounting
officer is absent, as was the case in this instance.
Accordingly, I am not persuaded that when Crouch was acting in the
place of
Jonkers as head of Department, he was some sort of lesser
form of accounting officer or not truly
the accounting officer at that time.
[30]
This raises the second question of whether
Jonkers nonetheless was entitled on his return to work as the
accounting officer to act
against his own temporary replacement, who
allegedly acted contrary to the PFMA whilst he was the acting Head of
Department and
thereby the acting Accounting Officer. At this
juncture it is important to note that the charges against Crouch
relating to alleged contraventions
of the PFMA specifically refer to his alleged misconduct in the
performance of his duties as
an Accounting Officer. Sections 81 to 85
of the PFMA make specific provision for disciplinary proceedings with
reference to financial
misconduct by accounting officers, viz:
81
Financial misconduct by officials in departments and constitutional
institutions
(1)
An accounting officer
for a department or a constitutional
institution commits an act of financial misconduct if that accounting
officer willfully or
negligently-
(a)
fails to comply with a requirement of
section
38
, 39, 40, 41 or 42; or
(b)
makes or permits an unauthorised expenditure, an irregular
expenditure or a fruitless and wasteful expenditure.
…
84
Applicable legal regime for disciplinary proceedings
A
charge of financial misconduct against an accounting officer
or official referred to in
section
81
or 83, or an accounting authority or
a member of an accounting authority or an official referred to in
section 82,
must be investigated, heard
and disposed of in terms of the statutory or other conditions of
appointment or employment applicable
to that accounting officer or
authority, or member or official, and any regulations prescribed by
the Minister in terms of section
85
.
85
Regulations on financial misconduct procedures
(1)
The Minister must make regulations prescribing-
(a)
the manner, form and circumstances in which allegations and
disciplinary and criminal charges of financial misconduct must be
reported to the National Treasury, the relevant provincial treasury
and the Auditor-General, including-
(i)
particulars of the alleged financial misconduct; and
(ii)
the steps taken in connection with such financial misconduct;
(b)
matters relating to the investigation of allegations of financial
misconduct;
(c)
the circumstances in which the National Treasury or a provincial
treasury may direct that disciplinary steps be taken or criminal
charges be laid against a person for financial misconduct;
(d)
the circumstances in which a disciplinary board which hears a charge
of financial misconduct must include a person whose name
appears on a
list of persons with expertise in state finances or public accounting
compiled by the National Treasury;
(e)
the circumstances in which the findings of a disciplinary board and
any sanctions imposed by the board must be reported to the
National
Treasury, the relevant provincial treasury and the Auditor-General;
and
(f)
any other matters to the extent necessary to facilitate the object of
this Chapter.
(2)
A regulation in terms of subsection (1) may-
(a)
differentiate between different categories of-
(i)
accounting officers;
(ii)
accounting authorities;
(iii)
officials; and
(iv)
institutions to which this Act applies; and
(b)
be limited in its application to a particular category of accounting
officers, accounting authorities, officials or institutions
only.”
(emphasis
added)
[31]
It is clear that in so far as Crouch is
being charged with a contravention of the PFMA, it is a contravention
specifically relating
to his alleged non-compliance with his duties
as an acting Accounting Officer under s 38(1)(a)(iii) and not in his
capacity as
an ordinary official. His status and responsibilities as
an acting Accounting Officer at the time, which incidentally the
phrasing
of the charges against him expressly acknowledge, flowed
directly from his appointment as acting Head of Department.
Consequently,
having regard to the legal regime for disciplinary
proceedings prescribed in s84 of the PFMA the essential issue still
remains
whether it is within the competence of the head of Department
to take disciplinary action against the person who acted in his own
position in respect of misconduct allegedly committed whilst in that
position.
[32]
In this regard, it is noteworthy that
despite several months having passed since the ruling of the
chairperson on 19 November 2014,
there is no indication given by the
respondents why his finding on the lack of authority to proceed
against Crouch was wrong. In
his answering affidavit Jonkers never
reveals the basis for rejecting the finding. Jonkers most explicit
repudiation of the ruling
in the answering affidavit is explained
simply on the basis that the department adopted the view that it was
wrong, without articulating
any reasons for that view. It is also
noteworthy that he did not mention the ruling to the MEC in his
correspondence with her about
the progress of the enquiry, when that
ruling was obviously one of the most significant developments to
date, which he ought to
have brought to her attention. His
uncertainty about the need for the disciplinary authority to have
been delegated is apparent
from his equivocal statements about
whether delegation of authority was sought. One would reasonably
think that such doubts would
at least have been mentioned in his
correspondence with the MEC, but they are entirely absent.
[33]
The chairperson effectively concluded that
disciplinary measures were part of the ‘career incidents’
of a head of department
and that consequently, since such matters
fell within the ambit of the Premier’s power, in the absence of
a delegation of
such power to Jonkers, the institution of charges by
him was not properly authorised. If one has regard to s 3(5) of
the
PSA it is clear that matters pertaining to discipline or
precautionary suspension would fall within ambit of matters
contemplated
by the statute as being a career incident. S 3(5)
states:
“
(5)
Subject to the provisions of this Act, an executing authority shall
have those powers and duties—
…
.;
(c)
regarding the recruitment, appointment, performance management,
promotion, transfer, discharge
and other career incidents
of
officers and employees of that office or department, including any
other matter which relates to such officers and employees
in their
individual capacities,
which
are entrusted to the executing authority by or under this Act, and
such powers and duties shall be exercised or performed
by the
executing authority in accordance with the provisions of this Act.”
(emphasis
added)
[34]
The PSA separates the management of the
career incidents of heads of department from that of the staff below
them whom they manage.
Subject to a proper delegation of power
the responsibility and authority to managed heads of departments
resides in the Premier.
The definition of a head of
department expressly includes someone who acts in that post. That
must mean when a disciplinary
issue arises in relation to the conduct
of an acting head of department that could lead to that person’s
dismissal the Premier,
or a person duly delegated by the Premier, is
the person authorised to deal with it. It would be entirely anomalous
with this allocation
of functions, if the power to initiate
disciplinary steps which could lead to dismissal could be exercised
by the head of department
when the conduct allegedly giving rise to
such action was committed by someone occupying,
albeit
temporarily, a post over which he has no disciplinary remit. The same
applies to measures ancillary to such action such as precautionary
suspension.
[35]
Even though there might have been a
delegation of the Premier’s powers to Bartlett or Mabilo in
terms of s 3B (4) (b) of the
PSA, there is certainly no evidence
supporting a delegation of such authority to Jonkers. In fact the
section does not contemplate
any delegation of the Premier’s to
anyone other than an MEC.
[36]
Consequently, everything points to a lack
of authority on Jonkers’ part to have initiated and driven the
disciplinary process
as he did, including suspending Crouch contrary
to the clear wishes of Mabilo and Bartlett, and I am satisfied that
Crouch has
demonstrated a clear right to interdict the current
pending disciplinary proceedings and to have his suspension uplifted.
Costs
[37]
The respondents’ answering
affidavit’s vague and evasive style reveals the paucity of
their case and it is difficult
to believe that the opposition to the
application was carefully considered. There is no reason why the
applicants needed to go
to such lengths to remedy the situation and
they are entitled to their costs. Whether all the respondents
should be liable
for those costs is another matter as it appears that
the initiator and driving force behind the disciplinary measures
taken against
Crouch is Jonkers. It is particularly disturbing
that when he was asked about why the enquiry was dragging on, his
response
to his superior was misleading and he failed to apprise her
of the ruling in November 2014, which was critical to whether the
enquiry
should proceed or not. It is also of concern that in
doggedly persisting with his refusal to uplift Crouch’s
suspension,
he was second guessing his superior’s judgment and
purporting to exercise an authority which he did not have himself.
Whether
or not his motives for instituting proceedings against Crouch
and for suspending him were
mala fide
,
his obstinacy in opposing the application when he was incapable of
articulating a substantive basis for doing so in his answering
affidavit appears to have been reckless and does raise the question
whether he ought not to bear the applicant’s costs, rather
than
the Province.
[38]
Accordingly, the second respondent ought to
be given an opportunity to make submissions on why he should not
personally be held
liable to pay the applicants’ costs.
Order
[39]
The matter is treated as one of urgency in
terms of the Labour court rules.
[40]
The second respondent has no authority to
institute disciplinary proceedings against the applicant
[41]
The respondents must cease the current
disciplinary proceedings against the applicant which last convened on
30 March 2015
[42]
The respondents must uplift the applicant’s
suspension within 5 days of the date of this judgment.
[43]
Costs are reserved and the second
respondent must file written submissions within 10 days of this
judgment why he should not be
held liable in his personal capacity
for the applicants’ costs.
Lagrange
J
Judge
of the Labour Court of South Africa
APPEARANCES
For
the Applicants
Instructed
by:
Adv.
P Nkutha
Mzuzu
Attorneys
For
the Respondents
Instructed:
Ms.
Mabena
The
State Attorney-Kimberly
[1]
[2011] JOL 27420
(LC).