About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2015
>>
[2015] ZALCJHB 340
|
|
Public Servants Association of South Africa and Another v Minister of Labour and Another (J1511/15) [2015] ZALCJHB 340; (2016) 37 ILJ 185 (LC); [2016] 1 BLLR 68 (LC) (5 October 2015)
THE
LABOUR COURT OF SOUTH AFRICA,
JOHANNESBURG
Case
no: J1511/15
DATE:
05 OCTOBER 2015
Reportable
PUBLIC
SERVANTS ASSOCIATION OF SOUTH
AFRICA
.....................................
First
Applicant
CROUSE,
JOHANNES
THEODORUS
.....................................................................
Second
Applicant
And
MINISTER
OF
LABOUR
............................................................................................
First
Respondent
NTLEKI,
MALIXOLE
............................................................................................
Second
Respondent
Heard:
24 August 2015
Delivered:
5 October 2015
Summary:
Application in terms of section
158(1)(h) to review decision of the Minister of Labour removing the
second applicant as Registrar
of Labour Relations – decision
set aside on review and second applicant reinstated as Registrar
JUDGMENT
MYBURGH,
AJ
Introduction
[1]
On 23 July 2015, the first respondent (“the
Minister”) revoked the designation of the second applicant (“Mr
Crouse”)
as the Registrar of Labour Relations (“the
Registrar”). Together with his union, Mr Crouse has brought a
review application,
with the principal relief sought being that the
Minister’s decision should be reviewed and set aside, and that
he be reinstated
as the Registrar.
[2]
At the hearing of this matter on 24 August
2015, an order was granted joining the current acting Registrar as
the second respondent.
[3]
The
structure of this judgment is as follows: (i) the statutory
provisions in the LRA
[1]
relating to the Registrar are analysed; (ii) the relevant factual
matrix is sketched; (iii) an analysis of the legal basis of Mr
Crouse’s case is undertaken; (iv) the preliminary points raised
by the Minister are addressed; (v) the principle of legality
and
legality review is discussed; (vi) the merits of the review
application are evaluated; (vii) certain remaining issues are dealt
with; and (viii) a summary of my main findings is provided.
The
Registrar under the LRA
[4]
In terms of the preamble to the LRA,
amongst its purposes is to provide for a simplified procedure for the
registration of trade
unions and employers’ organisations, and
to provide for their regulation to ensure democratic practices and
proper financial
control. The office of the Registrar is central to
this legislative aspiration.
[5]
In terms of section 108(1), the Minister
must designate an officer of the Department of Labour (“the
department”) as
the Registrar to perform the functions
conferred on the Registrar by or in terms of the LRA. Section 109
sets out certain functions
of the Registrar, with subsection (4)
providing that the Registrar “must perform” all the other
functions conferred
on the Registrar by or in terms of the LRA.
Amongst the Registrar’s other functions are the registration of
trade unions
and employers’ organisations (sections 95-96),
the cancellation of their registration (section 106), and the placing
of them under administration (section 103A). In terms of section
111(3), any person who is aggrieved by a decision of the Registrar
may appeal to this court against that decision.
[6]
Given its significance in this matter, the
operation of section 103A warrants mention. Section 103A was
introduced into the LRA
by way of the 2014 amendments, which came
into operation on 1 January 2015. Subsection (1) provides that this
court may order the
appointment of a person to administer a trade
union or employers’ organisation if: the court is satisfied
that it is just
and equitable to do so; and either the trade union /
employers’ organisation has resolved to be placed under
administration
and applied to court to give effect to the resolution,
or the Registrar has applied to court to appoint an administrator.
Without
limiting the generality of the circumstances under which it
will be just and equitable for the court to place a trade union under
administration, subsection (2) provides that it may be just and
equitable to grant such an order if the trade union materially
fails
to perform its functions or there is serious mismanagement of the
finances of the trade union.
[7]
In essence, the appointment of an
administrator may be compared to the appointment of a business rescue
practitioner in the case
of an ailing company. It is a mechanism that
can be resorted to before a trade union or employers’
organisation is deregistered
and wound up, and attempts to avoid this
in the interests of all concerned.
[8]
For
present purposes something should also be said about section 208A. In
terms of this section, the Minister may delegate to the
DG
[2]
or other officer of the department any power, function or duty
conferred or imposed upon the Minister in terms of the LRA (save
for
a few exceptions), and may withdraw such a delegation at any time.
But it is important to emphasise that the Registrar’s
powers,
functions and duties are not derived from any delegation by the
Minister in terms of section 208A. Instead, they are original
statutory powers, functions and duties vested in him or her by the
LRA.
The
factual matrix
[9]
CEPPWAWU,
[3]
an affiliate of COSATU,
[4]
has
66 000 members and funds of in excess of R4-billion. For some
time now, the department together with the Registrar have
been
seeking to ensure compliance by CEPPWAWU with the provisions of the
LRA dealing with the regulation and administration of
trade unions.
The steps taken in this regard up to that point are set out in a
ministerial submission made by the acting DG to
the Minister dated 9
May 2014.
[10]
On 1 August 2014, and after CEPPWAWU had
failed to comply with the agreed “road map”, Mr Crouse
caused to be published
in the Government Gazette a notice of his
intention to cancel the registration of the union in terms of section
106. The reasons
provided were that the union had failed to comply
with the provisions of sections 98, 99 and 100, and had ceased to
function in
terms of its constitution. The union and interested
parties were invited to make written representations as to why the
registration
should not be cancelled.
[11]
Amongst the written representations that
were received was a detailed set of representations by Mr Seatlholo,
the deputy general
secretary of CEPPWAWU. These submissions, which
are date stamped 30 September 2014, concluded as follows:
“
In
the light of all the material factors detailed above, it is our
concerted view, as representatives of the majority of members
within
CEPPWAWU, that the only meaningful mechanism to salvage the union and
secure its future would be to seek the assistance
of an administrator
in respect of the union.”
[12]
On 13 April 2015, Mr Crouse is said to have
made the following formal decision (“the decision of 13 April
2015”):
“
In
the light of the aforementioned information, it is recommended that
the Registrar approach the Labour Court to apply to put the
union
under administration in terms of section 103A. However if
administration fails, or the application is opposed at the Labour
Court, then this office will proceed to cancel the registration of
the union.”
[13]
On 24 April 2015, Mr Crouse launched an
urgent application in this court to place CEPPWAWU under
administration in terms of section
103A, alternatively to wind it up
pursuant to section 103 and place it in liquidation (“the
CEPPWAWU application”).
The application was enrolled for 18
June 2015. In bringing the application, the State Attorney
(Johannesburg) acted as Mr Crouse’s
attorneys of record.
[14]
It is not in dispute that Mr Crouse brought
the CEPPWAWU application for,
inter
alia
, the following reasons: (i)
CEPPWAWU had failed to prepare and submit audited financial
statements for 2010, 2011, 2012 and 2013
to the Registrar; (ii) the
existence of internal conflict and strife amongst elected office
bearers which has resulted in litigation
amongst them; (iii) the
failure to hold a meeting of office bearers and of the national
executive committee as required by the
union’s constitution;
(iv) the failure since 2010 by the union to keep records of its
income, expenditure, assets and liabilities;
and (v) the fact that it
is in the interests of justice that the union’s funds (of some
R4-billion) are safeguarded.
[15]
In his founding affidavit, Mr Crouse goes
on to state that he seeks to place CEPPWAWU under administration on
the basis that it
has materially failed to perform its functions and
“my suspicions that there might be serious mismanagement of its
finances
underway to the prejudice of its members”. In
corroboration of this, Mr Crouse attached a letter from the attorneys
of CEPPWAWU
Investments (Pty) Ltd, an investment company established
for the benefit of CEPPWAWU members. If this letter is anything to go
by, Mr Crouse’s concerns about serious financial
mismanagement are well founded.
[16]
Although the date thereof is not clear from
the papers, it is common cause that six office bearers or officials
of CEPPWAWU applied
to intervene in the CEPPWAWU application and were
ultimately joined as respondents (“the intervening
parties”).
The intervening parties, who include Mr Seatlholo,
support the union being placed under administration. (The joinder was
effected
before 18 June 2015.)
[17]
In a letter from the Minister to Mr Crouse
dated 5 June 2015 (which was received on 8 June 2015), the Minister
recorded the following:
“
It
has come to my attention that you have filed papers in the Labour
Court of South Africa wherein you seek an order to place …
CEPPWAWU under administration. I am deeply concerned that you have
not had the courtesy as my designated official in terms of section
108 of the LRA, to brief me on this matter prior to invoking this new
provision of the Act. Accordingly, I call on you to suspend
the
Labour Court application in question until such time that you have
briefed me fully on this matter. My PA will liaise with
you on the
suitable date when you can brief me in this regard.”
[18]
On Mr Crouse’s version (which appears
from the annexures to the founding affidavit), in response to this
letter from the Minister,
he sent an email to the office of the
Minister on 9 June 2015, in which he stated that he was willing to
meet with the Minister
and that he would wait to be advised of the
date of the meeting. But no further communication was received from
the Minister’s
office. (See further below.)
[19]
Save as aforesaid, it is common cause that
Mr Crouse did not formally respond to the Minister’s letter of
5 June 2015, and
that he did not “suspend” the CEPPWAWU
application, which was due to be heard on 18 June 2015.
[20]
On 17 June 2015, CEPPWAWU brought an
application to postpone the hearing of the CEPPWAWU application –
this in circumstances
where it had yet to deliver an answering
affidavit.
[21]
On 18 June 2015, this court (per Lagrange
J) granted an order postponing the CEPPWAWU application to 6 August
2015, and setting
out a timetable for the filing of affidavits and
heads of argument. In terms of the order, CEPPWAWU was required to
file its answering
affidavit by 9 July 2015, Mr Course was required
to file his replying affidavit by 23 July 2015, and all the parties
(including
the intervening parties) were required to file their heads
of argument by 30 July 2015.
[22]
On
10 July 2015, the DG addressed a letter to the DDG
[5]
and Mr Crouse relating to the CEPPWAWU application.
a)
With reference to the Minister’s
letter of 5 June 2015, the DG recorded:
“
I
am advised that the office of the Minister attempted to schedule a
date as indicated by the Minister; however the Registrar failed
to
avail himself to brief the Minister. It has come to my attention that
the Registrar did not suspend the Labour Court application
as
instructed by the Minister, instead he ignored the Minister’s
instruction and went ahead with the application on 18 June
2015. I am
advised that the matter was postponed to be heard on 6 August 2015.”
b)
The DG went on to issue these “further
instructions”:
“
I
am deeply concern[ed] with the manner in which [the] Labour Policy
and Industrial Relations Unit, specifically the Registrar handled
this matter and ignored the Minister’s clear instructions.
Therefore your office and the Registrar are instructed to do the
following:
·
Suspend the Labour Court application …
immediately; thereafter advise my office accordingly;
·
Avail yourselves to fully brief the
Minister and myself on a date, which will be forwarded to you by the
personal assistant of the
Minister;
·
Provide a detailed report in a ministerial
submission stipulating reasons why the Minister’s instructions
were ignored by
the Registrar. The submission should reach my office
before the close of business on 15 July 2015.”
c)
Under the heading “important notice”,
the DG further recorded:
“
Please
take note further and be advised that:
·
Any legal costs and / or any other costs
already incurred as the result of this application will be regarded
as irregular expenditure
and will be recovered from all officials of
the Department of Labour involved in this matter;
·
Any further costs and / or any other costs
related to this matter will not be for the account of the Department
of Labour. Our Legal
Services Unit has been instructed to advise the
State Attorney’s office accordingly;
·
The Chief Financial Officer [CFO] has also
been instructed not to pay any legal costs and / or any other costs
related to this application.”
[23]
Also on 10 July 2015, the DG directed a
letter to the CFO reiterating and instructing his office not to pay
any legal costs or any
other costs related to the CEPPWAWU
application, pending further instructions.
[24]
On 14 July 2015, Mr Crouse responded in
detail to the DG’s letter quoted above. For present purposes,
the following aspects
of Mr Crouse’s letter are material.
a)
In
relation to the statement by the Minister in her letter of 5 June
2015 that he had not had the courtesy to brief her on the matter
before launching the CEPPWAWU application, Mr Crouse recorded that
this was incorrect. Amongst the reasons given by him were that
in the
ministerial submission of 9 May 2014 (see above), the Minister had
been fully briefed on the non-compliance of CEPPWAWU
and the possible
outcome thereof, including that this could result in the union being
placed under administration.
[6]
Further reasons provided by Mr Crouse were that the Minister had
herself facilitated a meeting with,
inter
alia
,
COSATU in an attempt to resolve the impasse,
[7]
and that she had received written representations on behalf of the
majority of the regions of CEPPWAWU, which reflected the conclusion
that “the only meaningful mechanism to salvage the union and to
secure its future was to appoint an administrator”.
(It would
appear that these representations included those of Mr Seatlholo
dealt with above.)
b)
In relation to the call by the Minister in
her letter of 5 June 2015 for him “to suspend” the
CEPPWAWU application,
Mr Crouse recorded that: (i) the
instruction was ambiguous and difficult to understand; (ii) if
“to suspend the
application” meant that the application
would have had to be withdrawn from the urgent roll and placed on the
ordinary court
roll, this would be to the detriment of the 66 000
workers, could potentially be regarded as fruitless expenditure, and
would
cause embarrassment to the department and the Registrar; (iii)
there was no direct instruction by the Minister to withdraw the
CEPPWAWU application, nor was any reason provided as to why it should
be suspended; and (iv) he had responded to the Minister’s
letter in an email on 9 June 2015 to the effect that he was willing
to meet with the Minister and that he would wait to be advised
of the
date of the meeting, but no further communication was received from
the Minister’s office.
c)
In relation to the DG’s instruction
to immediately suspend the CEPPWAWU application, Mr Crouse
recorded that this was
“with respect a repetition of an unclear
instruction”, and that “the legal service programme and
the state attorney’s
office are not entirely clear on what this
instruction means”. He went on to record that it “would
in any case be to
the detriment of the workers and could encourage
ongoing mismanagement of the union by its officials”.
Furthermore, both
the Minister’s letter and the DG’s
letter “do not contain clear legal instructions that can be
executed and do
not provide reasons for the sudden change of course”,
and “no valid reason has been provided to this office”.
d)
With reference to the 13 April 2015
decision, Mr Crouse went on to state that he was “
functus
officio
and cannot reverse his
decision”. As far as he was concerned, the remedy for an
aggrieved person was to appeal the decision
in terms of section 111.
e)
Mr Crouse then set out a detailed
explanation as to why he had decided to seek to place CEPPWAWU under
administration instead of
proceeding with the cancellation of its
registration. He went on to state that a withdrawal of the CEPPWAWU
application would result
in the status
quo
within the union applying, “which
is untenable and chaotic”. As he put it, this would be
tantamount to the department
“granting officials of the union a
license to continue mismanaging the union”, and “condoning
the union’s
non-compliance with the law”. In the same
vein, Mr Crouse stated that to stop him from proceeding with the
application “without
a single valid reason” would result
in irregular expenditure having been incurred, would “be
inexplicable to the public
at large and illogical”, and “may
be interpreted as political interference”.
f)
Reflecting on the history of the matter, Mr
Crouse recorded that he had wanted to cancel the registration of
CEPPWAWU in October
2014 already (which would have had more severe
implications for the union), and that this could have been done
without any intervention
by the Minister’s office. According to
Mr Crouse, it was at the request of the then acting DDG that he
delayed the decision
to cancel, and considered the administration
option (which was to be signed into law).
g)
Having expressed surprise at having been
called upon by the DG to brief him on the matter, Mr Crouse recorded
the following:
“
In
the 20 years of being Registrar he has never been called upon by
a [DG] or higher official to brief him / her on any matters
of this
nature. It is not clear what makes the CEPPWAWU matter different from
the other cases that have been dealt with. (Over
the past 5 years the
Registrar has cancelled the registration of 81 trade unions without
involvement from senior management.)”
h)
Mr
Crouse also took issue with the DG’s instructions regarding the
issue of costs, stating that they were “unreasonable
and
contrary to the PFMA”
[8]
.
i)
Mr Crouse also reaffirmed that he “will
avail himself to further elaborate on any aspect relating to this
matter as already
indicated in the email to the PA of the Minister of
9 June 2015”.
[25]
On 15 or 16 July 2015, and as he had been
instructed to do, the DDG submitted a ministerial submission to the
DG, which was co-signed
(and apparently drafted) by Mr Crouse. The
purpose of the submission is recorded as being as follows: (i) “to
explain to
the Minister, in the Registrar’s view, the reasons
why the Minister’s call to suspend the Labour Court application
could not be adhered to”; (ii) “to indicate to the
Minister that the Registrar by no means ignored the Minister’s
instructions, but that there was no clear instruction on which the
Registrar could act”; and (iii) “to explain to the
Minister the implications of not placing CEPPWAWU under
administration”.
[26]
To a large extent this ministerial
submission repeats the contents of Mr Crouse’s letter to
the DG of 14 July 2015 (with
those submissions not being repeated
below in the present context). Amongst the additional points made (or
materials referred to)
in the ministerial submission (which runs to a
total of some six pages, excluding annexures) that warrant
highlighting are the
following.
a)
In relation to the contention that Mr
Crouse had failed to brief the Minister before launching the CEPPWAWU
application, issue is
taken with it on the basis that “this
statement implies that the Registrar must obtain prior approval from
the Minister to
execute any of his duties outlined in terms of the
LRA”.
b)
In relation to the contention that the
Minister attempted to schedule a date for the briefing after her
letter of 5 June 2015 but
that Mr Crouse failed to avail himself to
brief the Minister, the following is recorded:
“
It
should be brought to the attention of the Minister that the Registrar
is not aware of any formal request to avail himself for
a meeting.
The Registrar did however avail himself by email on 9 June 2015
(annexure DD) in response to a request by the Chief
of Staff in the
Minister’s office.”
c)
The submission also records the following:
“
What
makes ‘suspension’ impossible to execute is the fact that
the Registrar has already made the following decision
on 13 April
2015 [see above]. The Registrar’s decision is
functus
officio
and he cannot reverse his
decision. The Act prescribes a specific procedure that must be
followed once the Registrar has made a
decision. Section 111 of the
LRA stipulates that any person who is aggrieved by a decision of the
Registrar may appeal to the Labour
Court against that decision.”
d)
Having provided an explication of the
implications of appointing an administrator to rescue CEPPWAWU, the
negative results that
the cancellation of the registration of the
union would produce, and the implications of not appointing an
administrator or withdrawing
the CEPPWAWU application, this
additional point is made:
“
The
majority of the regions have successfully applied to court to join
the application by the Registrar to appoint an administrator
…
. In the event of the withdrawal it appears that the matter will in
any case be heard as the regions have indicated that
they are in
support of an appointment of an administrator and would be able to
proceed with the matter.”
[9]
e)
Importantly, amongst the eight annexures
that appear to have been attached to the ministerial submission were
Mr Crouse’s
letter to the DG of 14 July 2015, and a copy of the
entire CEPPWAWU application.
[27]
Although I deal with the issue in more
detail below (there being a dispute of fact here), for present
purposes it warrants mention
that the ministerial submission contains
the following handwritten annotation made (presumably by the DG) in
the section reserved
for “comments”:
“
DG’s
letter only requires a response as to why the Registrar ignored the
Minister’s request for a briefing before proceeding.”
[28]
On 17 July 2015, an email was sent by an
official of the department to the State Attorney reading (in part) as
follows:
“
We
confirm our instruction … that the application must be
withdrawn / suspended with immediate effect. We confirm that such
an
instruction was given due to the fact that a letter from the [DG] to
Legal Services mentioned interchangeably both suspension
and
withdrawal of the application. We further confirm that your office
has indicated that the instruction is not clear in that
there is no
provision in the Court Rules to the effect of a suspension of an
application, and if then the instruction is to withdraw
the
application, that must be spelt out. You indicated that a letter will
be addressed to the [DG] setting this out.”
[29]
The letter from the DG to Legal Services
mentioned in this email is not part of the papers. The Minister and
DG had required Mr
Crouse to “suspend” the application in
their letters of 5 June 2015 and 10 July 2015, respectively. On the
face of
this email, the DG had sent a letter to Legal Services
requiring the withdrawal / suspension of the application, with the
State
Attorney having indicated that the meaning of this was unclear,
and that one cannot suspend a court application.
[30]
On 20 July 2015, the State Attorney
responded to the email quoted above in the following terms (in part):
“
I
still do not understand the instruction in this matter as you still
[say] we must withdraw / suspend the application. We pointed
out to
you that we cannot suspend an urgent application. We can only
withdraw the application. If the instruction to suspend was
given
prior to the arrangement[s] that were made before the judge, we could
perhaps have requested that the matter should be removed
from the
urgent roll and be placed in (sic) the normal motion court roll.
However it is late to suggest that at this stage as you
have
maintained the urgency of the matter on 18 June 2015. The only option
is to withdraw the matter.
During
the meeting that we held with you on Wednesday, I informed you that
Mr Crouse expressed his intentions to proceed with the
application
even if it means arguing the matter on his own. He said so in light
of the fact that he is the applicant in this matter
and also to
uphold his role in terms of the [LRA]. In the light of the
conflicting instructions that we are receiving from you
as well as
from Mr Crouse, we have suggested that the other option could be to
withdraw as attorneys of record.”
[31]
Later on 20 July 2015, and in response, the
official from the department advised the State Attorney to withdraw
as attorneys of
record.
[32]
On 21 July 2015, the State Attorney
formally withdrew as Mr Crouse’s attorneys of record. (There is
a dispute about whether
this was done at the request of the
Minister.) In effect, Mr Crouse was thus left with having to pursue
the CEPPWAWU application
without the benefit of legal representation.
[33]
It was in these circumstances that, on 23
July 2015, the Minister revoked Mr Crouse’s designation as
Registrar on the
grounds of “gross insubordination” (“the
impugned decision”). The letter addressed by the Minister to
Mr Crouse
reads as follows:
“
Kindly
be advised that your designation as the Registrar of Labour Relations
in terms of section 108 of the [LRA] is hereby, in
terms of section
208A of the Act revoked with immediate effect on the grounds of gross
insubordination. Please note that you will
be assigned new
responsibilities by the [DDG] in liaison with the Head of
Department.”
[34]
Also on 23 July 2015, the Minister
appointed the second respondent (Mr Ntleki) as the acting
Registrar.
[35]
On 25 July 2015, Mr Crouse caused a letter
of demand to be addressed to the Minister, in which he demanded his
reinstatement by
27 July 2015.
[36]
On 30 July 2015, after no response had been
received, Mr Crouse launched the present application on an urgent
basis, with the application
being enrolled for 4 August 2015.
[37]
On 4 August 2015, the matter was postponed
to 7 August 2015 – this so as to afford the applicants the
opportunity of joining
Mr Ntleki.
[38]
On 6 August 2015, and in circumstances
connected with Mr Crouse’s designation as the Registrar having
been revoked, the CEPPWAWU
application was again postponed. The
application is in the process of being case managed.
[39]
On 7 August 2015, in circumstances where Mr
Crouse’s case for urgency was to a large extent based on him
having to secure
his reinstatement in order to further prosecute the
CEPPWAWU application set down for the previous day, the issue of
urgency became
somewhat moot in the light of the postponement of the
CEPPWAWU application. In the circumstances, by agreement between the
parties,
the matter was postponed to the motion roll on 24 August
2015, and heard that day on an expedited basis. Costs of both 4 and 7
August 2015 were reserved.
The
legal basis of Mr Crouse’s case
[40]
The
review application is brought in terms of 158(1)(h) of the LRA, which
establishes a “jurisdictional footprint”
[10]
for this court to review conduct by the State in its capacity as
employer “on such grounds as are recognised in law”.
[11]
[41]
The
grounds of review relied on by Mr Crouse are certain of those set out
in section 6 of PAJA,
[12]
with
the contention being that the impugned decision constituted
“administrative action”. The specific grounds pleaded
by
Mr Crouse that are found in section 6 of PAJA include that: the
Minister was not authorised to revoke his designation in
terms of
section 208A; the Minister was biased or reasonably suspected of
bias; the action was procedurally unfair; the action
was materially
influenced by an error of law; the Minister failed to consider
materially relevant facts; the action was taken for
an ulterior
purpose or motive; and the action was unreasonable.
[42]
In the alternative, and insofar as the
impugned decision does not constitute administrative action, Mr
Crouse seeks to review it
on the grounds of an infringement of the
principle of legality. In this regard, Mr Crouse pleads that the
revocation of his designation
as the Registrar was unreasonable,
irrational, disproportionate and procedurally unfair.
The
preliminary points raised by the Minister
[43]
In argument, Mr Skosana SC (who appeared
together with Mr Mojapelo for the Minister) advanced the following
four main preliminary
points.
a)
Firstly, this court lacks jurisdiction
because Mr Crouse’s complaint falls within the ambit of section
186(2)(b) (unfair disciplinary
action short of dismissal), which must
be referred to conciliation and then arbitration by the bargaining
council.
b)
Secondly, Mr Crouse seeks reinstatement,
which is a remedy that can only be obtained in terms of section
193(1) following a finding
of an unfair dismissal or unfair labour
practice, and Mr Crouse cannot obtain such relief without first
following the dispute-settlement
mechanism provided for in the LRA.
c)
Thirdly, the impugned decision does not
constitute administration action, with the result that a review under
PAJA is not available
to Mr Crouse.
d)
Fourthly, even if PAJA does apply, Mr
Crouse failed to exhaust “any internal remedy provided for in
any other law”,
with the result that, in terms of section
7(2)(a) of PAJA, this court should refuse to entertain the review
application.
The
first preliminary point
[44]
The
first preliminary point would have been a good one if Mr Crouse had
framed his claim as an unfair labour practice. But instead
his claim
is based in administrative law and on the principle of legality, with
this court having the jurisdiction to entertain
the review in terms
of section 158(1)(h). This is a classic case of where the same
conduct on the part of an employer may give
rise to different causes
of action and remedies in law.
[13]
The fact that Mr Crouse could have constructed his case as an
unfair labour practice (but did not), has no bearing on the
jurisdiction of this court to entertain an administrative law or
legality review.
[14]
The
second preliminary point
[45]
The
second preliminary point is also without merit effectively on the
same basis as the first one. Reinstatement in terms of section
193(1)
is a remedy that flows from a finding of an unfair dismissal. Mr
Crouse has not brought an unfair dismissal (or labour practice)
claim, and does not seek reinstatement in terms of section
193(1).
[15]
Instead, he seeks
such relief as an adjunct to an order setting aside the impugned
decision on review on administrative and constitutional
law grounds.
The
third preliminary point
[46]
Turning to the third preliminary point, the
question is whether the revocation by the Minister of Mr Crouse’s
designation
as the Registrar constitutes “administrative
action” as defined in section 1 of PAJA. For present purposes,
the relevant
portion of the definition is as follows:
“
any
decision taken … by … an organ of state, when …
exercising a public power or performing a public function
in terms of
any legislation … which adversely affects the rights of any
person and which has a direct, external legal effect.”
[47]
In
addressing this issue, counsel for both parties relied on the
following passage from the Constitutional Court’s judgment
in
Gcaba
:
[16]
“
Generally,
employment and labour relationship issues do not amount to
administrative action within the meaning of PAJA. This is
recognized
by the Constitution. Section 23 regulates the employment relationship
between employer and employee and guarantees the
right to fair labour
practices. The ordinary thrust of s 33 is to deal with the
relationship between the state as bureaucracy and
citizens and
guarantees the right to lawful, reasonable and procedurally fair
administrative action. Section 33 does not regulate
the relationship
between the state as employer and its workers.
When
a grievance is raised by an employee relating to the conduct of the
state as employer and it has few or no direct implications
or
consequences for other citizens, it does not constitute
administrative action
.” (Emphasis
added.)
[48]
In
De
Villiers
,
Van Niekerk J, having referred to the relevant authorities,
summed up the considerations relevant to determining whether
a
particular decision constitutes administrative action as follows:
[17]
“
In
summary: as a general rule, conduct by the state in its capacity as
an employer will generally have no implications or consequences
for
other citizens, and it will therefore not constitute administrative
action. Employment related grievances by state employees
must be
dealt with in terms of the legislation that gives effect to the right
to fair labour practices, or any applicable collective
agreements
concluded in terms of that legislation. Departures from the general
rule are justified in appropriate cases. An assessment
must be
conducted on a case-by-case basis to determine whether such a
departure is warranted. The relevant factors in this determination
(following
SARFU
[18]
)
are the source and nature of the power being exercised (this would
ordinarily require a consideration of whether the conduct was
rooted
in contract or statute …, whether it involves the exercise of
a public duty, how closely the power is related to
the implementation
of legislation (as opposed to a policy matter) and the subject-matter
of the power). I venture to suggest that
the existence of any
alternative remedies may also be a relevant consideration - this was
a matter that clearly weighed with the
court in both
Chirwa
and
Gcaba
,
who it will be recalled, were found to have had remedies available to
them under the applicable labour legislation.”
[49]
As appears from the above,
Gcaba
establishes as a general rule that employment issues in the public
sector do not constitute administrative action, but acknowledges
that
the rule is not invariable. One potential exception appears to be the
dismissal of high-ranking public servants who hold statutory
offices
in the public interest.
a)
In
Gcaba
,
the Constitutional Court commented as follows:
“
The
situation might be different where, for example, the appointment or
dismissal of the National Commissioner of the SAPS is at
stake. This
decision is taken by the President as head of the national executive
and is of huge public import.”
[19]
b)
Consistent
with this, Langa CJ (dissenting) held as follows in
Chirwa
:
[20]
“
It
is important to note, however, that my reasoning does not entail that
dismissals of public employees will never constitute ‘administrative
action’ under PAJA. Where, for example, the person in question
is dismissed in terms of a specific legislative provision,
or where
the dismissal is likely to impact seriously and directly on the
public by virtue of the manner in which it is carried
out
or
by virtue of the class of public employee dismissed
,
the requirements of the definition of ‘administrative action’
may be fulfilled.” (Emphasis added.)
c)
Further
support for this can be found in Hoexter,
[21]
where the dismissal of the CEO of the Commission for Gender Equality
is given as an example of a case that might still qualify
as
administrative action post-
Gcaba
.
[50]
In
two important judgments after
Gcaba
,
this court and the LAC have found that certain employment decisions
in the public sector do constitute administrative action (and
thus
departed from the general rule).
[22]
The judgments underscore the fact that
Gcaba
does not establish an invariable rule.
a)
The
first is the judgment of Van Niekerk J in
De
Villiers
referred
to above, in which it was found that a decision in terms of section
14(2) of Employment of Educators Act
[23]
refusing to reinstate an employee deemed to be dismissed under
section 14(1) constituted administrative action.
[24]
Central to Van Niekerk J’s finding of administrative action was
that the power enjoyed by the employer to refuse reinstatement
was
sourced in the statute (and not contract), and that the employee
concerned had no alternative remedy.
[25]
b)
The
second important judgment is that of the LAC in
Hendricks
,
which dealt with the review of a decision of a presiding officer not
to dismiss a senior municipal police official on (in effect)
corruption charges. Murphy AJA concluded that:
[26]
“…
the
decision of the presiding officer, looked at in context, was indeed
administrative action within the meaning of PAJA, it being
the
exercise of a statutory public power or the performance of a public
function which has a direct, external legal effect in its
consequences for ratepayers and citizens in general.”
[51]
To my mind, the present matter is one of
those exceptional cases where (like in
De
Villiers
and
Hendricks
)
an employment-related decision in the public sector does constitute
administrative action. This for the following reasons.
a)
There
is no controversy between the parties that the Minister is an organ
of state, and that she exercised a public power or performed
a public
function in terms of the LRA in revoking Mr Crouse’s
designation as the Registrar (see the text of the definition
of
“administrative action” quoted above). It will be
recalled that in doing so, the Minister expressly relied on section
208A, although she now contends that this was an administrative error
and that the correct reference ought to have been section
108 (see
further below). Although section 108 does not expressly provide for
the revocation of the designation of a person as the
Registrar, Mr
Skosana submitted that the power of revocation must be read into
section 108(1) and that the power of revocation
is implied in that
section.
[27]
I am in agreement
with these submissions. Consistent with the authorities dealt
with above, the fact that Mr Crouse’s
designation as the
Registrar was revoked in terms of a specific statutory provision (as
opposed to a contractual provision) is
indicative of the decision
constituting administrative action.
b)
Equally important is the fact that it is by
no means clear to me that Mr Crouse has an alternative remedy under
the LRA. In terms
of section 108(1), the Minister designates the
Registrar from amongst the officers of the department. Following his
designation
being revoked, Mr Crouse thus continues to be an officer
of the department and is to be reassigned, with it being common cause
that none of his conditions of employment have been altered. While it
might appear that he could pursue an unfair demotion dispute
in terms
of section 186(2)(a), insofar as he retains the same grade and level
of remuneration, it does not follow that he has been
demoted. It
seems to me that Mr Crouse’s position is roughly comparable to
a senior executive whose secondment is recalled,
but whose terms and
conditions of employment remain intact. Such an employee would not
have an unfair demotion claim. In a similar
vein, it does not seem to
me that Mr Crouse has any claim based on a complaint of unfair
disciplinary action short of dismissal
in terms of section 186(2)(b).
This because in revoking his designation, the Minister did not
purport to take disciplinary action
against Mr Crouse, with this
being borne out by the fact that, according to the Minister’s
answering affidavit, charges of
misconduct are still going to be
brought against Mr Crouse.
c)
Regarding
the public impact requirement set in
Gcaba
(see the emphasised sentence in the quotation in para 47 above), to
my mind, it is met given the class of public employee involved.
The
Registrar occupies an independent office (albeit accountable to the
Minister) and performs a critically important function
under the LRA
in the interests of,
inter
alia
,
hundreds of thousands of trade union members. In the words of the
preamble to the LRA, he is responsible for the regulation of
trade
unions (and employers’ organisations) “to ensure
democratic practices and proper financial controls”. In
the
context of labour relations in general, the impact of the removal of
the Registrar is of huge public import. The facts of this
case give
some insight into this. As Mr Nxumalo (who appeared for Mr Crouse)
submitted, on a conspectus of the facts, the fate
of the CEPPWAWU
application, which has implications for 66 000 members, probably
lies in Mr Crouse’s ability (or otherwise)
to review the
impugned decision. In all these circumstances, I cannot agree with Mr
Skosana that simply because an acting Registrar
has been appointed to
replace him, the impugned decision affects only Mr Crouse, and has no
wider consequences. Quite clearly,
a broader constituency is
affected.
[28]
d)
Reverting
to the text of the definition of administrative action, there can be
no dispute that the impugned decision “adversely
affects the
rights” of Mr Crouse, with the remaining issue being whether
the decision has “a direct, external legal
effect”.
[29]
In
Joseph
,
the Constitutional Court endorsed an interpretation that the phrase
“serves to emphasise that administrative action impacts
directly and immediately on individuals”, and went on to find
that “a finding that the rights of the applicants were
materially and adversely affected for the purposes of s 3 of PAJA
would
necessarily
imply that the decision had a ‘direct, external legal effect’
on the applicants” (emphasis added).
[30]
On this approach, the requirement in question is met in this case, in
that the impugned decision impacted directly and immediately
on Mr
Crouse and materially and adversely affected his rights under PAJA.
[52]
In conclusion, having found that the
impugned decision constitutes administrative action (from which it
follows that a PAJA review
is available to Mr Crouse), the third
preliminary point is also dismissed.
The
fourth preliminary point
[53]
Turning now to the fourth preliminary
point, when Mr Skosana was pressed to identify precisely what
“internal remedy provided
for in any law” Mr Crouse ought
to have exhausted before approaching this court, he made mention of
an internal grievance
procedure and possible recourse to the Public
Service Commission. I am in agreement with Mr Nxumalo that these
vague references
(which are not pleaded) are an insufficient basis
upon which to sustain the fourth preliminary point, which is
accordingly dismissed.
The
principle of legality and legality review
[54]
If I am wrong that the impugned decision
constituted administrative action, given that it clearly involved the
exercise of a public
power, the ground of review of legality can
still be invoked by Mr Crouse. The ground stems from the rule of law
in section 1(c)
of the Constitution.
[55]
Recently,
in
NDPP
,
the SCA described reviews based on the legality principle as
follows:
[31]
“
The
legality principle has by now become well established in our law as
an alternative pathway to judicial review
[32]
where PAJA finds no application. Its underlying constitutional
foundation appears, for example, from the following
dictum
by Ngcobo J in
Affordable
Medicines Trust and Others v Minister of Health and Others
[2005] ZACC 3
;
2006 (3) SA 247
(CC) … para 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.’
As demonstrated by
the numerous cases since decided on the basis of the legality
principle, the principle acts as a safety net to
give the court some
degree of control over action that does not qualify as administrative
under PAJA, but nonetheless involves
the exercise of public power.”
[56]
As
stated by Hoexter, the principle of legality (and legality review)
now effectively covers most of the grounds of review in “regular”
administrative law as found in PAJA.
[33]
The following are amongst the primary requirements of the principle
of legality.
[34]
a)
Firstly,
public functionaries are required to act within the powers granted to
them by law (i.e.
intra
vires
).
[35]
To this it can be added that functionaries also must not misconstrue
their powers.
[36]
b)
Secondly,
the exercise of all public power must be rational, i.e. rationally
related to the purpose for which the power was
given (otherwise it is
arbitrary).
[37]
c)
Thirdly,
the courts developed this concept of rationality requiring the
executive and public functionaries to exercise their power
for the
specific purpose for which it was granted, so that they cannot act
arbitrarily, for no other purpose or an ulterior motive.
[38]
d)
Fourthly,
the principle of legality has been expanded by treating procedural
fairness as a requirement of rationality.
[39]
e)
Fifthly,
it is a requirement of the principle of legality that reasons must be
provided for the impugned decision.
[40]
[57]
Of
these requirements, rationality is the one that is most often invoked
in a review based on the principle of legality. From a
labour law
perspective, the most well-known formulation of the test for
rationality is, of course, the
Carephone
test:
[41]
“…
is
there a rational objective basis justifying the connection made by
the administrative decision-maker between the material properly
available to him and the conclusion he or she eventually arrived at?”
[58]
Rationality
does not extend to reasonableness.
[42]
While there is some overlap between rationality and reasonableness
evaluation, the two concepts are conceptually different.
[43]
Rationality is an element of reasonableness, but reasonableness goes
beyond mere rationality, and includes proportionality.
[44]
A decision that is irrational will be unreasonable, but an
unreasonable decision may not necessarily be so because of
irrationality.
[45]
Reasonableness “is a variable but higher standard, which in
many cases will call for a more intensive scrutiny of administrative
decisions” than rationality.
[46]
[59]
Although
he did not refer to
Carephone
,
this passage from the judgment of Van Niekerk J in
De
Villiers
,
a key judgment on legality review,
[47]
clearly has shades of
Carephone
about it:
[48]
“
In
the light of the foregoing, it is evident that the respondent, in
dismissing the s 14(2) application, relied on reasons that
were
fundamentally bad. The respondent's decision not to reinstate the
applicant was accordingly irrational in relation to the
reasons
given, and was based on irrelevant considerations at the expense of
relevant ones. Having regard to the full conspectus
of relevant facts
and circumstances, the inference of arbitrariness and irrationality
is inescapable. In my view, the respondent's
decision to refuse to
reinstate the applicant stands to be reviewed and set aside.”
[60]
Also
echoing the
Carephone
test is this conclusion by the LAC in another leading judgment on
reviews based on the principle of legality,
Mangena
:
[49]
“
In
my view, applying the test of legality, insufficient evidence was
provided by the appellant as to why the decision to reject
the
representations made was sufficiently rationally related to the
purpose for which that power was given to appellant. In particular,
and critical to these disputes, insufficient evidence was provided as
to why a continued employment relationship had been rendered
intolerable by the conduct of these employees.”
[61]
In
the process of arriving at its conclusion, the LAC referred to this
finding by the Constitutional Court in
Democratic
Alliance
,
where it was found that the failure by a decision-maker to have
regard to relevant material may rob the decision of rationality:
[50]
“
If
in the circumstances of a case, there is a failure to take into
account relevant material that failure would constitute part
of the
means to achieve the purpose for which the power was conferred. And
if that failure had an impact on the rationality of
the entire
process, then the final decision may be rendered irrational and
invalid by the irrationality of the process as a whole.”
[62]
In
short, insofar as they attack the rationality of the decision,
reviews based on the principle of legality take us back to the
Carephone
test (which was the prevailing law in respect of the review of CCMA
arbitration awards up until the judgment of the Constitutional
Court
in
Sidumo
[51]
).
The
merits of the review application
[63]
As often occurs in matters such as this,
despite a wide-ranging attack on the impugned decision in the
founding affidavit and heads
of argument, Mr Nxumalo focussed his
efforts more narrowly in oral argument. The main legs of his attack
were that the impugned
decision was reviewable on the following four
grounds.
a)
Firstly, the Minister was not authorised by
section 208A to revoke Mr Crouse’s designation as the
Registrar, and committed
a material error of law in doing so.
b)
Secondly, the instruction issued to Mr
Crouse was unlawful because, having brought the CEPPWAWU application
in terms of section
103A(1)(c), he was
functus
officio
and thus could not suspend the
application.
c)
Thirdly, the Minister failed to consider
relevant material facts in arriving at her decision, namely the
ministerial submission
of 15/16 July 2015.
d)
Fourthly, the Minister unlawfully
interfered with or frustrated Mr Crouse’s attempt to acquit
himself of his statutory function
in prosecuting the CEPPWAWU
application.
The
first ground of review
[64]
It will be recalled that, in her letter of
23 July 2015, the Minister purported to act in terms of section 208A
in revoking Mr Crouse’s
designation as the Registrar. It is
common cause between the parties that this section does not serve as
a legal basis for the
impugned decision. This because, as explained
above, section 208A deals with the Minister’s powers of
delegation and the
withdrawal thereof, but this does not relate to
the Registrar, whose powers are original statutory powers vested in
him or her
by the LRA (as opposed to being delegated powers).
[65]
In
response to this ground of review, Mr Skosana submitted that
notwithstanding the error, the Minister had the power to revoke
Mr
Crouse’s appointment in terms of section 108, which Mr Crouse
accepts (see para 51(a) above). Building on this, Mr Skosana
submitted that the fact that the Minister relied on the wrong section
did not serve to invalidate the decision. For this submission,
Mr
Skosana relied on
Latib
,
[52]
in which the then Supreme Court held that “provided …
the enabling statute grants the power to make the proclamation,
the
fact that it is said to be made under the wrong section will not
invalidate the notice”. It seems to me that
Latib
remains good law, provided that the decision-maker did not
deliberately (i.e. consciously) act in terms of the particular
section,
in which case he or she will be bound thereby. But if the
wrong reference was “the result of a simple slip up”,
then
the mistake is immaterial.
[53]
[66]
The question then is whether the Minister
consciously opted to rely on section 208A or whether she made a slip
up in referring to
it instead of to section 108. In her answering
affidavit, the Minister states that the incorrect reference “was
an administrative
error”. There exists no basis upon which I
can reject this explanation. In the result, the first ground of
review fails.
The
second ground of review
[67]
As
set out above, Mr Crouse has adopted the position that having lodged
the CEPPWAWU application in terms of section 103A(1)(c),
he was
functus
officio.
[54]
Flowing from this, he contends that given that he was
functus
officio
,
the instruction to suspend the application was unlawful, and
consequently that his removal as the Registrar for refusing to obey
the instruction is reviewable. According to Mr Crouse, if the
Minister wanted to suspend the application, she ought to have
appealed
against his decision to bring it – this in terms of
section 111(3).
[68]
To my mind, this ground of review is tied
up with what the Minister actually meant by her instruction that Mr
Crouse should “suspend
the … application until such time
that you have briefed me fully on this matter”. Although I can
certainly appreciate
the difficulties that the use of the term
“suspend” caused in the context of the fact that one was
dealing with an
urgent application that was before court, it seems to
me that what was probably meant was that the matter should be
postponed pending
the Minister being briefed. From a practical
perspective, this probably meant that the urgent application would
have had to be
removed from the urgent roll on 18 June 2015 and
postponed
sine die.
During
the course of the debate in court, I understood Mr Nxumalo to accept
this interpretation (it having been mooted by Mr Crouse
himself in
his letter to the DG and in the ministerial submission.)
[69]
If Mr Crouse had been instructed by the
Minister to withdraw the CEPPWAWU application, I can appreciate that
it might be arguable
that he was
functus
officio
in his decision to lodge the
application in terms of section 103A(1)(c) and accordingly that the
instruction was unlawful (although
I need make no finding on this).
But, to my mind, this cannot extend to an instruction to postpone the
application pending the
Minister being briefed. Put differently, Mr
Crouse’s decision to enrol the matter for hearing on 18 June
2015 was not an
administrative decision that attracts the doctrine of
functus officio
(as Mr Nxumalo was forced to argue). Leaving aside whether it was
desirable to do so, there was, in my view, thus no legal impediment
to Mr Crouse seeking a postponement of the application on 18 June
2015, which the court would then have had to decide on. (Ironically,
the application was in any event postponed on that day, at the
instance of CEPPWAWU.) In the result, the second ground of review
also fails.
The
third ground of review
[70]
For present purposes, the following facts
and circumstances relating to the ministerial submission of 15 / 16
July 2015 (“the
ministerial submission”) are of
particular relevance.
a)
In his letter of 10 July 2015, the DG
instructed the DDG and Mr Crouse to “provide a detailed report
in a ministerial submission
stipulating reasons why the Minister’s
instructions were ignored by the Registrar”, and advised that
this was to be
provided by 15 July 2015.
b)
The Minister’s instructions in
question were those set out in her letter to Mr Crouse of 5 June
2015, namely that Mr Crouse
“suspend the Labour Court
application until such time that you have briefed me fully on this
matter”.
c)
The ministerial submission was submitted by
the DDG and Mr Crouse on 15 / 16 July 2015.
d)
The ministerial submission contains the
following handwritten annotation (presumably by the DG):
“
DG’s
letter only requires a response as to why the registrar ignored the
minister’s request for a briefing before proceeding.”
e)
Mr Crouse states as follows in his founding
affidavit with apparent reference to the above-mentioned annotation:
“
This
[ministerial] submission was not sent through to the Minister but was
returned by the acting [DG] as the briefing submission
appears to go
beyond the request by the DG to only explain why the Minister’s
instruction was ignored.”
f)
In her answering affidavit, the Minister
denies these allegations (but provides no particularity). On the
basis of the Minister’s
denial, it appears to be her case that
she did in fact receive the ministerial submission. In circumstances
where the (acting)
DG did not file a confirmatory affidavit, I accept
Mr Crouse’s version that the ministerial submission was later
returned
to him by the DG. And as appears below, the Minister, in
effect, concurs with the content of the handwritten annotation made
on
the ministerial submission.
g)
The Minister goes on to say this about the
ministerial submission:
“
The
second applicant [Mr Crouse] was given an opportunity by the [DG] to
state the reasons why [he] failed to halt the process and
to brief
me.
Although he filed a ministerial
submission, he did not deal with these two issues
”
(emphasis added).
h)
Along the same lines, the Minister states
as follows:
“
The
[ministerial] submission sought to explain why the Registrar decided
to bring the court proceedings against CEPPWAWU
but
failed to explain why my letter was ignored
by [Mr Crouse]” (emphasis added).
[71]
The
allegation by the Minister in the emphasised lines in paras 70(g) and
(h) above are wrong and unjustifiable. The ministerial
submission
addresses Mr Crouse’s explanation for not having suspended the
CEPPWAWU application, and not having briefed the
Minister as per her
letter of 5 June 2015. Reference is made in this regard to paras
24(b), (c), (d) and (e),
[55]
and paras 26(a), (b) and (c) above. The contents present as a
detailed, cogent and sincere explanation by Mr Crouse.
[72]
Quite what the objection to the ministerial
submission was that caused it to be returned is difficult to
understand. From what the
Minister says (see para 70(h) above), it
seems that this was done because it details why Mr Crouse decided to
bring the CEPPWAWU
application. But this is highly irrational because
the motivation for bringing the application was interlinked with the
explanation
that Mr Crouse was asked to provide and provided. On the
face of it, the length of the ministerial submission and the fact
that
it contained what was (wrongly) considered to be extraneous
material, caused the Minister (and the DG) not to apply her mind to
the material content of the ministerial submission, which contained
Mr Crouse’s response to the questions posed of him. In
effect,
while the ministerial submission was called for and was no doubt
intended to serve as the basis for the Minister’s
decision-making in relation to Mr Crouse, it was disregarded.
[73]
What then are the implications of the
Minister’s failure to consider the ministerial submission (in
its material respects)
before making the impugned decision? To my
mind, they are potentially twofold. The first is to potentially
render the impugned
decision both unreasonable (a PAJA ground of
review) and irrational (a PAJA and principle of legality ground of
review). The second
is to potentially render the impugned decision
procedurally unfair (a PAJA and principle of legality ground of
review).
[74]
Dealing
first with the issue of unreasonableness,
[56]
the
LAC has often found that the failure to consider relevant facts will
typically result in an unreasonable decision.
[57]
Recently, in
Mofokeng
,
[58]
the LAC held that this mode of analysis should be undertaken in the
present context:
a)
the first enquiry is whether the facts
ignored were
material
,
which will be the case if a consideration of them would (on the
probabilities) have caused the decision-maker to come to a different
result;
b)
if this is established, the (objectively
wrong) result arrived at by the decision-maker is
prima
facie
unreasonable;
c)
a second enquiry must then be embarked upon
– it being whether there exists a basis in the evidence overall
to displace the
prima facie
case of unreasonableness; and
d)
if the answer to this enquiry is in the
negative, then the decision stands to be set aside on review on the
grounds of unreasonableness
(and
vice
versa
).
[75]
It will be recalled that the Minister
revoked Mr Crouse’s designation as the Registrar “on the
grounds of gross insubordination”
on his part. Following the
mode of analysis set out above, to my mind, if the Minister had
applied her mind to the facts and considerations
detailed in the
ministerial submission in a fair and objective manner, this would (on
the probabilities) have caused her to come
to a different decision.
The facts ignored by the Minister were thus material and the decision
prima facie
unreasonable.
[76]
This is so because, as I have already
found, the ministerial submission presents as a detailed, cogent and
sincere explanation by
Mr Crouse. Without intending to re-traverse
the contents, I highlight by way of example the following series of
facts mentioned
in the ministerial submission that would surely have
had a material impact on the Minister’s decision:
a)
the fact that Mr Crouse considered that the
Minister had been sufficiently apprised of the matter;
b)
the fact that, according to Mr Crouse, he
availed himself for a meeting with the Minister immediately upon
having received her letter
of 5 June 2015, but no meeting was set up
by her office;
c)
the fact that, according to Mr Crouse, he
was not aware of any formal request to avail himself for a meeting
with the Minister;
d)
the fact that Mr Crouse had never
previously (in 20 years) been required to brief the Minister, and did
not consider that he was
under an obligation to do so;
e)
the fact that the use of the term “suspend”
caused confusion, even in the mind of the State Attorney;
f)
the fact that Mr Crouse considered himself
functus officio
(which was a critically important fact);
g)
the fact that Mr Crouse was motivated by
the belief that he was acting in the best interests of 66 000
CEPPWAWU members and
acquitting himself of his statutory duties;
h)
the fact that the majority of the regions
of CEPPWAWU had successfully joined the application to have the union
placed under administration;
i)
the fact that Mr Crouse considered that the
suspension of the CEPPWAWU application would result in
wasteful expenditure
having been incurred; and
j)
the fact that Mr Crouse indicated a
repeated willingness to meet with the Minister to discuss the matter.
[77]
Turning to the next enquiry, to my mind,
there exists no basis in the evidence overall to displace this
prima
facie
case of unreasonableness, with
the result that the decision stands to be struck down as
unreasonable. In short, in my view, on
a proper consideration of the
facts, a reasonable decision-maker would not have concluded that Mr
Crouse was guilty of gross insubordination,
such as to warrant his
removal as the Registrar. Accordingly, I find the impugned decision
to have been unreasonable and thus liable
to review.
[78]
Insofar as the impugned decision does not
constitute administrative action with the result that PAJA does not
apply, I am of the
view that the failure to consider the ministerial
submission renders the impugned decision irrational and thus liable
to legality
review. Reference is made in this regard to the
quotations from
De Villiers
,
Mangena
and
Democratic Alliance
in paras 59-61 above, which I consider to be on all fours with this
matter (read
mutatis mutandis
).
In short, the Minister’s failure to have regard to relevant
material robs the impugned decision of rationality, and is
reviewable
on this basis.
[79]
Turning to the issue of procedural
unfairness, while Mr Nxumalo did not pursue in argument the pleaded
case that Mr Crouse had not
been afforded a hearing before his
designation as the Registrar was revoked (this in circumstances where
there had been an exchange
of correspondence), his attack on the
Minister’s failure to consider the ministerial submission
cannot be divorced from the
issue of procedural fairness. The
disregarding of the ministerial submission (containing Mr Crouse’s
explanation) by the
Minister constitutes an act of procedural
unfairness, and renders the decision liable to review either under
PAJA or on the grounds
of a breach of the principle of legality.
The
fourth ground of review
[80]
In
terms of this ground of review, Mr Crouse contends that the Minister
sought to unlawfully interfere with or frustrate his attempt
to
acquit himself of his statutory function in prosecuting the CEPPWAWU
application (for an ulterior motive or purpose). In her
answering
affidavit, the Minster denies these allegations and explains why she
considered it necessary to suspend the application
pending receipt of
a full briefing. No replying affidavit was delivered by Mr Crouse. In
the light of the
Plascon
Evans
rule,
[59]
I hold that this
ground of review fails.
The
remaining issues
[81]
As mentioned at the outset, the acting
Registrar (Mr Ntleki) has been joined as a party to these
proceedings. Further hereto, the
applicants seek to also review and
set aside his appointment, principally on the basis that the LRA does
not provide for the appointment
of an acting Registrar (as opposed to
deputy Registrars who are already in place). While it seems to me
that it was prudent to
join Mr Ntleki as he clearly has a material
interest in the outcome of these proceedings, I do not consider it
necessary to decide
on the challenge to his appointment. This in
circumstances where it is my intention to order the reinstatement of
Mr Crouse as
the Registrar, from which it must follow that Mr
Ntleki’s acting appointment will terminate.
[82]
During the hearing, Mr Skosana contended
that it would be inappropriate to order the reinstatement of Mr
Crouse as the Registrar,
as this would be tantamount to appointing
him as the Registrar for life. There is no merit in this, as the
order would not prohibit
lawful termination in the future.
[83]
Regarding the issue of costs, Mr Skosana
submitted that if I were inclined to find against the Minister, costs
should not include
the costs of 4 and 7 August 2015, alternatively,
should not include the costs of 7 August 2015. I can find no basis to
exclude
the costs of 4 August 2015, as it was appropriate for the
application to have been brought as a matter of urgency. I do,
however,
agree that it would be inappropriate to grant costs against
the Minister in respect of 7 August 2015, as on that day the parties
engaged in a consensual process of mapping out an agreed timetable
for the final determination of the matter.
In
summary
[84]
In summary, I have found that: (i) the
impugned decision constitutes administrative action and that a PAJA
review is thus available
to Mr Crouse; alternatively, the
impugned decision constitutes the exercise of a public power and is
subject to legality
review; (ii) in arriving at the impugned
decision, the Minister ignored materially relevant facts, namely the
ministerial submission
of 15/16 July 2015; (iii) the consequence of
this is that the impugned decision was unreasonable, alternatively
irrational; and
procedurally unfair; and (iv) the impugned decision
thus falls to be set aside on review, and Mr Crouse reinstated into
the position
of the Registrar of Labour Relations.
Order
[85]
In the premises, the following order is
made:
1.
The decision of the first respondent on 23
July 2015 to revoke the designation of the second applicant as the
Registrar of Labour
Relations is reviewed and set aside;
2.
The first respondent is directed to
immediately reinstate the second applicant as the Registrar of Labour
Relations;
3.
The first respondent shall pay the costs,
excluding the costs of 7 August 2015.
Myburgh, AJ
Acting
Judge of the Labour Court of South Africa
APPEARANCES:
On
behalf of the applicants: Adv APS Nxumalo (instructed by Thabang
Ntshebe Attorneys)
On
behalf of the respondents: Adv DT Skosana SC and Adv MM
Mojapelo (instructed by the State Attorney)
[1]
Labour
Relations Act 66 of 1995
. Unless otherwise indicated, all references
to sections herein are to the LRA.
[2]
Director
General.
[3]
Chemical,
Energy, Paper, Printing, Wood and Allied Workers’ Union.
[4]
Congress
of South African Trade Unions.
[5]
Deputy
Director General: Labour Policy and Industrial Relations.
[6]
Para
4.3 of the ministerial submission recorded in part as follows: “The
letter stressed that if the road map is not implemented
in its
entirety by not later than end of May 2014, the department could
approach the Labour Court to request that the union be
put under
administration, or the Registrar will proceed to publish a notice of
intention to cancel the registration of the union.”
[7]
In
this regard, the Minister annotated the following comment on the
ministerial submission of 9 May 2014: “I have requested
a
meeting with NOBs [national office bearers] of CEPPWAWU and COSATU
president and my office together with acting DDG …
.”
[8]
Public
Finance Management Act 1 of 1999
.
[9]
As
stated above, in terms of
section 103A
, a trade union can itself
resolve to be placed under administration and apply to court to give
effect to the resolution. In such
an event, the Registrar need not
play any role.
[10]
Building
Industry Bargaining Council (Southern and Eastern Cape) v CCMA
[2011] 4 BLLR 330
(LC) at para 13.
[11]
In
Hendricks
v Overstrand Municipality and another
[2014] 12 BLLR 1170
(LAC) at para 29, the LAC found that
“permissible grounds in law” for the purposes of
section
158(1)(h)
comprise “(i) the grounds listed in PAJA, provided
the decision constitutes administrative action; (ii) in terms of the
common law ...; or (iii) in accordance with the requirements of the
constitutional principle of legality … .”
[12]
Promotion
of Administrative Justice Act 54 of 2002.
[13]
Gcaba
v Minister for Safety and Security & others
[2009] 12 BLLR 1145
(CC) at para 53.
[14]
Fedlife
Assurance Ltd v Wolfaardt
[2001] 12 BLLR 1301
(SCA) at para 27.
[15]
Fedlife
Assurance (supra)
at para 27.
[16]
Gcaba
(supra)
at
para 64.
[17]
De
Villiers v Head of Department: Education, Western Cape Province
(2010) 31
ILJ
1377 (LC) at para 19.
[18]
President
of the Republic of South Africa and Others v South African Football
Union and Others
2000 (1) SA 1
(CC) (“
SARFU
”).
[19]
Gcaba
(supra)
at para 68, fn 7.
[20]
Chirwa
v Transnet Ltd & others
[2008] 2 BLLR 97
(CC) at para 194.
[21]
Hoexter
Administrative
Law in South Africa
(2
nd
ed) (“Hoexter”) at 218.
[22]
The
LAC did, however, follow
Gcaba
in
Public
Servants Association of South Africa obo De Bruyn v Minister of
Safety and Security and another
[2012] 9 BLLR 888 (LAC).
[23]
Act
76 of 1998.
[24]
The
judgment was referred to and not overruled by the LAC in
MEC
for the Department of Health, Western Cape v Weder; MEC for the
Department of Health, Western Cape v Democratic Nursing Association
of SA on behalf of Mangena
(2014) 35
ILJ
2131 (LAC) (“
Mangena
”)
at paras 31-32.
[25]
De
Villiers (supra)
at paras 19-20.
[26]
Hendricks
(supra)
at
para 20.
[27]
See
Masetlha
v President of the RSA and Another
[2007] ZACC 20
;
2008 (1) SA 566
(CC) at para 68 (dealing with the power to dismiss
being an essential corollary of the power to appoint).
[28]
Mangena
(supra)
at
para 30.
[29]
This
requirement was not mentioned at all in
Gcaba
(supra)
,
with the public impact requirement set by it being something
different and apparently additional.
[30]
Joseph
and Others v City of Johannesburg and Others
2010 (4) SA 55
(CC) at para 27. See also,
Union
of Refugee Women and Others v Director: Private Security Industry
Regulatory Authority and Others
2007 (4) SA 395
(CC) at para 70.
[31]
National
Director of Public Prosecutions and Others v Freedom under Law
2014 (4) SA 298
(SCA) at paras 28-29; followed in
Hendricks
(supra)
at
para 21.
[32]
In
Mangena
(supra)
at
para 33, the LAC described the principle of legality as “a
parallel system of review” for action which falls outside
of
the strict definition of administrative action in PAJA.
[33]
Hoexter
at 218.
[34]
See
generally,
Mangena
(supra)
at paras 34-35.
[35]
Fedsure
Life Assurance Ltd and Others v Greater Johannesburg Transitional
Metropolitan Council and Others
[1998] ZACC 17
;
1999 (1) SA 374
(CC) at para 58.
[36]
SARFU
(supra)
at para 148.
[37]
Pharmaceutical
Manufacturers Association of South Africa and Another: In re Ex
parte President of the Republic of South Africa
and Others
[2000] ZACC 1
;
2000 (2) SA 674
(CC) at para 85.
[38]
Gauteng
Gambling Board and Another v MEC for Economic Development, Gauteng
2013 (5) SA 24
(SCA) at para 47.
[39]
Democratic
Alliance v President of the Republic of South Africa and Others
2013 (1) SA 248
(CC) at para 34. Hoexter at 123 states as follows:
“It is worth pointing out that it is also possible for aspects
of procedural
fairness to be brought in via the requirement of
lawfulness … or indeed for procedural fairness to be
acknowledged as
a requirement in its own right. Natural justice is,
after all, an accepted part of the rule of law.”
[40]
Judicial
Service Commission and Another v Cape Bar Council and Another
2013 (1) SA 170
(SCA) at para 44.
[41]
Carephone
(Pty) Ltd v Marcus NO & others
[1998] 11 BLLR 1093
(LAC) at para 37.
[42]
Building
Industry Bargaining Council (Southern and Eastern Cape) v CCMA
[2011] 4 BLLR 330
(LC) at para 17.
[43]
Democratic
Alliance (supra)
at
para 30.
[44]
Hoexter
at 340.
[45]
Head,
Western Cape Education Department and Others v Governing Body, Point
High School and Others
2008
(5) SA 18
(SCA) at para 16.
[46]
Minister
of Health and Another NO v New Clicks South Africa (Pty) Ltd and
Others (Treatment Action Campaign and Another as
Amici
Curiae
)
2006 (2) SA 311
(CC) at para 108.
[47]
Although
the court found the decision in question to constitute
administrative action, in the alternative, Van Niekerk J approached
the matter as a legality review.
[48]
De
Villiers (supra)
at
para 36.
[49]
Mangena
(supra)
at
para 42.
[50]
Democratic
Alliance (supra)
at
para 39.
[51]
Sidumo
& another v Rustenburg Platinum Mines Ltd & others
[2007] 12 BLLR 1097 (CC).
[52]
Latib
v Administrator, Transvaal
1969 (3) SA 186
(T) at 190J-191A.
[53]
Howick
District Landowners’ Association v Umngeni Municipality
and
Others
2007 (1) SA 206
(SCA) at para 23;
Minister
of Education v Harris
2001 (4) SA 1297
(CC) at paras 17-18.
[54]
Baxter
Administrative
Law
at 372 says this about the
functus
officio
doctrine: “Indeed, effective daily administration is
inconceivable without the continuous exercise and re-exercise of
statutory powers and the reversal of decisions previously made. On
the other hand, where the interests of private individuals
are
affected we are entitled to rely upon decisions of public
authorities and intolerable uncertainty would result if these could
be reversed at any moment. Thus when an administrative official has
made a decision which bears directly upon an individual's
interests,
it is said that the decision-maker has discharged his office or is
functus
officio
.”
[55]
As
mentioned, the contents of these paragraphs dealing with Mr Crouse’s
letter to the DG on 14 July 2015 were repeated in
the ministerial
submission.
[56]
The
test for reasonableness was set as follows in
Sidumo
(supra)
at
para 110: “Is the decision reached by the commissioner
one that a reasonable decision-maker could not reach?”
[57]
See
for example:
First
National Bank - A division of First Bank Ltd v Language & others
(2013) 34
ILJ
3103 (LAC) at para 17;
Gaga
v Anglo Platinum Ltd & others
[2012] 3 BLLR 285
(LAC) at para 44;
Gold
Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission
for Conciliation, Mediation and Arbitration and others
[2007] ZALC 66
;
[2014] 1 BLLR 20
(LAC) at para 21.
[58]
Head
of the Department of Education v Mofokeng
[2015] 1 BLLR 50
(LAC) at para 33.
[59]
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634H-635B.