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[2015] ZALCJHB 420
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Tsietsi v City of Matlosana Local Municipality and Others (J2099/15) [2015] ZALCJHB 420 (4 November 2015)
REPUBLIC
OF SOUTH AFRICA
Not reportable
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
C
ase
no: J 2099/15
In the matter between:
MOTSEMME ELIE
TSIETSI
APPLICANT
and
CITY OF MATLOSANA
LOCAL MUNICIPALITY
FIRST RESPONDENT
RAMAGAGA SETH
(ADMINISTRATOR)
SECOND RESPONDENT
MAAKE MJC
(CHAIRPERSON: DISCIPLINARY
ENQIRY)
THIRD RESPONDENT
Heard
:
3 November 2015
Delivered:
4 November 2015
JUDGMENT
VAN
NIEKERK J
[1]
This is an urgent application in which the applicant seeks to
interdict the respondents from continuing with disciplinary
proceedings
against him, pending the outcome of proceedings before
the High Court. In those proceedings, the applicant seeks, amongst
other
things, to challenge the second respondent’s authority to
institute disciplinary proceedings against him, as well as the
legality of the proceedings themselves. In broad terms, the basis of
the applicant’s challenge is that second respondent,
appointed
by the MEC for local government and human settlement to administer
the City of Motlosana Local Municipality, was in validly
appointed
and therefore had no authority to institute disciplinary proceedings
against him.
[2]
The disciplinary proceedings in question commenced on 15 April 2015,
when the applicant was charged with 106 counts of misconduct.
On 24
April 2015, the disciplinary hearing commenced before the third
respondent, an independent chair person. On this occasion,
the
applicant’s legal representative raised a series of challenges
to the legality of the proceedings. On 23 May 2015, the
third
respondent forwarded his ruling to the parties. In essence, he held
that he did not possess locus standi to determine the
issues, and
that the applicant ought to indicate within seven days whether it was
his intention to challenge the legality of the
intervention by the
MEC and the legality of the disciplinary proceedings in an
appropriate court.
[3]
On 27 May 2015, the applicant filed an urgent application in the High
Court, Gauteng Division: Pretoria. That application was
heard on 9
June 2015, when it was struck from the roll for lack of urgency. The
applicant has since sought to pursue the application
in the normal
course. On 9 September 2015 the applicant filed a joinder
application, seeking to join the National Council of Provinces
to the
proceedings. That application was granted on 16 October 2015. The
registrar of the High Court has not allocated a date for
the hearing
of the application, and there is no indication as to when the
application might be enrolled.
[4]
This brief chronology ought to be interrupted by noting that on 5
March 2015, the applicant launched an urgent application in
this
court in which he challenged his precautionary suspension on broadly
the same grounds which form the subject of the application
pending
before the High Court. On 13 March 2015, this court dismissed the
application, primarily on the basis that it had no jurisdiction
to
make findings on the validity or otherwise of an intervention in
terms of which the municipality was placed under administration.
[5]
The disciplinary proceedings against the applicant were resumed on 7
September 2015. On that occasion, the applicant failed
to attend the
hearing. On 14 September 2015, the chairperson ruled that the hearing
continue, on the basis that while the applicant
had given an
undertaking to challenge the validity of the intervention in April
2015, the matter had not yet been set down for
hearing after having
been dismissed during June 2015 for lack of urgency. The proceedings
were thereafter set down for 12 to 16
October 2015. In that hearing,
the applicant brought an application to stay the proceedings until
the application pending before
the High Court was determined. In a
ruling issued on 12 October 2015, the chairperson refused to stay the
proceedings and ordered
that the enquiry should proceed. The enquiry
was thereafter postponed to 5 November 2015. In essence, it is
resumption of the enquiry
on the state that the applicant seeks to
interdict.
[6]
Since the decision of the Labour Appeal Court in
Booysen v
Minsiter of Safety and Security
[2011] 1 BLLR 83
(LAC) it is
clear that this court has the jurisdiction to intervene in incomplete
disciplinary processes, but that it should not
ordinarily do so. The
court has a discretion in this regard, to be exercised having regard
to the facts of each case but only in
truly exceptional
circumstances. Among the factors to be taken into account are whether
the failure to intervene would lead to
a grave injustice or whether
justice might be attained by other means.
[7]
The privacy right on which the applicant relies, in effect, is his
right to disciplinary proceedings are lawful and valid. In
this
regard, Mr Scholtz, who appeared on behalf of the applicant,
submitted that the applicant had establihsed a
prima facie
case before the High Court and that of this serves as a basis for
intervention by this court. I am not persuaded that it is for
this
court to take a view on the merits of the application pending before
the High Court. The fact that those proceedings remain
pending and
are unlikely to be determined in the short term is a factor that this
court must necessarily take into account. Other
relevant factors, it
would seem to me, are that the commencement of the disciplinary
proceedings initiated against the applicant
have since their
inception during April 2015, some six months ago, been delayed solely
on account of the applicants points in
limine
and the
litigation initiated by him. In the interim, it is not disputed that
the applicant remains on suspension, drawing a salary
of some R
100,000 each month.
[8]
The facts of the present case can be distinguished from those in
McBride v Minister
of Police
(J 1396/15, and delivered
on 24 July 2015) in which Basson J stayed a disciplinary hearing
pending the final determination of a
constitutional challenge
launched in the High Court. In that matter, the constitutional
challenge was a matter of some importance
and supported by two
prospective
amici curiae.
Heads of argument had been filed and
the application was to be heard in less than a month from the date on
which the application
seeking a stay of the disciplinary hearing were
initiated in this court. In the present instance, there is no
indication as to
when the applicant’s challenge to the validity
of the intervention and the second respondent’s appointment and
also
to the validity of the disciplinary proceedings themselves will
be heard. Further, I must necessarily bear in mind that the applicant
approaches this court on an urgent basis to interdict a process
initiated some six months ago, making the same allegations that
were
dismissed by this court in March 2015.
[9]
Insofar as the applicant contends that he will suffer irreparable
harm should the relief sought not be granted, the only harm
to which
he points is the prospect of him having to incur wasted costs in
respect of the present disciplinary hearing, should the
disciplinary
process be declared invalid and set aside. The applicant is also
concerned that should the current disciplinary proceedings
not be
interdicted, he would face the possibility of cross-examination for
no good reason. He also observes that should the proceedings
continue
and should they result in a finding against him, he faces the
prospect of prejudice in the form of exclusion from employment
in any
municipality for a period of 10 years. While these all likely
consequences should the disciplinary hearing proceed, none
of them in
my view constitute irreparable harm. In the event that the
application pending before the High Court is granted, whenever
that
might be, that would have the effect of restoring the applicant to
the position in which he would have been had the disciplinary
proceedings not been instituted.
[10]
What weighs heavily in the present matter is the need for an
expeditious disciplinary hearing. The code of good practice next
to
the Labour Relations Act contemplates that workplace disciplinary
processes be relatively informal, thus avoiding the protracted
proceedings evidenced in the present instance. It is in the interests
of the ratepayers of the first respondent, and indeed, in
the
applicant’s interests, that the substance or otherwise of the
charges brought against him be determined without further
delay. The
enquiry is chaired by an independent person (a member of the Pretoria
bar) and both parties are represented by attorneys.
Between them,
they ought to appreciate the merits of a speedy finalisation of the
disciplinary hearing and the disadvantages, both
to the parties and
the ratepayers, of costly, protracted proceedings.
[11]
In summary, having regard to all of the relevant facts, I am not
persuaded that the present matter is one where failure to
intervene
would lead to a grave injustice. The application therefore stands to
be dismissed.
[12]
There is no reason why costs should not follow the result. The
applicant has included in the notice of motion a prayer for
costs on
the punitive scale. On the principle of reciprocity, Mr Sekhula, who
appeared for the respondents, sought a similar order.
There is no
basis for an award of costs on the scale as between attorney and
client but equally there is no reason to deny the
respondents their
costs on the ordinary scale.
I
make the following order:
1.
The
application is dismissed, with costs.
ANDRÉ
VAN NIEKERK
JUDGE
OF THE LABOUR COURT
APPEARANCES
For
the Applicant: Mr. F. Schöltz of Schöltz Attorneys
For
the Respondent: Adv. P Sekhula, instructed by Waks Silent Attorneys