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[2017] ZALCJHB 125
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Chikane and Another v MEC for Roads and Transport, Gauteng Province and Others (J856/17) [2017] ZALCJHB 125 (25 April 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
Reportable
Case
no: J856-17
In
the matter between:
CHIKANE
ALBERT
CHIKANE
First
Applicant
NATALIE
ROSALIND
GOVENDER
Second Applicant
and
MEC
FOR ROADS AND TRANSPORT,
GAUTENG
PROVINCE
First Respondent
HEAD
OF THE DEPARTMENT OF ROAD AND
TRANSPORT,GAUTENG
PROVINCE
Second
Respondent
MAJANG
INCORPORATED ATTORNEYS
Third
Respondent
BOSMAN
GIYOSE DYASI INCORPORATED
Fourth Respondent
Heard:
19 April 2017
Delivered:
25 April 2017
JUDGMENT
WHITCHER
J
Introduction
[1]
The applicants seek on an urgent basis to
interdict the first and second respondents from proceeding with a
disciplinary hearing
against them, pending the final determination of
a review application brought by the applicants in the High Court in
which application
they seek to review and set aside a forensic
investigation report commissioner and issued by the second
respondents on 1 November
2016. They seek the review on the basis
that the forensic investigation infringed the principle of legality
and the findings are
irrational because the applicants were not given
an opportunity to make representation on the final forensic report
and/or before
it was finalised.
[2]
The applicants submit that the disciplinary
charges levelled against are squarely based on the forensic report
and if the review
is successful the charges will fall away and the
respondents will be expected to reconsider their decision to lay the
said charges
against them.
[3]
For the reasons set out hereunder the application
is dismissed.
Prima facie right
[4] The object of the
forensic investigation was to,
inter alia,
investigate whether
disciplinary proceedings should be brought against employees, and the
applicants were, amongst others, the
subject of the investigation. In
the end the report recommended disciplinary charges be levelled
against the applicants.
[5] The issue of legality
may be relevant to the review before the High Court, but the matter
before me deals with the fairness
of the disciplinary proceedings.
[6] On the applicants own
version, they were interviewed during the investigation in July 2015
and given an opportunity to make
comments [that is make
representation on issues being investigated]. However, the applicants
claim that they were entitled to be
given an opportunity to make
representations on the entire report before its finalisation because
the charges levelled against
them are based squarely on the report.
[7] The existence of a
right is a matter of substantive law. The applicants, in the
context of these proceedings, are essentially
claiming that they had
a right to be heard and given an opportunity to make representations
before the finalisation of the forensic
report because their charges
arise therefrom. Other than a bald allegation to this effect, the
applicants have not established
that they have a special contractual
right or right that exists in the LRA or Code of Good Practice in the
LRA.
[8] While the Code on
Good Practice in the LRA states that an investigation should be
carried out to determine whether there are
grounds for charging an
employee with misconduct, the Code suggests this investigation need
not be a formal enquiry. The
Code makes no mention of a right
to be heard during the investigation or that the investigation must
be conducted like a formal
inquiry. The Labour Court
Avril
Elizabeth Home
[1]
and the LAC in
Semenya
SC & others v CCMA & others
[2]
emphasized that the Code clearly envisages procedures that are not
strictly formal and that a high level of procedural fairness
is not
required in internal processes. The Code merely provides that
employees have the right to be heard prior to a decision being
made
by the employer on whether they are guilty of charges of misconduct
levelled against them.
[9] In any event the
applicants have failed to demonstrate that their charges are squarely
based on the forensic report.
[10] As correctly
submitted by the respondents, if this court grants the application,
it would mean that employers would be forced
to conduct formal
hearings before an investigation is complete.
Alternative remedy
[11] If the charges are
based on the forensic report, it follows that the applicants will
have an opportunity to challenge the findings
of the forensic report
at the disciplinary hearing. As correctly submitted by the
respondents, the remedy that is immediately available,
and the one
that the applicants seek to frustrate, is the disciplinary hearing.
And if such does not provide the desired outcome,
the applicants have
the right to refer the matter to the CCMA or relevant bargaining
council for relief.
[12] There is no evidence
before me that the disciplinary hearing will not follow the usual
course, which is a decision based on
the evidence led at the hearing
through witnesses by both parties, and not merely based on a reading
of the report [if the report
is entered into evidence].
[13] The applicants
essentially want this court,
on application,
to determine the
same matters that will be the focus of the disciplinary hearing.
Reasonable
apprehension of harm
[14] As indicated, if the
charges are based on the investigation report, it follows that the
respondents will have to prove the
charges at the hearing by leading
evidence and the applicants have the right to challenge and oppose
that evidence by leading contrary
evidence and cross-examining the
respondents’ witnesses. There is thus no reasonable
apprehension of harm.
Order
[15]
The application is dismissed with costs.
________________________________
Whitcher J
Judge
of the Labour Court of South Africa
APPEARANCES:
For
the Applicants: Adv P M Maake and Maphwanya, instructed by Thilivhali
Radzilani Attorneys
For the First and Second
Respondents: Adv Nhlapo, instructed by State Attorney, Johannesburg
[1]
Avril
Elizabeth Home [2006] 27 ILJ 1644 (LC).
[2]
(2006) 27 ILJ 1627 (LAC).