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[2017] ZALCJHB 305
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Magoda v Director-General of Rural Development and Land Reform and Another (J1876/17) [2017] ZALCJHB 305; [2017] 12 BLLR 1267 (LC); (2017) 38 ILJ 2795 (LC) (28 August 2017)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case
no: J1876/17
In
the matter between:
BABALWA
MAGODA
Applicant
and
DIRECTOR-GENERAL OF
RURAL
DEVELOPMENT &
LAND REFORM
First Respondent
ADVOCATE
TANYA GOLDEN SC
Second Respondent
Heard:
24
August 2017
Delivered:
28
August 2017
Summary:
Urgent
application by a civil servant for interim relief interdicting
continuation of disciplinary enquiry pending review of procedural
rulings made by disciplinary chairperson –
prima
facie
right to review not established – application for interim
relief dismissed
JUDGMENT
MYBURGH,
AJ
Introduction
[1]
Eight years
ago, Francis J identified that a worrying trend was developing in
this court where the urgent roll is being clogged
up with
applications to interdict disciplinary enquiries from taking
place.
[1]
In the years that
followed, this court repeatedly echoed these sentiments.
[2]
But practitioners have
not taken heed of this, with Van Niekerk J having commented last year
that “[t]he urgent roll in this
court has become increasingly
and regrettably populated by applications in which intervention is
sought, in one way or another,
in workplace disciplinary
hearings”.
[3]
This case
adds to what is a significant challenge to the capacity and resources
of this court.
[2]
The
applicant, a high-ranking civil servant, is presently being subjected
to a disciplinary enquiry presided over by the second
respondent (a
senior counsel at the Cape bar) at which she faces charges of serious
misconduct. She has been on suspension with
full pay since December
2016. At issue are the following procedural rulings made by the
second respondent during the course of
the disciplinary enquiry.
a)
On 2 August
2017, a ruling refusing the applicant a further postponement on
account of her illness, and a ruling that the matter
will,
accordingly, be decided on the basis of the evidence led to date. (At
this point, the employer had completed its evidence
and the applicant
had testified in-chief for about 1 ½ days. Although the
applicant contends that the second respondent’s
ruling was to
the effect that the matter would be decided on the basis of the
employer’s evidence alone, this is not borne
out by the
transcription of the disciplinary enquiry. The employer accepts that
the second respondent should have regard to the
applicant’s
evidence, and made reference to it in its heads of argument on the
issue of guilt, which have been submitted
to the second
respondent.)
b)
On 8 August
2017, a ruling that the aforesaid rulings would not be reconsidered –
this in circumstances where the applicant
undertook an about turn and
tendered to continue her evidence despite her illness. (I refer to
both sets of rulings conjunctively
below as “the procedural
rulings”.)
[3]
There are
two parts to the present application. In part B, the applicant seeks
to review the procedural rulings, while in part A
the applicant seeks
urgent interim relief interdicting the continuation of the
disciplinary enquiry pending the outcome of the
review (including any
appeals). On 15 August 2017, I found part A of the application
to be urgent, and am now seized with
the merits thereof.
[4]
In order to
succeed with the application for interim relief, the applicant must
establish a
prima
facie
right to review the procedural rulings under part B. And in order to
establish a
prima
facie
right, the applicant must provide
prima
facie
proof of facts that establish the existence of a right in terms of
the substantive law.
[4]
A strict legal right to interim relief must be established, not
simply some moral or equitable right.
[5]
The applicant would also then have to establish irreparable harm,
that the balance of convenience is in her favour, and that there
is
no adequate alternative remedy.
Section 158(1)(h) and
the applicant’s pleaded grounds of review
[5]
Although
not specifically pleaded, the applicant relies on section 158(1)(h)
of the LRA, which clothes this court with the jurisdiction
(and
power) to “review any decision taken or any act performed by
the State in its capacity as employer, on such grounds
as are
permissible in law”. This establishes a jurisdictional
footprint for review, with the permissible grounds of review
being
dependent upon the nature of the impugned decision.
[6]
Amongst other things, insofar as the decision constitutes
administrative action, a review on the grounds set out in section 6
of PAJA exists; and insofar as the decision does not qualify as
administrative action but, nevertheless, involves the exercise of
a
public power, a review based on the principle of legality
(encompassing legality and rationality) exists
[7]
– this being commonly referred to as legality review.
[8]
But the fact that a review in either of these circumstances exists,
does not mean that it will always be entertained or found
permissible. As the LAC put it in
De
Bruyn
:
[9]
“
[28] But it does not follow
that because the remedy of judicial review may still exist for public
servants that the Labour Court
will entertain an application to
review 'any act performed by the State in its capacity as employer'
as a matter of course. Recourse
to review proceedings, in terms of s
158(1)(h), takes place in the context of the law relating to judicial
review as well as the
other elements of the system of dispute
resolution which the LRA has put in place and also other applicable
statutes.”
[6]
In the
present matter, the applicant’s grounds of review are framed as
being that the procedural rulings were unlawful (although
the term is
not used, it is pleaded that the second respondent applied the wrong
legal test applicable to postponements), irrational
and unreasonable.
All of these are grounds of review of administrative action, while
the first two grounds are a basis for legality
review, but
unreasonableness is not.
[10]
Although pleading her grounds of review in this fashion, nowhere is
it explicitly pleaded by the applicant that the procedural
rulings
constitute administrative action, or that the second respondent
exercised a public power in making them.
The applicant’s
legality review
[7]
In
argument, Mr Ogunronbi (who appeared for the applicant) conceded that
the procedural rulings did not constitute administrative
action. To
my mind, the concession was well made. In circumstances where the
Constitutional Court found in
Chirwa,
[11]
and confirmed in
Gcaba,
[12]
that the dismissal of a public servant does not constitute
administrative action, there exists no basis for finding that
procedural
rulings made during the course of a disciplinary enquiry –
which may or may not lead to dismissal – do so.
[8]
Mr
Ogunronbi went on in argument to place all of his eggs in the basket
of legality review – his essential contention
being that
the second respondent acted unlawfully in deciding to exclude the
applicant’s evidence (or at least the completion
thereof), with
the result that the procedural rulings are reviewable. In the first
instance, it is by no means clear to me that
this falls within the
applicant’s pleaded grounds of review. In any event, the
contention of unlawfulness seems to me to
be misconceived for the
following reasons. In advancing the contention, Mr Ogunronbi relied
on authorities in which it has been
found that where a decision-maker
performing administration action breaches the
audi
alteram partem
principle, the decision is rendered unlawful. These authorities are,
however, inapplicable because we are, as Mr Ogunronbi conceded,
not
in the realm of administrative action. This forced Mr Ogunronbi into
the contention that the same principle applies to the
exercise of all
public power and that a breach thereof gives rise to legality review.
I do not agree with this contention. The
fundamental requirement of
the principle of legality is that the exercise of all public power
must be rational. While the principle
of legality has sometimes been
expanded by treating an opportunity to be heard as a requirement of
rationality,
[13]
this is a
much narrower (and basic) process right than is contended for by the
applicant.
[9]
Notwithstanding
the above, the main difficulty that I have with the construction of
the applicant’s case is that it assumes
that the procedural
rulings constitute the exercise of a public power, which is a
prerequisite for legality review. While the dismissal
of a public
servant involves the exercise of a public power,
[14]
on the analysis provided by the Constitutional Court in
AMCU
,
[15]
I am not persuaded that the procedural rulings involve the exercise
of a public power. The power exercised by the second respondent
in
making the procedural rulings does not “look and feel like”
[16]
a public power. Critically, it is not pleaded by the applicant
(despite being challenged to do so in the employer’s answering
affidavit) that the source of the power is legislative. The second
respondent is simply performing the role of management in chairing
the disciplinary enquiry (a line management function), which is
regulated by an internal disciplinary code and procedure,
[17]
with the Code of Good Practice: Dismissal (schedule 8 to the LRA)
constituting part thereof.
[10]
But even if
I am wrong and the procedural rulings did involve the exercise of a
public power, insofar as the LRA provides a remedy
to address the
applicant’s complaints about them, I do not consider a review
in terms of section 158(1)(h) to be permissible
– otherwise a
separate legal framework would apply to public and private sector
employees.
[18]
As held by the
LAC in
De
Bruyn
,
the LRA may oust the section 158(1)(h) review jurisdiction of this
court, where, for example, the dispute involves the interpretation
or
application of a collective agreement, which stands to be arbitrated
by the CCMA.
[19]
The LAC went
on to find that a section 158(1)(h) review was not permissible on
what appears to be a wider basis: “[i]t follows
that the
appellant is confined to its remedy in terms of section 24 of
the LRA and it may not, instead, seek to review the
respondent's
decision in the Labour Court in terms of section 158(1)(h).”
[20]
Along similar lines, the LAC indicated in
Hendricks
that section 158(1)(h) reviews should be confined to legitimate
challenges where there is no other remedy available under the
LRA.
[21]
As Murphy AJA went on
to put it, “[i]f a cause of action meets the definitional
requirements of an unfair labour practice
or an unfair dismissal, the
dictates of constitutional and judicial policy mandate that the
dispute be processed by the system
established by the LRA for [its]
resolution”.
[22]
This
court has also held, on more than one occasion, that where another
remedy exists under the LRA, a section 158(1)(h) review
is not
permissible.
[23]
In the
present case, the LRA does provide for a remedy: an application for
an interdict / declarator to vindicate the right to
procedural
fairness based on the LAC’s judgment in
Booysen
[24]
(see further below). But that is not the claim brought by the
applicant, who has instead nailed her colours to the mast of legality
review.
[11]
In seeking
to address this issue, Mr Ogunronbi submitted that the alleged
unlawfulness can only be remedied by bringing a legality
review, and
thus that the review was permissible. But, to my mind, this is also
misconceived. The principle emerging from
Hendricks
(and related case law) is that section 158(1)(h) reviews (including
legality review) are only permissible where there is no other
remedy
available under the LRA. The principle is not defeated because an
applicant relies on legality (i.e. lawfulness)
in
the review
,
while the LRA provides for a remedy in fairness, because it is the
existence of a remedy under the LRA that renders the review
impermissible. In any event, in substance the applicant’s
complaint is that she was treated procedurally unfairly as a
consequence
of the procedural rulings. The founding affidavit is
replete with references to the applicant’s right to a “fair”
trial or hearing having been breached. And in argument, Mr Ogunronbi
placed reliance on item 4 of the Code of Good Practice: Dismissal
(schedule 8 to the LRA), which deals with the procedural fairness of
dismissals for misconduct. In effect, the applicant has labelled
a
complaint about procedural fairness as one of unlawfulness in order
to mount a legality review, simply because unfairness itself
is not a
ground of review.
[25]
The LRA
provides a remedy to address this very complaint; a review under
section 158(1)(h) is thus impermissible.
Review
in medias
res
: exceptional circumstances
[12]
In the
further alternative, even if a legality review is available to the
applicant under section 158(1)(h) despite the existence
of an
alternative remedy under the LRA, in order to succeed with an
application for interim relief at this stage, she would have
to
establish exceptional circumstances for a review
in
medias res
.
This was explained as follows by the old LAC in
Zondi
:
[26]
“
There is no universal or
absolute test governing the question when a court will interfere in
uncompleted proceedings, but one thing
is clear from the cases and
that is that a court will only interfere
in
medias res
in exceptional
circumstances, or when there is very good reason to do so. In
ordinary circumstances the time to take any proceedings
on appeal or
review is at the termination thereof. The reasons for this attitude
are equally clear. To permit interference in unterminated
proceedings
delays the continuation and completion of such proceedings. If such
termination were to be readily permitted the proceedings
might be
interrupted at various times, and to deal with reviews or appeals
piecemeal is clearly not practicable. In any event,
the irregularity,
even if it is allowed to stand, will not necessarily affect the
result which might otherwise have followed. The
tribunal concerned
might for example in any event come to a conclusion favourable to the
party otherwise affected by the irregularity.
Even if the
irregularity does in the end lead to a conclusion adverse to the
person affected thereby, the time to put it right,
as I have already
said, is at the termination of proceedings.”
[13]
Significantly,
the court went on to find in
Zondi
that the commission of a gross irregularity was not, in itself, the
basis for a review
in
medias res.
The
applicant has to go further and show that the gross irregularity will
lead to a miscarriage of justice.
[27]
[14]
Along
similar lines, the LAC in
Booysen
set the following test for the intervention by this court in
part-heard disciplinary enquiries (which test Mr Ogunronbi accepted
that the applicant must satisfy at this stage in order to obtain
interim relief):
“[54] … the Labour Court has jurisdiction to interdict
any unfair conduct including disciplinary action. However,
such an
intervention should be exercised in exceptional cases. It is not
appropriate to set out the test. It should be left to
the discretion
of the Labour Court to exercise such powers having regard to the
facts of each case. Among the factors to be considered
would in my
view be whether failure to intervene would lead to grave injustice or
whether justice might be attained by other means.
The list is not
exhaustive.”
[28]
[15]
In
Ngobeni
,
Van Niekerk J expanded on this:
[29]
“
[12] … this court does
not ordinarily intervene in incomplete disciplinary proceedings. In
Booysen …
the LAC made it clear that the Labour Court may only interdict unfair
conduct in the course of disciplinary proceedings 'in exceptional
circumstances', such as where a grave injustice would result. In
Jiba
v Minister: Department of Justice & Constitutional Development &
others
(2010) 31
ILJ
112 (LC) at para 17, this court held that:
'Although the court has jurisdiction
to entertain an application to intervene in uncompleted disciplinary
proceedings, it ought
not to do so unless the circumstances are truly
exceptional. Urgent applications to review and set aside preliminary
rulings made
during the course of a disciplinary enquiry or to
challenge the validity of the institution of the proceedings ought to
be discouraged.
These are matters best dealt with in arbitration
proceedings consequent on any allegation of unfair dismissal, and if
necessary,
by this court in review proceedings under s 145.'
[13] The policy underlying this
approach was explained in
Trustees for the time being of the
Bioinformatics Network Trust v Jacobson & others
(2009)
30
ILJ
2513 (LC);
[2009] 8 BLLR 833
(LC) at para 4, where the
court said the following in relation to incomplete arbitration
proceedings:
'There are at least two reasons why
the limited basis for intervention in criminal and civil proceedings
ought to extend to uncompleted
arbitration proceedings conducted
under the auspices of the CCMA, and why this court ought to be slow
to intervene in those proceedings.
The first is a policy related
reason – for this court routinely to intervene in uncompleted
arbitration proceedings would
undermine the informal nature of the
system of dispute resolution established by the Act. The second
(related) reason is that to
permit applications for review on a
piecemeal basis would frustrate the expeditious resolution of labour
disputes. In other words,
in general terms, justice would be advanced
rather than frustrated by permitting CCMA arbitration proceedings to
run their course
without intervention by this court.'
The principle is equally applicable
(if not more so) to incomplete disciplinary proceedings.”
[16]
In addition
to all of the above, the bringing of urgent applications in this
court to interdict part-heard disciplinary enquiries
is at odds with
the design of the dispute-resolution system under the LRA. As Van
Niekerk J went on to find in
Ngobeni
:
“
[14] … Applicants who
move applications on an urgent basis in this court for orders that
effectively constitute findings
of procedural unfairness, bypass and
undermine the statutory dispute-resolution system. The court's proper
role is one of supervision
over the statutory dispute-resolution
bodies; it is not a court of first instance in respect of the conduct
of a disciplinary hearing,
nor is its function to micromanage
discipline in workplaces.”
[17]
With
reference to the above, the fact that applications such as this ought
to be discouraged for the numerous material reasons mentioned
in the
authorities, is the context within which the test of exceptional
circumstances set in
Booysen
stands to be applied. Seen thus, the test is clearly a stringent one,
which will not be easily met.
[18]
To my mind,
this stringent test (i.e. of exceptional circumstances for
intervention in a part-heard disciplinary enquiry) is not
met in the
circumstances of this matter for these reasons.
a)
Firstly, it
is not clear whether any “grave injustice”
[30]
will be suffered by the applicant if the matter is decided without
her completing her evidence. This is particularly so in the
light of
the fact that: (i) the applicant (albeit misguidedly) applied
for absolution from the instance upon the closure of
the employer’s
case – her position being that there was no need for her to
give evidence because the employer had not
made out a
prima
facie
case; (ii) there is nothing to say that the applicant will be
found guilty and dismissed if the matter is determined without
her
evidence being completed; (iii) the applicant does not plead
what additional evidence in-chief she wishes to present (this
in
circumstances where she has already testified in-chief for some
1 ½ days) or that it will be in any way material;
(iv) the applicant’s case and defences would have been put to
the employer’s witnesses, with the second respondent
thus being
aware thereof; (v) the applicant turned down the opportunity of
calling any other witnesses before the second respondent
made her
procedural rulings on 2 August 2017; and (vi) ironically, the
applicant will be spared from being cross examined
as a consequence
of the procedural rulings, which would typically operate in her
favour.
b)
Secondly,
insofar as it may be denied, “justice [may] be attained by
other means”,
[31]
namely
at arbitration before the relevant bargaining council, which,
importantly, is a hearing
de
novo
,
as opposed to being based on the record of the disciplinary
enquiry.
[32]
In the event of
her being dismissed, there is thus nothing stopping the applicant
from leading any additional evidence at arbitration
that may be
excluded from the disciplinary enquiry as a consequence of the
procedural rulings. And insofar as the procedural rulings
may be
found at arbitration to have been procedurally unfair, the applicant
would be entitled to compensation.
Conclusion and order
[19]
In all the
circumstances, I am accordingly of the view that the applicant has
failed to establish a
prima
facie
right to the grant of interim relief. This because she has failed to
establish the existence of a right in terms of the substantive
law to
the review of the procedural rulings based on the principle of
legality; alternatively she has failed to meet the test of
exceptional circumstances for intervention by this court in a
part-heard disciplinary enquiry.
[33]
There is thus no need to consider the other requirements for the
grant of interim relief.
[20]
In relation
to costs, I see no reason why costs should not follow the result in
all the circumstances of this matter. Given the
urgency with which
the matter had to be dealt with by the employer, the importance of
the issues at stake and the complexities
arising from the nature of
the application, it seems to me that the employer was justified in
engaging two counsel. I thus intend
ordering the applicant to pay the
costs of two counsel.
[21]
In the
result, the following order is made:
1)
part A of
the application (i.e. the application for interim relief) is
dismissed;
2)
the
applicant shall pay the costs, including those of 11 August 2017,
which costs shall include the costs of two counsel, where
so
employed.
________________________________
Myburgh, AJ
Acting
Judge of the Labour Court of South Africa
Appearances
For
the applicant: Adv S Ogunronbi instructed by Mtshontshi
Attorneys
For
the first respondent: Adv C Kahanovitz SC and Adv M van As
instructed by the State Attorney
[1]
Mosiane v Tlokwe City Council
[2009] 8 BLLR 772
(LC) at para 15.
[2]
See
Jiba
v Minister of Justice and Constitutional Development & others
[2005] ZALC 15
;
[2009] 10 BLLR 989
(LC) at para 17;
SA
Municipal Workers Union on behalf of Members v Kopanong Local
Municipality
(2014) 35
ILJ
1378 (LC) at para 33;
South
African Municipal Workers’ Union obo Dlamini and others v
Mogale City Local Municipality and another
[2014] 12 BLLR 1236
(LC) at para 45;
Zondo
& another v Uthukela District Municipality & another
(2015) 36
ILJ
502 (LC) at para 45;
Ravhura
v Zungu NO & others
(2015) 36
ILJ
1615 (LC) at para 15;
Association
of Mineworkers & Construction Union & others v Northam
Platinum Ltd & another
(2016) 37
ILJ
2840 (LC) at para 41.
[3]
Ngobeni v Passenger Rail Agency of
SA Corporate Real Estate Solutions & others
(2016) 37
ILJ
1704 (LC) at para 14.
[4]
LAWSA
vol 11 (2
nd
ed), para 404;
Webster v
Mitchell
1948 (1) SA 1186
(W) at 1189.
[5]
Prest
The
Law and Practice of Interdicts
at 52.
[6]
Khumalo & another v Member of
the Executive Council for Education: KwaZulu-Natal
(2014) 35
ILJ
613 (CC) at para 28, fn 12;
Merafong
City Local Municipality v SA Municipal Workers Union & others
(2016) 37
ILJ
1857 (LAC) at para 36.
[7]
Hendricks v Overstrand
Municipality & another
(2015)
36
ILJ
163 (LAC) at para 29, read with para 21;
Merafong
City Local Municipality (supra)
at
para 38.
[8]
See generally regarding legality
review,
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) at paras 33-35.
[9]
Public Servants Association of SA
on behalf of de Bruyn v Minister of Safety & Security &
another
(2012) 33
ILJ
1822 (LAC) (“
De
Bruyn
”).
[10]
Public Servants Association of SA
& another v Minister of Labour & another
(2016) 37
ILJ
185 (LC) at para 58.
[11]
Chirwa v Transnet Ltd & others
(2008) 29
ILJ
73 (CC) at paras 142 and
150.
[12]
Gcaba v Minister for Safety &
Security & others
(2010) 31
ILJ
296 (CC) at para 66.
[13]
Democratic Alliance v President of
the Republic of South Africa and Others
2013
(1) SA 248
(CC) at para 34.
[14]
Chirwa (supra)
at para 138.
[15]
Association of Mineworkers &
Construction Union & others v Chamber of Mines & others
(2017) 38
ILJ
831 (CC) (“
AMCU
”)
at paras 74-83.
[16]
Ibid
at para 74.
[17]
Para 2 of chapter 7 of the SMS
handbook. There are references to this in the disciplinary charge
sheet issued to the applicant.
[18]
See generally,
Khumalo
(supra)
at paras 30-31.
[19]
De Bruyn
at
paras 29 and 34; followed in
Farre
v Minister of Defence & others
(2017) 38
ILJ
174 (LC).
[20]
De Bruyn
at para 34.
[21]
Hendricks (supra)
at
para 30;
Merafong City
Local Municipality (supra)
at
para 21.
[22]
Hendricks (supra)
at
para 30. This emanates from
Chirwa
(supra)
at para 124.
[23]
See for example,
SA
Revenue Service v Commission for Conciliation, Mediation &
Arbitration & others
(2010) 31
ILJ
1238 (LC) at para 50;
MEC
Department of Education KwaZulu Natal v Khumalo & another
[2010] 11 BLLR 1174
(LC) at para 26.
[24]
Booysen v Minister of Safety &
Security & others
(2011) 32
ILJ
112 (LAC).
[25]
See similarly,
Steenkamp
& others v Edcon Ltd (National Union of Metalworkers of SA
intervening)
(2016) 37
ILJ
564 (CC) at para 125.
[26]
Zondi & others v President,
Industrial Court & others
(1991) 12
ILJ
1295 (LAC) at 1300; cited with approval in
Fidelity
Guards Holdings (Pty) Ltd v Epstein NO & others
(2000)
21
ILJ
2382 (LAC) at para 20.
[27]
Zondi (supra)
at 1303.
[28]
Followed in
City
of Cape Town v SA Municipal Workers Union on behalf of Abrahams &
others
(2012) 33
ILJ
1393 (LAC) at para 16.
[29]
Fn 3 above.
[30]
See the quotation from
Booysen
in para 14 above.
[31]
See also the quotation from
Booysen
in para 14 above.
[32]
Sidumo & another v Rustenburg
Platinum Mines Ltd & others
(2007) 28
ILJ
2405 (CC) at para 18.
[33]
See para 4 above.