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[2017] ZALCJHB 365
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Lesiba v Regional Head: Department of Justice and Constitutional Development (Mpumalanga Province) and Another (J2262/17) [2017] ZALCJHB 365 (4 October 2017)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
reportable
C
ase
no: J 2262/17
In
the matter between:
MASHABA
PIET LESIBA
Applicant
And
REGIONAL
HEAD: DEPT OF JUSTICE
AND
CONSTITUTIONAL DEVELOPMENT
(MPUMALANGA
PROVCINCE)
First Respondent
REGIONAL
HEAD: DEPT OF JUSTICE
AND
CONSTITUTIONAL DEVELOPMENT
(LIMPOPO
PROVINCE)
Second Respondent
Date
of application 3 October 2017
Delivered:
4 October 2017
JUDGMENT
VAN
NIEKERK J
[1]
The applicant is employed by the Department of Justice and
Constitutional Development as an interpreter. He is stationed at
Grobersdal, Limpopo Province. The applicant seeks an interim order,
on an urgent basis, interdicting and restraining the first
respondent
from continuing with a disciplinary hearing against him. The charges
of misconduct brought against the applicant or
set out in a notice
issued to him dated 20 January 2017. The application is premised on
the submission that the charges were brought
by the first respondent,
the regional head of the Department in Mpumalanga, in circumstances
where he (the applicant) with effect
from 15 January 2016, fell under
the authority of the second respondent, the regional head of the
Department in Limpopo province.
The applicant contends that in terms
of s 14B(4) of the Public Service Act (
sic
– the
relevant provision is s 16B(4)), the regional head, Mpumalanga lost
its authority to discipline him after the date
on which he became
subject to the authority of the regional head, Limpopo Province.
[2]
The applicant pursued this submission by way of a preliminary point
before the chair of his disciplinary hearing. On 4 July
2017, the
chair rejected the point. The chair referred to s16B(4), which reads
as follows:
(4) If an employee of the department
(in this subsection referred to as ‘the new department’),
is alleged to have committed
misconduct in the Department by whom he
or she was employed previously (in paragraph (b) referred to as ‘the
former Department),
the head of the new department –
(a) may institute or continue
disciplinary steps against that employee; and
(b) shall institute or continue such
steps if so requested –
(i) by the former executive authority
if the relevant employee use a head of department; or
(ii) by the head of the former
Department, in the case of any other employee.
[3]
The chair of the enquiry held that s16B (4) does no more than
regulate how disciplinary action is to be conducted in circumstances
where an employee has been transferred from one department to
another. The chair found that the department is a national
department,
headed by a director-general and that while the
department comprises regional offices headed by a regional head at
the level of
chief director, the regional offices do not constitute
provincial departments. On that basis, the chair found that the
section
was of no application, In any event, the chair and the
departmental representative in the present instance had been
appointed by
the regional office: Limpopo.
[4]
In his submissions in support of the requirement of a Brahma right,
the applicant submits that he has a right to fair
labour practices
and that the conduct of the respondents is such that it is in breach
of that right. In his oral submissions, the
applicant’s
representative submitted that the case concerned the rule of law, and
particularly, a breach of a statute by
a Department of State and that
in these circumstances, the case was exceptional and that the court
ought properly to intervene.
[5]
This court has stated on numerous occasions that it will intervene in
incomplete internal hearings in only the most exceptional
circumstances. In
Magoda
v DG Rural Development and Land
Reform
(J1876/17, 28 August 2017), Myburgh AJ recently said the
following (footnotes included in square brackets):
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]
[
Mosiane v Tlokwe City
Council
[2009] 8 BLLR 772
(LC) at para 15.]
In
the years that followed, this court repeatedly echoed these
sentiments.
[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.]
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]
[
Ngobeni
v Passenger Rail Agency of SA Corporate Real Estate Solutions &
others
(2016) 37
ILJ
1704 (LC) at para 14.]
This
case adds to what is a significant challenge to the capacity and
resources of this court.
[6]
It would appear that despite these admonitions, parties continue to
bring urgent applications to secure interventions in incomplete
domestic disciplinary hearings. The present application is no more
than an urgent appeal against the ruling by the chair of the
disciplinary hearing dismissing his preliminary point. I have my
doubts as to whether this court has jurisdiction to grant the
order
sought. Unlike
Magoda
, the applicant in the present instance
has not even sought to frame the application as one in respect of
which the court is empowered
to hear in terms of the enabling
provisions of s 157 and s 158 of the LRA. It should be emphasised
that the jurisdiction to address
substantive and procedural
shortcomings in the exercise of workplace discipline lies in
the hands of an arbitrator.
[7]
There is simply no basis on which the application ought to be
entertained. To do so would undermine the statutory purpose
underlying
dispute resolution under the LRA. Workplace discipline
remains regulated by the code of practice and preliminary points or
to be
dealt with in the ordinary course of the exercise of workplace
discipline, as they were in the present instance. If these rulings
become the subject of dispute, these are matters that ought to be
dealt with if necessary during the course of an arbitration under
the
auspices of the CCMA were bargaining council having jurisdiction.
This court exercises a supervisory jurisdiction by way of
its power
to review rulings and awards made by arbitrators. That system is
entirely undermined when parties seek this court’s
intervention, as a forum of first instance, effectively to
micro-manage workplace disciplinary hearings.
[8]
For the above reasons, the application stands to be dismissed.
The applicant must answer to the merits of the charges
brought
against him. Had the application been opposed,I would have had no
hesitation in granting an order for costs on a punitive
scale. In
order to emphasise the seriousness of the admonitions to which
Myburgh AJ referred and what appears to be an indifference
to them,
perhaps the time has come for practitioners who file applications
such as the present to be invited to make submissions
as to why an
order should not be granted that they forfeit their fees.
I
make the following order:
1.
The application is dismissed.
________________
André
van Niekerk
Judge
REPRESENTATION
For
the applicant: S Rangoanasha