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[2017] ZALCJHB 376
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Golding v Regional Tourism Organisation of Southern Africa and Others (J2501/17) [2017] ZALCJHB 376 (18 October 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable/Not Reportable
Case no: J 2501/17
In the matter between:
DESMOND
KHALID
GOLDING
Applicant
and
REGIONAL TOURISM
ORGANISATION
OF SOUTHERN
AFRICA
First
Respondent
SAM
SHIKONGO
Second
Respondent
R
CRUZ
Third
Respondent
L
RAKORONG
Fourth
Respondent
R SAIBA
LWANZA
Fifth
Respondent
M
TSOLO
Sixth
Respondent
M.D.
MAQUTU
Seventh
Respondent
A
MAHUMANE
Eighth
Respondent
D
NAOBEB
Ninth
Respondent
A
FORTUNE
Tenth
Respondent
N
MOOLA
Eleventh
Respondent
H
MOTSA
Twelfth
Respondent
L
MUTALE
Thirteenth
Respondent
R
FARANISI
Fourteenth
Respondent
L
TESTA
Fifteenth
Respondent
NTSHONA
Sixteenth
Respondent
M
RAMAWELA
Seventeenth
Respondent
R
JAIRO
Eighteenth
Respondent
F
CHAILA
Nineteenth
Respondent
B
SCHNEIDER
Twentieth
Respondent
K
GASPAR
Twenty-first
Respondent
JOEL RASEGOTSA
KGARIMETSA
Twenty-second
Respondent
Heard:
13 October 2017
Delivered:
18 October 2017
JUDGMENT
MAHOSI
J
Introduction
[1] This is an urgent
application for an interim interdict to stay the disciplinary
proceedings brought against the applicant by
the first respondent,
pending an application to be instituted by the applicant to review
and set aside a ruling of the chairperson
of the hearing dated 27
September 2017 and a High Court application to declare unlawful or
invalid and setting aside the resolutions
purportedly taken by the
Board of the first respondent on 4 September 2017, alternatively on 5
September 2017, and 6 September
2017 and setting aside the notice to
attend a disciplinary hearing dated 15 September 2017.
Material facts
[2] The applicant was
appointed as CEO of the first respondent on 14 March 2017. On 5
September 2017, the first respondent held
an extraordinary board
meeting that was also attended by the applicant. The said meeting was
convened for the winding up of the
outgoing board of the first
respondent. At the end of the agenda, the applicant and other members
of the Secretariat were requested
to excuse themselves from the
meeting. The Chairperson of the Board briefed the board on the
allegations of misconduct and poor
performance against the applicant
that had come to his attention.
[3] The Board resolved
that an enquiry process comprising of five States (being Angola,
Lesotho, Namibia, South Africa and Zambia)
must be held against the
applicant. The outgoing Board, through the chairperson, was mandated
to conclude the matter. On 6 September
2017, the applicant met with
the chairperson and five members of the Board. In that meeting, the
allegations were then formally
tabled to the applicant. The Executive
for Corporate Services was called to give evidence on allegations of
misconduct, but the
applicant denied the charges. The applicant was
told to recuse himself.
[4] On 7 September 2017,
the applicant received a notice of suspension. A notice to attend a
disciplinary hearing, scheduled for
the 27
th
of September
2017, was issued to the applicant on the 15
th
of September
2017.On the 18
th
of September 2017, the applicant's
attorneys objected to his suspension without him being formally asked
to show cause why he should
not be suspended. The first respondent
uplifted the applicant’s suspension on the 22
nd
of
September 2017 on the basis that the investigation had been
completed. The applicant was required to return to work on the 26
th
of September 2017.
[5] On the 22
nd
of September 2017, the applicant's attorneys delivered a letter to
the first respondent demanding that the disciplinary process
be
uplifted on the basis that it was premised on invalid resolutions of
the Board. On the 26
th
of September 2017, the first
respondent informed the applicant by e-mail that the charges against
him would not be withdrawn and
that the disciplinary hearing would
proceed.
[6] On 27 September 2017,
the applicant attended the disciplinary hearing and raised a
preliminary point in terms of which he argued
that the disciplinary
proceedings were invalid and unlawful as it resulted from unlawful
and invalid resolutions. The applicant
made an application to the
chairperson of the disciplinary hearing to stay the disciplinary
proceedings pending an application
to be instituted in the South
Gauteng High Court to declare the resolutions unlawful and invalid
and to set them aside. The chairperson
ruled against the application.
The applicant conveyed to the chairperson of the disciplinary hearing
that he would institute an
urgent application to this Court to stay
the disciplinary proceedings pending review of his ruling.
[7] The well-known
requirements for interim relief, that I shall have regard to are the
existence of a
prima facie
right, the apprehension of an
irreparable harm, the absence of alternative relief and balance of
convenience. On urgency, the applicant
submitted that the
disciplinary hearing was set down to be heard from the 19 to 22
October 2017. I will assume that the application
is urgent.
[8]
In the notice of motion, the applicant sought an order that a
rule
nisi
be issued calling upon the respondents to show cause as to why the
final order to restrain and interdict the disciplinary hearing
pending the finalisation in the South Gauteng High Court’s
matter and the review application of the chairperson’s ruling
to be instituted in this Court. However, in the hearing, Adv. TG
Madonsela, submitted on behalf of the applicant that there was
no
review application against the ruling of the chairperson of the
disciplinary hearing that is pending before this Court and further
that the applicant has decided against filing such an application.
[9] It is common cause
that there is a pending application challenging the lawfulness of the
resolutions of the Board of the first
respondent at the South Gauteng
High Court. In effect, what the applicant seeks is an order to stay
the disciplinary proceedings
pending the finalisation of the
application in the South Gauteng High Court. It is the applicant’s
case that he is entitled
to the relief sought because the resolutions
which led to his disciplinary proceedings were taken contrary to the
Memorandum of
Incorporation and/or document establishing the first
respondent.
[10]
The applicant noted that this Court was generally reluctant to grant
relief interdicting disciplinary proceedings. The principle
applicable to interdicts pending disciplinary hearing was outlined in
Booysen
v Minister of Safety and Security
[1]
where the LAC stated as follows:
‘
To
answer the question that was before the court
a
quo
,
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.’
[Footnotes omitted]
Labour Court’s
jurisdiction to grant an interim interdict pending a matter in the
High Court
[11]
The applicant submitted that the Labour Court has jurisdiction to
grant an interim order pending an application at the High
Court. The
applicant’s relied on Constitutional Court judgment in the case
of
National
Gambling Board v Premier of KwaZulu-Natal and Others
[2]
where
the court stated as follows:
‘
An
interim interdict is by definition
“
a
court order preserving or restoring the
status
quo
pending
the final determination of the rights of the parties. It does not
involve a final determination of these rights and
does not affect
their final determination”.
The dispute in
an application for an interim interdict is therefore not the same as
that in the main application to which the interim
interdict relates.
In an application for an interim interdict the dispute is whether,
applying the relevant legal requirements,
the
status
quo
should be preserved or restored pending the decision of
the main dispute. At common law, a court’s jurisdiction to
entertain
an application for an interim interdict depends on whether
it has jurisdiction to preserve or restore the
status quo
.
It does not depend on whether it has the jurisdiction to decide the
main dispute.’
[12]
In the above-mentioned case, the applicant’s legal
representative
argued
that if a particular court does not have jurisdiction in the main
dispute, it follows that it cannot have jurisdiction in
an
application for an interim interdict pending the resolution of the
main dispute. The Constitutional Court held as follows:
‘
A
court hearing an application for an interim interdict can obviously
only decide the main dispute if it has jurisdiction to do
so. A court
that does not have jurisdiction in the main dispute will simply
determine whether the applicant has a
prima
facie
right
to the relief which is to be sought in the court having jurisdiction
to deal with it.’
[13]
In view of the above judgment, this Court has jurisdiction to hear an
interim order pending an application in the High Court.
Prima facie right
[14] In support of the
requirement of
prima facie
right, the applicant submitted that
he has a right to a fair labour practice and fair administrative
action. In his oral submissions,
the applicant’s representative
submitted that his case was exceptional and that it warranted the
stay of his disciplinary
hearing in that there was a pending
application challenging the lawfulness of resolutions of the Board in
the South Gauteng High
Court. The basis of applicant’s
challenge to the lawfulness and the validity of the resolutions was
that the resolution that
was taken on the 5
th
of September
2017 mandating the second respondent, being the former Chairperson of
the Board, to discipline the applicant was allegedly
contrary to the
Staff Conditions of Service of the first respondent. The applicant
argued further that no provision is made in
the Charter of the
Regional Tourism Organisation of Southern Africa (RETOSA) and its
Staff Conditions of Service for the constitution
of the enquiry
committee and institution of disciplinary process as envisaged in the
resolution of the 5
th
of September 2017.
[15]
The issue turns on the lawfulness and validity of the resolutions
taken by the Board to mandate the outgoing Chairperson to
institute
and proceed with the disciplinary proceedings against the applicant.
The question of whether the first respondent has
the power to
institute and proceed with the disciplinary hearing depends on the
interpretation of the Charter of RETOSA and its
Staff Conditions of
Service. This is the matter that is pending before the South Gauteng
High Court.
[16] The applicant
further submitted that the disciplinary proceedings against him were
tainted by the second respondent’s
ulterior motive. The second
respondent, who is a Namibian national, allegedly informed the
applicant that he found South Africans
to be arrogant, that he had
ruined the careers of many South Africans while he was at the United
Nations and that he and Ms Thembi
Kunene were being watched closely.
Ms Kunene is another South African in the organization who is
responsible for marketing and
communication. These allegations were
denied by the first respondent. This is a factual dispute between the
parties that is not
before this Court.
Reasonable
apprehension of irreparable harm and alternative relief
[17]
It was the applicant’s submission that should the disciplinary
hearing proceedings continue and should he be dismissed,
the outcome
of that application would become moot and purely academic. On the
issue of an alternative relief, the applicant submitted
that the LRA
does not make provision for applications to challenge the
unlawfulness of resolutions instituting disciplinary proceedings.
I
do not agree with the first respondent’s contention that even
if dismissed, the applicant can challenge his dismissal at
the CCMA
and approach this Court if unsatisfied with the CCMA outcome.
[3]
[18]
Furthermore, the applicant submitted that should the relief be
granted, the respondents will not suffer any undue prejudice
as the
first respondent would still have the recourse to discipline him
after the hearing of his application at the South Gauteng
High Court.
It is apparent that the applicant is not challenging the first
respondent’s right to subject him to disciplinary
proceedings.
It may be that the applicant has remedies created by the LRA.
However, this will not address the injustices that he
would have
suffered should the High Court find the Resolutions of the Board
unlawful and invalid. It is my view that the Court’s
failure to
intervene will result in an injustice that would not be addressed by
any subsequent unfair dismissal remedy.
[19] As such, I find that
the applicant has shown that exceptional circumstances exist for this
Court to intervene and interdict
the first respondent from proceeding
with the disciplinary hearing pending the finalisation of the
application in the South Gauteng
High Court. There is no reason why
the costs should not follow the results.
[20] In the premise, I
make the following order:
a) The first respondent
is restrained and interdicted from proceeding with the disciplinary
proceedings against the applicant, pending
the finalisation of the
application in the South Gauteng High Court.
b) The first to the
twenty-second respondents are to pay the costs of this application
the one paying the other to be absolved.
__________________
Mahosi J
Judge of the Labour Court
APPEARANCES:
FOR THE APPLICANTS: Adv
G.J Mdonsela,
Instructed by Strauss
Daly Inc. attorneys.
FOR THE THIRD RESPONDENT:
Adv. T. Tshabalala,
Instructed by S Mahlangu
Attorneys
[1]
[2011] 1 BLLR 83 (LAC).
[2]
[2001] ZACC 8
;
2002 (2) BCLR 156
;
2002
(2) SA 715
at para 49
[3]
See
Booysen v
Minister of Safety and Security and Others
[2011] 1 BLLR 83
(LAC) at paras 45-46.