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[2018] ZALCJHB 354
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Poya v Railway Safety Regulator and Others (J 3521/18) [2018] ZALCJHB 354 (6 November 2018)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
reportable
Case
no: J 3521/18
NKULULEKO
POYA
Applicant
and
RAILWAY
SAFETY REGULATOR
DR
ZETHU QUNTA N.O
First
Respondent
Second
Respondent
BOARD
OF RAILWAY SAFETY REGULATOR
Third Respondent
MINISTER
OF TRANSPORT Fourth
Respondent
Heard:
26 October 2018
Delivered:
6 November 2018
Urgent
application to declare disciplinary proceedings invalid and to
interdict the Respondents from proceeding with the current
disciplinary hearing. Application is dismissed.
JUDGMENT
PRINSLOO,
J
Introduction
[1]
The
Applicant approached this Court on an urgent basis to
inter
alia,
declare
the disciplinary proceedings scheduled for 12 November 2018 invalid
and to interdict the Respondents from proceeding with
the current
disciplinary proceedings.
[2]
The
application is opposed by the First, Second and Third Respondents and
they have filed an opposing affidavit. The Fourth Respondent
(the
Minister) filed an answering affidavit on a limited aspect only. The
Applicant elected not to file a replying affidavit, which
Mr Mooki
for the Respondents, submitted was not insignificant but rather fatal
to the Applicant’s case.
Background
[3]
The
Applicant has been employed by the First Respondent (RSR) as Chief
Executive Officer (CEO) since October 2011. In his letter
of
employment, the Applicant was informed that the terms and conditions
of his employment will be based on the RSR’s approved
conditions of service.
[4]
On
3 November 2017, the Minister issued the Applicant with a notice of
intention to suspend him and invited him to make written
representations as to why he should not be suspended. The Applicant
made written submissions on 10 November 2017, which submissions
did
not persuade the Minister and he was placed on precautionary
suspension with effect from 27 November 2017.
[5]
On
18 January 2018, the Applicant received a notice of an internal
disciplinary hearing, containing seven charges of misconduct.
The
notice was signed by the Second Respondent, the chairperson of the
Board, and the hearing was set down for 25 January 2018.
[6]
On
25 January 2018, the Applicant was informed that the RSR was still
conducting investigations and that the hearing would be postponed
pending the outcome of the further investigations. On this day the
Applicant raised the point
in
limine
regarding
the RSR and the Second Respondent’s authority to issue the
charge sheet in the absence of the Minister. The Applicant
was
informed that this issue would be dealt with at a later stage when
the hearing resumed.
[7]
On
3 April 2018, the Applicant attended an interview with the forensic
investigators, PriceWaterhouseCoopers, as part of the ongoing
forensic investigation into various allegations of wrongdoing at the
RSR.
[8]
On
2 August 2018, the Applicant was served with an amended charge sheet
containing 13 charges levelled against him, as well as seven
lever
arch files containing documents that relate to the said charges. On
21 August 2018, a further amended charge sheet was sent
to the
Applicant and an extended set of documents was sent to him on 20
September 2018.
[9]
Subsequent
to correspondence between the parties, they agreed that the
disciplinary hearing would resume on 2 October 2018, on which
date
the Applicant requested a postponement in order to secure legal
representation. The postponement was granted and the hearing
resumed
on 4 October 2018. On this occasion the Applicant’s attorney
raised a point
in
limine
regarding
the RSR and the Second Respondent’s authority to issue the
charge sheet in the absence of the Minister. The Applicant’s
attorney argued and demanded that the charges against the Applicant
be withdrawn as a result of same not having been instituted
by the
Minister. As the Respondents insisted that the hearing could proceed,
the Applicant approached this Court for relief.
[10]
The
Respondents took issue with urgency in that the Applicant raised the
same point
in
limine
regarding
the RSR and the Second Respondent’s authority to issue the
charge sheet in the absence of the Minister in January
2018, he
repeated his reservation on 2 August 2018, was aware that the
disciplinary enquiry would proceed on 2 October 2018 and
raised the
same issue once again and only on 4 October 2018. The Applicant
should have known, or his lawyers should have advised
him that the
chairperson of the disciplinary hearing has no authority to determine
whether the person or authority that preferred
the charges was
competent to do so and that only a Court could make such a
determination. Notwithstanding, holding the same view
since 25
January 2018, the Applicant approached this Court for the first time
on 18 October 2018, for hearing of the matter on
26 October 2018.
[11]
The
Respondents’ averments in respect of urgency or rather the lack
thereof are not without merit. However, this Court has
a discretion
and in exercising my discretion, I am inclined to deal with the
matter notwithstanding the valid objections in respect
of urgency as,
in my view, it is in the interest of the parties that the issues
raised be decided.
[12]
In
his founding affidavit, the Applicant addressed the charges levelled
against him as well as his answer to or version in respect
of each
charge. The Applicant explained that he had done so to illustrate to
this Court that the true nature of the disciplinary
action against
him does not relate to any improper conduct on his part. The
Respondents took issue with this and stated that the
charges involve
serious contraventions relating to the abuse of the Applicant’s
position, dishonesty, excessive expenditure,
gross dereliction of
duty and defying the authority of the Board. Suffice to state that
the allegations against the Applicant are
the subject of an ongoing
and incomplete disciplinary process initiated against the Applicant
and not only is this Court not competent
to express any view on the
merit or otherwise of these allegations, it would also be improper to
do so. Furthermore, the nature
or the content of the charges levelled
against the Applicant is not relevant for the relief sought and the
issues this Court has
to decide. For these reasons will I not
consider or deal with the contents of the charges levelled against
the Applicant in this
application.
The
relief sought
[13]
The
Applicant seeks an order to
declare
the disciplinary proceedings scheduled for 12 November 2018 invalid,
an order to interdict the Respondents from proceeding
with the
current disciplinary proceedings, to set aside the delegation of the
Minister dated 26 June 2018 as it is unlawful and
to declare that all
steps taken subsequent to 27 November 2017 to,
inter
alia,
charge
the Applicant with misconduct and notifying him to attend a
disciplinary enquiry are invalid, null and void.
[14]
The gist of
the Applicant’s case is that section 9(4) of the
National
Railway Safety Regulator Act
[1]
(RSR Act)
states
that only the Minister may discharge the CEO from office for
misconduct and it is patently unfair to be subjected to a hearing
by
a functionary that is his peer, and not the Minister, who should
choose the forum at which the Applicant would be required to
answer
to in his disciplinary enquiry.
[15]
The gist of
the opposition is that section 9(4) of the RSR Act deals with the
discharge of a CEO and it does not deal with disciplinary
proceedings
against the CEO. The Applicant is not an employee of the Minister,
but he is an employee of the RSR and the RSR Board
exercises all the
rights and privileges of an employer in its dealings with the
Applicant.
Jurisdiction
[16]
The
Respondents raised a point
in
limine
in
respect of jurisdiction and submitted that this Court has no
jurisdiction to adjudicate this matter. This is so because the
Applicant’s primary attack on being subjected to a disciplinary
process is that the RSR Act vests exclusive authority on the
Minister
to discipline the Applicant and that the RSR Act does not permit the
Minister to delegate such authority, wherefore the
conduct of the
Second Respondent and the Third Respondent (the Board) in charging
him and initiating disciplinary proceedings against
him, is based on
an unlawful delegation.
[17]
The
Respondents’ submitted that the Applicant’s contention
requires the Court to interpret the RSR Act and to make a
finding on
the lawfulness or otherwise of the decisions by the RSR and the
Minister and this Court has no jurisdiction nor power
to interpret
the RSR Act for purposes of determining the powers or competence of
the Minister under that legislation.
[18]
The
jurisdictional challenge is without merit and has to fail for the
following reasons: Firstly, section 157(2) of the LRA gives
the
Labour Court jurisdiction in respect of any alleged or threatened
violation of any fundamental right entrenched in Chapter
2 of the
Constitution and arising from employment and labour relations and any
dispute over the constitutionality of any executive
or administrative
act or conduct or any threatened executive or administrative act or
conduct by the State in its capacity as an
employer.
[19]
In
Gcaba
v Minister for Safety and Security and Others
[2]
the
Constitutional Court held that:
‘
Section
157(2) confirms that the Labour Court has concurrent jurisdiction
with the High Court in relation to alleged or threatened
violations
of fundamental rights entrenched in chapter 2 of the Constitution and
arising from employment and labour relations,
any dispute over the
constitutionality of any executive or administrative act or conduct
by the state in its capacity as employer
and the application of any
law for the administration of which the minister is responsible. The
purpose of this provision is to
extend the jurisdiction of the
Labour Court to disputes concerning the alleged violation of any
right entrenched in the Bill
of Rights which arise from employment
and labour relations, rather than to restrict or extend the
jurisdiction of the High Court.
In doing so, s 157(2) has brought
employment and labour relations disputes that arise from the
violation of any right in the Bill
of Rights within the reach of the
Labour Court. This power of the Labour Court is essential to its role
as a specialist court that
is charged with the responsibility to
develop a coherent and evolving employment and labour relations
jurisprudence. Section 157(2)
enhances the ability of the Labour
Court to perform such a role.’
[20]
In summary
the position is this:
The
concurrent jurisdiction as provided for in section 157(2) of the LRA
is exercisable when there is a violation of the designated
constitutional rights that occurs in one or other of the
circumstances referred to in paragraphs (a)-(c)
[3]
.
Section 157(2) refers to a 'fundamental right entrenched in
Chapter 2 of the Constitution’ and it has been accepted
that it
refers to a 'fundamental right' as set out in the 'Bill of
Rights'
[4]
.
[21]
The
first enquiry relates to whether an allegation is made that a
fundamental right has been infringed or whether a threat to violate
such a right has been made and whether it arose from an employment
relationship.
[22]
In
considering whether this Court has jurisdiction, the affidavits
placed before Court have to be evaluated. This is based on
Gcaba
[5]
where
it was held that:
‘
Jurisdiction
is determined on the basis of the pleadings, as Langa CJ held in
Chirwa
,
and not the substantive merits of the case. If Mr Gcaba’s case
were heard by the High Court, he would have failed for not
being able
to make out a case for the relief he sought, namely review of an
administrative decision. In the event of the court’s
jurisdiction being challenged at the outset (
in
limine
), the applicant’s
pleadings are the determining factor. They contain the legal basis of
the claim under which the applicant
has chosen to invoke the court’s
competence. While the pleadings – including in motion
proceedings, not only the formal
terminology of the notice of motion,
but also the content of the supporting affidavits - must be
interpreted to establish what
the legal basis of the applicant’s
claim is, it is not for the court to say that the facts asserted by
the applicant would
also sustain another claim, cognizable only in
another court. If however the pleadings, properly interpreted,
establish that the
applicant is asserting a claim under the LRA, one
that is to be determined exclusively by the Labour Court, the High
Court would
lack jurisdiction…’
[23]
As per
Gcaba
pleadings
are the determining factor and the content of the supporting
affidavits must be considered to establish what the legal
basis of
the applicant’s claim is. It is not for the Court to say that
the facts asserted by the applicant would also sustain
another claim.
[24]
A perusal
of the Applicant’s papers shows that his case is premised on
his right to the adjudication of disputes and the enforcement
of his
Constitutionally enshrined rights, the rights being the right to fair
labour practices, fair administrative action and those
contained in
the Constitution of the Republic of South Africa
[6]
.
The relief sought by the Applicant is to preserve his right to be
subjected to a lawful and fair disciplinary process, an issue
that
falls within the jurisdiction of this Court.
[25]
Secondly, the
Minister deposed to an affidavit wherein he explained that the RSR
and not the Minister is the Applicant’s employer
and that the
RSR, acting through its Board, is entitled to subject the Applicant
to a disciplinary process, as is provided for
in his contract of
employment. The delegation signed by the Minister on 26 June 2018 has
no legal consequence as the Applicant
is employed by the RSR, which
is entitled to discipline him and effectively there was no need to
issue a delegation in this regard.
[26]
It is evident from
the affidavits deposed to by the Minister and by the Applicant that
this Court is not required to interpret the
RSR Act for purposes of
determining the powers or competence of the Minister under that
legislation. This Court is in fact not
required to consider or
interpret the RSR Act beyond the allegations made by the Applicant in
respect of his disciplinary hearing
and the lawfulness of such
process. This Court has the power to interpret legislation in the
course of resolving issues of law
and fact as between employers and
employees and has done so on many occasions in the past.
The
Applicant’s employment
[27]
The
crisp issue in dispute between the parties relate to the Board’s
powers to institute disciplinary action against the CEO.
The
Applicant’s case is that the Board does not have such powers,
as such powers reside with the Minister of Transport. The
Respondents’ case is that the powers to discipline the CEO
resides with the RSR Board, as his employer, and not with the
Minister.
[28]
In
my view the starting point is to consider the terms of the
Applicant’s contract of employment.
[29]
Section
9(1) of the RSR Act provides that the Minister must, after
consultation with the Board, appoint a person with suitable
qualifications as the CEO of the RSR. On 23 September 2011, the
Minister of Transport informed the RSR Board that Cabinet has
endorsed
the appointment of the Applicant as CEO of the RSR. The
Minister subsequently appointed the Applicant as CEO and in his
appointment
letter, the Applicant was informed that he was expected
to enter into an annual performance agreement with the Board.
[30]
Section
9(8) of the RSR Act provides that the CEO must exercise all the
powers and perform all the duties conferred or imposed upon
the
accounting officer by the RSR Act, the Public Finance Management
Act
[7]
, (PFMA) or the Board.
[31]
It
is undisputed that the Applicant is bound by the terms and conditions
recorded in his contract of employment.
[32]
The
Applicant’s contract of employment stipulates
inter
alia
that:
32.1
The
Applicant is employed by the RSR;
32.2
The
Minister, acting in terms of section 9(1) of the RSR Act, has
appointed the Applicant as CEO and that the Applicant accepted
the
appointment to perform the functions outlined in the RSR Act and on
terms and conditions of the contract of employment;
32.3
The
Applicant agreed to abide by the employer’s conditions of
service;
32.4
The
Applicant’s employment may be terminated in the following ways:
on completion of the period stated in the contract, discharge
in
terms of clause 15 of the conditions of service or discharge in terms
of section 9(4) of the RSR Act.
[33]
The
RSR’s ‘conditions of service for employees’, which
applies to all employees, stipulates in clause 16.2 thereof
that all
employees are subject to the RSR’s disciplinary code and
procedure (the disciplinary code), as amended from time
to time.
[34]
Clause 6 of
the disciplinary code provides for the application of the
disciplinary code and stipulates that it applies to all RSR
employees, whereby the provisions of the RSR Act would apply. Clause
8 of the disciplinary code provides for the procedures to
be followed
and sets out that the RSR has the right to institute any of the
following actions, depending on the severity of the
misconduct or if
the situation is such that in the opinion of management, such action
is justified: informal action, formal action
or final written
warning. Where the alleged misconduct justifies a more serious form
of disciplinary action, the employer must
initiate a disciplinary
enquiry and appoint an initiator to initiate the enquiry. Clause 9.5
of the disciplinary code provides
for the conducting of the
disciplinary hearing and provides that the chairperson of the
disciplinary hearing is to be appointed
by the employer.
[35]
The
Applicant does not dispute that he is employed by the RSR, he does
not dispute the terms and conditions of his contract of employment,
nor does he dispute the application of the disciplinary code. He only
challenges the authority of the Board to initiate disciplinary
proceedings and to charge him with misconduct. His case is that the
Minister, as the authority to whom the RSR reports, has the
authority
and power to take disciplinary action against him.
[36]
There is no
merit in the Applicant’s contention and challenge for a number
of reasons.
[37]
First, the
Applicant is an employee of the RSR and not the Minister. It is trite
and has been accepted by this Court in the past
that an employer has
the right to discipline its employees, of course in a lawful and fair
manner. The RSR, as represented by its
Board, is entitled to
discipline its employees, which includes the Applicant as it is
undisputed that he is an employee of the
RSR.
[38]
Ms
Lancaster for the Applicant submitted that
Litha
v Madonsela N.O and Others
[8]
is authority for the Applicant’s case that only the Minister
has the authority to institute disciplinary action against the
CEO
and to discharge the CEO. In my view,
Litha
does
not assist the Applicant
in
casu
as
it is distinguishable from the Applicant’s case in a material
respect. In
Litha
the
employment contract was signed between the CEO and the Government of
the Republic of South Africa, as represented by the Minister
and the
Court found that the State was the CEO’s employer. The contract
provided specifically that in the case of inefficiency
and
misconduct, the employer may deal with the CEO in accordance with the
relevant labour legislation and any directive issued
by the Minister.
The board only exercised a supervisory capacity over the CEO and the
Minister had exclusive authority to discipline
and dismiss the CEO.
[39]
In casu,
the
Applicant’s contract of employment specifically provides
differently and the relationship between the CEO, the RSR Board
and
the Minister is not on par with
Litha
wherefore
reliance on
Litha
is
misplaced and of no assistance to the Applicant.
[40]
The
Applicant’s argument that the RSR Board and the CEO are
beholden to the Minister and report to him, wherefore he can only
be
subjected to discipline by the Minister, has no merit.
[41]
Secondly,
in July 2013, the RSR Board commissioned a report on allegations of
nepotism and wrongdoing by the Applicant in relation
to the
appointment of staff. Based on the findings of the report, the Board
issued a warning letter to the Applicant. The Applicant
did not
challenge the warning letter and the Respondents’ case is that
in not challenging the warning letter, the Applicant
accepted the
Board’s authority to admonish him and by subjecting him to a
disciplinary process, the employer is acting no
differently from the
past in exercising its right as employer to discipline the Applicant.
I have already alluded to the fact that
the Applicant has not filed a
replying affidavit and I have no reason not to accept that the
Applicant previously accepted the
Board’s authority to
reprimand him and to issue him with a warning letter.
[42]
Thirdly,
section 9(4) of the RSR Act provides that the Minister may discharge
the CEO from office for misconduct. This is the obvious
flipside of
the coin that provides for the Minister to appoint a CEO, after
consultation with the Board. This does not entail that
the Minister
has to initiate the disciplinary proceedings and prosecute the
allegations of misconduct. The RSR Act does not stipulate
that the
Minister must be involved in the disciplinary enquiry of the CEO.
Instead, the Applicant’s contract of employment
incorporated a
disciplinary code which provides for the manner in which a
disciplinary hearing should be conducted.
[43]
In the
affidavit deposed to by the Minister, he explained that section 9(4)
of the RSR Act entitles him to discharge the CEO for
misconduct, but
it is the RSR as employer that has to call the Applicant to account
on allegations of wrongdoing. The Minister
can exercise his authority
to discharge the CEO only once he had been informed of the CEO’s
misconduct as the Minister has
no mechanism to subject the CEO to a
disciplinary process and the RSR Act does not contemplate the
Minister constituting a disciplinary
process for purposes of acting
in terms of the provisions of section 9(4) of the RSR Act. The
Minister made it clear that being
informed by the RSR that the
Applicant had been found guilty of misconduct is no different from
the RSR making a recommendation
about the appointment of a particular
individual as the CEO.
[44]
It is
evident that the RSR is entitled to convene a disciplinary hearing
against the CEO in respect of allegations of misconduct
and that it
is entitled to do so in accordance with the procedure set out in the
disciplinary code. The Minister has the power
to discharge the CEO.
The power to discharge does not necessarily mean the obligation to
initiate and conclude a disciplinary hearing,
just as the power to
appoint does not necessarily mean that the Minister had to conduct
the recruitment and selection exercise
before appointing the
recommended candidate.
[45]
Fourthly,
the Applicant’s contention that it is unfair to submit him to a
hearing by a functionary that is his peer, is misguided.
The
Applicant is not a peer of the Board and his understanding in this
regard is ill-conceived. The fact that the Applicant is
not a peer of
the Board is evident from
inter
alia,
the
fact that section 9(8) of the RSR Act provides that the CEO must
exercise all the powers and perform all the duties conferred
or
imposed by the Board and the fact that the Applicant was informed in
his appointment letter that he was expected to enter into
an annual
performance agreement with the Board.
[46]
It
is further supported by the provisions of section 8 of the RSR Act
which provides that t
he
RSR is governed and controlled by a Board of Directors, that the
Board represents the RSR and all acts performed by the Board
or on
its authority, are acts of the RSR. The CEO is
ex
officio a
member
of the Board and certainly not a peer to either the Second Respondent
or the Board.
[47]
Considering
the facts placed before me, I cannot but conclude that the RSR, as
the Applicant’s employer, is entitled to discipline
him in
accordance with the provisions of the disciplinary code.
The
urgent application
Exceptional
circumstances
[48]
It is trite
that in applications such as the present, the applicant has to show
that there are exceptional circumstances that justifies
intervention
in the pending disciplinary proceedings.
In
casu
,
the Applicant’s case is that his circumstances are exceptional
as the Board is not entitled to take disciplinary action
against him.
[49]
In
Jiba
v Minister: Department of Justice and Constitutional Development and
others
[9]
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.
’
[50]
I am not
satisfied that there are any exceptional circumstances where the
Applicant does not dispute that he is an employee of the
RSR and does
not dispute the terms of his contract of employment, which include
the disciplinary code. The disciplinary code provides
for the RSR, as
employer to take disciplinary action and to appoint a chairperson of
the disciplinary hearing.
[51]
This case
is no more than an employer subjecting its employee to a disciplinary
enquiry and there is nothing exceptional to that.
The Applicant has
failed to make out a case that the Respondents have not followed the
correct procedures in instituting disciplinary
action against him or
that the Respondents have acted unlawfully.
Requirements
for an interdict
[52]
The
Applicant seeks a final interdict and he has to satisfy the
requirements for such an interdict, namely the existence of a clear
right, an injury actually committed or reasonably apprehended and the
absence of any other satisfactory remedy.
Clear
right
[53]
The
Applicant submitted that he has a clear right to fair and reasonable
labour practices in terms of the LRA, which includes the
Respondents
undertaking correct procedures, should it need to institute
disciplinary action against him.
[54]
The
averments regarding the Applicant’s clear right, are empty and
unsubstantiated allegations. I say so for a number of reasons.
The
Applicant’s right to fair labour practices and any claim to an
entitlement thereto, arises as between an employer and
an employee,
in casu
the RSR
and the Applicant. The RSR in its capacity as employer, is subjecting
the Applicant to a disciplinary process, as provided
for in the
disciplinary code. The Applicant has not specified, apart from
stating that the Minister should be the one to take disciplinary
action against him, what the correct procedure is that should have
been followed.
[55]
The
Applicant alleged in his founding affidavit that ‘
the
RSR Act clearly prescribes who has the power to institute
disciplinary proceedings’
against him and his case is that it is only the Minister. It is
evident that the RSR Act does not provide for the disciplining
of the
CEO, it does not provide a procedure to be followed and most
certainly does it not prescribe who has the power to institute
disciplinary proceedings. In fact, the Applicant has failed dismally
to identify the source and the content of what he contends
the
‘correct procedural step’ should be.
[56]
The
disciplinary code, incorporated into the Applicant’s contract
of employment, is the only instrument for subjecting the
Applicant to
a disciplinary process, and no averment has been made that the
procedure set out in the disciplinary code, has not
been followed.
[57]
The
Applicant’s misguided understanding that the Minister should
take disciplinary action against him, is evident in his submissions
that he has a clear right to the relief he seeks. I have already
alluded to the fact that this case is no more than an employer
taking
disciplinary action against its employee and the Applicant failed to
show any right that merits protection or intervention
by this Court.
Harm
[58]
In respect
of harm, the Applicant’s case is that if he is not granted the
relief he seeks now, he will be seriously prejudiced
in that he will
have to participate in a disciplinary hearing that is aimed at
getting rid of him and where the Respondents made
no effort to follow
the correct procedure. I have already dealt with the allegations made
regarding the ‘correct procedure’
and I do not intend to
repeat them herein. The Applicant claims that the charges are trumped
up and are a direct attempt to get
rid of him, which is clear from
the fact that more charges are added to the charge sheet.
[59]
There is
nothing untoward in an employer adding to or amending a charge sheet,
more so where it is done prior to the commencement
of the
disciplinary hearing. The Applicant has been called to a disciplinary
hearing to answer to the allegations against him and
the merits of
the charges against the Applicant are to be addressed and tested at
the disciplinary hearing. To say that the charges
are a direct
attempt to get rid of the Applicant, is to speculate at best at this
point, prior to the hearing and without any conclusive
outcome.
[60]
In
Ngobeni
v Passenger Rail Agency of SA Corporate Real Estate Solutions and
others (Ngobeni)
[10]
this
Court confirmed that it
does
not ordinarily intervene in incomplete disciplinary proceedings and
held that:
‘
Further,
the applicant is entitled, should he be dismissed and should he
contests the procedural fairness of his dismissal, to refer
a dispute
to that effect to the relevant dispute resolution body. The applicant
remains suspended on full pay. There is no irreparable
harm to him
consequent on an incomplete hearing and there remains the prospect
that he will be acquitted of the charges levelled
against him.’
[61]
In
casu
the
same principles apply as the Applicant is suspended on full pay and
still has the prospect of being acquitted of the charges
he has to
face in the pending disciplinary process.
Alternative
remedy
[62]
In respect
of an alternative remedy, the Applicant stated that he is unable to
challenge the fairness of the disciplinary proceedings
in terms of a
dispute to the Commission for Conciliation, Mediation and Arbitration
(CCMA) or relevant bargaining council, as it
does not fall within the
definition of an unfair labour practice. This averment is without
merit. The Applicant can approach the
CCMA or relevant bargaining
council to adjudicate an unfair labour practice dispute alternatively
he can refer an unfair dismissal
dispute, should he be dismissed and
should his case be that the correct procedures were not followed when
he was disciplined.
[63]
Strangely
enough the Applicant stated that the balance of convenience favours
him in that if the current process is corrected, the
Respondent can
continue with disciplinary steps against him and he shall face the
allegations in a forum properly constituted by
his employer, as he is
lawfully entitled to and the hearing should be reconstituted through
the office of the State Attorney and
by a chairperson appointed by
his employer. In my view this is already the reality in this matter
as it is undisputed that the
RSR is the Applicant’s employer
and the RSR initiated steps for the Applicant to answer allegations
against him in a properly
constituted forum, where the chairperson
had been appointed by the Applicant’s employer.
[64]
The
Applicant has not satisfied the requirements for an interdict.
[65]
In my view
it is in the interest of the parties that the allegations against the
Applicant be tested and answered expeditiously,
as labour disputes
should be dealt with. The disciplinary hearing scheduled for 12
November 2018 should proceed to afford the parties
an opportunity to
deal with the allegations and to bring the process closer to
finality. This is more so where the Applicant has
been on suspension
with pay for almost 12 months at the expense of the taxpayers of this
country.
[66]
In
view of my findings, it follows that the Applicant is not entitled to
the relief he seeks on an urgent basis.
Costs
[67]
The
last issue to be decided is the issue of costs.
[68]
In so far
as costs are concerned, this Court has a broad discretion in terms of
section 162 of the LRA to make orders for costs
according to the
requirements of the law and fairness.
[69]
Ms
Lancaster submitted that there should be no order as to costs as the
parties have an ongoing relationship and because the Applicant
raised
a valid legal point which he wanted this Court to consider.
[70]
Mr Mooki on
the other hand submitted that, considering the facts of this case,
the Applicant should be ordered to pay the Respondents’
costs,
which costs should include the costs of two counsel.
[71]
In
Ngobeni
the
Court has lamented the fact that the 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. All of this is indicative of an attempt
to use
this Court and its processes to frustrate the workplace proceedings
which are already underway. 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 micro-manage discipline in
workplaces.
[72]
The
Court in
Ngobeni
also
issued a warning to the effect that litigants should be warned that
it is not often that this Court will intervene in incomplete
workplace disciplinary hearings and that similar abuses of the right
to urgent relief that this Court affords in appropriate circumstances
will be met with punitive orders for costs.
[73]
The general
accepted purpose of awarding costs is to indemnify the successful
litigant for the expense he or she has been put through
by having
been unjustly compelled to initiate or defend litigation.
In
Public
Servants Association of SA on behalf of Khan v Tsabadi NO and
Others
[11]
it was emphasized that:
’…
unless
there are sound reasons which dictate a different approach, it is
fair that the successful party should be awarded her costs.
The
successful party has been compelled to engage in litigation and
compelled to incur legal costs in doing so. An appropriate
award of
costs is one method of ensuring that much earnest thought and
consideration goes into decisions to litigate in this court,
whether
as applicant, in launching proceedings or as respondent opposing
proceedings.’
[74]
In
Ngobeni
this
Court has granted an order for costs on a punitive scale because the
Court considered the application to be wholly misguided
and one that
served to frustrate one of the fundamental purposes of the LRA, which
is the expeditious resolution of workplace disputes
within a defined
structure. In the Court’s view the applicant's conduct
warranted an order for costs on a punitive scale.
[75]
In
casu,
the
application was also wholly misguided and meritless and the Applicant
dismally failed to satisfy the requirements for the relief
he seeks.
The
Applicant did not heed the stern warning from this Court as set out
in
Ngobeni
and the
fact that there is an ongoing relationship between the parties cannot
save him from a cost order.
[76]
In my view,
the
existence of a continued
relationship and the potential prejudice a cost order might cause to
that relationship, is irrelevant in
this instance. T
he
fact that the Respondents pursued an order for costs against the
Applicant is an indication that, at least as far as the employer
was
concerned, a future relationship with the Applicant would not be
prejudiced by any order for costs. In my view the existence
of an
ongoing and existing relationship
in
casu
does
not militate against an order for costs.
[77]
The
Respondents had to defend a meritless urgent application
and
fairness dictates that it cannot be expected to endure enormous costs
in defending litigation that ought not to have been brought
in the
first place.
Ultimately,
the Applicant is the author of his own misfortune as he is quite
capable of considering the consequences of instituting
meritless
litigation and he had to put in some earnest thought and
consideration into the merits of this case and the warning issued
in
Ngobeni
before filing this urgent application. Fairness will be compromised
where parties who file meritless urgent applications can escape
costs
simply because there is an ongoing relationship. This is more so
where the costs incurred by the Respondents are paid from
taxpayers’
money and I can see no reason why the taxpayers should be burdened to
pay the costs in this application.
[78]
In
my view this is a case where it is appropriate to award costs,
including the costs of two counsel.
[79]
In the
premises I make the following order:
Order:
1.
The
application is dismissed;
2.
The
Applicant is to pay the Respondent’s costs; which costs are to
include the costs of two counsel.
Connie Prinsloo
Judge of the Labour Court
of South Africa
Appearances:
For the
Applicant:
Ms S Lancaster of Lancaster Kungoane Attorneys
First, Second and
For
the Third Respondents:
Advocate O Mooki SC with
Advocate B Roode
Instructed
by:
Gildenhuys Malatji
Inc Attorneys
Fourth
Respondent:
Advocate
O Mooki SC
Instructed
by:
State Attorney,
Pretoria
[1]
Act 16 of 2002, as
amended.
[2]
(2009) 30 ILJ 2623 (CC) at para 71.
[3]
M S M Brassey,
Employment
and Labour Law
Vol 3 at
A7:97.
[4]
See:
Walters
v Transitional Local Council of Port Elizabeth and another
(2000)
21 ILJ 2723 (LC).
[5]
Id
n 2 at para 75.
[6]
Act 108 of 1996.
[7]
Act 1 of 1999.
[8]
(
2006)
27 ILJ 780 (W).
[9]
(2010)
31
ILJ
112 (LC)
at
para
17
.
[10]
(2016)
37 ILJ 1704 (LC) at para 16.
[11]
(
2012) 33 ILJ 2117 (LC) at para 176.