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[2019] ZALCJHB 18
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Monareng v Minister of Arts & Culture and Others (J2689/2018) [2019] ZALCJHB 18 (6 February 2019)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
case
no: j2689/2018
In
the matter between:
RAKWENA
REGINALD MPHO MONARENG
Applicant
and
MINISTER
OF ARTS & CULTURE
First
Respondent
PAN
SOUTH AFRICAN LANGUAGE BOARD
Second
Respondent
DENGA
MULIMA
N.O
Third Respondent
Heard:
07 November 2018
Delivered:
06 February 2019
Summary:
Powers of the Minister in regard to CEO’s disciplinary issues
is in terms of the Pan South African Languages Board
Act 59 of 1995,
as amended - limited to determination of an appeal of the
Board’s decision – the minister has
no powers to
institute disciplinary proceedings against the CEO - Rule
nisi
declaring lack of such authority
and setting aside of the notice to attend a hearing confirmed.
JUDGMENT
BALOYI,
AJ
Introduction
[1]
It was on
08
August 2018
when
the applicant approached this Court on an urgent basis essentially
seeking an order declaring that the first respondent (The
Minister of
Arts and Culture) lacked authority to discipline him and that the
notice to attend a disciplinary hearing that was
due to commence on
13 August 2018 be set aside. The disciplinary hearing process was
undertaken at the instances of the first respondent.
This application
was filed amid a legal battle between the parties at the High Court,
Gauteng Division. The High Court judgment
was still to be handed down
at the time of the filing of this application. In the very High
Court application the applicant
sought an order setting aside the
suspension imposed on him by the first respondent together with an
order declaring the suspension
unconstitutional or of no force. The
second respondent is a public entity established under Pan South
African Language Board Act
[1]
(the Act) and is accountable to the first respondent in the course of
its activities. The third respondent is cited in his capacity
as
Chairperson of the disciplinary hearing in which the applicant was
summoned to appear, however no specific relief is sought
against him.
[2]
It is of essence to point out at this juncture that when the
applicant filed his urgent
application on 10 August 2018 he was
seeking relief in the following terms:
“
1.
That the non-compliance with the rules be condoned and that the
matter be heard as
an urgent application in terms of rule 6(12) (a);
2.
Pending the handing down of the judgment in the High Court (Gauteng
Division,
Pretoria) in respect of the urgent application brought
under case number 43870/18, heard on 11 July 2018, the respondents
are restrained
and interdicted from proceeding with disciplinary
proceedings against the applicant.
3.
A
rule nisi
is hereby issued, calling on the first respondent to show cause, on a
date determined by the Registrar, as to why the following
relief
should not be granted.
a.
It is declared that the first respondent,
the Minister of Arts and Culture, lacked authority to bring or
authorize disciplinary
proceedings against the applicant in respect
of his employment with the second respondent;
b.
It is declared that the such disciplinary
proceedings are unconstitutional, invalid and of no force or effect;
c.
The notice to attend a disciplinary
inquiry, signed on 31 July 2018, is set aside;
d.
The first respondent is ordered to pay the
applicant’s costs, including costs of two counsel;
4.
Pending the return date, the respondents are interdicted from
proceeding with
any disciplinary proceedings against the applicant,
save with the leave of this court or a court of similar standing;
5.
Further or alternative relief.”
[3]
This application was first heard on 10 August 2018 when Snyman AJ
granted an interim
order returnable on 19 September 2018 as follows:
“
1.
Non-compliance with the rules is condoned and this
matter is heard as an urgent application in terms of Rule 8.
2.
A
rule nisi
is hereby issued, calling on the first respondent to show cause, on
19 September 2018, as to why the following relief should not
be
granted.
2.1
It is declared that the first respondent
lacked authority to bring or authorize disciplinary proceedings
against the applicant in respect of his employment with the second
respondent.
2.2
It is declared that the such disciplinary
proceedings are unconstitutional, invalid and of no force
or effect.
2.3
The notice to attend a disciplinary inquiry, signed 31
July 2018 is set aside.
3.
The respondent’s counter application shall be enrolled for
hearing along
with the hearing of the
rule
nisi
on 19 September 2018.
4.
The parties are directed to file their respective answering and
replying affidavits
within the time limits prescribed by Rule 7 of
the Labour Court Rules.
5.
The issue of cost is reserved for argument on the return date.”
[4]
On 19 September 2018 the matter came before Van Niekerk J, and
was stood down
to 20 September 2018. On the other hand, the High
Court handed down its judgment on the very day of 19 September 2018.
In terms
of the said judgment the applicant’s application was
struck off the roll for lack of urgency. It bears mention that this
application was hugely founded on the High Court’s decision
that was pending at the time of its filing. Based on what appeared
in
the applicant’s line of arguments little or no regard was
placed on the High Court matter. This comes as no surprise as
the
applicant was already sitting with an interim order that makes no
reference to the High Court application. The court was at
the outset
simply required to determine whether the interim order should be
confirmed as well as to determine the counter–application
following Snyman AJ’s order of 10 August 2018.
[5]
On 20 September 2018 without any reference to the decision of the
High Court Van Niekerk
J made the following order:
1.
“
The
Rule
Nisi
by Acting Justice Snyman under
case number J2689/18, on 10 August 2018, is extended to the return
date of 7 November 2018.
2.
The parties are directed to exchange papers as follows:
2.1
The applicant to apply for condonation for
the late filing of its replying affidavit on or before
26
September 2018
.
2.2
The first respondent to file its answering affidavit to
the condonation application as well as any
answering affidavit on or
before
10 October 2018.
2.3
The applicant to file any replying affidavit on or
before
17 October 2018
.
2.4
The applicant to file its heads of argument, if any, on
or before
19 October 2018
.
2.5
The respondent to file its heads of argument on or
before
31 October 2018
.
2.6
The first respondent’s counter application shall
be enrolled for hearing along with the hearing
of the
Rule
Nisi
on
7
November 2018
.
3.
The issue of costs of
10 August 2018
and the costs of today’s proceedings are reserved for argument
on the return date.”
[6]
The purpose of this order was primarily to provide time lines as to
the further handling
of the matter coupled with a direction for
simultaneous hearing on confirmation or discharge of the rule
nisi
and the counter-application. When the matter came before me on 7
November 2018 all processes making the matter ready for hearing
were
filed. The ventilation of the main issue in the application was not
as smooth since the court was also called upon to rule
on preliminary
points raised by the first respondent. Firstly, issues were taken
with the applicant’s lateness regarding
the filing of his
replying affidavit that eventually necessitated a condonation
application. Secondly, this Court’s lack
of jurisdiction to
hear the application. Thirdly, the applicant’s non-compliance
with the practice manual. Fourthly, absence
of notice of proceedings
against the second respondent. Regarding the last point, no basis was
laid for its advancement and without
any facts suggesting that the
application is defective, I shall regard it as a point made in
passing with nothing to be made of
it. It is therefore not worthy of
the Court’s determination.
Factual
Background
[7]
It is of high importance to lay out the background of the dispute for
clearer understanding of
the pertinent issues. This will also assist
in assessing the relevancy of the preliminary points raised. The
Honorable Minister
of Arts and Culture, Mr Nathi Mthethwa (the first
respondent) is by virtue of his office an Executive Authority over
the second
respondent, namely Pan South African Language Board
(PanSALB). For purposes of this judgment it is not necessary to
detail the
constitutional mandate and functions of PanSALB. It
is however necessary to state that the Board, which its members are
appointed
by the Minister, is tasked with governance over the affairs
of PanSALB towards achieving its objectives. The management and
administrative
functions of PanSALB fall squarely within the Chief
Executive Officer (CEO) duties, who is appointed by the PanSALB Board
in consultation
with the first respondent. The CEO by virtue of his
position is also a member of the PanSALB Board and is entitled to
make deliberations
with no voting rights.
[8]
The applicant was appointed as the CEO of PanSALB on 01 July 2015. On
12 January 2016 the first
respondent, acting in terms of his powers
under s 5 (5A) of the Act, dissolved the PanSALB Board. The PanSALB
Board members unsuccessfully
approached the High Court in challenge
of the first respondent’s decision to dissolve the PanSALB
Board.
[2]
The appeal was
launched and no details on the progress of the said appeal were
brought to this Court’s attention. At all
material times post
the dissolution of the PanSALB Board the applicant remained in his
position as a CEO. He continued as such
until 11 June 2018 when the
first respondent suspended him on account of allegations of
misconduct.
[9]
The applicant in his papers gave a detailed narration to the effect
that his presence at the second
respondent post the dissolution of
the PanSALB Board rendered him the only active member of the PanSALB
Board. He was as a result
performing the functions of the PanSALB
Board and accountable to the National Treasury and Parliament. In
opposition, the first
respondent indicated that in terms of the Act
the PanSALB Board is required to have a minimum of 11 and maximum of
15 members.
This part of the matter bears no significance as the
PanSALB Board was dissolved in its entirety. This is certainly a side
issue
which deserves no attention from this Court and I will
accordingly not base my decision on same. The only relevancy to be
attached
to this issue will only relate to determination of costs.
[10]
As already illustrated above, the application before this Court is
about the challenge to the
first respondent’s authority to
discipline the applicant. According to the applicant the first
respondent does not have the
requisite authority to suspend and
discipline him. The first respondent’s conduct is thus
ultra
vires
the
Minister’s powers and is therefore unlawful.
[3]
It bears mention that the first respondent did not directly or
precisely respond to these allegations as set out in his answering
affidavit deposed to by the Director General of the Department of Art
and Culture. It further deserves noting that the Director
General
averred that he was duly authorized to depose and oppose the
application on behalf of the first respondent, specifically
by the
first respondent. The most notable point as to the merits of the
matter in the first respondent’s opposition is that
the absence
of the PanSLAB Board that has since been dissolved renders the
applicant ‘employer less’. The dissolution
of the PanSALB
Board, according to the first respondent, terminated the applicant’s
employment by operation of law. The counter-application
flows from
this contention and the relief sought is crafted as follows:
1.
“The applicant is not a member of the Board of the Pan South
African Language
Board.
2.
The employment relationship between the applicant and the pan South
African Language
Board terminated
ex
lege
upon the dissolution of its Board
by the Minister of Arts and Culture.
3.
The applicant has no legal entitlement to enter any of the premises
occupied
by the Pan South African Language Board
4.
The applicant has no legal entitlement to draw any salary from Pan
South African
Language Board.”
[11]
It came out explicitly in the replying affidavit for the counter
application deposed to by the first respondent
himself that indeed he
has no powers to discipline the applicant. Regardless of this, the
first respondent still persisted with
his preliminary points as well
as the counter-application. The first respondent makes further
reference to the gentleman’s
agreement in terms of which the
applicant consented to being accountable to the first respondent.
Since this last statement was
made in passing, nothing can be made of
it and effectively deserves no further attention from this Court.
Jurisdiction
[12]
It is of high necessity to first deal with a jurisdictional issue as
I take a view that it deserves disposal
as a first and foremost
affair. This point had been categorically and emphatically canvassed
in the first respondent’s heads
of argument. It becomes obvious
that it was raised with a purpose of finding synchronicity with the
counter-application which in
essence has been brought to drift the
applicant away from the second respondent. The first respondent
conceded that he has no powers
to discipline the applicant and these
are indeed the powers that are available to the employer. It bears
mention that the first
respondent did raise a jurisdictional point in
the High Court. He contended that that this Court is the one with
relevant jurisdiction
to deal with a dispute founded on the
employment relationship and that the applicant fell into the very
category. Since the suspension
was the subject matter of the High
Court application, absence of the first respondent’s powers was
the main issue there.
It was also common cause that the powers to
suspend are powers only exercised by an employer. The first
respondent in the High
court answering affidavit which he personally
deposed to articulated his jurisdictional point in paragraphs 10 and
13 thereof as
follows:
“
10.
I am advised and respectfully submit that it is
plain that the dispute that forms the subject matter of this
application involves the employment relationship between the
applicant, on the one hand, as an employee of the Pan
South African Language Board (“the governing”), and on
the other hand, the institution (“the second respondent”)
by which he is employed.
11.
…
12.
...
13.
While the applicant has instituted
proceedings in this Court, I am advised that section 157(2) of the
Labour Relations Act 56 of 1996 (“the LRA”) confers
concurrent jurisdiction of this honorable Court with the Labour
Court
in respect of violations of fundamental rights entrenched in the Bill
of Rights arising from employment and labour relations.
I am advised
further that the Constitutional Court and the Supreme Court of Appeal
have made it clear that section 157(2) of the
LRA was enacted to
extend the jurisdiction of the Labour Court to disputes concerning
matters such as the present which arise from
employment and labour
relations, rather than to extend the jurisdiction of the court to
those matters.”
[13]
The High Court ultimately found that it had jurisdiction to hear the
application since the remedy
sought by the applicant was, in view of
the pleaded facts, not exclusively determinable by this Court under
the LRA. The High Court,
however, struck the matter off the roll due
to lack of urgency. The first respondent’s counsel relied on
NEHAWU
v University of Cape Town and others
[4]
in
support of the contention that this Court lacks jurisdiction
specifically at paragraph 6. It appears that paragraph 6 was read
in
isolation of the court’s findings in this respect. The
NEHAWU
supra decision in fact supports the applicant’s case. The Court
per Mlambo J (as then he was) noted in its findings that
the matters
covered are wide-ranging and that this Court’s jurisdiction
does not depend on the conduct complained of only
but on the whole
context within which the conduct is taking place
[5]
.
I specifically refer to the following wherein the court laid this
issue to rest as follows:
“
[9]
In
my view it would lead to undesirable consequences if a piecemeal
approach was adopted regarding the jurisdiction of the Labour
Court.
The provision equating the Labour Court to the High Court in status
regarding matters under its jurisdiction must
mean that those matters
that were incidental to labour disputes or the resolution thereof
that were referred to the High Court
were so referred because there
was no court equal in status to the High Court to deal with those
matters. The old Industrial
Court comes to mind and according
to the 1956 LRA that court was a court of equity only whose
jurisdiction was circumscribed in
section 17 of the Act. In
those days the High Court played a very active role in the resolution
of disputes not within the
jurisdiction of the Industrial Court.
The High Court also had review jurisdiction over the Industrial
Court. On the
other hand, the Labour Court is, in terms of
section 151, established as a court of law and equity and equal in
status to the High
Court regarding matters under its jurisdiction.
This must mean that the role of the High Court is excluded in matters
arising
from and/or incidental to the relationship between employer
and employee. The injunction to interpret the LRA’s
provisions
in a purposive way must mean that the interpretation of
the provisions of the LRA must not be done in a manner that will lead
to
a proliferation and multiplicity of court proceedings. In my
view the Labour Court has jurisdiction to consider whether the
resolutions of the council of the university were properly adopted
and also whether the council was properly constituted.
In fact,
the adoption of those resolutions is incidental to the resolution of
the section189 and section 197 disputes.”
[6]
[14]
What has been pleaded in the High Court matter certainly demonstrates
that the first respondent
had from the onset a clear understanding
that this Court has jurisdiction. He brilliantly unpacked the
provisions of s 157 of the
LRA in advancement of his preliminary
point before the High Court. It is not difficult to puzzle out that
this point was brought
as a stepping stone to the
counter-application. More about the counter-application appear
hereunder. In the circumstances there
is no basis for the upholding
of the first respondent’s jurisdictional point.
Condonation
application
[15]
The late filing of the applicant’s replying affidavit
incorporating opposition to the first respondent’s-counter
application is the subject matter of the condonation application.
When the matter first came before this Court on 10 August 2018,
the
parties were, in terms of the order, directed to file the answering
and replying affidavits in terms of Rule 7 of the Rules
of this
Court, which is ten days in respect of the answering affidavit and
five for the replying affidavit. These are the time
frames applicable
in ordinary motion proceedings. It bears mention that when the order
was made the first respondent had already
filed his answering
affidavit with a counter application incorporated therein. The
applicant was certainly the party who was required
to get the ball
rolling when coming to compliance with the order made on the very
first day of the hearing of this matter. The
first respondent was
only required to file a replying affidavit in respect of the
counter-application within five days upon receipt
of the answering
affidavit from the applicant.
[16]
The applicant conceded to not having filed his answering and replying
affidavits timeously. In his condonation
application, as deposed to
by his attorney, these pleadings were delivered on 11 September 2018
thus causing a delay of fifteen
and twelve days respectively. The
Registrar’s filing stamp bears the date of 27 September 2018. I
must express a view at
this stage that what the applicant did
certainly does not complete delivery as defined in Rule 1 which is to
‘
serve on the other parties and
file with the registrar
’. The
first respondent took issue with the degree of lateness because the
applicant was trying to minimize the degree of
the delay which should
correctly reflect seventeen and fifteen days. This argument was based
on Van Niekerk J’s observations
as conveyed to the parties on
19 September 2018. What can be drawn from the above is that the
period of delay is way more than
the period alleged by the
applicant’s attorney. The first respondent certainly has a
point in this respect.
[17]
As it is trite that the degree of delay is not the only issue for
consideration in determining applications
for condonation, it is thus
of extreme importance for this court to consider other relevant
factors. These factors are founded
on the test for condonation which
is without doubt well settled in our law. In
National
Union of
Mineworkers
v Council
for
Mineral Technology
[7]
the Labour Appeal Court held as follows:
“
The
approach is that the Court has a discretion, to be exercised
judicially upon a consideration of all the facts, and in essence
it
is a matter of fairness to both sides. Among the facts usually
relevant are the degree of lateness, the explanation therefore,
the
prospects of success and the importance of the case. These facts are
interrelated: they are not individually decisive. What
is needed is
an objective conspectus of all the facts. A slight delay and a good
explanation may help to compensate for prospects
of success which are
not strong. The importance of the issue and strong prospects of
success may tend to compensate for a long
delay. There is a further
principle which is applied and that is that without a reasonable and
acceptable explanation for the delay,
the prospects of success are
immaterial, and without prospects of success, no matter how good the
explanation for the delay, an
application for condonation should be
refused. The courts have traditionally demonstrated their reluctance
to penalise a litigant
on account of the conduct of his
representative but have emphasised that there is a limit beyond which
a litigant cannot escape
the results of his representative lack of
diligence or the insufficiency of the explanation tendered.”
[18]
In
Mankayi
v Anglogold Ashanti
Ltd
[8]
the
Constitutional Court held on this point as follows:
“
The
test for the grant of condonation is whether the interests of justice
permit. Factors relevant to this inquiry include, but
are not limited
to, the extent and cause of the delay, the prejudice to the opposing
litigant, the reasonableness of the explanation,
the importance of
the issues to be decided and the prospects of success. The inquiry
entails weighing each factor against the others
and determining where
the interests of justice ultimately lie. Mr Mankayi’s written
submissions were filed six days late.
Mr Spoor, who appeared on his
behalf, has ascribed his failure to lodge the written submissions
timeously to lack of funds. AngloGold
does not oppose the application
for condonation. There is, in my view, a satisfactory explanation for
the delay. The delay was
minimal and there was no prejudice to
AngloGold. The issues raised in the application for leave are
important and it cannot be
said that the application has no prospects
of success. In these circumstances, it is in the interests of justice
to grant condonation’’
[19]
The application for condonation is opposed and I must state that the
reason advanced by the applicant’s
attorney is in my view not
compelling. It is hugely rested on some far-fetched
misconstruction of the court order. The merit
of the main dispute
certainly raises a public interest together with the fact that the
cause of the delay was not rested on the
applicant personally. When
taking this into account together with absence of show of any
prejudice to be suffered by any of the
respondents if the application
is granted, with all the discretion this Court is loaded with, I am
of the view that the interests
of justice require that the
condonation application be granted.
The
merit of the application
[20]
As highlighted above, this Court has to decide whether to confirm or
to discharge the rule
nisi
as extended. The first respondent has indicated that he has
subsequently been legally advised that the correct legal position
regarding PanSALB is that it is an independent constitutional body
and that in law he does not have the power to discipline the
applicant. This is indisputably a legal concession that is not
binding on this Court. In arriving to this conclusion I took guidance
from
Harrington
v Panayodites
[9]
where the following was said:
“
Here
we are concerned with a legal concession. It is trite law
that this Court is not bound by a legal concession if
it considers the concession to be wrong in law....
[T]his Court firmly rejected the proposition that it is
bound by an
incorrect legal concession, holding that, ' if that concession was
wrong in law [it], would have no hesitation whatsoever
in rejecting
it'. Were it to be otherwise, this could lead to an intolerable
situation where this Court would be bound by a mistake
of law on the
part of a litigant. The result would be the certification of law or
conduct as consistent with the Constitution when
the law or conduct,
in fact, it is inconsistent with the Constitution.”
[21]
The gist of the applicant’s case is that the first respondent
lacked authority to bring
or authorize disciplinary proceedings
against him in respect of his employment with the second respondent.
The reason being that
the Act vests exclusive authority on the
PanSALB Board to discipline him. Effectively, the Act does not
authorize the first respondent
to discipline him. This argument is
rooted on first respondent’s dissolution of the PanSALB Board
in that until he appoints
a new Board, there is no properly and
legally appointed Board which can suspend or initiate disciplinary
proceedings against him.
[22]
While the dissolved Board as a governing body of the institution is
no longer in existence, the
PanSALB as an institution remains intact.
The crucial point in this regard is to consider the real employer of
the applicant. The
applicant’s case is that he has been
employed by the PanSALB Board. Since the first respondent has
dissolved the PanSALB
Board acting under s 5(5A) of the Act, the
dissolved Board lacks jurisdiction to discipline him. This
argument appears to
be based on the applicant’s
misunderstanding of the term “
Board”.
I
find myself in agreement with the High Court’s interpretation
in
Madiba
and others v Minister of Arts and Culture and others
[10]
where
Tuchten J had this to say:
“
[
21]
It seems to me that the term "Board" is used
in two senses in the Act: firstly, as the governing body
of the
institution and, secondly, as the institution as such. Although this
subject was not addressed in argument, it was implicit
in the
arguments advanced by both counsel that s 5(5A) contemplated the
dissolution of the governing body and not the institution.”
[23]
It follows that the Board dissolved by the first respondent acting
under section 5(5A) was the
governing body of the institution, namely
PanSALB Board. In essence the first respondent did not dissolve
the institution.
Prior to its ministerial dissolution, the governing
body of the institution appointed the applicant as the CEO of the
Board. He
was appointed as the CEO or as an employee of the
institution. Consequently, the real employer is not the
dissolved governing
body of the institution, but the institution
itself which is a juristic person statutorily established by s 2(1)
of the Act which
is separate from its governing body. As a juristic
person the institution speaks through its governing body.
[24]
The power to appoint and dissolve the governing body of the
institution is vested upon the first
respondent acting under s
5(1)(a) and s 5(5A) of the Act. After been appointed a CEO the
applicant accepted the appointment to
perform the functions as set
out in the Act and on terms and conditions of the contract of
employment. Since then up until today
he is still in the employ of
the institution receiving remuneration from the institution. The
applicant is in fact an employee
of the institution and not the
dissolved governing body of the institution.
[25]
In terms of the Act read with Regulations made by the minister under
s 10(7), the Minister appoints
the Board as a governing body of the
institution and may dissolve it. The PanSALB Board in its capacity as
the governing body of
the institution appoints the CEO. Its
chairperson may suspend him. The PanSALB Board chairperson’s
power to suspend CEO from
duty until an investigation or disciplinary
hearing with regard to a charge of misconduct, includes the power to
discipline. In
Mlengana
v Minister of Agriculture Forestry and Fisheries
[11]
where
Ranchod J held:
“
The
power to discipline is a managerial prerogative and is an incident of
the management of an employee. The power to discipline
includes
the power to suspend. This is because,as Murphy AJA (as
he then was) states: ‘………
as a
precautionary suspension invariably forms part of the procedure
leading to disciplinary action it is inherently disciplinary
in
nature.’”
[26]
It is common cause between the parties that the CEO is an employee of
the second respondent.
The first respondent in his capacity as
the cabinet minister is not a manager of the CEO. Consequently,
he has no power to
discipline the CEO. In
Mlengana’s
case the Court went on to say in
paragraph 31 that:
“
In
any event, the general rule is that where a power is given to a
person to appoint it implies a power to dismiss. The power
to
dismiss has been described as ‘an essential corollary’ of
the power to appoint. Suspension of an employee pending
disciplinary
proceedings is often the first step in what may ultimately lead to
the dismissal of the employee”.
[27]
In the present matter the power to appoint the CEO is given to the
Board in terms of s 10(1)
and s 10(4) of the Act. This power
implies a power to institute a disciplinary action against the CEO
and to decide whether
or not he/she is guilty of a disciplinary
offence and if so, to decide whether or not to dismiss him/her.
Put differently,
the first respondent has no express or implied power
to appoint or dismiss the CEO. Sections 10(7) and 10(8) of the Act
empower
the minister to make regulations to,
inter
alia
, govern the requirements for
discharge and disciplinary steps. One such regulation is Regulation
17(b) which confers power upon
the Board’s chairperson to
suspend the CEO, which power, as already held above, includes the
power to discipline.
[28]
Regulation 16(14) provides that the CEO, if aggrieved by the appeal
decision made by the Board,
may appeal further to the Minister.
The first respondent cannot therefore play the role of disciplinary
chairperson in matters
where he has executive appellate authority in
terms of the law. The first respondent is thus not competent to
discipline
the applicant as he is by law required to be an appeal
authority. The applicant will otherwise be left without a remedy
should
the first respondent assume the disciplinary powers over him.
What follows in these circumstances is that the first respondent had
no lawful authority to bring or authorize disciplinary proceedings
against the applicant in respect of his employment with the
second
respondent.
[29]
Having found that the decision by the first respondent to discipline
the applicant unlawful,
this also impacts on the notice to attend a
disciplinary hearing signed on 31 July 2018. The same applies to the
disciplinary proceedings
which could have taken place had the
applicant not obtained an interim order on 10 August 2018. This,
however, does not simply
imply that the disciplinary charges would
fade away
[12]
.
There
is nothing in law that precludes any new PanSALB Board from
instituting a fresh disciplinary action against the applicant
based
on the same or similar charges listed in the annexure to the first
respondent’s notice of disciplinary proceedings.
[30]
It is indisputable that the applicant is facing serious allegations
of misconduct, this certainly
cannot be ignored. On the other hand,
he is adamant that he wishes to clear his name at a disciplinary
hearing conducted by a new
Board to be appointed by the first
respondent. All that needs to happen to allow the applicant to have
his day in the disciplinary
hearing, is for the first respondent to
appoint a new PanSALB Board, be it an interim or otherwise, which may
in turn exercise
its disciplinary powers by instituting disciplinary
action against the applicant.
[31]
The first respondent does not deny the applicant’s allegation
that since the dissolution
of the previous PanSALB Board on 12 Jan
2016, he has to date not appointed a new Board. This situation is
lamentable as it brings
about unintended consequences and risks. It
promotes disruption and disorder. PanSALB as an institution
that has been left
in a ‘headless institution’ at the
time when it was supposed to be fulfilling its constitutional
obligations to promote,
and create conditions for and ensure respect
for South African languages as required by s 6(5) of the Constitution
of the Republic
of South Africa
[13]
.
This is against the interests of the public. A fair and equitable
remedy in the circumstances is to confirm the rule
nisi
.
The
Counter-application
[32]
The first respondent’s counter-application to declare the
applicant as ‘employer
less’, is simply meritless. As
already indicated above, the real employer of the applicant is the
institution PanSALB,
the second respondent, not the dissolved
governing body of the institution. Under these circumstances I am
inclined to agree with
the applicant that the absence of the
dissolved PanSALB Board cannot by any stretch of the imagination
imply that the second respondent
has ceased to exist. I see no basis
for the granting of this counter-application.
Costs
[33]
Both parties vigorously sought costs against each other including
costs of two counsel. This
is surely one of those matters where the
Court’s discretion is pivotal in determining the awarding of
costs. The first respondent
caused unnecessary expenses in having
raised a jurisdictional point challenging this court’s
jurisdiction despite having
informed the High Court that it did not
have jurisdiction but that this Court did. Furthermore, the
counter-application asking
for the applicant to be declared as
‘employer less’ was highly unfounded and unnecessary in
the circumstances. It was
only in late October 2018 that the first
respondent expressly conceded that the correct legal position
regarding PanSALB is that
it is an independent constitutional body
and that in law he does not have the power to discipline the
applicant. This late concession
was only made after the first
respondent had already induced the applicant into initiating
proceedings which could have been avoided.
[34]
Had the applicant’s attorney acted promptly there could have
been no need for a condonation
application. The applicant’s
insistence that he is the sole remaining board member might to a
certain extent have provoked
the first respondent into initiating the
counter application for an order declaring him ‘employer less’.
The applicant
is one of the members of the dissolved governing body.
When the Minister dissolved the governing body, the CEO also lost
membership
of the Board as the governing body of the institution. The
applicant as the CEO simply exercises the powers and functions of
PanSALB
as an institution. He cannot claim to be exercising the
powers and functions of the dissolved governing body.
[35]
For these reasons, the court has to exercise its discretion in either
limiting the extent of
the claim of the costs, or depriving a
successful party of portion or all of his costs or, in a proper case,
order a successful
party to pay portion or all of the costs of the
unsuccessful party. To this end the applicant as a successful party
cannot be awarded
a blanket order as to costs in light of his conduct
during litigation, most particularly his failure to comply with the
order of
the Court. He is thus not entitled to costs incurred in the
prosecution of the condonation application. These costs must be
awarded
to the first respondent together with the wasted costs
incurred by the first respondent in respect of postponements on 19
and 20
September 2018. All the costs awarded below include the costs
of two counsels where applicable.
[36]
In the circumstances, I am constrained to make the following order:
Order
1.
The court has jurisdiction to hear and
determine this matter;
2.
Applicant’s condonation application
is granted;
3.
The rule
nisi
is confirmed with costs, including the
costs reserved on 10 August 2018;
4.
First respondent’s
counter-application is dismissed;
5.
The applicant is ordered to pay the costs
incurred by the first respondent in opposing the condonation
application, but excludes
the costs for physical appearance (not
preparation) on 07 November 2018 during oral arguments;
6.
The applicant is ordered to pay the first
respondent’s wasted costs occasioned by the postponements on
19
th
and 20
th
September 2018.
___________________________
MM
Baloyi
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the Applicant: Advocate G. Fourie (SC) with Advocate Z.
Ngwenya
Instructed
by:
Ngcingwana Incorporated
For
the First respondent: Advocate F. R. Memani with
Advocate V. J. Chabane
Instructed
by:
State
Attorney
[1]
59 of 1995, as amended.
[2]
See:
Madiba
and others v Minister of Arts and Culture and others
[2017] 4
ALL
SA
111
(GP).
[3]
These allegations have been repeated in various formats in
paragraphs 11,16,22,29,50 and 53 of the applicant’s founding
affidavit.
[4]
[2000]
7
BLLR
819 (LC).
[5]
Ibid at para 7.
[6]
Ibid at para 9.
[7]
[1999] 3
BLLR
209
(LAC) at para 10.
[8]
[2011]
6
BLLR
527
(CC) at para 8.
[9]
(A921/2015) [2017] ZAGPPHC 1187 (10) November 2017 at para 29, read
with
Matatiele
Municipality v President of the Republic of South Africa
and
Others
2006 (5) SA 47
(CC) para 67.
[10]
[2017] 4 ALL SA 111
(GP) at para 21.
[11]
[2018]
ZAGPPHC 547 (23 April 2018) at para 28.
[12]
See:
Takalani
v Sedibeng Water Board
[2018]
ZALCJHB 186 (23 May 2018) at para 23.6.
[13]
Act 108 of 1996.