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[2019] ZALCJHB 212
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Statistics South Africa v Molebatsi and Another (JR943/17) [2019] ZALCJHB 212; (2019) 40 ILJ 2603 (LC) (21 August 2019)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not reportable
Case no: JR943/17
In the matter between:
STATISTICS SOUTH
AFRICA
Applicant
and
MR
DIKGANG MOLEBATSI
First
Respondent
PRESIDING OFFICER: MR
MZANDILE HLANJWA Second
Respondent
Heard: 19
June 2019
Delivered: 21
August 2019
JUDGMENT
NKUTHA-NKONTWANA, J
Introduction
[1]
Before
me are two applications brought by the applicant, Statistics South
Africa (Stats SA); first is the application for condonation
of the
delay in bringing the review application and second is the
application
in
terms of
158(1)(h)
of the Labour Relations Act
[1]
(the
LRA),
to
review and set aside the sanction of one month’s suspension
without pay, handed down by the second respondent Mr Mzwandile
Hlanjwa (Mr Hlanjwa) against the first respondent Mr Dikgang
Molebatsi (Mr Molebatsi) and that it be substituted with one of
dismissal.
Also, Mr Molebatsi seeks condonation for the delay in
filing his answering affidavit. I deal with the condonation
applications
in turn.
Condonation
[2]
It is trite that section 158(h) of the LRA
does not prescribe the time limits for bringing a review application,
however, it is
an accepted principle that this must be done within
reasonable time and six weeks has been used as a measure of such
reasonableness.
In the matter at hand, the delay in bringing the
application is two weeks and I have considered the explanation for
the delay and
that is in my view, reasonable. I am, accordingly,
satisfied that Stats SA has made out a case for the grant of
condonation and
same goes for the late filing of the answering
affidavit by Mr Molebatsi. I therefore grant condonation for the late
filing of
the review application and the late filing of the answering
affidavit. The application to review is dealt with in turn.
Failure to file the
transcribed record
[3]
Before
proceeding with the merits of the case, I need to deal with an issue
that has concerned the Court in this matter. On perusal
of the court
file, it became apparent that Stats SA did not file the transcribed
record of the proceedings which it seeks to review.
At the hearing of
the matter, I raised this issue with Ms Norton who appeared for Stats
SA and she
submitted
that the record before the Court (pleadings with attachments which
include Mr Hlanjwa’s reports on the verdicts
in relation to the
merits and the sanction) is sufficient as the facts are common cause.
I disagree, for the reason that, in matters
of this nature, the Court
needs at the very least, a transcribed record of the proceedings to
be able to appreciate the nature
of proceedings before the presiding
officer. This is important, not only to paint a picture of what
transpired at the hearing,
but to better position the Court to be
able to perform its constitutional function of review
[2]
.
Notwithstanding, in this instance, the issues are
common
cause
between the parties and I deal with the merits from that podium.
Review
Background Facts
[4]
Mr Molebatsi, is employed by the applicant
as District Manager at the Springbok Office of Stats SA. He was found
guilty on a charge
of dishonesty in that he interfered with the
recruitment process of Listers, which interference resulted in the
appointment of
Mr B Tshepe (Mr Tshepe) who did not meet Stats SA’s
requirements. The genesis of the charge is that Mr Molebatsi
allegedly
instructed Ms Oppel, the Acting District Office
Administrator at the Springbok Office, not to contact two people who
were on the
list of candidates who were due to write a competency
test but to instead include Mr Tshepe. According to Stats SA, Mr
Molebatsi
gave Ms Oppel the contact details of Mr Tshepe and one Mr
Morris and arranged that Mr Tshepe write his competency test in the
Stats
SA’s Mabopane District Office, Pretoria.
[5]
Mr Molebatsi who was on annual leave and in
Pretoria at that time, attended the Mabopane District Office in order
to access his
emails as he did not have a 3G card. Whilst in the
Mabopane District Office he conducted the competency tests of about
five candidates,
including Mr Tshepe. He then faxed Mr Tshepe’s
results to the Springbok District Office. This action set in motion
events
that led to proceedings before this Court. According to Stats
SA, this role falls within the purview of District Office
Administrators.
[6]
Mr Tshepe was appointed as Lister and
attended training in Cape Town. According to Stats SA it was only
during the training that
Mr Tshepe’s irregular appointed was
discovered. It was alleged that the irregularity with his appointment
is that it went
against Stats SA’s objective of employing
people who were living in the Springbok Area (Mr Tshepe lived in
Tshwane), and
further that Mr Tshepe was not on the SAA data base,
and that he had no experience in map reading.
[7]
The whole incident happened in January
2014, however it was only on 10 May 2016 that Mr Molebatsi was served
with a charge sheet
which recorded the allegation against him as
dishonestly interfering with the appointment of Mr Tshepe. This is
despite the fact
that Stats SA had been aware of the irregularities
in the appointment of Mr Tshepe as early as January 2014. Mr
Molebatsi was never
suspended.
The
impugned verdict
[8]
Mr Hlanjwa’s verdict on the
merits was issued on 2 February 2017 and the verdict on the sanction
was issued on 17 March 2017.
[9]
Dealing with the issue of the sanction, Mr
Hlanjwa held that there was no evidence before him to show that there
was a breakdown
of trust between the employer and employee which
could not be repaired by other means. As such, he issued a sanction
of one-month
suspension without pay in terms of Regulation 1 of 2003
of the Public Service Coordinating Bargaining Council (PSCBC).
[10]
Mr
Hlanjwa based his findings on the Labour Appeal Court (LAC) decision
in
De
Beers Consolidated Mines Ltd v CCMA and Others
[3]
where it was stated that:
‘
[23]
It is precisely because dismissal for misconduct is rooted in
operational requirements and not in the
need for punishment that I
consider that the following dicta of Zondo AJP in
Toyota
(
supra
)
must be interpreted in context. He said this:
“
I hold that the
first respondent’s length of service in the circumstances of
this case was of no relevance and could not provide,
and should not
have provided, any mitigation for misconduct of such a serious nature
as gross dishonesty. I am not saying that
there can be no sufficient
mitigating factors in cases of dishonesty nor am I saying dismissal
is always an appropriate sanction
for misconduct involving
dishonesty. In my judgment the moment dishonesty is accepted
in
a particular case
as being of such a serious degree as to be
described as gross, then dismissal is an appropriate and fair
sanction.”
I draw attention to the
phrase “in a particular case”.
The seriousness of
dishonesty – i.e whether it can be stigmatised as gross or not
– depends not only, or even mainly,
on the act of dishonesty
itself but on the way in which it impacts on the employer’s
business
.
[24]
The employees
in casu
were not
dismissed in order to punish them. They were dismissed because the
employer was not prepared to run the risk of employing
them any
longer once they had been shown to be dishonest. Long service is, of
course, not entirely irrelevant. It is relevant in
determining
whether an employee is likely to repeat his misdemeanour
. An
employee who has long and faithfully served his employer has shown
that he has little propensity for offending. That historical
experience may persuade an employer to accept the risk of continuing
to employ him now that it is known that he is not as honest
as had
been thought. Depending on the circumstances, long service may be a
weighty consideration.
But the risk factor is paramount. If,
despite the
prima facie
impression of
reliability arising from long service, it appears that in all the
circumstances, particularly the required degree
of trust and the
employee’s lack of commitment to reform, continued employment
of the offender will be operationally too
risky, he will be
dismissed
.’ (Emphasis added)
[11]
Mr Hlanjwa accordingly found that Stats
SA’s business had not been impacted negatively as Mr Tshepe’s
appointment was
confirmed despite Stats SA’s compliant that he
had been recruited irregularly and his contract of employment was
subsequently
extended. He was of the view that Mr Tshepe was utilised
to the best interests of Stats SA.
Evaluation
[12]
Stats
SA submitted that it has made out a case for the Court to interfere
with the sanction mitted out by Mr Hlanjwa as it was irrational
as Mr
Molebatsi instructed his subordinates to carry out his wishes and
showed no remorse. Mr Hlanjwa inexplicably found that the
relationship had not been broken, so it was further argued. In this
regard, Ms Norton referred to the dicta in
Hendricks
v Overstrand Municipality and Another
[4]
,
National Commissioner of the SA Police and Another v Harri No and
Others
[5]
,
and
Ntshangase
v MEC for Finance: KwaZulu-Natal and Another.
[6]
[13]
On the other hand, Mr Molebatsi’s
attorney, Mr Hechter, submitted that the
dicta
referred to by Stats SA are distinguishable. I concur. In
Ntshangase
,
the appellant employee unsuccessfully appealed against a decision of
the LAC that reviewed and set aside a decision taken by the
chairperson of a disciplinary enquiry into allegations of misconduct
to give the appellant employee a final written warning after
he was
found guilty of several counts of misconduct
involving
allegations of wilful or negligent mismanagement of the State's
finances and of abusing his authority. The allegations
that were
levelled against him included,
inter alia
, the unauthorised
awarding of bursaries to various students amounting to approximately
R1m and the unauthorised purchase by the
appellant of goods exceeding
R500 000 which caused the respondent employer a loss of
R200 000.
The Supreme Court of Appeal (SCA)
held that:
‘
[20]
I agree that Dorkin's [chairperson’s] decision, measured
against the charges on which he convicted
the appellant, appears to
be grossly unreasonable. Given the yawning chasm in the sanction
imposed by Dorkin and that which a court
would have imposed, the
conclusion is inescapable that Dorkin did not apply his mind properly
or at all to the issue of an appropriate
sanction. Manifestly,
Dorkin's decision is patently unfair to the second respondent. To my
mind, it fails to pass the test of rationality
or reasonableness…’
[7]
[14]
In the present case, it would seem that Mr
Hlanjwa clearly applied his mind to the prevailing circumstances. He
considered the delay
in charging Mr Molebatsi and the fact that Mr
Tshepe’s appointment did benefit Stats SA. Furthermore, not
only was his appointment
confirmed, but his contract of employment
was extended. Stats SA’s explanation for the delay proffered in
its replying affidavit
clearly shows that it was made aware of the
transgression as early as 20 January 2014 and the investigation
report was concluded
on 7 July 2014. Mr Molebatsi was only charged on
10 May 2016. There is no reasonable explanation proffered for the
delay of about
22 months before charging Mr Molebatsi.
[15]
Mr
Hlanjwa also considered the fact that Mr Molebatsi was not placed on
suspension and that there was no evidence before him that
showed any
further indiscretions on his part. In the final analysis, he was of
the view that Mr Molebatsi’s misconduct was
not so gross as to
impact on the trust relationship. As such, the
dictum
in
Hendricks
and National Commissioner of Police
[8]
equally
find no application.
[16]
It
is clear from the
dictum
in
De
Beer
[9]
that a misconduct that involves dishonesty does not automatically
attract a sanction of dismissal. Tritely,
each
case must be adjudicated on its own particular merits
.
In this instance, there is no evidence that Mr Molebatsi did not hid
the corrective measure or that he was incorrigible.
Conclusion
[17]
Before
I conclude, I need to add my voice to the chorus against the growing
practice of bringing reviews of this nature before this
Court.
Although section 158 (1) (h) empowers this Court to review any
decision taken by the State in its capacity as employer,
this by no
means, implies that whenever an instance occurs that the State is
dissatisfied with a decision emanating from its own
internal
processes, the next automatic step to take is to approach this Court
on review. The undue burden placed on this Court
by this class of
reviews is objectionable. I align myself with the sentiments of this
Court in the matter of
The
South African Police Services and Another v Major General Seswike N.O
and Another
[10]
where the following was said:
‘
[2]
The problem I have with these kind of applications is that it in
essence turns the
Labour Court into some kind of appeals body where
it comes to disciplinary proceedings conducted against officers of
the applicant.
This places an undue burden on the already stretched
resources of the Labour Court, and state departments such as the
applicant
should rather ensure that officials tasked to preside over
disciplinary hearings possess the necessary competence to discharge
their duties properly, instead of using this Court as some kind of a
back-up plan.’
[18]
This is a typical case of misuse of Court
processes as back-up plan and caution should be thrown at the path of
Stats SA.
[19]
Having said the above, in all the
circumstances, I am satisfied Mr Hlanjwa’s verdict on the
sanction is rational and accordingly
unassailable.
Costs
[20]
The parties did not pursue the issue of
costs. Nonetheless, I have considered the circumstances of this
matter and do not believe
that it would accord with the interest of
justice to award costs.
[23]
In the circumstances, I make the following order:
Order
1.
The
application for condonation of the late filing of the review is
granted.
2.
The
application for condonation of the late filing of the answering
affidavit is granted.
3.
The
application to review and set aside the sanction issued against the
first respondent is dismissed.
4.
There
is no order as to costs.
__________________
P. Nkutha-Nkontwana
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicant: D
Norton of Mkhabela Huntley Attorneys
For
the First Respondent: A Hechter of Adrie Hechter Attorneys
[1]
Act
66
of 1995 as amended.
[2]
See:
Helen
Suzman Foundation v Judicial Service Commission
2018 (4) SA 1
(CC) at para 13 to 15.
[3]
(JA68/99) [2000] ZALAC 10.
[4]
[2014] 12 BLLR 1170
(LAC); (2015) 36 ILJ 163 (LAC).
[5]
(2011) 32 ILJ 1175 (LC).
[6]
[2009] 12 BLLR 1170
(SCA); (2009) 30 ILJ 2653 (SCA).
[7]
Ibid at para 20.
[8]
Supra
n
3 and 4.
[9]
Supra
n
3.
[10]
Unreported case number: JR 2395/14.