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[2020] ZALCJHB 253
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Police and Prisons Civil Rights Union (POPCRU) obo Li v Department of Police, Roads and Transport: Free State Province and Others (J266/20) [2020] ZALCJHB 253 (10 March 2020)
THE
LABOUR COURT OF SOUTH AFRICA,
JOHANNESBURG
Not
Reportable
Case
no: J266/20
In
the matter between:
POLICE
AND PRISONS CIVIL RIGHTS UNION
(POPCRU)
obo MATLAKENG LI
Applicant
and
DEPARTMENT
OF POLICE, ROADS AND
TRANSPORT:
FREE STATE PROVINCE
First Respondent
MEMBER
OF EXECUTIVE COMMITTEE:
DEPARTMENT
OF POLICE, ROADS AND
TRANSPORT:
FREE STATE PROVINCE
Second
Respondent
HEAD
OF DEPARTMENT: DEPARTMENT OF POLICE,
ROADS
AND TRANSPORT:
FREE
STATE PROVINCE
Third
Respondent
SEITSHIRO
MTSHABI
N.O
Fourth
Respondent
Heard:
4 March 2020
Delivered:
10 March 2020
Summary:
Urgent application – Part A seeks an interim order interdicting
a disciplinary enquiry pending
the final determination of the section
158(1)(h) review application in terms of Part B.
JUDGMENT
NKUTHA-NKONTWANA,
J
Introduction
[1]
This is an
urgent application for an order, sought under Part A, restraining and
interdicting the respondents from proceeding with
the disciplinary
enquiry instituted against Mr Lehlohonolo Matlakeng (Mr Matlakeng),
the applicant’s (POPCRU) member, pending
the final
determination of the review application in terms of section 158(1)(h)
of the Labour Relations Act
[1]
(LRA) under Part B of this application.
[2]
The respondents are opposing the application based on various grounds
which I deal with later in this judgment.
Pertinent
facts
[3]
Mr Matlakeng is currently employed by the first respondent as a
Traffic Officer/Provincial Inspector. On 1 November 2019, he was
acquitted of allegations of misconduct, consequent to the internal
disciplinary enquiry on the following charges:
‘
Charge
1
You
contravened ‘Annexure A’ of the PSCBC Resolution 1 of
2003 which states that ‘will be guilty of misconduct
if he/she
endures [his life]…or … the lives …of
others by disregarding safety rules or regulations’
in that:
On
or about 17 March 2019 you pointed and discharged a firearm in a
public area at The Thoughts Lounge, Batho Location in Bloemfontein
and shot a member of the public.
Charge
2
You
contravened ‘Annexure A’ of the PSCBC Resolution 1 of
2003 which states that ‘an employee will be guilty of
misconduct if he/she, ‘wrongfully uses the property of the
state in that:
On
or about 17 March 2017 you used your firearm-Petro Beretta Serial
Number PX4389S and the Thoughts Lounge, in Bloemfontein while
you
were not on duty.’
[4]
On 28 January 2020, the third respondent, Mr Mtakati, wrote a letter
to Mr Matlakeng wherein he states the following:
‘
Be
kindly advised that management has noted the outcome of the hearing
which was held on 21
st
October 2019, wherein the Presiding
Officer issued a verdict of not guilty.
After
a diligent analysis of the Presiding Officer’s report and the
record of the proceedings, management decided to reject
the outcome
and invoke the provision of the
Labour Relations Act 66 of 1995
to
review the decision of the Presiding Officer.’
[5]
Notwithstanding, the respondents did not review the decision of the
Presiding Officer as promised. Instead, on 28 January 2020, Mr
Matlakeng was served with another charge sheet with the following
allegations:
‘
Charge
1
You
contravened
section 84(1)
of the
Firearms Control Act no 60 of 2000
which provides that, ‘No person may carry a firearm in public
place unless the firearm is carried -, (a) in a case of a handgun,
(i) in the holster or similar holder designed, manufactures or
adapted for the caring of handgun and attached to his or her person;
or rucksack or similar holder’ in that:
On
or about 17 March 2019 you left your firearm namely Petro Beretta
serial Number PX4895 unattended in the private car at Batho
Location
parking area next to the Thoughts Lounge. You then pulled it from the
car and fatally shot the member of public namely
Mr Neo Neels.
Alternative
to Charge 1
You
contravened ‘Annexure A’ of the disciplinary Code and
Procedures (PSCBC Resolution 1 of 2003) which states that
‘an
employee shall be guilty of misconduct if he or she acts negligently’
in that:
On
or about 17 March 2019 you left your firearm namely Petro Beretta
serial Number PX4895 unattended in the private car at Batho
Location
parking area next to the Thoughts Lounge. You then pulled it from the
car and fatally shot the member of public namely
Mr Neo Neels.’
[6]
The second disciplinary enquiry sat on 6 February 2020 and presided
over by the fourth respondent, Mr Seitshiro Mtshabi (Mr Mtshabi). Mr
Matlakeng was represented by POPCRU. Two points
in limine
were
raised; firstly, that the respondents have no power to institute the
second disciplinary enquiry in the absence of any order
setting aside
the guilty verdict consequent to the first disciplinary enquiry; and,
secondly, the second disciplinary enquiry constitutes
a double
jeopardy.
[7]
On 17 February 2020, Mr Mtshabi issued his Ruling on the points
in
limine
. It is clear
ex facia
the Ruling that the main
issue that he had to pronounce on was whether the respondents have
the power to interfere with the outcome
of a first disciplinary
enquiry. In this regard, he referred to a plethora of dicta of this
Court, mostly pertaining to the private
sector, and concluded that:
‘
an
employer can [interfere] with the disciplinary outcome if fairness
requires it. …
It is for this reason that I concluded that
the employer acted well upon his right to re-instate the case of LI
Matlakeng
and therefore pronounce that the proceedings will be
held on 5
th
and 6
th
Match 2020 in Bloemfontein
Perm Building 2
nd
Floor’. (Emphasis added)
[8]
Mr Mtshabi’s Ruling is the subject of the review in Part B
of
this application.
[9]
On 20 February 2020, POPCRU addressed a letter to Mr Mtakati,
requesting
proof of the review application and the order setting
aside the outcome of the first disciplinary enquiry that found Mr
Matlakeng
not guilty. It is not clear whether there was a response to
this letter. On 25 February 2020, POPCRU’s attorneys of record
communicated their client’s instruction to challenge Mr
Mtshabi’s Ruling in terms of
section 158(1)(h)
of the LRA and
accordingly sought a postponement of the disciplinary enquiry that
was set down for 5 and 6 March 2010 as per the
impugned Ruling. It
was also made clear in that communication that, if there was no
undertaking given by the next day that the
set down hearing would be
postponed, POPCRU would approach the Court for an urgent interdict.
Analysis
[10]
The
respondents raised various points in opposing this application.
Firstly, that the Notice of Motion is in breach of section 33
of the
General Laws Amendment Act
[2]
as
it was not served on the second respondent, and that it does not
afford the respondents the prescribed 72 hours.
[11]
In
my view, it should be elementary by now that the computation of time
period prescribed in any statute for doing any act includes
weekends
unless the last day falls on a Sunday or Public Holiday in terms of
section 4 of the Interpretation Act.
[3]
In this instance, since the Notice of Motion was delivered on 28
February 2020, it stands to reason that the 72 hours, or three
days,
expired on 2 March 2020, being a Monday. As such, the respondent’s
submission in this regard is untenable.
[12]
There is also no merit in the respondents’
submission that the service of this application was not effected on
the second
respondent. The Notice of Motion and its attachments was
served on the Johannesburg office of the State Attorney in accordance
with Rule 4(1)(b)(vi) of the Rules of this Court, which states that
‘if the person is the State or a province, by serving
a copy on
a responsible employee in any office of the State Attorney,’
constitutes a proper service.
[13]
Secondly, the respondents submit that the
matter is not urgent; alternatively, that urgency is self-created.
According to the respondents,
POPCRU was aware as early as 28 January
2020 that there were new charges but waited until three days before
the disciplinary enquiry
to approach the Court. It is strange that
the respondents deliberately ducked to deal with the fact that Mr
Matlakeng did appear
before the second disciplinary enquiry on 6
February 2020 wherein he raised his objections. The impugned Ruling
was only rendered
on 17 February 2020.
[14]
Also, I find nothing sinister with POPCRU’s
actions between 20 and 25 February 2020 as it sought to establish the
basis for
Mr Makati’s action in reinstituting the disciplinary
enquiry against Mr Matlakeng. In the absence of any explanation, then
it was open to POPCRU to challenge Mr Mtshabi’s Ruling, a
recourse it has since availed itself to in Part B. it is clear
that,
had the indulgence sought on the postponement of the disciplinary
enquiry been granted, these proceedings would have been
averted.
[15]
I am, accordingly, satisfied that POPCRU
has made out a case for this Court’s intervention on urgent
basis.
[16]
Thirdly, the respondents submit that POPCRU
failed to make out a case for the grant of the interim order. The
thrust of the respondents’
opposition in this regard is that
POPCRU has not shown any irreparable harm should the order not be
granted as it has adequate
remedy in due course. That is so, they
submit, because the charges levelled against Mr Matlakeng pertain to
the new allegations
and have nothing to do with the first charges
that he was acquitted of.
[17]
On the other hand, POPCRU disavows reliance
on the fairness of the second disciplinary enquiry. It submits that
the second disciplinary
enquiry is unlawful and that the respondents’
insistence that Mr Matlakeng subjects himself to that process
presents a potential
harm that cannot be remedied in due course. In
essence, Mr Matlakeng has no adequate remedy in due course, as his
claim lies in
the legality of the conduct of the respondents and as
such the balance of convenience favours him.
[18]
It is trite
that, in the public sector, a Presiding Officer of the disciplinary
enquiry is acting
qua
employer.
[4]
It is for that reason that Mr Mtshabi’s Ruling is reviewable in
terms of section 158(1)(h). I do not have to deal with the
respondents’ assertion that the new disciplinary enquiry
pertains to the new allegations or evidence as that enquiry would
be
undertaken in Part B.
[19]
Clearly,
POPCRU and Mr Matlakeng seek, as a matter of right, to avail
themselves to the recourse in terms of section 158(1)(h) and,
if
successful, that would put an end to the second disciplinary enquiry.
The submission that Mr Matlakeng has adequate remedy in
due course is
of small solace to him since he is faced with a possibility of being
dismissed consequent to an impugned process.
Moreover,
the impugned Ruling remains valid and binding and would yield a
legally valid outcome until it is set aside.
[5]
[20]
Pertinently,
in
Mkasi
v Department of Health: KwaZulu-Natal and Another,
[6]
confronted
with similar enquiry, this Court as per Cele J , referred with
approval to the dictum in
Pinetown
Council v President of the Industrial Court and Others
,
[7]
where it was
stated
that:
‘
Where
the jurisdiction of a tribunal is dependent on the existence of a
particular state of affairs, it cannot give itself jurisdiction
by
incorrectly finding that the conditions for the exercise of
jurisdiction are satisfied. The conditions precedent to jurisdiction
are known as “jurisdictional facts” …which must
objectively exist before the tribunal has power to act; consequently,
a determination on the jurisdictional facts is always reviewable by
the courts because in principle it is no part of the exercise
of the
jurisdiction but logically prior to it…’
[21]
Similarly,
in this instance, ‘there is no merit in proceeding with the
disciplinary hearing as the continuation of the hearing
is dependent
on the existence of a particular state of affairs yet to be decided
upon by this Court, which has a potential to put
a permanent end to
the disciplinary hearing’.
[8]
Conclusion
[22]
In all the circumstances, POPCRU has made a case for the grant of the
interim interdict.
Cost
[23]
On the issue of costs, it would offend the principle of law and
equity to grant costs
against the respondents in the light of the
persisting collective bargaining relationship between the parties.
[24]
In the circumstances, I make the following
order:
Order
1.
The respondents are interdicted and
restrained from proceeding with the disciplinary enquiry against Mr
Matlakeng pending the outcome
of the review application in terms of
section 158(1)(h) in Part B.
2.
There is no order as to
costs.
__________________
P.
Nkutha-Nkontwana
Judge
of the Labour Court of South Africa
Appearances:
For
the applicant: Mr
Mohale Magoshi of Majang Incorporated Attorneys
For
the respondents: Advocate
Peter Masihleho
Instructed
by State
Attorney, Free State
[1]
Act
66
of 1995, as amended.
[2]
Act
62
of 1955, as amended.
[3]
Act
33 of 1957, as amended.
[4]
Ntshangase
v MEC: Finance Kwa-Zulu Natal and Another
[2009] ZASCA 123
;
2010 (3) SA 201
(SCA);
[2010] 2 All SA 150
(SCA);
[2009] 12 BLLR 1170
(SCA); (2009) 30 ILJ 2653 (SCA) at paras 13-17.
[5]
Swart
v Starbuck and Others
2017 (10) BCLR 1325
(CC);
2017 (5) SA 370
(CC) at paras 32- 33.
[6]
[2019]
9 BLLR 926
(LC) at para 21.
[7]
1984 (3) SA 173 (N);
[1984] 2 All SA 18
(N) at para C.
[8]
Supra
n 3 at para 22.