About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Cape Town Labour Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Cape Town Labour Court, Cape Town
>>
2025
>>
[2025] ZALCCT 26
|
|
Vico v Department of Ferestry, Fisheries and Environment (C 666/2023) [2025] ZALCCT 26 (23 April 2025)
ammended
on the 24
th
April 2025
THE
LABOUR COURT OF SOUTH AFRICA
AT CAPE TOWN
Reportable/Of interest to
other judges
Case
no: C 666/2023
In
the matter between:
THEMBALETHU
VICO Applicant
and
DEPARTMENT OF
FERESTRY, FISHERIES First
Respondent
AND ENVIRONMENT
DIRECTOR
GENERAL OF THE
Second Respondent
DEPARTMENT
OF FORESTRY. FISHERIES
AND
ENVIRONMENT
ADV
NAZEER CASSIM SC (
N.O.
) Third
Respondent
Heard
:
17 April 2025
Delivered
:
23 April 2025
Summary:
(Application – Declaratory relief
relating to incomplete disciplinary proceedings – Most of the
relief sought outside
the court’s jurisdiction –
Applicant already having exercised right to obtain some relief in
other fora – Main
relief abandoned at the hearing –
Application vexatious in character – costs awarded)
JUDGMENT
[1]
LAGRANGE, J
Nature
of the application
[1]
This is an opposed application for declaratory relief. At the time
the application was brought in January 2024 the applicant,
Mr T Vico
(‘Vico’), was still employed as a Director for the
Department of Fisheries, Forestry and the Environment
DFFE (‘the
department’).
[2]
The department has also applied for condonation for the late filing
of its answering affidavit, but as the applicant did
not object to
the late filing it is not necessary under Rule 36(1) of the Labour
Court Rules for the court to consider a condonation
application.
Accordingly, the answering affidavit forms part of the record.
[3]
By the time the application was heard he had already been dismissed
on 14 June 2024. He seeks the following relief.
“
1. Declaring that
the first and second respondents, in their respective capacities as
the employer, (hereafter “the employer”),
have unjustly
and unfairly terminated the briefing contract of the third respondent
as chairperson of the disciplinary hearing.
2. Declaring that the
first and second respondents’ termination of the briefing
contract of the third respondent has caused
unreasonable delay of the
disciplinary hearing that the employer had initiated against the
applicant.
3. Declaring that the
respondents have contravened the applicant's right to fair labour
practice by prolonging the disciplinary
inquiry disciplinary hearing
against him, thus causing harm, inter alia, to his prospects of
career progression.
4. Declaring that the
costs spent on the recusal applications that were initiated by the
second respondent against the third respondent
as fruitless and
wasteful expenditure.
5. Make the ruling of
Advocate Mojapelo an order of the court.
6. Directing any
respondent who opposes this application to pay the costs thereof.
7. Further end or
alternative relief.”
(superfluous
capitalisation omitted)
[4]
The applicant has been involved in protracted litigation with the
Department relating to the disciplinary inquiry instituted against
him, which concerns the removal of abalone confiscated by the
department valued at R 7.5 million. A very brief outline of the
sequence of events is set out below.
[5]
He was charged with numerous acts of misconduct, including fraud,
unauthorized possession of goods, breaches of the
Prevention and
Combating of Corrupt Activities Act 2 of 2004
and of the Public
Finance Management Act of 999, amongst other things. On 10 January
2020, the first chairperson of the inquiry
found him not guilty of
all 4 charges he was facing.
[6]
The Department took the Chairperson's decision on review. The
matter was heard by Van Voore, AJ under case number C23/2020.
The
court set aside the award of the first chairperson and remitted the
matter back to the Department to “
proceed de novo before
another Chairperson, who shall be permitted to rely on the record of
evidence before the second respondent,
together with any additional
evidence adduced by the parties.”
[7]
The department appointed an advocate, Mr S.M. Shaba SC, as the second
chairperson of the inquiry, which was due to convene on 6
and 7, June
2023. The new chairperson was provided with transcripts of the
original hearing. The parties agreed they would make
representations
to the Chairperson who would make a ruling whether the transcripts
were adequate enough for him to determine the
matter on the
pre-existing record. On 3rd August 2023, he advised that given gaps
in the transcripts, he was unable to make a fair
and just finding and
directed that both documentary and oral evidence should be led before
him, proposing six dates for the hearing.
There is some dispute about
whether the parties had agreed to rely on the record, but in any
event the Chairperson was not willing
to do so.
[8]
The applicant then applied to lead the evidence of two witnesses and
the matter was scheduled for hearing on 9 and 10 December
2023.
Following the applicant's request to summon a witness, the department
submitted a recusal application to the chairperson
on the basis that
he was biased. The applicant opposed the recusal application and in
reply the employer appeared to have added
an additional ground for
his recusal relating to the chairperson allegedly delaying the
finalization of the matter. On 5 December
2023 and before the
chairperson handed down a decision on the recusal application, the
department terminated his mandate as a chairperson
of the inquiry
without providing reasons. The applicant’s union attempted,
unsuccessfully, to get the decision reversed.
The applicant complains
that the pending disciplinary inquiry adversely affected his
prospects of promotion in the department or
elsewhere in the public
service.
[9]
He filed his application for a declarator on 3 January 2024. After
that, the department appointed the third respondent, Mr N Cassim
SC,
as the third chairperson to chair the enquiry. The inquiry was due to
resume on 27 May 2024, but prior to that the applicant
requested the
withdrawal of the charges, failing which he would bring an urgent
application to interdicted. When the department
rejected his demand,
the applicant launched the application which came before Gandidze AJ
on 24May 2024 who dismissed his application.
The Chairperson
subsequently found the applicant guilty of a number of the charges
against him and recommended his dismissal. The
applicant then brought
another application on an urgent basis in early June 2024, seeking,
amongst other things to prevent, the
Department from giving effect to
the chairperson's recommendation.
[10]
That application was also dismissed on 28 June 2024. Thereafter, the
applicant lodged an unfair dismissal claim with the General
Public
Service Sectoral Bargaining Council (‘the GPSSBC’). In
his referral he disputed both the substantive and procedural
fairness
of his termination. His argument in respect of substantive fairness
was that there was clear evidence he had not committed
the misconduct
he'd been found guilty of. In relation to his procedural complaints,
he went into some detail in his request for
arbitration, stating
that:
“
The employee was
found not giving guilty in the first hearing which was chaired by
Advocate Mojapelo. The employer went to court
to review the outcome
of the first hearing, praying that the court must order that the
employee is guilty or alternatively that
the court must order that
there employer must start the hearing de novo. The court refused to
order that the employee guilty but
instead granted the employer the
alternative prayer to hold hearing de novo in front of a different
chairperson. the Chairperson.
The employer appointed a new
chairperson (Advocate Shaba SC) who ruled that the parties must call
witnesses to start the hearing
de novo. The employer disagreed with
him stating that there is no need to call witnesses and consequently
the employer filed recusal
applications. On 5th December 2023, the
employer fired the Advocate Shaba SC for ruling against the employer.
The employer then
took six months before appointing another
Chairperson. These these incidents deprived violated the employee’s
right to a
speedy resolution of the dispute. The third Chairperson
issued a ruling without hearing the dispute afresh (de novo) as
directed
by the Review Court as the third chairperson made a decision
without hearing witnesses and without properly considering the
evidence
that is already on Record. The third chairperson recommended
that the employee be dismissed with one month notice without giving
the employee opportunity to provide mitigating circumstances. The
employer dismissed the employee with immediate effect.”
(
sic
)
[11]
The applicant had applied for leave to appeal against the judgment of
Van Voore AJ, which was refused. Likewise, his petition for
leave to
appeal to the Labor Appeal Court was also refused in August 2023.
Similarly, he was later refused leave to appeal to the
Constitutional
Court. Gandidze AJ noted that when the applicant brought the
urgent application on 24 May 2024, he did not
take the court into his
confidence about his unsuccessful attempts to appeal the judgment of
Van Voore AJ, nor that his application
for leave to appeal to the
Constitutional Court was pending at the time.
Evaluation
[12]
The
applicant claims he is entitled to a declaratory order by virtue of
the Labour Court’s power to make a declaratory order
under
section 158(1)(a)(iv) of the Labour Relations Act 66 of 1995 (‘the
LRA’). Two caveats must be mentioned.
Although widely
framed, it must be understood that the power to grant such relief,
only applies to disputes which the Labour Court
has jurisdiction to
decide in terms of s 157 of the LRA. Secondly, one of the factors a
court must take account of when deciding
if it should exercise its
discretion to grant declaratory relief is whether the applicant has
alternative remedies
[2]
. it is
not an alternative avenue to utilising the tailored remedies
for resolving disputes, which are provided for in the
LRA.
[13]
Further,
the principles governing the exercise of a court’s discretion
to grant declaratory relief are the same as those governing
the grant
of such relief in the High Court
[3]
.
Two questions have to be answered when considering an application for
declaratory relief. In
Association
for Voluntary Sterilization of South Africa v Standard Trust Limited
and Others
(325/2022)
[2023] ZASCA 87
, the Supreme Court of Appeal confirmed its
dictum in
Cordiant
Trading CC v Daimler Chrysler Financial Services (Pty) Ltd
;
2005 (6) SA 205
(SCA), with reference to the powers of the High
Courts to grant declaratory relief under
Section 21(1)(c)
of the
Superior Courts Act 10 of 2013
, namely that:
“‘
[16]
Although the existence of a dispute between the parties is not a
prerequisite for the exercise of the power conferred
upon the High
Court by the subsection, at least there must be interested parties on
whom the declaratory order would be binding.
The applicant in a
case such as the present must satisfy the court that he/she is a
person interested in an “existing, future
or contingent right
or obligation”
and nothing more is required (Shoba v
Officer Commanding, Temporary Police Camp, Wagendrif Dam
1995 (4) SA
1
(A) at 14F). In Durban City Council v Association of Building
Societies
1942 AD 27
Watermeyer JA with reference to a section worded
in identical terms said at 32:
“
The question
whether or not an order should be made under this section has to be
examined in two stages. First the court must be
satisfied that the
applicant is a person interested in an ‘existing, future or
contingent right or obligation’, and
then, if satisfied on that
point, the Court must decide whether the case is a proper one for the
exercise of the discretion conferred
on it.”
(Emphasis added)
[14]
The applicant initially argued that the declaratory relief he sought
would not have any practical consequences but corrected himself
later
by arguing that he had a clear interest in the outcome of the
application.
[15]
In respect of the first prayer, the applicant could not identify any
provision of the LRA which entitles the labour court to determine
the
fairness or lawfulness of the termination of a chairperson’s
mandate to conclude a disciplinary enquiry.
[16]
In relation
to the second and third prayers, that the disciplinary enquiry had
been unreasonably delayed contravening his right
to fair labour
practices and prejudicing his career progression prospects, most of
that complaint is encompassed in the applicant’s
dispute about
the procedural unfairness of his dismissal which he has referred to
arbitration and accordingly is an issue set down
for determination in
those proceedings. Any complaint about the procedural unfairness of a
dismissal falls squarely within the
jurisdiction of the presiding
arbitrator in terms of
s 188(1)(b)
of the LRA and is not a matter for
determination by this court unless exceptional circumstances
exist
[4]
. The applicant did not
set out any exceptional grounds for the court. The applicant also did
not provide any support for his contention
that this court has the
authority to determining the harm his career advancement might have
suffered as a consequence of any delays
in his disciplinary enquiry.
[17]
In regard to the fourth prayer concerning a declaration that
fruitless and wasteful expenditure was incurred by the department
in
applying for the recusal of the second chairperson of the
disciplinary enquiry, the applicant could not provide any support
for
the court being able to assume the power to make such a finding.
Section 40 of the Public Finance Management Act, 1 of 1999,
(‘the
PFMA’), provides for the determination of fruitless and
wasteful expenditure by accounting officers and
the auditor-general.
Accordingly, such a declaration falls outside the purview of this
court.
[18]
The prayer with the greatest potential impact is the fifth one, which
asks the court to make the ruling of the first chairperson
of the
disciplinary enquiry an order of court. That ruling acquitted
the applicant of all disciplinary charges. As
mentioned
earlier, the ruling was set aside on review by Van Voore AJ and the
applicant’s attempts to set aside that judgment
have been
unsuccessful. Not only was there a judgment already setting aside the
chairperson’s decision, but when he launched
this application
he already knew that he had been refused leave to appeal against the
judgment by both the Labour Court and the
Labour Appeal Court. It
beggars belief that the applicant could have seriously believed that
he could simply avoid the unequivocal
effect of the judgment, by
approaching his court under the guise of an application for
declaratory relief that would have effectively
reversed that judgment
by reviving the ruling it set aside.
[19]
Moreover, on 30 July 2024 the Constitutional Court had dismissed his
application for leave to appeal to that court. If he had any
slender
hope that the highest court might yet reverse the judgment setting
aside his acquittal by the first chairperson, that hope
was
extinguished the Constitutional Court’s judgment. Even then the
applicant continued to pursue this application.
It was only
during the course of argument in court that he abandoned his prayer
to make the first chairperson’s findings
a court order.
[20]
For all the reasons set out above, the application must fail.
Costs
[21]
Both parties asked for costs in the event they were successful. It is
unclear what the applicant’s costs were as he represented
himself and appeared to be the author of all his pleadings and
submissions, though he might have obtained legal advice. The
respondent was forced to oppose an application in which the primary
relief sought was already
res judicata
when the application
was launched, and which was then only abandoned when argument was
underway. It must also have been obvious
to the applicant that his
claim for a declaration of procedural unfairness relating to the
enquiry delays substantially duplicates
part of the dispute he has
referred to the bargaining council, and is pending determination
there. It is clear from his papers
and argument that the applicant is
no stranger to legal principles and reasoning. This is not a
case of an unsophisticated
litigant blundering recklessly ahead in
legal ignorance. I am satisfied that the applicant’s
conduct in launching and
persisting in pursuing this application is
vexatious in nature, and it would be remiss of the court to compel
the respondent to
simply shoulder the costs of having to oppose such
a speculative application.
[22]
The department, very generously in my view, decided not to ask for a
punitive cost order on the basis that the applicant is not
a legal
practitioner. Had the department asked for costs to be ordered on a
punitive scale, I would have been inclined to consider
that request
favourably. The scale of fees was not specified by the
department and accordingly the default scale, Scale A
under High
Court Uniform Rule 67A will apply.
Order
1.
The application is
dismissed.
2.
The Applicant must pay the
Respondents’ costs on Scale A in terms of High Court Rule 67A.
R Lagrange
Judge
of the Labour Court of South Africa
.
Appearances:
For the
Applicant:
In Person
For the
Respondent:
Adv J Mnisi instructed by State Attorney Pretoria
[1]
As
varied on 24/04/25 in terms of S 165(b) of the LRA to amend a
grammatical error.
[2]
Member
of the Executive Council for Education, North West Provincial
Government v Gradwell
[2012]
8 BLLR 747
(LAC) at paragraphs 46-47.
[3]
Mantzaris
v University of Durban-Westville & others
[2000] 10 BLLR 1203
(LC) at paragraph 6.2.
[4]
Booysen
v Minister of Safety & Security & others
(2011) 32
ILJ
112 (LAC) at paragraph 44.