REPORTABLE
IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT DURBAN
Case No: D 513 / 99
In the matter between:
MANDLA STANLAUS CHAMANE Applicant
and
THE MEMBER OF THE EXECUTIVE COUNCIL
FOR TRANSPORT, KWAZULUNATAL 1ST Respondent
DIRECTORGENERAL FOR THE PROVINCE OF
KWAZULUNATAL 2ND Respondent
DEPUTY DIRECTORGENERAL. DEPARTMENT
OF TRANSPORT, KWAZULUNATAL 3RD Respondent
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JUDGEMENT
LYSTER A J:
1.Applicant in this matter is an inspector in the Department of Transport, and is the subject of internal disciplinary
action, arising out of interalia, the alleged unlawful discharge of his firearm, and threatening and abusive
behaviour to a supervisor. These incidents took place at different times in April and June of 1998.
2.1 He was charged in terms of section 22 (1) of the Public Service Act and a disciplinary enquiry in respect of
the first set of charges was convened in March 1999, and Applicant attended with his attorney.
2.2 The prosecuting officer objected to the presence of an attorney, and the chair of the disciplinary hearing
adjourned the matter to obtain a directive from his superiors as to whether legal representation should be
permitted.
2.3 On 22 April Applicant appeared at a further disciplinary enquiry in respect of the second set of changes
against him, and again requested permission for his attorney to represent him.
2.4 The prosecuting officer objected and the presiding officer adjourned the enquiry for a short period, during
which he contacted Third Respondent who advised him that legal representation should not be allowed.
2.5 When the inquiry resumed, Applicant declined to participate any further in t he proceedings, and instructed
his attorney to request Third Respondent to suspend all enquiries until such time as a Court of law had
pronounced on his right to legal representation.
2.6 When the first inquiry, referred to in paragraph 2.2 above, resumed, Applicant was advised that Third
Respondent had advised that no legal representation be allowed. Applicant refused to participate further in
the proceedings.
3.1 Applicant then instituted the current proceedings, in which he sought to interdict all Respondents from
proceeding with all disciplinary enquiries pending the outcome of the Court’s decision as to whether the
Applicant be entitled to legal representation.
3.2 The matter is somewhat complicated by the fact that, in the absence of the Applicant, the chairperson of one
of the disciplinary enquiries, went ahead with the enquiry found the Applicant guilty as charged, and fined
him R 600000.
3.3 In respect of the second disciplinary inquiry, by agreement between the parties, it was agreed that the
inquiry would proceed no further until this Court had made a decision with regard to the issue of legal
representation.
3.4 In the circumstances, the need for this court to consider the granting of an interdict falls away. Logically,
this court would then only be left with the duty to consider the issue of legal representation.
3.5 However, Applicant has further complicated the matter by amending the notice of motion in these
proceedings by substituting the wording of the original prayer, with the following:
“(1) The chairpersons of the enquiries instituted against the Applicant are directed to properly consider the
Applicant’s submission to be legally represented at the enquiries.
(2) To the extent that any proceedings have been held, they are regarded as null and void and of no force and
effect.”
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4.In effect, Applicant sought to alter the nature and status of these proceedings from an application for an interdict
brought in terms of section 158(1)(a)(ii) of the LRA, into an application for a review of a decision of a
claim of a disciplinary tribunal, presumably in terms of section 158(1)(h) of the LRA.
5.1 There is a long list of cases which establish the principle and support the view that as a general rule, a
superior Court will not entertain an application for review, when such review application seeks to interfere
with uncompleted proceedings in an inferior Court. (See Lawrence v Assistant Resident Magistrate,
Johannesburg 1908 TS 525; Ginsberg v Additional Magistrate, Cape Town 1933 CPD 357 at 361; Ellis v
Visser 1956 (2)SA 117 (W) at 1201; Sita v Olivier NO 1967 (2) SA 442 (A) at 447 EF; Haysom v
Additional Magistrate, Cape Town 1979 (3) SA 155(C) at 160 BC; Mendes v Kitching NO 1996 (1)SA 259
(E) at 260 A; Maropane v Gilbeys Distillers (Pty) Ltd 1998 (19) ILJ 635 LC .)
5.2 This Court may exercise its inherent powers to restrain illegalities in an inferior Court or tribunal, in cases
where grave injustice might result, or where justice might not be attained by other means. (See R v Marais
1959 (1)SA 98 (T) at 1012; Wahlhaus v Additional Magistrate, Johannesburg 1959 (3) SA 113 (A) at 119;
Goncalves v Addisionele Landros, Pretoria 1073 (4) SA 587 (T) at 596 F; Haysom v Additional
Magistrate, Cape Town 1979 (3) SA 155 (C) at 160 E; Newell v Cronje 1985 (4) SA 692 (E) at 699D;
Qozeleni v Minister of Law and Order 1994 (3) SA 625 (E) at 638 EG; Mendes v Kitching NO 1996 (1) SA
259 (E) at 269 DE).
5.3 Erasmus, (Superior Court Practice Juta & Co 1994 at B1382) cites the example of a review applicant who
can show that if the refusal of a magistrate to recuse himself would cause a miscarriage of justice, he need
not wait until the termination of the proceedings before going on review. [See Newwell v Cronje 1985 (4)
SA 692 (E)].
5.4 In casu there is , I believe, no basis for the submission that a grave injustice would occur if the decision of
the chairperson of the second disciplinary inquiry, (ie the uncompleted inquiry) was not reviewed at this
interlocutory stage. There are a number of different forums open to Applicant to seek justice and to pursue
his rights, after the stage of the initial disciplinary enquiry. Accordingly the principles laid down in the
references at paragraph 5.2 above (a grave injustice occurring or justice not being able to be attained by
other means) are not offended if a review is refused in this matter. Applicant is at liberty to review the
decision of the chair of the disciplinary enquiry once those proceedings are finalised, but it is not
appropriate that he does so now.
6.1 To the extent that the Respondents have already made a finding of guilt and imposed a fine on Applicant
with regard to the other disciplinary enquiry, those proceedings have therefore been finalised, and this Court
must now consider whether the failure of the chair of the disciplinary proceedings to independently apply
his mind to the question of legal representation, is reviewable or not.
6.2 On the basis of the cases quoted by Counsel for the Applicant, this would seem to be the case. In the case
of IBHAYI CITY COUNCIL V YANTOLO 1991 (3) SA 665 E, the Court said that if the regulations referred
to “representation”, without specifying whether this excluded or included legal representation, then one had
to look at the current practise. In those particular circumstances, the Court said Applicant was entitled to
legal representation at disciplinary enquiry level.
6.3 The Court in the matter of Dladla & others v Aministrator of Natal & Others 1995 (16) ILJ 1418 NPD said
that while there was a generally recognised convention that legal representation was not allowed at inhouse
hearings, officials in the public service should not slavishly follow such convention. The Court noted that
nothing in the Public Service Act or Staff Code forbade legal representation, and that the appropriate official
at an in house hearing had a duty to exercise his discretion as to whether to allow legal representation or not.
He had fettered his discretion by treating the convention not to allow legal representation, as a hard and fast
rule. The Court held that the failure of the official to exercise his discretion freely and fairly, vitiated the
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proceedings.
6.4 Applicant’s Counsel argued in the present matter that the Chair of the disciplinary inquiry had allowed his
discretion to be totally usurped by the Third Respondent, and that on the basis of Dladla’s case, those
proceedings ought to be vitiated, and the matter referred back to the Chair for a proper exercise of his
discretion concerning the request for legal representation.
7.It is difficult to think of circumstances in which a Presiding Officer of a tribunal could have more roundly failed
to exercise this discretion. When the request for legal representation was made, he adjourned the
proceedings in order to obtain a directive from his superior, the Third Respondent. Representation was then
refused on the basis of the Third Respondent’s directive. The presiding officer did not even attempt to
apply his mind, exercise his discretion and make an independent decision. On application of the principles
in Dladla’s case, it is clear that the matter should be referred back to him for a proper decision, and the
proceedings in that inquiry be regarded as vitiated ab initio , and the finding of guilt and the sanction, the
fine of R 600000, are set aside.
8.That is the decision of this Court insofar as the completed inquiry is concerned. I shall now deal with the other
disciplinary inquiry in respect of which proceedings were suspended, pending the outcome of the decision
of the Court with regard to the issue of legal representation. The respective approaches that Applicant, his
attorney and respondents may decide to take with regard to the issue of legal representation in the reviewed
disciplinary inquiry, may be influenced by what I have to say below.
9.1 It was common cause between Counsel that the critical issue to be decided with regard to the uncompleted
inquiry, was the issue of whether the Applicant be permitted to have legal representation.
inquiry, was the issue of whether the Applicant be permitted to have legal representation.
9.2 I have absolutely no hesitation in saying that he should not be legally represented . There are many
compelling reasons for saying this, and I shall set out some of them below.
9.2.1 There is, as was pointed out in Dladla’s case, a general convention that representation by a legal practitioner
is not permitted at internal enquiries.
9.2.2 The Supreme Court went further than that in the case of Cuppan v Cape Display Supply Chain Services
1995 (16) ILJ 846 DCLD, and held as follows at 847 DG:
“ ...despite the respondent’s denial, the parties intended to be contractually bound by the provisions of the
respondent’s disciplinary code and procedure, including the clause which provided that inquiries had to be
conducted ‘in accordance with natural justice’, and that these provisions had been incorporated in the
applicant’s contract of employment.
Where a hearing takes place before a tribunal other than a court of law, there is no general right to legal
representation, and where the relationship between the parties is governed by contract, the right of the
person to be legally represented at the inquiry must depend upon the terms of the contract itself.
Although there is no general right to legal representation flowing from the requirements of natural justice, in
unusually complex cases involving complicated evidence of legal issues, legal representation may be
regarded as a sine qua non of a fair hearing, and the flexibility of natural justice would seem to
accommodate this. The court found however that in this case the inquiry was relatively simple one and did
not fall within this exception. It followed, therefore, that the mere inclusion in the respondent’s disciplinary
procedure of a recognition of the principles of natural justice did not give rise to a right on the part of the
applicant to be legally represented at the inquiry. That right had to be specifically conferred upon him by
the terms of the contract. ”
the terms of the contract. ”
9.2.3 More compelling than this perhaps, is the approach of the LRA itself to the issue of legal
representation. Section 40 of the Act prohibits legal representation when the dispute is;
a) about the fairness of the dismissal and
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b) the reason for the dismissal relates to the employees conduct or capacity (my underlining).
If this is the approach adopted by the Act with regard to proceedings in the CCMA, a fortiori, it must follow
that at least a similar, or logically, a far more restrictive approach with regard to internal disciplinary
enquiries must be adopted. It would be intolerable if the overly technical and legalistic approach that all too
often characterizes the course of legal proceedings when legal practitioners are involved, was to be
introduced as a matter of course to internal inquiries. The discipline of employees is an employers’
prerogative and is an ongoing and integral aspect of the employer/employee relationship. There is no basis
for the view that the informal forums where such discipline takes place, should be burdened by the presence
of defence Counsel for the effected employee, or for that matter, prosecuting Counsel for the employer.
There can be very little doubt that if legal representation was permitted as a matter of course for effected
employees, it would not be long before employers felt that their interests would have to be equally protected
by the appointment of a qualified legal practitioner to prosecute the matter. Needless to say, it would follow
that the persons chairing disciplinary proceedings, who are normally department heads or Industrial
relations officers, would feel out of their depth with both sides being legally represented, and the inevitable
consequence would be the appointment of legal practitioners to chair all internal disciplinary inquiries. This
would be a preposterous and nonsensical development. The LRA clearly contemplates and makes provision
for a hierarchy of decision makers, starting with the chair of the disciplinary inquiry, and ending with the
Judges of the Labour Appeal Court. The Act also makes it very clear that as one moves through that
hierarchy, so does the nature of the forum become more formal, and the right to legal representation more
entrenched (vide section 140). It would be intolerable and inimical to the speedy and efficient resolution of
shopfloor disputes to introduce a full blown and formalistic legal inquiry at stage one, and then to have a
less formal inquiry, without representation at stage 2 i.e the CCMA arbitration stage.
In casu, the presiding officer is a lay person without any legal training. Furthermore, the dispute
relates to factual issues, such as whether or not the employee threatened his superior. It would be wholly
inappropriate for the employee to be legally represented in such a case. The sorts of people who are called
on in industry, commence and government on a daily basis to conduct disciplinary inquiries are Department
Heads, Managers and IR officers. They are not legally trained and they of necessity dispense an informal
and robust form of justice which is tolerated within the parameters of our legal system. One of the primary
reasons why this is tolerated and indeed tolerable is because the LRA has numerous provisions which allow
the disaffected employees to pursue his/her rights further, to the CCMA, Bargaining Council, the Labour
Court and the Labour Appeal Court.
10.1 It goes without saying therefore that it is the view of the Court, that
as Didcott J said in Dladla’s case that there is a general convention against permitting legal representation.
10.2 Since the passing of the Labour Relations Act, which was after the date of Dladla’s case, it can be said that
there exists now more than merely a general convention against legal representation. Put differently, such
convention is to be applied far more widely and strictly, and that there now exists an overwhelming
presumption to the effect that legal representation at disciplinary inquiry level, is to be excluded. Certainly
one can say that where the presiding officer and the employer’s “prosecuting” officer are lay people, it
should never be allowed. Similarly, where the dispute relates to factual issues eg related to an employees
conduct or capacity, legal representation should never be permitted.
10.3 It goes without saying that the question of legal representation should only ever arise when and where there
is an obvious uncertainty as to whether it is permitted or not. In most cases, the collective agreement or the
employer’s disciplinary code or similar document, will make it clear that at a disciplinary inquiry,
representation shall be by a trade union official, or work colleague. In such circumstances, legal
representation should never be permitted.
representation should never be permitted.
10.4 However, sometimes the employer’s code will say that a “person of his/her choice” is permitted. This must
be interpreted as meaning a person who is not a legal practitioner, unless the consistent practice in that
enterprise permits legal representation, or unless the dispute involves complex issues of law which call for
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legal representation. In this regard, the judgment of Zondo J (as he then was) in the matter of County Fair
Food (Pty)Ltd v CCMA 1990 (20) ILJ 2609 is of application . See also the judgement of Jali A J (as he
then was) in POPCRU V Minister of Correctional Services & Others unreported under case number
D511/99.
10.5 Notwithstanding the complexity of the case, if on a plain reading of the disciplinary code, legal
representation is not allowed, then that is where the matter ends.
11.In the case before the Court, at the risk of being repetitive, there is no basis for the view that Applicant should
be allowed legal representation and I am surprised that Applicant has gone to these inordinate lengths to
attempt to enforce a right which he does not have. The fact that he has been on suspension with full pay for
the entire time perhaps explains his persistence in this matter. Certainly he has not made out a case for lrgal
representation on the basis of past practise, or on the basis of the complexity of the matter.
12.The inquiry must therefore proceed forthwith and Applicant is not entitled to legal representation.
13.On the basis that, with regard to the completed inquiry. Applicant was successful and with regard to the
uncompleted inquiry Respondent was successful, it is fitting that I should make no order as to costs.
Date of hearing: 9 March 2000
Date of judgment: 16 March 2000
Adv. V. Soni
Instructed by Ngwenya and Zwane Attorneys
Adv W.M Mkhize
Instructed by State Attorney (KZN)
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