Sneller Verbatim/ASS
IN THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN CASE NO: J328/03
2003-02-20
In the matter between
Applicant
and
1st Respondent
EXEL PETROLEUM (PTY) LIMITED 2nd Respondent
___________________________________________________________
J U D G M E N T
___________________________________________________________
LANDMAN J : The applicant, Ms Sophie Stambles Phakoe, is
employed as a credit supervisor by Exel Petroleum (Pty)
Limited, the 2nd respondent in these proceedings.
Exel charged the employee with one count of failure to
disclose, in her curriculum vitae, that she has been dismissed
by her previous employer. She was also charged with 40
counts of defrauding Exel by manipulating journal entries.
A disciplinary inquiry was convened on 28 January 2003.
A non-executive director of the company, Mr John Trollip,
presided at the disciplinary inquiry. He is the first respondent.
Mr Jan Snyman, a legal adviser was in attendance. Mr Herman
Welman, was the complainant who intended to present
evidence on behalf of the company. The employee was
represented by Mr Bezuidenhout, an attorney. Exel's
disciplinary code provides for representation of an employee
charged with an infraction. This representation was to be by "a
fellow in-house permanent employee".
Mr Bezuidenhout relying on Max Hamata and another v
Chairperson Peninsula Technicon Internal Disciplinary
Committee and others a decision of the Supreme Court of
Appeal (384/2000) dealing with the discipline of a student,
argued that the principle has now been established that a
disciplinary tribunal of a private body, that is a non-
administrative organ, has a discretion to admit legal
representation for a person charged with an infraction.
Mr Trollip listened to the representations made by Mr
Bezuidenhout. He then gave his ruling ex tempore. He ruled
that the employee was not entitled to be represented by Mr
Bezuidenhout. The employee launched an urgent application
in this court for the following relief:
"2. Reviewing and setting aside the decision of the 1st respondent
of 28 January 2003 to the effect that the applicant may not be
represented by a legal practitioner at the disciplinary hearing
chaired by him.
2.1 Declaring that the applicant is entitled to representation by a
legal practitioner at the said disciplinary hearing, alternatively
2.2 remitting the matter to the 1st respondent to exercise an
unfettered discretion on the question of the applicant's legal
representation by a legal representative at the said
disciplinary hearing chaired by him."
The applicant also seeks her costs.
The matter came before me by way of urgency. I
dismissed the application with costs. As the applicant's
attorneys have pressed me to provide reasons for my order,
my judgment will be a brief one. It proceeds on certain
assumptions regarding the law which I do not decide. I
assume, without deciding, that the Hamata decision is
applicable to labour disciplinary proceedings. The issue which
arises here is whether the decision of Mr Trollip is reviewable
on common law grounds. The grounds of the review upon
which the employee relies are set out in her founding affidavit
in paragraphs 4.1 and 4.2 which read:
"4.1 I submit that it is apparent from the 1st respondent's
decision and reasons as appear from annexure 'E' that the 1st
respondent has failed to exercise a discretion and considered
himself not to have the power to grant legal representation
based on his interpretation of the 2nd respondent's
disciplinary code which he found excludes legal
representation.
4.2 I am advised then in terms of the current Labour Court
Law and Supreme Court of Appeal authority the 1st
respondent indeed had such a discretion and failed to exercise
same. I am further advised that in doing so the 1st
respondent committed a reviewable irregularity."
The issues are then the following:
(a) Did Mr Trollip accept that he had a discretion; and
(b) If he did, whether he exercised the discretion properly i.e. not
capriciously by exercising and applying his mind with slavish
adherence to the usual practice and reasonably.
Mr Trollip was made aware, by Mr Bezuidenhout, that he had
a discretion to admit legal representation. Mr Trollip in his ex
tempore ruling said: "I got a discretion and I have to use it."
He went on to note that the disciplinary procedures provide for
representation by a fellow employee. He considered the
reasons why it might be undesirable to allow legal
representation at a disciplinary inquiry. He examined the
policy of the Labour Relations Act, 66 of 1995 regarding legal
representation. He considered the benefits of deciding labour
disputes inhouse. He expressed the view that the matter was
not a complex one. Having considered all this, Mr Trollip
exercised his discretion to exclude legal representation.
I find no fault with the exercise of his discretion (on the
assumptions outlined above). For these reasons the
application was dismissed with costs.
SIGNED AND DATED AT BRAAMFONTEIN ON ....... APRIL
2003
___________________
A A LANDMAN
JUDGE OF THE LABOUR COURT OF SOUTH AFRICA