OF INTEREST
IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT DURBAN
Case no. D457/03
Heard on: 29/07/03
Delivered on: 29/07/03
In the matter between:
E M KHOZA
Applicant
and
THE PREMIER OF KWAZULU-NATAL
& ANOTHERRespondent
_________________________________________________________ JUDGMENT
[1] The applicant seeks an interim order on an urgent basis in the
following terms:
"2.1 An order reviewing and setting aside the
findings of the second respondent as
chairman of a disciplinary hearing against
the applicant which findings were delivered
by him on 10 and 11 July 2003.
2.2 An order declaring the findings of the second
respondent are invalid, unlawful and
unconstitutional.
2.3 An order directing the respondents to forthwith cease the disciplinary
hearing against the applicant pending the finalisation of this application.
2.4 That the respondents pay the costs of this application."
[2] The applicant omitted to stipulate in its Notice of Motion when
and how the respondents might oppose the matter. The first
respondent has opposed the matter by delivering its
answering affidavit at the start of the proceedings this
morning. The second respondent, the chairperson of the
inquiry, has elected to abide the decision of the Court. The
consequence of this omission is that the applicant is now
faced with an answering affidavit which calls for a reply,
without having allowed itself an opportunity to reply. Despite
conceding in his address that the Court would not be able to
grant the relief sought in the notice of motion without a reply
being filed, Mr Sishuba, for the applicant, persisted in
obtaining interim relief. Mr Nxusani for the first respondent
rejected Mr Sishuba's proposal that the matter be postponed
for the filing of a reply.
[3] In my view the applicant brought the application urgently. It
must satisfy all the requirements therefor in its founding
affidavit. If it fails to do so, the application will be dismissed.
THE BACKGROUND
[4] The applicant is the head of department in the provincial
Department of Housing, KwaZulu-Natal. On 30 January 2003
he was put on special leave as his continued presence in the
workplace was not conducive to an investigation and
assessment into the administration and management of the
department. He was also charged criminally on a date that is
not evident from his affidavit and released on bail of R500 000
and other stringent conditions.
(5] On 2 July 2003 he received via the Deputy Sheriff notice of a
disciplinary inquiry to be held on 10 July 2003 in Durban.
There were ten counts of misconduct alleged in the charge
sheet.
[6] The applicant raised four points in limine at the inquiry. The
second respondent dismissed all the points and postponed the
matter to 12 July 2003. The applicant, represented by
counsel, informed the second respondent that the inquiry
should be stayed pending this application for review. The
second respondent refused to do so, hence this application.
URGENCY
[7] It is submitted that the urgency arises because the second
respondent indicated that he would continue with the
disciplinary inquiry in the absence of the applicant.
[8] The applicant was aware on 11 July 2003 that the inquiry
would be proceeding even if he failed to attend. He instructed
counsel the next day to launch this application. The
application was eventually brought on 23 July 2003. There is
no explanation for the delay. The affidavit is barely 21 pages
and all the information was readily available to the applicant.
The respondent was subjected to the inconvenience of
preparing its opposition within five days. In my view the
ground for urgency does not entitle the applicant to
preferential treatment on the Court rolls. Furthermore, he has
not acted with sufficient expedition to warrant this Court
coming to his assistance on an urgent basis.
CLEAR RIGHT
[9] There is no doubt that the applicant is entitled to a fair
hearing at a disciplinary inquiry. However, one must look to
the objections and the substance of the objections that he
raised at the inquiry in order to determine whether he is in
fact getting a fair hearing. The objections he raised in limine
at the inquiry and the second respondent's responses, which
form the basis of this review, are summarised thus:
THE FIRST OBJECTION
[10] The applicant challenged the validity of the charge sheet on
the ground that it was signed by the Member of the Executive
Council for the Department of Housing instead of the first
respondent in terms of Resolution 2 of 1999. The second
respondent dismissed the point raised on the basis that the
first respondent had delegated that power, notwithstanding
the fact that the resolution made no provision for the sub-
delegation of such power. In so doing, the applicant contends
the second respondent erred and committed irregularities.
THE SECOND OBJECTION
[11] The applicant submitted that there was no proper service of
the notice of the disciplinary inquiry. The second respondent
found that there was proper service of the notice to attend the
inquiry. In so finding, the applicant alleges that the second
respondent erred.
THE THIRD OBJECTION
[12] The applicant alleged that he would not have a fair hearing
because the terms of his bail conditions precluded him from
directly or indirectly, verbally, in writing, telephonically or in
any other manner from contacting any person employed at
the Department of Housing KwaZulu-Natal. The second
respondent found that there was no basis in this submission.
This, the applicant contended, amounted to an error and
misdirection on the part of the second respondent.
THE FOURTH OBJECTION
[13] The applicant submitted that the chairperson of the inquiry
had not been appointed in terms of paragraph 7.3(b) of
Resolution 2 of 1999 as there was no Cabinet resolution
authorising the first respondent to appoint the second
respondent as the chairman of the disciplinary inquiry. The
second respondent had found that he had been properly
appointed. This, the applicant contended, was an error and a
misdirection on his part.
[14] With regard to the first objection, section 3B(4)(b) of the Public
Service Act of 1994, Proclamation 103 of 1994, permits the
delegation or assignment of any power or duty to appoint the
head of a department as well as any power or a duty
regarding the other career incidents of that head in the case
of the Premier of the province, to a member of the relevant
Executive Council. The power to delegate arises from the
statute and not from Resolution 2 of 1999 which has, at best,
the status of subordinate legislation. The applicant has not
produced any proof that the first respondent did not validly
delegate the power to sign the charge sheet. It is not likely to
be a matter within his own knowledge and his bald allegation
cannot found a valid objection to stay the continuation of the
disciplinary inquiry.
[15] Regarding the second objection, the applicant was served via
the Deputy Sheriff purportedly because he avoided personal
service by other means. The primary purpose of service,
namely, to notify the applicant, had been achieved and the
second respondent was entitled to dismiss the objection.
[16] The third objection is contrived and disingenuous. There is no
evidence that the applicant made any attempt to either have
his bail conditions relaxed or to request the respondents to
facilitate his access to witnesses and information to assist him
in the preparation and conduct of his defence.
[17] With regard to the fourth objection, paragraph 7.3(b) of
Resolution 2 of 1999 permits the presiding officer to be
"an executing authority or another person with
appropriate knowledge designated by the Cabinet
or the provincial Executive Committee".
As the second respondent pointed out in Annexure MEK3, the
presiding officer was, as agreed at the Public Service Co-
ordinating Bargaining Council, appointed by the Premier in this
case.
[18] Objections 1, 2 and 4 are highly technical and formal. The
applicant does not demonstrate in these proceedings how the
second respondent's rulings materially prejudice him on those
issues. It is also remarkable that nowhere does the applicant
deny the charge of misconduct against him.
[19] I am not persuaded, therefore, that he is not getting a fair
hearing. The applicant in any event has the alternative
remedies of conciliation and arbitration, processes which are
better suited to a proper ventilation of all the issues in
dispute.
[20] I was invited to award costs on an attorney and client basis
against the applicant on the basis, inter alia , that he is an
advocate and should have known better when bringing an
application of this sort on an urgent basis. In my view I
decline to make such an award of costs as it appears to me
that the applicant, faced with a criminal prosecution and a
disciplinary inquiry, already has a long and costly road to
travel.
[21] In the circumstances the application is dismissed with costs.
PILLAY D, J
On Behalf of the Applicant: Mr Sishuba
Instructed by: Ndwandwe and
Associates
On Behalf of the Respondent: Mr J Nxusani
Instructed by: Deputy State
Attorney
CERTIFICATE OF VERACITY
We, the undersigned, hereby certify that so far as it is audible to
us, the aforegoing is a true and correct transcript of the
proceedings recorded by means of a mechanical recorder in the
matter of:
E M KHOZA vs THE PREMIER OF KWAZULU-NATAL & ANO
CASE NO : D457/03
COURT OF ORIGIN : Labour Court, Durban
TRANSCRIBER : C R Blyth
Number of Pages :
SNELLER RECORDINGS (PTY) LTD
DURBAN
TEL:- 031-266 5452
FAX:- 031-266 5459
CASE NO: D457/03
DATE: 29 July 2003
IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT DURBAN
BEFORE: MS D PILLAY
E M KHOZA
vs
THE PREMIER OF KWAZULU-NATAL & ANOTHER
ON BEHALF OF THE APPLICANT: MR SISHUBA
ON BEHALF OF THE RESPONDENT: MR J NXUSANI
EXTRACT:
JUDGMENT
SNELLER RECORDINGS:
DURBAN