REPORTABLE
IN THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN CASE NO: J1713/03
DELIVERED ON: 2003-09-26
HEARD ON: 2003-09-26
In the matter between
THEMBA MAJOLA
Applicant
and
MEC, DEPARTMENT OF PUBLIC WORKS
NORTHERN PROVINCE AND OTHERS Respondents
___________________________________________________________
J U D G M E N T
__________________________________________________________
PILLAY D, J:
1. This review turns on the right to legal representation at a
disciplinary hearing. Employers have a general duty to ensure
that employees have a fair hearing prior to disciplinary action
being taken against them. Whether legal representation is
indispensable to ensuring a procedurally fair hearing is a
discretion conferred on the chairperson of an enquiry. The
chairperson must exercise that discretion judiciously having
regard to all the circumstances of the particular case. In
certain circumstances the denial of legal representation could
effectively be a denial of access to a court or tribunal (Sect 34
of Constitution of the Republic of South Africa Act 108 1996;
Bangindawo and Others v Head of the Nyanda Regional
Authority and Another 1998 (3) BCLR 314(Tk) @328H; see also
S v Gouwe 1995 (8) BCLR 968 (B) @ 969G-H ).
2. Whether there is a binding collective agreement on the issue
of legal representation is a vital consideration. One of the
pillars on which the Labour Relations Act No. 66 of 1995 (the
LRA) is constructed is the primacy of collective agreements
(section 1). If a collective agreement prohibits or restricts the
granting of legal representation, an adjudicator may allow
such representation provided just cause exists not to apply
the terms of the collective agreement. In that situation,
adjudicators have to balance the tension between the
constitutional right of access to a court or tribunal, the
primacy of collective agreements and the freedom to contract
and between collective and individual rights.
3. Adjudicators must be aware that particular factors, which the
parties to collective agreements consider important to the
sector or industry, underpin the collective agreement. Such
factors may not be immediately apparent to the adjudicators.
As a result, they should be slow to disregard or deviate from
applying a collective agreement.
4. It follows that the discretion exercised by a chairperson of a
disciplinary enquiry in which the right to legal representation
is regulated by a collective agreement would be more
restricted than a situation where there is no collective
agreement.
5. In this case the applicant secured on review the setting aside
of a decision in which he was refused legal representation at a
disciplinary enquiry on 18 April 2002. It was conceded in that
case that a discretion vested in the employer to grant legal
representation in appropriate circumstances; that the
respondents had not exercised any discretion at all and had
simply applied the collective agreement to refuse legal
representation.
6. The matter was then referred back and was heard by the
second respondent in this matter, one A M Carrim. The
relevant terms of the collective agreement referred to in the
previous case is the same as in this case and reads as follows:
"In a disciplinary hearing neither the employer nor
the employee may be represented by a legal
practitioner unless the employee is a legal
practitioner. For the purposes of this agreement, a
legal practitioner is defined as a person who is
admitted and practices as an advocate or an
attorney of South Africa".
7. The first complaint against the ruling is that Carrim quoted
from the decisions of Hamata and Another v Chairperson
Peninsula Technikon Internal Disciplinary Committee and
Others 2002 (23) ILJ 1531 (SEA) and Mosina and Others v
Premier Northern Province and Others , unreported Case No.
J401/2000, without properly applying his mind and those cases
and to the issues before him.
8. Carrim did refer to decided cases which he acknowledged at
the end of his ruling. His choice of cases indicates that he did
exercise a discretion. He therefore applied his mind to the
issues and the cases he referred to were relevant.
9. The second complaint was that the first respondent employed
"outside expertise" in the form of Carrim to ensure that the
hearing was procedurally and substantively fair. Furthermore,
the prosecutor at the disciplinary enquiry, Mr Baloyi, was
formerly a prosecutor and had legal qualifications and
expertise in holding criminal trials and disciplinary hearings.
10. The applicant conceded that chairperson Carrim was "neutral".
That can only be to the applicant’s advantage. Carrim's
experience and competence in the field, which was not disputed,
should have further served as assurance to the applicant that he
would get a procedurally fair hearing.
11.To this complaint of relative ability of the respondents, Carrim
found as follows:
"I am of the view that even in terms of the
Labour Relations Act office-bearers or
officials of the trade unions or employers'
organisation, have also been given right of
audience in the Labour Court and the Labour
Appeal Court. Union officials are well trained
in issues of labour relations and deal with
these issues on a regular basis. Therefore
the argument of comparability, seriousness
of charges and complexity, to me is
unacceptable".
12.The applicant has not advanced any explanation as to why
legal representation in the form of a practising lawyer is
necessary as opposed to any other representative such as a
fellow employee who might be legally trained or otherwise
competent or a trade union representative.
13.Carrim elaborates on his findings on the question of
seriousness and complexity as follows in his affidavit in
defence of his ruling:
"10. I consider that there were no complicated
questions of law in issue in the charges against the
applicant. In fact, I consider that the legal principles
were simple and that the issues in dispute were likely
to be factual. I also considered that the charges were
clear.
11. It was submitted on behalf of the applicant that the
charges contain elements of public law,
administrative law, criminal law and fraud, which
made the nature of the charges complex. When
examining the charge sheet it appeared to me that
the complaint(s) against the applicant were that he
committed certain irregularities such as:
11.1 altering tender amounts;
11.2 recommending a tenderer whose tender
documents had not been deposited in the
tender box;
11.3 disqualifying a tenderer on the ground that
its tax clearance certificate had not been
submitted while the contrary applied;
11.4 recommending one tenderer when its tax
clearance certificate was not submitted;
and
11.5 accepting late submissions of tax clearance
certificates.
12.The charges appear to focus on whether the applicant
disregarded tender procedures or not. There is
nothing complex in preparing a defence to the
alleged facts. The tender procedures and the
selection criteria appear to have been matters that
the applicant was familiar with as part of his official
duties as an adjudicator of tenders. I formed the
view, therefore, that labelling the charges as fraud
did not add anything to the alleged misconduct."
14. Carrim's reasoning speaks for itself. His ruling is eminently
reasonable and justifiable. If it is to be criticised at all, it
is because he omitted to discuss the relevance of the collective
agreement and what weight he attached to it in the exercise of
his discretion.
15. On the issue of costs, the respondents have asked for the costs
of two counsel. In my view, this is not a matter which warrants
such costs. The overwhelming weight of authority in the Labour
Court has been against granting legal representation at
disciplinary hearings. Besides, the matter was not that complex
that it warranted the costs of two counsel.
16. In the circumstances I grant an order in the following terms:
The application is dismissed with costs, such costs being the
costs of one counsel only.
Pillay D, J
08/10/2003
For Applicant: Mr Mahlase
Instructed by: Mahlase, Nonyane-Mahlase
For Respondents: Mr D.I. Berger SC
Instructed by: The State Attorney