Sneller Verbatim/JduP
IN THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN CASE NO: J2262/02
HEARD ON 2003.10.27
DELIVERED ON 2003.10.28
In the matter between
NOMATHAMSANGA B VALLIHU Applicant
and
FAIZEL MOOI Respondent
________________________________________________________________
J U D G M E N T
________________________________________________________________
MBENENGE, A.J : This is an application for the grant of an order
interdicting and restraining the respondents from continuing with
their disciplinary inquiry against the applicant set down for hearing
tomorrow 29 October 2003, pending the finalisation of review
proceedings that have been instituted by the applicant against the
respondents herein for the setting aside of a ruling of the first
respondent in terms whereof outside legal representation was
denied to the second respondent and the applicant, and other relief
that is ancillary thereto. The applicant is the chief executive officer
of the second respondent and is facing disciplinary proceedings. The
first respondent has refused the parties legal representation in his
ruling, which is extensively motivated.
The review application is grounded on section 6 of the Promotion of
Administrative Justice Act, 3 of 2000(the PAJA). Section 3 of that Act
provides that:
"In order to give effect to the right to procedurally fair
administrative action an administrator may in his or her or its
discretion also give a person referred to in subsection (1) [that
is a person whose rights or legitimate expectations is affected
by an administrative action], an opportunity to -
(a) obtain assistance, and in serious or complex cases legal
representation."
The second respondent opposes the application on the ground that
there is no absolute right to legal representation and that the first
respondent exercised his discretion properly, leaving the ruling
unassailable.
There are two preliminary issues that I should dispose of without
ado; The first one is whether a case of urgency has been made out,
and the second one is whether there is a proper resolution of the
second respondent authorising the deponent to the second
respondent's answering affidavit to champion the cause of the
second respondent.
The applicant got to know of the hearing of 29 October 2003 on 15
October 2003. She thereafter engaged in consultations with her
legal representatives and this culminated in application papers
being drawn by 20 October, and the application itself launched on
21 October. In my view the applicant acted vigilantly and speedily
prior to launching this application. The founding papers served on
21 October attracted opposition from the second respondent. I am
prepared to deal with this matter on an urgency basis. It is not the
contention of the second respondent that it still requires more time
to deal with the applicant's allegations of fact contained in the
founding affidavit. I was advised by Mr Ram, who appeared for the
second respondent, that the respondent will stand or fall by its
opposing affidavit on the factual and legal issues. That then
disposes of the first preliminary point. In support of his allegation
that he has authority to champion the cause of the second
respondent Mr Magketa the deponent to the opposing affidavit has
pointed to a document headed "Resolution of Executive Committee"
which purports to have been taken in terms of items 64 and 65 of
which purports to have been taken in terms of items 64 and 65 of
the second respondent's Constitution. The document makes it
abundantly clear that a resolution of the executive committee of the
second respondent was taken on 23 October 2003:
"(a) to ratify procedures taken by the chairman of
the second respondent on behalf of the second
respondent to set aside the Anton Pillar order
granted to the applicant;
(b) to institute procedures to oppose the application to the
Labour Court by the applicant to restrain the second respondent
from continuing with a disciplinary action against her;
(c) to institute procedures to oppose the application to the
Labour Court by the applicant to set aside the ruling of the first
respondent not to allow legal representation;and
(d) that Mr Magketa, in his capacity as the chairman of the
second respondent be authorised to act on behalf of the second
respondent on the above matters and/or in any other matter that
may be presented before any authority, including any court in the
Republic, in relation to the disciplinary action against the applicant,
or any matter incidental thereto in the future."
The form and not the substance of the document is under attack. It
brooks of no argument to the contrary that items 64 and 65 of the
Constitution of the second respondent deal with procedures. Item
64 deals mainly with signatures that must be appended on a
resolution before it can be said to be valid and effective. Item 65, on
the other hand, provides:
"That a resolution shall be deemed to have been signed if
consent thereto has been given in a message transmitted
electronically or by telegram, teleprinter or telefax and
purporting to emanate from the person whose signature to
such resolution is required."
The question is whether the second respondent's Constitution gives
it the power to resolve in the manner set out in the impugned
resolution.
Item 71 provides an answer to that question. That item gives the
committee of the second respondent the power to act on behalf of
the second respondent in an emergency, in which event the
executive committee shall report its actions and the reasons
therefore to the second respondent.
In my view, substance must triumph over form. Even though the
In my view, substance must triumph over form. Even though the
impugned resolution does not pertinently point to item 71 but to
items that are not the fons et origo of the power, I am satisfied that
the executive committee of the second respondent has the power to
authorise the deponent to champion its cause. The resolution under
attack is based on that power. In my view, the reference to items
that deal with meetings and procedures do not change the picture.
Therefore, the second respondent has placed its opposition before
me and I must cross to deal with the question whether the applicant
has made out a case for the grant of the interim interdict that she is
seeking.
The requisites for the grant of an interim interdict are matters of
trite law: they are that there must be a prima facie right, an
infringement of the right, and lack of adequate alternative remedy.
In the view I take of this matter, an aspect of the case which
effectively disposes of the application is whether there are
prospects of success in the main application. Section 3 of the (PAJA)
makes provision for legal representation only in serious and
complex cases. An administrator decides, in the exercise of his/her
discretion to grant an opportunity to obtain legal representation.
This right is not cast in stone. The administrator has a discretion
which is signified by the use of the word "may" in subsection (3) of
section 3. In Hamata and Another v Chairperson Peninsula
Technikon Internal Disciplinary Committee and Others 2002
(23) ILJ 1531 (SCA) it was held that there is no discernable
constitutional imperative regarding legal representation in
administrative proceedings other than a recognition of the need for
flexibility to allow for legal representation in cases where it is truly
required in order to attain procedural fairness.
The applicant has based her cause of action in the review
proceedings on section 6 of the (PAJA) and, to that end, has alleged:
"That the first respondent took into account irrelevant
considerations in reaching his decision; he considered the
considerations in reaching his decision; he considered the
applicant, whilst it was the second respondent that brought
the application; he treated the second respondent as a
company when it is in fact not; he made assumptions about
legal qualifications of the applicant's subordinates and their
competence when such was not in issue; he assumed that
legal representation was the cause of the delay when no
evidence of such causal link was before him; he ignored or
attached insignificant weight to relevant considerations..."
However, what is significant is the fact that in the founding affidavit
the provisions of section 6 of the (PAJA) are specifically mentioned
as being the cause of action of the applicant in the main application.
This argument seems attractive, but loses sight of the provisions of
section 7 which deals with procedure for judicial review.
Section 7(3) provides that the Rules Board for the Courts of Law,
established by section 52 of the Rules Board of Court of Law, 107 of
1985, must within one year after the date of commencement of the
(PAJA) make and implement rules of procedure for judicial review.
Section 7(4) provides that before the implementation of the rules of
procedure, referred to in section 7(3), all proceedings for judicial
review [based on the provisions of the PAJA] must be instituted in a
High Court or the Constitutional Court. The rules contemplated in
section 7(3) have not been published in the Gazette. They will thus
not have been approved by Parliament as provided for in section
7(5). I drew the attention of the parties’ legal representatives to this
concern as it exercised my mind when I further perused papers after
the hearing of yesterday. Mr Mahlahu, who appeared for the
applicant, has argued that section 1(b)(i) of the (PAJA) provides a
solution to the problem at hand. That section reads that:
" ‘Court’ means a high court or another court of similar
status."
His contention was that the Labour Court is the court of similar
status contemplated in section 1(b)(i). I do not agree with this
submission. That subsection defines a “court” and not a “high
court”. The high court contemplated in section 7(4) of the (PAJA)
does not include the Labour Court.
In my view, the main review application has no prospect of success
as this court has no jurisdiction to entertain same. Further, and in
any event, the application for the grant of interim relief must fail
because the applicant has an alternative remedy; she has the right
to challenge any finding made against her by the chairperson of the
disciplinary proceedings by way of review or appeal.
O R D E R
In the result I grant the following order:
1. The applicant's application for the grant of an interim interdict
pending the outcome of review proceedings that have been
instituted by the applicant against the respondents for a
review and setting aside of the first respondent's ruling dated
31 October 2003 is refused.
2. The applicant shall pay the costs of the hearing of 27 October
2003.
___________________
S M MBENENGE
ACTING JUDGE OF THE LABOUR COURT
ON BEHALF OF THE APPLICANT: ADV MAHLANGU
ON BEHALF OF THE RESPONDENT: ADV RAM