2.8
The Code and Procedures are guidelines and may be departed from in appropriate circumstances.’
[9]
In the Mosena case it was submitted that, in the light of clause 2.8, clause 7.3(e) of the Code should not be construed as an absolute prohibition
against legal representation at a disciplinary hearing. Wallis AJ held that clause 2.8 is an injunction in regard to an employer’s
general approach to discipline and should not be interpreted as authorising wholesale discretionary departures from the Code and
procedures. It should be interpreted to only authorise departures where it would be necessary by agreement or otherwise, to depart
in some respect from the strict terms of the procedure. He found in clause 2.7, which provides that disciplinary proceedings do not
replace or imitate court proceedings, a strong indication that the parties considered clause 7.3(e) to be a fundamentally important
portion of their agreement.
[10]
I agree with Wallis AJ that clause 2.8 is an injunction as to the general approach that should be followed.
I, furthermore agree, that clause 7.3(e) is a fundamentally important provision of the agreement and that it should not lightly be
departed from. But, there may be circumstances in which it would be unfair not to allow legal representation (see Hamata and Another v Chairperson, Peninsula Technickon Internal Discplinary Committe, and Others 2002 (5) SA 449 (SCA) at paras 12 and 13).
[11]
In terms of our common law a person does not have an absolute right to be legally represented before
tribunals other than courts of law (Dabner v SA Railways and Harbours 1920 AD 583 at 598; and Hamata at para 5). However, it does require disciplinary proceedings to be fair and if ‘in order to achieve such fairness in a particular
case legal representation may be necessary, a disciplinary body must be taken to have been intended to have the power to allow it
in the exercise of its discretion unless, of course, it has plainly and unambiguously been deprived of any such discretion’
(per Marais JA in Hamata at para 23). The provisions of the Promotion of Adminstrative Justice Act 3 of 2000 in respect of administrative action in general
corresponds with the common law in respect of disciplinary proceedings. Sections 3(1) and (3) reads as follows:
‘3(1) Administrative action which materially and adversely affects the rights or legitimate expectations of any person must be procedurally
fair.
3(3) 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) an opportunity to –
(a) obtain assistance and, in serious or complex cases, legal representation;
(b) present and dispute information and arguments; and
(c) appear in person.’
In Hamata (at para 23) Marais JA found it unnecessary to decide whether the bodies concerned were engaging in ‘administrative action’.
In the present case it is similarly unnecessary to do so as it would make no difference to the outcome of the matter.
[12]
The parties, who agreed on the Code, were intent on devising a fair procedure (see clause 2.4) and it
is reasonable to assume that they also knew that there may be circumstances in which it would be unfair not to allow legal representation.
In these circumstances it is likely that they
would have intended the presiding officer to have a discretion to allow legal representation in circumstances in which it would be
unfair not to do so. I can find no indication in the Code to the contrary. There is, therefore, no justification for interpreting
'appropriate circumstances' in clause 2.8 so as not to include circumstances, which would render it unfair not to allow legal representation
at a disciplinary enquiry.
[13]
It follows that, if, on a conspectus of all the circumstances it would be unfair not to allow legal representation
the provisions of clause 7.3(e) may in terms of clause 2.8 be departed from. The presiding officer erred in holding that he had no
discretion to allow such a departure. The court a quo, therefore, correctly reviewed his decision and set it aside.
[14]
In the face of the failure by the presiding officer to exercise the discretion which he had, this matter
has to be referred back to him for consideration. It is not for this court to exercise the discretion which is reposited in the presiding
officer unless there are good reasons for doing so (see eg UWC and Others v MEC for Health and Social Services and others 1998 (3) SA 124 (C) at 130J-131H). Counsel for the respondent was not able to advance any good reasons other than to contend that
the respondent would be prejudiced by the delay occasioned by the referral back to the presiding officer. Delay is a consideration
to be taken into account, but on the papers before us, there is insufficient information upon which to exercise the discretion as
to whether the circumstances of the matter warrant a departure from the provisions of clause 7.3(e). Although not a numerus clausus, this court in the Hamata case (at para [21]) set out some of the factors which may be taken into consideration in the exercise of such a discretion, namely:
the nature of the charges brought; the degree of factual or legal complexity attendant upon considering the charges; potential seriousness
of the consequences of an adverse finding and the nature of the prejudice to the employer in permitting legal representation.
[15]
It will be for the presiding officer to apply his mind to the need for legal representation after considering
the circumstances of the case. The matter therefore will of necessity have to be referred to the presiding officer for him to exercise
his discretion.
[16]
I turn now to deal with the question of costs. Both parties achieved a measure of success. It would,
therefore, satisfy the dictates of justice if both parties were ordered to bear their own legal costs in respect of the review application
in the court below and of this appeal ie if no order as to costs is made in respect of the review application and this appeal.
[17]
It was not disputed by the appellant that, in the absence of an undertaking from the appellant, the interdict
application was necessary in order to stop the disciplinary hearing from proceeding. It is only fair that the appellant be ordered
to pay all costs consequent upon the bringing of the interdict application.
[18]
The following order is made:
1.
Save as is stated below, the appeal is dismissed.
2.
Paragraphs 2 and 3 of the order granted by the court a quo are set aside and replaced by the following order:
'2.
The matter is referred back to the officer presiding
at the disciplinary enquiry of the applicant to exercise his discretion whether the applicant is entitled to legal representation
at his reconvened disciplinary hearing.'
……………..
CN PATEL
Acting Judge of Appeal
Concur:
Streicher JA
Navsa JA
Jafta AJA
Ponnan AJA
SAFLII:
|
Terms of Use
|
Feedback
URL: http://www.saflii.org/za/cases/ZASCA/2004/133.html
.RTF of original document