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IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

 

 

Not Reportable

Case No: J245/2023

 

 

In the matter between:

 

SELLOANE JULIA MOTLOUNG                                 Applicant

 

and

 

UNIVERSAL SERVICE AND

ACCESS OF SOUTH AFRICA                                    First Respondent

 

DAPHNE RANTHO                                                     Second Respondent

 

CHWAYITA MADIKIZELA                                           Third Respondent

 

TSHEGOFATSO JOSHUA MAENETJA N.O.             Fourth Respondent

MINISTER OF TELECOMMUNICATIONS AND

 

POSTAL SERVICES                                                   Fifth Respondent

 

 

Heard:         28 February 2023           

Delivered:  This judgment was handed down electronically by circulation to the parties' legal representatives by email and publication on the Labour Court’s website. The date and time for the hand-down is deemed to be on 08 March 2023

 

 

JUDGMENT

 

 

TLHOTLHALEMAJE, J

Introduction:

 

[1]         In this opposed urgent application, the applicant seeks an interim order in Part A, interdicting the disciplinary enquiry instituted against her. This order is sought pending the outcome of the claim under Part B, in which she seeks a declaratory order that the disclosures she made on 10 August 2022 to the officials of the first respondent (USAASA) constitute a protected disclosure within the meaning of section 1,6,8 and 9 of the Protected Disclosure Act[1] (PDA). She further seeks that USAASA be interdicted and restrained from subjecting her to any form of occupational detriment. Added to her relief is an order declaring the decision taken by the fourth respondent on 7 February 2013 to dismiss her application for the enquiry against her to be held in terms of section 188A(11) of the Labour Relations Act (LRA)[2] to be irrational, unlawful and invalid, and thus be reviewed and set aside.

 

Background:

 

[2]         The applicant has been in the employ of USAASA in the position of Company Secretary since December 2017. USAASA is a state owned entity established in terms of the Electronic Communications Act[3]. The second respondent (Rantho) is the Chairperson of the Board of USAASA. The third respondent (Ms Madikizela) is the Acting Chief Executive Officer of USAASA. The fourth respondent (Adv. Maenetja) is cited in his capacity as the Chairperson of the disciplinary enquiry instituted against the applicant. The fifth respondent is the Minister responsible for communication. Only USAASA opposed the application.

 

[3]         The applicant averred that on 10 August 2022, she made a protected disclosure arising from which she was now being subjected to a disciplinary enquiry. She contends that the conduct of USAASA amounts to an occupational detriment in accordance with the provisions of the PDA.

 

[4]         The relevant timeline of events is as follows;

 

4.1       The applicant took sick leave from 10 August 2022. She alleged that prior to going on leave, she had a meeting with the Chairperson of the Board of USAASA, Mr Thobela, and Mr Ramaru, the Chairperson of the Remuneration Committee and also a Board member. At that meeting, she alleges that she made a bona fide protected disclosure relating to alleged misrepresentations made by Madikezela in her curriculum vitae during her recruitment, and the latter’s alleged failure to provide USAASA with a copy of her Logistics Degree. It is common cause that Madikizela was appointed to the position of acting CEO in March 2021. The protected disclosure allegedly further made related to alleged irregularities relating to the management of USAASA’s Nedbank account.

 

4.2       The applicant contends that notwithstanding the disclosure, the Board failed to investigate them and instead sought to evaluate her work performance and decided to formulate disciplinary charges of misconduct against her.

 

4.3       She further alleges that upon her return from leave on 29 August 2022, she established that notwithstanding the fact that she occupied the position of company secretary, USAASA had advertised the position of temporary company secretary which was to be filled for one month.

 

4.4       On 7 September 2022, the applicant was placed on precautionary suspension. On 22 November 2022, a notice to appear before a disciplinary enquiry on 21 November 2 December 2022 was issued to the applicant. Amended charges subsequently followed. The applicant was charged on four counts of misconduct. The charges essentially related to allegations that during the period March 2021 and August 2022, she neglected to perform her duties and was insubordinate. She was further charged with misrepresentation and gross dishonesty related to her application for the post of company secretary. It was alleged that despite stating that she was in the process of being admitted as an attorney in July/August 2017 at the time of her recruitment, this was untruthful.

 

4.5       It is not in dispute that the applicant was booked off sick since from 11 August 2022. Further medical assessments that the applicant had submitted resulted in the postponement of the disciplinary enquiry scheduled for 21 November 2022. Subsequent postponements were occasioned by the applicant’s ill-health or unavailability of witnesses. During the postponements, the applicant was also provided with documents she had requested in preparation for her hearing scheduled to proceed from 6 to 10 February 2023.

 

4.6       On 5 February 2023, the applicant referred an alleged unfair labour practice dispute to the Commission for Conciliation Mediation and Arbitration (CCMA) pertaining to the alleged protected disclosure. On 6 February 2013, the applicant’s legal representative at the disciplinary enquiry made a formal request in terms of section 188A(11) that the enquiry proceed as a pre-dismissal arbitration. In the alternative, an application for a postponement was sought on account of the applicant’s ill-health.

 

4.7       On 7 February 2023, the chairperson issued a ruling in which the request in terms of section 188A(11) was declined, and the enquiry that was scheduled to resume on 8 February 2023 was postponed by three weeks.

 

4.8       This application was launched on 17 February 2023 to be placed on the urgent roll on 23 February 2023. It was then removed from the roll on account of the applicant not having effected proper service, hence it came before me.

 

[5]         USAASA in opposing the application contends that the matter does not deserve the urgent attention of this Court as the urgency claimed was self-created. It further contends that the alleged utterances to Thobela and Ramaro on 10 August 2022 by the applicant do not constitute a protected disclosure, and thus she had not established a prima facie case for the relief that she seeks.

 

Urgency:

 

[6]         Since the applicant seeks an interim order, she must establish or at most, demonstrate a prima facie right; a well-grounded apprehension of irreparable harm if the interim relief is not granted; that the balance of convenience favours the granting of an interim interdict; and that there is no other satisfactory remedy[4]. Prior to however determining whether the requirements of the relief sought have been met, the applicant needs to satisfy the Court that the matter indeed deserves its urgent attention.

 

[7]         The Court may at its discretion under Rule 8 of the Rules of this Court, relax or shorten the strict formal rules relating to time provided for service, and treat an application as urgent. In such applications, the applicant is required to first, set forth explicitly in the founding papers, the circumstances which he avers, renders the matter urgent and second, to explicitly advance the reasons why he claims that he could not be afforded substantial redress if he had brought the matter to Court by way of an ordinary non-urgent procedure, instead of this extraordinary urgent procedure.

 

[8]         Whether the applicant will be able to obtain substantial redress in due course is dependent on the facts and particular circumstances of each case[5]. Of equal importance is that urgent relief may be refused in circumstances where the matter has become urgent owing to dilatoriness on the part of the applicant. This is because the primary objective of approaching a Court on an urgent basis, is to prevent harm or prejudice from occurring[6]. Effectively, an applicant cannot undo the harm complained of, by simply seeking urgent relief.

 

[9]         Counsel for the applicant had in reference to various authorities on the subject of urgency, submitted that on the common cause facts, the matter was inherently urgent, especially viewed in the light of the potential risk of harm that the applicant faces. This was based on the violation of her rights to dignity and to lawful, reasonable and procedurally fair administrative action based on the refusal of the Chairperson of the enquiry to refer the matter to be determined under section 188A(11) of the LRA[7]. It was further submitted that in any event, what triggered the urgent application was the dismissal of the request by the Chairperson on 08 February 2023, to have the matter heard under section 188A(11) of the LRA. Accordingly, it was submitted that this application was brought barely a week after the cause of action arose.

 

[10]     One of the fundamental principles arising out of the authorities referred to by both parties is that an urgent application ought to be instituted at the first available opportunity, with the objective of preventing a harm or consequences thereof. It is not correct as submitted on behalf of the applicant that the facts of this case indicate that urgency is inherent. On the opposite end, the facts and circumstances of the case indicate a typical scenario of urgency that was self-created, and where the applicant deliberately chose to ignore initial available opportunities to seek urgent relief. In a nutshell, the Court is not satisfied that the applicant has acted with the necessary haste in seeking urgent interim relief[8]. My conclusions in this regard are based on the following;

 

10.1       The alleged utterances made by the applicant which formed the basis of a claim of protected disclosure were made as far back as 10 August 2022. These disclosures related to the appointment of Madikizela who was appointed as far back as March 2021. Incidentally, the applicant was part of the panel that interviewed Madikizela, and evidence demonstrated that she was one of the panel members that recommended the appointment of Madikizela highly. Even if there were irregularities in the recruitment of Madikizela (which was strenuously refuted), the applicant was nonetheless a party to any wrongdoing in that regard by not raising them then. She instead chose to recommend Madikizela highly prior to her appointment, which raises the question of her bona fides in claiming a protected disclosure. This however is another issue for another day.

 

10.2       The second alleged disclosure related to the Nedbank account issue, which on the applicant’s own version, arose on or about 10 June 2022. It is not even necessary for this Court to venture into the reasons why these disclosures were not made in June 2022.

 

10.3       To the extent that Counsel for the applicant submitted that it was the alleged disclosure that triggered the disciplinary enquiry, Counsel for USAASA was correct in pointing out that the first real opportunity for the applicant to approach this Court or any forum to the extent that it ought to have occurred to her that any conduct on the part of USAASA constituted an occupational detriment, was after she was placed on precautionary suspension on 6 September 2022. This is so in that being placed on suspension falls within the definition of occupational detriment in section 1 of the PDA. By then, she knew that she had made the alleged protected disclosure, and yet she did nothing when she was suspended, to seek protection under the provisions of that Act.

 

10.4       The above observation invariably disposes of the relief sought by the applicant in prayer 2.3 of her Notice of Motion, where she sought to interdict USAASA from engaging in any conduct towards her that would amount to an occupational detriment. Urgency regarding this relief arose when she was issued with a notice to suspend her. The proverbial horse bolted even further and faster on 7 November 2022 when she was notified of the disciplinary hearing and provided with the charges. Effectively, and based on her leisurely approach, any alleged occupational detriment, (i.e., harm), has already taken place.

 

10.5       The applicant was then notified of the disciplinary hearing on 7 November 2022. Again, the issue of protected disclosure did not arise. When the hearing was convened for the first time on 21 November 2022, albeit virtually, the applicant, who was absent, was legally represented, and a postponement was granted owing to her ill-health.

 

10.6       Notwithstanding her absence from the hearing, it remains unclear as to why her legal representative, did not indicate to the Chairperson that she intended making a request for the matter to be heard under section 189A(11) of the LRA. It is also not clear why knowing that the disciplinary enquiry was postponed to 18 – 20 January 2023, the applicant did not bring such a request or intention to make it to the chairperson.

 

10.7       On 7 December 2022, the applicant’s legal representative sought a further postponement, and USAASA had agreed. The matter was rescheduled for 6 February 2023. It appears that the applicant’s legal representative had again made a request for a further postponement to USAASA on 3 February 2023, which the latter had declined. It is at that stage that a referral was made to the CCMA. The matter was however due to proceed on 6 February 2023.

 

10.8       At the latter proceedings, it was for the first time that the issue of protected disclosure was raised before the Chairperson. In the alternative, it was submitted on behalf of the applicant that the hearing should be postponed in view of a medical report the applicant had received on 2 February 2023. The Chairperson had granted the parties an opportunity to file submissions regarding the two issues, resulting with his ruling on 7 February 2023.

 

10.9       It is not necessary to dwell into the findings of the Chairperson in his ruling other than to point out that he held the view that the applicant failed to provide him with sufficient evidence to enable him to conclude that the request for section 188A(11) was made in good faith and that the disciplinary enquiry would contravene the provisions of the PDA should it proceed. He however granted a postponement of the hearing, and for the parties to agree on future dates. This application was brought before the Court on 17 February 2023, and with a request that it be set down on 23 February 2023.

 

10.10   Arising from all these factors and timelines, it cannot be correct as argued on behalf of the applicant, that the urgency only arose when the chairperson issued his ruling on 8 February 2023. From Nxele[9] and Jaco-Watu[10], it is accepted that the applicant could only have first raised the issue of protected disclosure in the forum whose authority was being challenged, i.e., the disciplinary enquiry, to avoid premature recourse to the courts. In this case however, that opportunity arose as early as 21 November 2022 when the matter came before the Chairman for the first time, and it is irrelevant that she was not in attendance. A request in accordance with section 188A(1) before the Chairman at the time would have merely raised legal issues without the need for evidence to be led. The applicant’s legal representative could have easily raised the issue then, but failed to take that opportunity.

 

10.11   This is a clear example of a case where an applicant had decided on her terms, when a matter should be regarded as urgent, and when on her own terms the cause of action should arise. This approach is unsustainable in law for the purposes of determining urgency. To reiterate, for a period of no less than five months between being issued with a notice of suspension and when the disciplinary enquiry sat on 6 February 2023, the applicant had sufficient time within which she ought to have asserted her rights under the PDA. She nonetheless chose to drag her disciplinary enquiry until she ran out of options. This is barring the fact that other postponements were occasioned by her ill-health.

 

[11]     A further enquiry into urgency is whether the applicant has demonstrated the absence of substantial redress in due course. In other words, urgency may be granted in circumstances where if the applicant were to wait for the matter to be heard in the normal course, she will not obtain substantial redress.

 

[12]     It will be recalled that the applicant’s urgent application is in two parts. In Part A she effectively seeks to stop the disciplinary proceedings, pending Part B, in which she seeks that her alleged disclosures on 10 August 2022 be declared protected disclosures. In Part B, she further seeks that USAASA be interdicted from subjecting her to any form of occupational detriment; and effectively an order reviewing and setting aside the ruling of the Chairperson issued on 7 February 2023. Other than seeking such relief, the applicant has also referred an alleged unfair labour practice dispute to the CCMA. In her referral, her complaint is that the charges levelled against her read together with the Chairpersons’ ruling constitute an unfair labour practice against her. She seeks compensation in that regard.

 

[13]     I need not say more about the relief related to the outcome of the chairperson in Part B, to the extent that the applicant sought to argue that his ruling amounted to an occupational detriment within the PDA. All that can be said is that the Chairperson is an independent outsider. At least his partiality at the disciplinary hearing has not been challenged thus far. To that end, since he is not the employer, albeit it can be argued that by virtue of that position he had assumed the role of the employer in the disciplinary enquiry, the fact remains that his ruling cannot by all accounts constitute an unfair labour practice within the meaning of section 186(b) of the LRA, nor can it in any manner be viewed as an occupational detriment as defined.

 

[14]     The relief in Part B and the issues raised before the CCMA in claiming an unfair labour practice are intertwined, and all related to the alleged disclosure which the applicant seeks to be protected. In essence, she complains of being subjected to a occupational detriment.

 

[15]     Section 188A(11) provides that if an employee alleges in good faith that the holding of an inquiry contravenes the PDA, that employee or the employer, may require that an inquiry be conducted in terms of section 188A, into the allegations by the employer into the conduct or capacity of the employee, and further provides that the holding of such an inquiry does not constitute an occupational detriment, as contemplated in the PDA.

 

[16]     Counsel for the applicant sought to rely on Nxele[11] for the proposition that the wording of section188A(11) of the LRA, and taking into account the use of the words ‘despite subsection (1) in those provisions’, effectively and deliberately stripped the employer of its discretion to unilaterally trigger a section 188A(11) hearing, subject to the employee’s consent. The proposition was further that at the advent of these provisions, employees may require or insist that the enquiry be conducted in accordance with these provisions, and once such an imperious request is made, the employer is enjoined to institute a pre-dismissal arbitration in terms of section 188A, and thus terminate the commenced or pending internal enquiry[12].

 

[17]     I cannot however understand the import of this proposition to be that in every instance, and where the request for a section 188A(11) is made at any time of the internal disciplinary process, it invariably implies that the chairperson is obliged to stop those proceedings. If this was so, this will clearly lead to an untenable position where that process becomes at the mercy of the employee, who can decide at any point of the process whether he can make such a request and for the proceedings to be put to a halt.

 

[18]     My colleague Prinsloo J had an opportunity in Tsibani v Estate Agency Affairs Board and Others[13], to consider the import of the provisions of section188A(11) of the LRA. She correctly in my view, observed that the LRA provided for other remedies, viz, section 186 (2)(d), 191(1)(a) or 191(13) of the LRA, in the event an employee alleges that he or she has made a protected disclosure and is subjected to an occupational detriment as a result thereof. Thus where an employee has not invoked these provisions which are remedies available to her, any determination of the question whether she had made a protected disclosure or not, cannot be answered by way of a section 188A(11) process[14].

 

[19]     Prinsloo J had further observed that section 188A(11) does not envisage the holding of two parallel hearings, as all that it does is to provide for an inquiry by the arbitrator into allegations relating to an employee’s conduct or capacity. Arising from that enquiry the arbitrator will make findings on the conduct of the employee and must, in light of the evidence presented, determine as to what action, if any, may be taken against the employee. My colleague further correctly concluded that the provisions of section 188A(11) are not intended or designed to compel an employer (or an employee) to be subjected to two simultaneous and parallel disciplinary processes. They were not designed or intended to determine whether the facts constituted a protected disclosure as contemplated by the PDA or not, and if not, for an internal disciplinary hearing to proceed. This section of the LRA merely provided for an inquiry into allegations pertaining to the conduct or capacity of an employee by the CCMA[15].

 

[20]     Effectively what the above means is that since the provisions of section 186(2)(d) and those of section 191(13) of the LRA are designed to cater for unfair labour practice disputes in instances where the conduct on the part of the employer complained of is alleged to amount to an occupational detriment (as defined in section 1 of the PDA), it is under these provisions at which a determination can be made as to whether a disclosure, if any, deserved protection under the PDA.

 

[21]     In this case, it is accepted that the applicant had first referred an alleged unfair labour practice to the CCMA prior to approaching the Court, albeit some two days prior to the Chairperson having issued his ruling on the issue. In her referral before the CCMA, she alleged that she had made a protected disclosure. Even if she did refer the dispute to the CCMA, the first hurdle is that this was belated in the light of the fact that the internal hearing had been a stop-start affair since 21 November 2022. It is not for this Court to determine whether that referral is properly before the CCMA or not. All that is being pointed out is that this belated referral was merely meant to bolster this application for the purposes of the applicant’s Part B in her Notice of Motion, in which she seeks a declaration that her alleged disclosures constituted a protected disclosure.

 

[22]     The above approach by the applicant is demonstrative of not only the self-created urgency already pointed out, but also the fact that it cannot be said under the circumstances, she has not demonstrated that she will not obtain any substantial redress in due course. That argument is self-serving and unsustainable. The question of substantial redress in due course is obviously separate from whether the applicant has demonstrated the lack of alternative remedies, an issue which this Court will not address in the light of the conclusions on urgency. All that is being pointed out is that in the light of what she seeks before the CCMA since she had already invoked the provisions of section 186(2)(d) of the LRA, clearly any substantial redress remains available to her in due course. The same redress can similarly be obtainable in due course, to the extent that flowing from the referral to the CCMA, there might be any intention on her part, to approach this Court in terms of section 191(13)(a) and (b) of the LRA.

 

[23]      In the end, the applicant cannot speak of being deprived of any substantial redress in due course when the Court refuses to intervene on an urgent basis. The applicant has not satisfied the requirements of urgency, and it follows that this ought to be the end of the matter, and that the application ought to be struck off the roll.

 

[24]     USAASA sought a costs order including costs occasioned by the employment of two counsel. Costs in this Court are determined by having regard to what the requirements of law and fairness dictates. As it has been repeated in Tsibani[16], the general accepted purpose of awarding costs is to indemnify the successful litigant for the expense he or she has been put through by having been unjustly compelled to initiate or defend litigation. The facts of this case and the manner with which the applicant approached this court in circumstances where it was apparent that the urgency claimed was self-created, make this application fall into this category. It is however my view that costs to include those occasioned by the employment of two counsel cannot be regarded as fair even if the Court accepts that USAASA was compelled to defend an application which was a non-starter from initiation. Accordingly, the following order is made;

 

Order:

 

1.          The applicant’s application is struck off the roll on account of lack of urgency.

2.          The applicant is ordered to pay the costs of this application, which costs shall exclude those occasioned by the employment of two counsel.

3.          No order as to costs is made in regard to the postponement of the matter on 23 February 2023.

 

 

Edwin Tlhotlhalemaje

Judge of the Labour Court of South Africa

 

 

Appearances:

 

For the Applicant:                      L.T. Sibeko SC

Instructed by:                            Deon De Bruyn Attorneys

 

 

For the First Respondent:         M.C. (Chris) Erasmus SC with B Ridgard,

Instructed by:                            SM Mfingwana Attorneys Incorporated

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