---

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

 

Not reportable

Case No: J 452/2024

 

In the matter between:

 

PUBLIC SERVANTS’ ASSOCIATION OF SOUTH AFRICA

obo LORENSE ANDILE DODO                             Applicants

 

and

 

MINISTER OF HOME AFFAIRS                             First Respondent

 

DEPARTMENT OF HOME AFFAIRS                      Second Respondent

 

DEPARTMENT OF PUBLIC SERVICE AND

ADMINISTRATION (DPSA)                                     Third Respondent

 

THEKISO MAODI N.O                                             Fourth Respondent

 

Heard:         9 May 2024

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 for hand-down is deemed to be 15 May 2024.

 

JUDGMENT

 

TLHOTLHALEMAJE, J

 

Introduction:

 

[1]  The applicant (PSA) approached this Court on an urgent basis seeking final relief. It seeks that the first or second respondents’ decision to appoint an external disciplinary chairperson and external initiator in a disciplinary hearing instituted against its member, Mr Dodo (Dodo), be declared to in breach of the provisions of clause 7.3 (b) of the disciplinary Code and Procedure as set out in the PSCBC Resolution 1 of 2003 (Resolution) and the third respondent’s (DPSA) directive on management of discipline in the public service. (The Directive)

 

[2]  An order is further sought declaring the ex tempore rulings issued by the fourth respondent (Chairperson of the Disciplinary Enquiry) on 3 and 5 April 2024 permitting his appointment, and that of an external initiator to be unlawful, null and void. The application is brought in terms of section 77A(e) of the Basic Conditions of Employment Act[1] (BCEA).

 

[3]  In opposing the application, the second respondent (DHA) contends that urgency does not exists or is self-created; that Dodo has not satisfied the requirements for final relief; that the DHA deviated from the provisions of the Resolution under exceptional circumstances; and that the Directive ought to be interpreted as expanding or clarifying the shortfalls in the Resolution.

 

Background:

 

[4]  Dodo is in the employ of the DHA as a Civic Services Officer. On or about 22 March 2024, he was served with a notice to appear before a disciplinary hearing to answer to no less than 107 allegations of gross misconduct related to acts of dishonesty; effecting unauthorised transactions in the National Population Register System (NPR); and gross dereliction of duties.

 

[5]  The principal allegation is that Dodo bypassed the NPR system and proceeded to falsely record and falsify records related to the registration of late births of minors. The alleged conduct is said to have affected statutory mechanisms such as the Birth and Deaths Act[2] and the Immigration Act[3] in that the end result was that non-deserving persons were granted RSA citizenship, thus enabling them or other individuals to qualify for benefits such as social grants.

 

[6]  It is contended on behalf of Dodo that the notice was issued in accordance with the provisions of clause 6 of the disciplinary code as codified in the Resolution. The disciplinary hearing in accordance with the notice was scheduled for 3 – 5 April 2024. In the notice, Dodo was informed that he could be represented by a fellow employee, a shop steward or a legal representative. He was further notified that the DHA would employ legal representatives due to the gravity of the allegations.

 

[7]  On 3 April 2024 when the hearing commenced, Dodo’s representative, Mr Bindeman (Bindeman), an official of PSA and deponent to the founding affidavit, raised a preliminary point and challenged the locus standi of Mr Theron (a legal practitioner appointed by the DHA), to initiate the disciplinary proceedings. The challenge was based on the provisions of clause 7.3 (f) of the Code which prescribed that the employer may not be represented by a legal practitioner in a disciplinary hearing unless the employee charged was a legal practitioner or the representative of the employer is a legal practitioner and the direct supervisor of the employee charged with misconduct, of where the hearing is conducted under paragraph 7.3.(c). The Chairperson having heard submissions from the parties issued an ex tempore ruling and dismissed the objection.

 

[8]  For the purposes of these proceedings, the challenge to the appointment of the initiator was abandoned, after it was conceded that a reading of the Resolution and clause 7.1 of the Directive indeed gave the Chairperson a discretion as to whether the parties could be legally represented upon an application having been made.

 

[9]  On 4 April 2024, Bindeman raised a further preliminary point challenging the locus standi of the appointed Chairperson. This was notwithstanding the fact that the very Chairperson had been called upon the previous day to pronounce on the locus standi of the initiator.

 

[10]  The second challenge was based on the provisions of clause 7.3 (b) of the Code which provide that the chairperson of the hearing must be an employee on a higher grade than the representative of the employer. The Chairperson having heard submissions issued an ex tempore ruling on 5 April and dismissed the preliminary point.

 

[11]  The PSA contends that the Chairperson’s ruling sanctioned an unlawful, null and void hearing. After 5 April 2024, written reasons were requested from the Chairperson. The PSA contended that there was no response until 29 April 2024, when the Chairperson’s response was merely that he had noted the requests. When this application was launched on 29 April 2024, the reasons according to the PSA had still not been furnished.

 

[12]  The DHA contends that at the time that the first objection was raised, Bindeman had accepted that the Chairperson indeed had a discretion to grant legal representation. It further contended that after the first ruling was issued, Bindeman had raised a further issue related to the continued suspension of Dodo or a return to work, which issues were at odds with the basis of this application. This was so on the grounds that if indeed there was opposition to the appointment of the Chairperson as per the second preliminary point, it could not follow that the same chairperson could be called upon to pronounce on further preliminary issues.

 

[13]  In the light of the above, the DHA contends that at the very least, Bindeman acquiesced to the Chairperson exercising further discretionary powers after the initial ruling. This was further fortified by agreements reached before the Chairperson related to the continuation of the matter on 14 – 17 May 2024; the exchange of bundles; an extension of the suspension of Dodo; and any other further preliminary points to be raised which were to be filed on agreed timelines, and which the Chairperson would deal with.

 

Urgency:

 

[14]  The requirements to be met when urgent relief is sought are trite emanating from familiar authorities[4]. This Court under the provisions of Rule 8 of its Rules may dispense with the forms and manner of service provided for in the Rules of Court where urgent relief is sought. The applicant must demonstrate explicitly why the matter is said to be urgent and why he will not be afforded substantial redress at a later hearing. Further considerations the Court must take into account are whether the urgency claimed is not self-created; the interests of the respondent party, and any prejudice it may suffer if the matter is disposed of on an urgent basis.

 

[15]  The basis upon which urgent relief is claimed by the PSA is that at the proceedings on 3 and 5 April 2024, two impugned ex tempore rulings were issued, and that the matter is to proceed on 14 to 17 May 2024. To this end, it was submitted that the hearing would proceed in an unlawfully constituted manner, and in breach of the disciplinary code.

 

[16]  The PSA further contended that the application could not have been brought earlier on the basis that the Chairperson had not furnished written reasons for his rulings as at 18 April 2024. Bindeman in the founding affidavit further averred that on 29 April 2024, and after the Chairperson had noted the request for reasons without furnishing same, he had approached the PSA’s Head Office’s legal department to assist in launching the application, which was done after approval. It is further submitted that the DHA’s disregard of the applicable Code, and in proceeding with the hearing in an unlawful manner inherently called for urgent intervention of this Court.

 

[17]  One of the fundamental requirements when seeking urgent relief is to approach the Court at the first available opportunity[5]. This in my view implies that where harm, prejudice or unlawfulness is likely to arise from a set of discernible facts, a party must take immediate action to protect its rights.

 

[18]  To illustrate the point, if ever there was any urgency in this matter, it must on the facts, have been triggered by the notice to appear at the disciplinary hearing issued on 23 March 2024, and not on 29 April 2024 when the Chairperson noted the request for reasons. This is so in that other than outlining the numerous charges against Dodo, he was informed in the same notice that the DHA had employed legal representatives to deal with the matter on its behalf, and that he (Dodo) was also entitled to a legal representative.

 

[19]  It cannot therefore be correct to suggest that the PSA or Dodo only knew on 3 April 2024 when the hearing first commenced, that there was non-compliance with the provisions of the code. It is at that point and prior to the hearing that the PSA ought to have taken steps to prevent any alleged unlawfulness that would arise from the commencement of the proceedings in non-compliance with the Code.

 

[20]  As correctly pointed out on behalf of the DHA, this application was launched some one month after the notice to attend the disciplinary enquiry was issued, and when the issue of legal representation was dealt with in that notice. The explanation for further delay in approaching the Court after the ex tempore rulings were issued by the Chairperson on 3 and 5 April 2024 is hardly satisfactory or acceptable. This is based on the fact that the substance of the rulings was clear, i.e., that the initiator and the Chairperson would proceed with the enquiry as appointed. As correctly pointed out on behalf of the DHA, nothing could be read into the Chairperson’s oral rulings, that these rulings would be effective only from the date that reasons were furnished.

 

[21]  In my view, there was no need for the PSA to wait for a period of three weeks for the Chairperson’s written reasons to confirm their import. This is even moreso since what is being sought in these proceedings is a final order declaring the rulings unlawful, null and void. What is not being sought is an interim order pending a review and setting aside of those rulings. It is not clear as to how those reasons would have changed the texture of the PSA’s principal allegation, which was that the DHA had not complied with the provisions of the Code and thus acted unlawfully, or that Dondo was to be subjected to an unlawful disciplinary process. It follows that there is no merit in the PSA’s further contention that the urgency was triggered on 29 April 2024 when the Chairperson still failed to provide reasons for the rulings.

 

[22]  In the end, all of the above considerations point to the urgency claimed in this case as being self-created. The consequence of self-created urgency is fatal to an application[6]. Urgency which is self-created in a sense that an applicant sits on its laurels or take its time to bring an urgent application can on its own lead to a decision that a matter is struck off the roll[7]. In this case, I have already alluded to the timeline since 23 March 2024 when the notice to attend the hearing was issued, and when this application was launched.

 

[23]  It is further common cause that despite complaining about the unlawfulness of the proceedings as a result of the presence of the Chairperson and the initiator, the PSA and Dodo participated in those proceedings after the rulings were issued, by raising further preliminary points and agreeing on certain procedural matters related to the future conduct of those proceedings. They even agreed on the dates of when the matter would proceed before the same Chairperson. This is a classic case of approbation and reprobation, and demonstrates the self-created nature of the urgency claimed. I agree with the submissions made on behalf of DHA that Bindenman and Dodo had effectively acquiesced to the participation of the Chairperson in the hearing.

 

[24]  A further issue related to urgency is whether it can be said that Dodo cannot be afforded substantial redress at a later stage. On the authority of the oft-quoted East Rock Trading 7[8], the Court can accept that a delay in instituting proceedings is not on its own a ground for refusing to accord a matter urgency, and that the issue is whether despite the delay, the applicant can or cannot be afforded substantial redress at the hearing in due course. I have already indicated that there was indeed an undue delay in approaching the Court, and any explanation in that regard hardly qualifies as reasonable or acceptable.

 

[25]  If Dodo can demonstrate that he will not be afforded substantial redress at the hearing in due course, then the matter should be accorded urgency. If, however, such substantial redress is available in due course, then the Court ought to refuse to accord the matter urgency. This approach was buttressed in Mogalakwena Local Municipality v The Provincial Executive Council, Limpopo[9], where the Court further held that at the core of this enquiry is whether the applicant can establish prejudice in this sense.

 

[26]  Under the rubric of ‘Urgency’ in the founding affidavit, nothing is said about whether Dodo can or cannot be afforded substantial redress in due course. It was simply alleged that he will be subjected to an unlawful, null and void disciplinary process. Mere references to these terms without elaboration or pointing out the exact nature of the prejudice to be suffered is not sufficient. The enquiry as agreed between the parties was due to commence on 14 May 2024. The DHA’s submissions in this regard were that Dodo can raise any concerns during that hearing or refer disputes under the Labour Relations Act[10] (LRA) for resolution.

 

[27]  It is trite that what amounts to substantial redress depends on the circumstances of the case and the nature of the rights involved. At the core of the PSA’s case is that the alleged unlawfulness of the disciplinary proceedings arises from the disregard of the clauses of the Code. It is not in dispute that the Code to the extent that it is contained in the Resolution which is the product of collective bargaining, automatically became employees’ terms and conditions of employment. One can accept that in such circumstances, the rights sought to be protected arising from the Resolution are not to be subjected to unlawfulness, or a process that will result in voidness or a nullity.

 

[28]  The Code in its principles under clause 2 merely refers to discipline having to be applied in a prompt, fair, consistent and progressive manner. It refers to fair treatment of public servants and ensures that employees have a fair hearing. Under clause 2.8. it is stated that the Code and Procedure constitutes a framework within which departmental policies may be developed to address appropriate circumstances provided the policies do not deviate from the provisions of the framework. Crucial however is that under clause 4, it is stated that the Code of Good Practice in Schedule 8 of the LRA insofar as it relates to discipline, constituted part of the Code and Procedure. Of equal importance however is clause 4 which provides for dispute resolution mechanisms. To this end, it is provided that any dispute arising from the provisions of that Resolution will be dealt with in terms of the PSCBC dispute resolution procedure unless the LRA provides otherwise. Insofar as the Directive is relevant to these proceedings, at its clause 7.1, it is provided that neither the department nor employee charged with misconduct have an absolute right to legal representation, and that the parties must first obtain the chairperson’s ruling prior to appointing a legal representative.

 

[29]  The essence of the point being made above is that first, there is nothing to be read in the Resolution read together with the Directive, that prohibits the employer from engaging the services of legal representatives. I will deal further below in relation to the conundrum posed by injunction under clause 7. 1 of the Directive in relation to the appointment of chairpersons who are legal practitioners. To this end, neither Dodo nor the PSA can claim an absolute right not to be subjected to a disciplinary enquiry conducted by legal representatives on behalf of the DHA.

 

[30]  A second consideration is that the Resolution provides for dispute resolution mechanisms, which implies that questions ought to be raised as to the PSA’s haste in seeking urgent relief in this Court, when the provisions of section 24 of the LRA were available to it to assert its rights under that Resolution, and insofar as the discipline of Dodo was concerned.

 

[31]  A third consideration is that even if contractual principles apply in this instance where the alleged unlawfulness is premised on non-compliance with the provisions of the Code, at the core of that Code as stated above, is the principle of fairness. The implication thereof is that Dodo cannot seriously allege that he will not be afforded substantial redress at a hearing in due course when the unfair labour practice scheme under the LRA is a process under which he can obtain such redress. This is even more pertinent in that he remains employed by the DHA and the disciplinary hearing is ready to commence.

 

[32]  In Mohlomi v Ventersdorp / Tlokwe Municipality & Another[11] the Court had held that the applicant has the right to raise as a defence of the alleged unlawfulness related to the employer’s conduct at the disciplinary hearing. That defence of unlawfulness to the extent that the status of the Chairperson was challenged, was ventilated and dismissed, resulting with a ruling which remains extant until reviewed and set aside.

 

[33]  Equally so, and as also correctly pointed out on behalf of DHA, Dodo can obtain substantial redress at any arbitration proceedings should an adverse finding be made against him after the conclusion of the disciplinary proceedings. Strictly construed, and to the extent that the core principle of the Code relied upon is fairness rather than unlawfulness, the mere fact that the PSA and Dodo alleged unlawfulness in this Court in seeking final relief, does not in any manner preclude an Arbitrator at the appropriate time should the matter get there, from determining whether the appointment of the Chair constituted procedural unfairness within the context of the LRA. Thus, a mere claim of unlawfulness does not open the door for final relief in this Court, where strictly speaking, at the core of the complaint is fairness. In this regard, I agree that Dodo cannot complain that he will not be afforded substantial redress in due course.

 

Other considerations:

 

[34]  Even if it might be argued that the merits of this application deserves the attention of this Court, the applicants have nonetheless failed to satisfy the requirement of final urgent relief they seek. An applicant for such an order must show a clear right; an injury actually committed or reasonably apprehended; and the absence of satisfactory protection by any other ordinary remedy[12].

 

[35]  It is worth repeating that this Court has consistently held that even if it enjoys jurisdiction in respect of internal disciplinary proceedings, a key factor in determining whether to intervene in incomplete disciplinary proceedings is ‘whether a failure to intervene would lead to grave injustice or whether justice might be attained by other means’[13]. In the light of the conclusions made in regards to Dodo’s obtainable substantial redress in due course, one cannot speak of grave injustice to him as justice was in any event obtainable by means already pointed out. I further agree with the submissions made on behalf of DHA that other than pleading unlawfulness, the founding affidavit does not state how that alleged unlawfulness was prejudicial to Dodo or the PSA. To reiterate, it is not sufficient when seeking urgent final relief, for a party to simply allege unlawful conduct without specifying the exact prejudice to be suffered. If there are detrimental effects arising from the non-compliance with the provisions of the Code, these are not set out succinctly in the founding papers.

 

[36]  Even more fatal to the applicant’s application is that to the extent that he seeks declaratory order in respect of the appointment of the Chairperson contrary to the provisions of the Code, it has long been stated that a declaratory order will normally be regarded as inappropriate where the applicant has access to alternative remedies, such as those available under the unfair labour practice jurisdiction[14]. These remedies remain open to him to utilise, in view of the core principles of fairness contained in both the Resolution and the Directive, inclusive of the remedies under the LRA should he be confronted with an adverse finding after the disciplinary process. The PSA and Dodo therefore cannot seriously allege that they have no satisfactory protection by any other ordinary remedy.

 

[37]  Any contention that the PSA and Dodo may have raised that there are exceptional circumstances in this case necessitating the relief sought is equally unsustainable. This is so in that it is in fact the DHA that had succinctly set out the facts and exceptional circumstances necessitating the deviation from the provisions of the Code. A plethora of authorities were referred to by the DHA in submitting that exceptional circumstances coupled with considerations of prejudice and the interests of justice, permitted it to do so. It had submitted that the deviation was relatively minor, and that on the authority of Highveld District Council v CCMA & Others[15], the mere fact that the agreed procedure was not followed, did not mean that the procedure followed was unfair.

 

[38]  In MEC Department of Finance, Economic Affairs and Tourism: Northern Province v Mahumani[16](Mahumani), the Supreme Court of Appeal (SCA) dealt with the import of clause 7.3(e) of the Code and Procedure embodied in the since amended Resolution No 2 of 1999 of the PSCBC. The wording of that provision remains the same in the amended Resolution 1 of 2003.

 

[39]  Inasmuch as it is appreciated that clause 7.3 (b) of the Code was not an issue before the SCA, the principles emanating therein in the interpretation of clause 7.3 (e) are in my view, equally applicable to clause 7.3.(b) of the Code. This is so in that fundamental to that interpretation was a requirement for disciplinary proceedings to be fair. It is trite that fairness applies to both the employer and the employee. In Anglo American Platinum Ltd v Beyers and Others[17], it was held that the concept of fairness applied to both the employer and the employee, and that it involved the balancing of competing and sometimes conflicting interests of the employer on the one hand and the employee on the other hand. The weight to be attached to those respective interests depends largely on the overall circumstances of each case.

 

[40]  The Court accepts that there is a lacuna in both the Resolution and the Directive in regards to the process to be followed when a department seeks to appoint an external chairperson who is a legal practitioner. The Directive at its clause 7.1 merely refers to the parties having first to obtain the chairperson’s ruling prior to appointing legal representatives. This obviously created an invidious position for departments where they seek to engage the services of legal practitioners as chairpersons, especially in circumstances such as in this case.

 

[41]  In my view however, the solution is to be found in the principles of fairness as already pointed out in Mahumani and Anglo American Platinum Ltd v Beyers and Other. Thus, if it means that the employer in order to ensure that it gets a fair hearing in pursuing allegations of serious misconduct against an employee, fairness dictates that it should be allowed deviation from the provisions of clause 7.3 (b) of the Code, provided that it demonstrates exceptional circumstances necessitating the deviation. It is not for this Court to outline what constitutes ‘exceptional circumstances’, as this will depend on the facts of each case, inclusive of the nature and seriousness of the charges against an employee.

 

[42]  In this case, the chairperson was appointed from its panel of presiding officers, who have performed similar duties over the years, especially in respect of serious matters where there was lack of internal capacity. The DHA had pointed out that the use of the panel members became necessary where strict compliance with the Resolution in this regard had largely fallen into disuse as a result of the Directive. The DHA pointed out as to the complexity of the allegations of misconduct against Dodo, and the lack of internal capacity to handle such complex matters. Of crucial importance is the contention that there is a general reluctance by internal officials ordinarily tasked with such duties, to investigate, initiate or preside over such cases due being fearful for their lives. There was nothing of substance in the replying affidavit to gainsay the DHA’s contentions, and accordingly, the Plascon Evans[18] principle would prevail in its favour

 

[43]  Inasmuch as Dodo is entitled to a procedurally fair trial, the DHA is equally entitled a fair trial, that will ensure that both the initiator and the chairperson will handle the matter without fear or favour. The numerous allegations of gross misconduct against Dodo are indeed serious, and the reasons why there is a need for a legal practitioner as a chairperson are compelling. Clearly if these considerations do not constitute exceptional circumstances for the deviation from clause 7.3(b), I fail to appreciate what other factors would suffice.

 

[44]  In the end, the applicants have not made out a case for the relief that they seek. There is no basis for any contention that Dodo has suffered an injury, or reasonably apprehended that any such injury would occur in the light of the ongoing disciplinary hearing and remedies available to him should he be faced with an adverse outcome after the hearing.

 

[45]  On the reasons provided above in relation to the failure to establish urgency, the matter ordinarily ought to be struck off the roll. This type of order in my view would however be inappropriate in circumstances where on the facts, no case was made out for final relief. Thus, no purpose would be served if this matter was struck off the roll simply to find its way back on the ordinary roll. It follows that the matter ought to be dismissed.

 

Costs:

 

[46]  This Court has constantly rebuked parties for approaching it on an urgent basis based on spurious grounds, and with the main purpose of either stalling or completely putting an end to internal disciplinary hearings. This occurs more often than not, in circumstances where employees face serious allegations of misconduct. The self-created nature of the urgency claimed in this case and a clear failure to satisfy the requirements of the relief sought point to this pattern. The application was ill-considered and misconceived. To the extent that it was brought under section 77 of the BCEA, the provisions of section 162 of the LRA do not find application, and it follows that costs should follow the results.

 

[47]  Accordingly, the following order is made;

 

Order:

 

1.  The applicants’ urgent application is dismissed with costs.

 

Edwin Tlhotlhalemaje

Judge of the Labour Court of South Africa

 

APPEARANCES:

 

For the Applicant:                              Adv. M. D. Madiba, instructed by Mjiyako Mphahlele

Incorporated.

For the Second Respondent:      Adv F. Venter, instructed by Adendorff Theron Incorporated.

---

---