Chili v Minister of Police and Others (J199/24) [2024] ZALCJHB 536 (18 March 2024)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: J199/24

In the matter between:

DUMISANI DENNIS CHILI

Applicant

and

MINISTER OF POLICE

First Respondent

NATIONAL COMMISSIONER OF THE

SOUTH AFRICAN POLICE SERVICE

Second Respondent

DIVISIONAL COMMISSIONER OF LEGAL SERVICES Third Respondent

DIVISIONAL COMMISSIONER FOR CRIME

INTELLIGENCE

Fourth Respondent

MAJOR GENERAL JOJO MEL

Fifth Respondent

MAJOR GENERAL LESIA TS

Sixth Respondent

Heard: 6 March 2024

Delivered: 18 March 2024 (This judgment was handed down electronically by circulation to the parties’ legal representatives by email, publication on the Labour Court website and release to SAFLII. The date and time for handing-down is deemed to be 10h00 on 18 March 2024.)

EX TEMPORE JUDGMENT

PHEHANE, J

[1] This application is moot. The Applicant concedes this.

[2] It is pertinent to record what has transpired in this matter that has resulted in the order that is made below.

[3] The applicant launched an application for urgent relief seeking orders reviewing and setting aside the ruling by the chairpersons[1] of two separate internal disciplinary hearings instituted against him; he also sought orders that the two disciplinary hearings be determined under the pre-dismissal arbitration process in terms of the provisions of section 188A(11) of the Labour Relations Act[2] (LRA) under the auspices of the Commission for Conciliation, Mediation and Arbitration (CCMA); further, that the respondents be

interdicted from continuing with the two disciplinary hearings. The applicant also sought an order directing the respondent to pay the costs of the urgent application.[3]

[4] The first respondent opposed this application on the following bases: firstly, that the application is moot as the applicant was dismissed on 29 February 2024 at the conclusion of the second disciplinary hearing before the sixth respondent, and was duly served with his dismissal outcome on 1 March 2024.[4]

[5] The charge against the applicant at the second disciplinary hearing pertained to the theft of an Afryer Grey Kenwood from Checkers Hyper at Eastgate Mall.

[6] Secondly (and in the alternative), the first respondent raised a jurisdictional point that this Court lacks jurisdiction to intervene

in incomplete disciplinary hearings unless there exist exceptional circumstances warranting the intervention of this Court. With

reference to the applicant’s allegations that he was subjected to an occupational detriment as defined in the Protected Disclosures

Act[5] (PDA) for having made a protected disclosure, the first respondent denied that the applicant made a protected disclosure.

[7] It is not disputed that the applicant referred an unfair labour practice dispute to the CCMA, which was conciliated and a certificate of the non-resolution of the dispute was issued on 13 December 2023, stating that the applicant is to refer his dispute to this Court for adjudication. The applicant failed to refer his dispute to this Court for adjudication following the issuance of the aforesaid certificate from the CCMA. The first respondent accordingly submitted that there is no pending dispute before the CCMA. No replying affidavit has been delivered by the applicant and the averments, as stated in the answering affidavit by the first respondent, are not refuted.

[8] On the facts, no referral in terms of section 188A(11) of the LRA was referred to the CCMA by the applicant.

[9] Section 188A(11) of the LRA reads thus:

‘Despite subsection (1), if an employee alleges in good faith that the holding of an inquiry contravenes the Protected Disclosures Act, 2000 (Act 26 of 2000), that employee or the employer may require that an inquiry be conducted in terms of this section into allegations by the employer into the conduct or capacity of the employee.’

[10] The purport of section 188A(11) is that where an employee in good faith alleges that s/he is suffering an occupational detriment for having made a protected disclosure as defined in the PDA, that employee or the employer as the case may be, may require that a hearing (a pre-dismissal arbitration hearing) be conducted by an arbitrator in terms of section 188A of the LRA.

[11] In Tsibani v Estate Agency Board and others[6] (Tsibani), this Court per Prinsloo J aptly set out what the process in terms of section 188A(11) of the LRA was designed to achieve, and it is this:

‘Section 188A(11) entitles an employee, who is about to be subjected to an internal disciplinary process and who alleges in good faith that the intended disciplinary hearing contravenes the PDA, to instead request an inquiry be conducted in terms of section 188A.’

[12] Prinsloo J went on to state as follows:

‘I see no reason why, if an employer, under circumstances where the employee complies with the requirements of section 188A(11), refuses to have the inquiry into the conduct or capacity of the employee conducted in terms of section 188A, the employee would not be entitled to approach this Court for an order interdicting the impending internal disciplinary hearing and an order directing that the inquiry pertaining to the employee's conduct or capacity be conducted in terms of section 188A of the LRA.’[7]

[13] In Tsibani, the facts were that the applicant approached this Court to interdict the continuation of the disciplinary pending the outcome of the proceedings before CCMA in terms of section 188A(11) of the LRA, in circumstances where the internal hearing had already progressed, the applicant had entered a plea and evidence was heard over a number of days. The applicant had misconstrued the meaning and application of section 188A(11) of the LRA in that she was of the view that should the arbitrator find that she did not make a protected disclosure, then her internal disciplinary hearing would continue. Prinsloo J emphasized that the purpose of section 188A(11) is not to hold two simultaneous hearings.

[14] This Court per Moshoana J in Mohlala-Mulaudzi v Property Practitioners Regulatory Authority and Others[8], made a further exposition into the purpose of the section and set out the jurisdictional facts that must be met by an employee who wishes to invoke section 188A(11) of the LRA. They are: the employee must have made a protected disclosure as defined in the PDA, must set out when and to whom such protected disclosure was made before s/he was charged with misconduct, and must allege that the occupational detriment alleged is causally connected to the protected

disclosure. Moshoana J went on to state:

‘…the effect of requiring that an inquiry be conducted in terms of the subsection is that the commenced internal disciplinary hearing terminates. But the termination does not happen automatically after the request. It happens once the administrative [body] has acceded to the request.’[9] [Own emphasis]

[15] In casu, there is no referral before the CCMA in terms of section 188A(11) of the LRA for an arbitrator to conduct a pre-dismissal arbitration hearing. It follows, therefore, that in the absence of such request and such acceptance by the CCMA to hold the pre-dismissal arbitration, no exceptional circumstances have been demonstrated by the applicant warranting the interference by this Court in his disciplinary hearings. Put differently, the applicant did not invoke the provisions of section 188A(11) of the LRA before his disciplinary hearings and no such proceedings were pending at the CCMA, which would warrant this Court finally interdicting the continuation of such internal disciplinary hearings with the effect of terminating them so that no parallel or simultaneous hearings are held.

[16] In any event, given that the applicant was dismissed at the conclusion of the second disciplinary hearings, the relief sought by him in this application is moot. Following his dismissal and having been informed of his dismissal on 1 March 2024, the applicant ought to have withdrawn this urgent application. He did not. He has retained an un-meritorious application on this already heavily burdened urgent court roll.

Costs

[17] The conduct of the applicant in proceedings with his matter before this Court is as follows:

17.1 The applicant failed to comply with the provisions of the Practice Manual of this Court[10] in that he failed to deliver an indexed and paginated comprehensive bundle of pleadings.

17.2 The papers filed in this application are voluminous. The founding affidavit refers to several annexures which are not attached thereto. The applicant has filed a schedule of numerous documents which are not paginated, are unmarked, and do not correspond to the annexure as referenced in his founding affidavit. It is not for this Court to sift through voluminous papers looking for an excuse to affidavits.

17.3 This application became moot following his dismissal. The applicant concedes this.[11] The applicant had failed to withdraw this matter in such circumstances.

17.4 Prior to the hearing of this present matter, the applicant instituted an urgent application that was heard before Makhura J on 1 March 2024, to interdict the continuance of his disciplinary hearings pending the hearing of this present application in circumstances where he was already dismissed. This conduct amounts to an abuse of Court. The first respondent was caused to incur costs in opposing an un-meritorious application.

[18] The further conduct of the applicant is that on 5 March 2024, a day preceding the hearing of this application (which the applicant concedes is moot), the applicant filed a purported amendment to its notice of motion together with a “supplementary affidavit”. What is most peculiar about this “amendment”, is nowhere on the notice of motion is it mentioned that it is amended – the same urgent relief as in the initial notice of motion delivered on 26 February 2024 appears (which is moot) is sought, barring prayer 1.4 which reads:

‘Reviewing and setting aside and/or declaring the rulings of the sixth respondent respectively dated 28 and 29 February 2024 in his capacity as the designated functionary of the Expeditious Process as contemplated in Regulation 9 in the case number DR171 8/23 as unlawful.’

[19] In paragraph 19 of the “supplementary affidavit”, the applicant states that this Court should declare the conduct of the first respondent in dismissing him as “a nullity, void ab initio and unlawful”.

[20] The “amended” notice of motion gives the respondents until 28 February 2024 to file opposing affidavits. This is illogical, as the date to file opposing affidavits pre-dates the purported amendment. Mr. Matlatle for the applicants submits that this was an error on the part of the applicant’s attorney of record and that the respondents may be given “sufficient”

time to file their opposing affidavits. On the basis of this submission on behalf of the applicants, the amended prayer sought is not urgent. Mr. Ramaano for the first respondent contends that the applicant has launched unfair dismissal proceedings at the CCMA and therefore, the first respondent saw no use in filing an answering affidavit.

[21] What the applicant wants to do is to “jump the queue”. It is now settled that disputes under the purview of the LRA do not concern unlawfulness.[12] This Court thus lacks jurisdiction to adjudicate the dispute as “amended”. In view of the unfair dismissal dispute already launched by the applicant, in terms of the provisions of section 157(5) of the LRA, this Court lacks jurisdiction to adjudicate the dispute as “amended”.

[22] I hold the view that the amendment is in any event, not properly before this Court.

[23] In light of what I have set out above concerning the conduct of the applicant, I exercise my discretion in terms of the provisions of section 162(2)(b)(i) of the LRA to make an order that the applicant pay the costs of this application on a punitive scale.

[24] In the premises, the following order is made:

Order

1. The application is struck off the roll.

2. The amended notice of motion is struck off the roll.

3. The applicant is to pay the costs of the first respondent on a scale as between attorney and own client.

M. T. M. Phehane

Judge of the Labour Court of South Africa

[1] The fifth and sixth respondents were the chairpersons of the first and second disciplinary hearings respectively.

[2] Act 66 of 1995, as amended.

[3] See: prayers 1.1 to 1.7 of the notice of motion issued on 26 February 2024.

[4] See: paras 10 to 12 of the first respondent’s answering affidavit.

[5] Act 26 of 2000.

[6] [2021] JOL 51625 (LC) at para [64].

[7] Ibid.

[8] [2023] JOL 57988 (LC).

[9] Ibid at para [48].

[10] Effective 2 April 2013.

[11] See: paragraph 15 of the “supplementary affidavit” in support of the purported amended notice of motion.

[12] Steenkamp and others v Edcon Limited [2016] ZACC 1; (2016) 37 ILJ 564 (CC).