Feni v Pan South African Language Board and Others (30640/2014) [2014] ZAGPPHC 654 (29 August 2014)

HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

CASE NO: 30640/2014

In the matter between:

ZIXOLISILE FENI......................................................................................................................................................................................................Applicant

and

PAN SOUTH AFRICAN LANGUAGE BOARD............................................................................................................................................First Respondent

MXOLISI ZWANE.......................................................................................................................................................................................Second Respondent

MANDLA SELOANE......................................................................................................................................................................................Third Respondent

KABELO SEABI..............................................................................................................................................................................................Fourth Respondent

JUDGMENT

MAKGOKA, J:

[1] The applicant sought, on an urgent basis, an order interdicting a disciplinary hearing against him. The matter was opposed by all the respondents. After hearing argument on 30 May 2014, the respondents undertook to not proceed with the disciplinary hearing, pending this judgment.

[2] The factual background is fairly simple. The applicant is employed by the first respondent as head of legal services. The respondent is a juristic person established in terms of the Pan South African Language Board Act 59 of 1995. The second respondent was appointed as a caretaker chief executive officer by the Minister of Arts and Culture.

[3] On 3 April 2014 the second respondent served the applicant with a notice to attend a disciplinary hearing scheduled for 25 April 2014 to answer to various charges against him. In that notice he was informed that the third and fourth respondents had been appointed by the second respondent as initiator and chairperson, respectively, of the disciplinary enquiry.

[4] Upon receiving the notice, the applicant launched an urgent application in the Labour Court seeking an order staying the disciplinary enquiry pending the determination by either the Commission for Conciliation Mediation and Arbitration (CCMA) and/or the Labour Court, of a dispute in terms of s 4(1) of the Protective Disclosures Act 26 of 2000. That application was struck off the roll with costs on 24 April 2014, for lack of urgency.

[5] On 25 April 2014 the applicant attended the disciplinary enquiry. He took a number of preliminary, technical points. Among others, he challenged the authority of the second respondent. He argued that the Act did not make provision for the position of an acting chief executive officer (CEO). Flowing from that premise, the applicant argued that the second respondent was not competent or authorized to appoint the third and fourth respondents as iniator and chairperson, respectively.

[6] He also challenged the appointment of the fourth respondent as the chairperson of the disciplinary hearing on the basis that proper procedures in terms of the Constitution1 and the Public Finance Management Act (PFMA) had not been followed in appointing the fourth respondent. All of the applicant’s points were dismissed by the fourth respondent, who ruled that the disciplinary enquiry would proceed.

[7] The applicant then applied for a postponement in order for him to ‘approach the court on an urgent basis’ to review the fourth respondent’s decision to proceed with the disciplinary enquiry. The request for a postponement was opposed by the third respondent. After hearing submissions from the applicant and the third respondent on this point, the applicant’s request for a postponement was refused by fourth respondent. Thereafter the hearing was remanded to 29 May 2014.

[8] On 27 April 2014 the applicant launched an urgent application in this court, seeking an interdict against the respondents from proceeding with the disciplinary hearing. The application came before court on 28 April 2014, on which occasion it was postponed sine die subject to the following conditions:

(a) The respondent were to file their answering affidavit on 2 May 2014 by no later than 15h00;

(b)The applicant was to file his replying affidavit on 6 May 2014 by no later than 16h00;

(c) Pending the finalisation of the application, the respondents undertook not to proceed with the disciplinary hearing against the applicant;

(d)The application was to be enrolled on the urgent roll for the week commencing 13 May 2014;

(e) Should the applicant be responsible for the matter not proceeding on 13 May 2014, the undertaking not to proceed with the disciplinary hearing, referred to above, shall lapse

(f) Urgency had not been argued or decided.

[9] The respondents failed to file their answering affidavit on 2 May 2014 as provided for in the court order. The answering affidavit was filed instead on 6 May 2014. On 8 May 2014 the applicant’s attorneys wrote to the respondents’ attorneys indicating that due to the late filing of the respondents’ answering affidavit, it was no longer possible to enroll the application in the urgent court for the week commencing 13 May 2014.

[10] On 12 May 2014 the respondents’ attorneys replied, stating that due to the failure by the applicant to enroll the matter as provided for in the interim order, the undertaking not to proceed with the disciplinary hearing in that order, had lapsed. It was further indicated that the disciplinary hearing would thus proceed. On 14 May 2014 the second respondent informed the applicant in writing that the disciplinary hearing would proceed on 19 and 20 May 2014.

[11] On 15 May 2014 the applicant launched the second urgent application in this court, seeking to interdict the respondents from proceeding with the disciplinary hearing on 19 May 2014. The applicant also sought a declaratory that the respondents are to be held to the undertaking contained in the interim order (not to proceed with the disciplinary hearing pending the determination of the application). On 16 May 2014 the parties, before Ms Justice Tlhapi, agreed to a postponement of the disciplinary hearing.

[12] From the above factual exposition, it is clear that there are two applications before this court. The first one relates to the urgent relief sought by the applicant on 28 April 2014. The second one concerns the relief sought by the applicant on 16 May 2014, after the matter was not enrolled in terms of the order of 28 April 2014. The parties apportion blame to each other for that nonenrolment. As far as the first application is concerned, it has been overtaken by events and the only remaining issue is one of costs. I shall revert to this point later in the judgment.

[13] The respondents have, essentially, raised four points in their opposition to the application. First, that the matter is not urgent. Second, that this court lacks jurisdiction to determine the matter, as the issues in dispute fall within the exclusive jurisdiction of the Labour Court. Third, that the relief sought by the applicant offends against the principle of non-interference in incomplete proceedings. Fourth, that there is no prejudice attendant upon the applicant were the disciplinary hearing to proceed. I deal with these, in turn.

[14] With regard to urgency, counsel for the respondents contended that because the Labour Court has found the applicant’s application before it not to be urgent, this court was bound to follow that conclusion. I pointed out to counsel that in principle, one court’s finding on urgency is not binding on the other court. In their written submissions, counsel took the trouble to refer me to authorities on the principle of stare decisis. That was not necessary, as the principle is so trite it hardly needs to be stated with reference to authorities.

[15] In any event, those authorities are irrelevant and misplaced, for, the principle of stare decisis finds no application in the present case. The Labour Court decided the matter on a totally different basis from what this court has to consider. Before the Labour Court, the basis of urgency was the apprehension by the applicant would not receive a fair disciplinary

hearing. The court concluded, correctly, with respect, that that fact could not be a basis for urgency. In the present case, the challenge is against constitutional validity of the appointment of the third and fourth respondents. This goes to the very legality of how the disciplinary enquiry against the applicant is constituted, and is clearly a totally different basis to that considered by the Labour Court. To that extent, that court’s finding on urgency is not binding on this court. And for the very reason that violation of a constitutional provision is implicated, I find the matter urgent.

[16] The argument with regard to jurisdiction is that this court does not have jurisdiction to hear the matter as the applicant seeks a labour law remedy, which only the Labour Court has the exclusive jurisdiction to determine in terms of s 49 of the EE A, read with s 157(1) of the Labour Relations Act 95 of 1995 (LRA). In the light of what is stated above, this assertion is cannot be correct. The applicant’s challenge to the appointment of the fourth respondent as being in violation of the Constitution confer concurrent jurisdiction on this court. See in this regard Makhanya v University of Zululand2, where it was held that the High Court and the Labour Court both have the power to enforce constitutional rights as far as their

infringement arises from employment.

[17] The residual arguments of the respondent with regard to I is pendens and res judicata can, in view of what is stated above, be summarily be disposed of. The respondents argue that the applicant seeks the same relief that he seeks in two cases pending in the Labour Court. I do not agree. In case number J439/2014 the applicant seeks an order setting aside his suspension and interdicting the first respondent from initiating any disciplinary hearing against him.

[18] Under case number J892/2014 the applicant seeks an order that the disciplinary proceedings against him be stayed pending the resolution of a dispute of occupational detriment referred by him to the CCMA and after conciliation to the Labour Court. In the present case, the applicant challenges the constitution of the disciplinary enquiry. It is therefore clear, even on a cursory regard of the relief sought in the applications, that they are different. It is no surprise that in argument, counsel for the respondents did not press this point.

[19] The respondents’ plea of res judicata, alleging that the CCMA and the Labour Court have finally determined the dispute between the parties, suffers the same criticism. It is clearly unsustainable in light of the fact that none of those forums have been seized of the constitutional challenge asserted in the present application. Given the view I take of the matter, and the importance I attach to the applicant’s constitutional point, I find it unnecessary to consider the respondents’ arguments concerning incomplete proceedings and lack of prejudice. These, to my mind, pale into insignificance, in this context.

[20] I turn now to the applicant’s challenge to the appointment of the fourth respondents. Two reasons are proffered for this. First, that only the chief executive officer (CEO) of the first respondent was competent to appoint the third and fourth respondent. The second respondent, who appointed them, was not the CEO, but a caretaker in that position. The validity of the second respondent’s appointment as caretaker CEO is subject of an appeal pending before the Supreme Court of Appeal. I refrain, therefore, from expressing any view on that point.

[21] The second leg of the challenge is that the appointment of the fourth respondent was in contravention of s 217 of the Constitution and Treasury regulations. Section 217 provides that when an organ of state or any institution identified in national legislation, contracts for goods and services, it must do so in accordance with a system which is fair, equitable, transparent, competitive and cost-effective.

[22] Furthermore, the National Treasury Practice Note No 8 of 2007/2008, which came into force on 1 December 2007, accounting officers are obliged to invite and accept written price quotations for goods and services of R10 000 up to R500 000, from as many suppliers as possible registered on the list of prospective suppliers. It seems to be common cause that the fourth respondent’s services fall squarely within the above bracket.

[23] It is also common cause that the first respondent is an organ of state contemplated in section 217, therefore bound by, and is enjoined to comply with, its provisions, as well as the Treasury Practice Note referred to above. The applicant contends that the acquisition of service of the third and fourth respondents fell foul of these provisions, to the extent there was no competitive bid before their appointment, nor was there an adjudication committee envisaged in the procurement process of the first respondent.

[24] When the applicant appeared before the disciplinary enquiry on 25 April 2014, he questioned the process leading to the appointment of the fourth respondent. The latter indicated that he had been ‘approached’ by the second respondent to preside over the enquiry. It therefore seems common cause that the provisions of s 217 of the Constitution and the Treasury Practice Note were not complied with.

[25] The respondents, however, argue that nothing turns on this non-compliance. It is contended that the power to appoint a chairperson and initiator of a disciplinary enquiry derives from the employment relationship and not the procurement legislation. It does not follow, so is the argument, that non-compliance with procurement legislation amounts to the enforcement of common law or constitutional rights as the infringement arises from the applicant’s employment. I disagree.

[26] The basis on which the applicant challenges the appointment of the third and fourth respondents, raises an important legal point. That question is whether, as a matter of law, non-compliance with procurement legislation amounts to the enforcement of common law rights and/or enforcement of constitutional rights insofar as the infringement arises from employment. I consider this aspect as part of the enquiry into whether the applicant has satisfied the requisites for an interim interdict, to which I now turn.

[27] The requisites for an interim interdict are well-settled. The applicant has to establish:

(a) a prima facie right;

(b) a well-grounded apprehension of irreparable harm if the interim relief is not granted and the ultimate relief is eventually granted;

(c) the balance of convenience favours the granting of the interim relief;

(d) the absence of any other satisfactory remedy.

[28] In order to establish its prima facie right, the applicant must establish that his right to a procedurally fair disciplinary hearing is not open to serious doubt. The applicant need not show that right on a balance of probabilities. The facts alleged by the applicant, together only with those alleged by the respondent that the applicant cannot dispute, must be considered, to determine whether the applicant should obtain relief at the trial in due course (Spur Steak Ranches Ltd v Saddles Steak Ranch)3

[29] It is common cause that there has not been compliance with a constitutional requirement and Treasury regulations. The applicant

argues that this renders the appointment of the third and fourth respondents invalid and of no force and effect. The respondents

contend otherwise. This is a legal dispute, raising as it does, an important constitutional issue. The application of the prima facie requirement to cases where legal issues are in dispute is not at all clear, and has led to different views. For example, in Mariam v Minister of the Interior and Another,4 the test was applied to a disputed point of law while in Fourie v Olivier en ‘n Ander5 it was held that the test was not applicable in such cases.

[30] In Beecham Group Ltd v B-M Group Ltd6 the court applied the prima facie right test but held that ‘where difficult questions of law’ were raised they had to be dealt with at the trial and not at the interlocutory stage. In Ward v Cape Peninsula Ice Skating Club7 Blignault AJ suggested it was possible to reconcile Fourie v Olivier with Beecham if due regard is had to the expression ‘difficult questions of law’: the reference to ‘difficult’ implied that ordinary questions of law could be decided at the interlocutory stage of the proceedings.

[31] In my view, the question of law in the present case, is a difficult one such as was contemplated in the Beecham case, involving, as it does, a constitutional issue. As seen in the past, such challenges have given rise to vexing and difficult questions of interpretation, some even reaching the Constitutional Court. I have not, in the constrained nature of a busy urgent court, had the benefit of ‘detailed argument and mature consideration’8 to dispose the issue at this stage.

[32] I have pointed out that the applicant has indicated his intention to launch an application for the setting aside the appointment of the third and fourth respondents. To the extent that it is common cause that their appointment had not complied with the constitution, and Treasury regulations, the applicant has established a clear right, although open to some doubt.

[33] With regard to irreparable harm, there can be no doubt that there is. The respondents are in the process of subjecting the applicant to a disciplinary enquiry which, on the face of it, might be declared invalid in due course. That brings me to the balance of convenience. I must consider the applicant’s prospects of success. I take into account the general approach of our courts to interpret constitutional questions liberally and expansively. There is clearly inconvenience if the interim relief is not granted, and the applicant ultimately succeeds in setting aside the appointment of the third and fourth respondents. On the other hand, I cannot think of any possible inconvenience on the part of any of the respondents if an interim relief is granted. I conclude that the balance of convenience clearly favours the granting of an interlocutory relief. With regard to the final requirement, the applicant clearly has no other satisfactory relief other than approaching this court to interdict what, prima facie, appears to be an unlawfully constituted enquiry.

[34] Lastly, there remains to be determined the liability for the costs of the first application referred to in para [12] above. Succinctly put, was the applicant responsible for the application not having been enrolled in the urgent court for the week of 13 May 2014? It is clear that for the matter not to be so enrolled, stems from the second respondent’s failure to adhere to the time frames provided in the court order. The second respondent filed his answering affidavit four days after the date provided for in the court order. That left the applicant effectively one day to finalise and file his replying affidavit before the urgent roll closed on Thursday at 12h00.

[35] There is a factual dispute as to what the agreement between the parties was with regard to the late filing of the answering and replying affidavits. The parties are blaming each for not adhering to their own arrangements. Obviously I am not in a position to resolve this dispute on the papers. For that reason I am of the view that each party should pay their own costs.

[36] In the result I make the following order:

1. Pending the finalization of an application in which the validity of the appointment of the third and fourth respondents as initiator and chairperson, respectively, of the disciplinary enquiry against the applicant is considered, the first, second, third and fourth

respondents are interdicted from proceeding with the disciplinary hearing against the applicant;

2. The applicant is ordered to launch the application envisaged in paragraph 1 above, within 15 court days of the date of this order, failing which the interdict provided for in paragraph 1 above, shall lapse;

3. The costs of this application shall be costs in the application envisaged in paragraph 1 above;

4. In the event the interdict lapses in terms of paragraph 2 above, the applicant shall be liable for the costs of the application;

5. There is no costs order with regard to the urgent application launched on 27 April 2014.

T M MAKGOKA

JUDGE OF THE HIGH COURT

DATE OF HEARING : 30 MAY 2014

JUDGMENT DELIVERED : 29 AUGUST 2014

FOR THE APPLICANT : ADV. T. FAKU

INSTRUCTED BY : FAKU ATTORNEYS, JOHANNESBURG

AND MAKHAFOLA AND VERSTER

ATTORNEYS, PRETORIA

FOR THE RESPONDENTS : ADV. M. DEWRANCE

ADV. F. KARACHI

INSTRUCTED BY: M.B. MOKOENA ATTORNEYS,

PRETORIA

1 The Republic of South Africa Constitution Act 108 of 1996

2 2010 (1) SA 62 (SCA) paras 17-18

3 1996 (3) SA 706 (C)

4 1959 (1)SA 213 (T).

5 1971 (3) SA 274 (T)

61977(1) SA 50 (T)

7 1998 (2) SA 487 (C)

8 Ward v Cape Peninsula (supra at 498C, 498G-H).