Kriel v Legal Aid Board and Others (6579/05) [2007] ZAGPHC 254; [2008] 2 All SA 552 (T); (2008) 29 ILJ 1091 (T) (2 November 2007)

IN THE HIGH COURT OF SOUTH AFRICA /ES

(TRANSVAAL PROVINCIAL DIVISION)

CASE NO: 6579/05

DATE: 2/11/2007

REPORTABLE

IN THE MATTER BETWEEN

J P KRIEL APPLICANT

AND

THE LEGAL AID BOARD 1ST RESPONDENT

J K M MOSIME 2ND RESPONDENT

P HUNDERMARK 3RD RESPONDENT

W LAMBLEY 4TH RESPONDENT

THE LAW SOCIETY OF THE NORTHERN PROVINCES 5TH RESPONDENT

JUDGMENT

SERITI, J

[1] This matter came to court by way of motion.

In the notice of motion the applicant is seeking an order setting aside the decision of the disciplinary hearing to convict him of misconduct and to dismiss him from his employment and the decision of the appeal tribunal to confirm the decision of the disciplinary enquiry and the sanction it imposed.

[2] The applicant is an attorney who was in the services of the first respondent. Second respondent is a Labour Consultant and the third and fourth respondents are employees of the first respondent. At the relevant time, there were twelve to thirteen candidate attorneys serving articles of clerkship and the applicant was their principal.

[3] In the founding affidavit, the applicant states that he brings this application for review of the decision of the disciplinary enquiry and his dismissal from the services of the first respondent in accordance with the provisions of Rule 53 of the Uniform Rules of Court read in conjunction with the provisions of the Promotion of Administrative Justice Act 3 of 2000.

[4] During the second half of the year 2002 an official of the first respondent approached the applicant and the candidate attorneys and demanded that they sign new service contracts she had in her possession and failing which the normal consequences of such failure will follow. They approached and consulted an attorney from Dyason Attorneys for advice and possible assistance. Mr Du Plessis who they consulted with, advised them, inter alia, that the new service contracts that the candidate attorneys are requested to sign appoint a new principal for the candidate attorneys.

[5] At that time, a certain Ms Flavia Isola, who was based at their Benoni office, came to the Pretoria office and announced that she is going to be the new principal for the candidate attorneys at the Pretoria office and her name will be inserted in the new service contracts of the candidate attorneys. At Benoni office there were ten candidate attorneys who were servicing articles of clerkship under Ms Isola.

[6] 0n 27 September 2002 Mr Du Plessis addressed a letter to Law Society of the Northern Provinces and advised them that Ms Isola, who has candidate attorneys at the Benoni office, is now working in Pretoria and candidate attorneys at Benoni office are not supervised as required by the Attorneys Act. Copy of the said letter was sent to the Executive 0fficer of the first respondent.

[7] There was no response from the first respondent to the letter from Dyason Attorneys, but Ms Isola wrote a letter to Dyason Attorneys wherein she threatened the said attorneys with litigation because of the contents of the letter Dyason Attorneys addressed to the Law Society. Ms Isola sent a copy of the said letter to the Law Society. For one reason or another the Law Society did not receive the letter from Dyason Attorneys and Ms Isola was later advised by Law Society that the latter did not receive the letter of complainant from Dyason Attorneys.

[8] During July 2002 Ms Isola occupied offices at the Pretoria offices of the first respondent. She attempted to force the applicant and the candidate attorneys to sign the new service contracts as she alleged that she is now in charge of the candidate attorneys.

[9] In her alleged capacity as the new principal Ms Isola called a meeting to be held on a certain date at 07:30. At 08:15 they were still waiting for her and the applicant left as he had other engagements. The applicant's failure to attend the said meeting formed the basis of one of the charges that the applicant faced at the disciplinary hearing. That was charge 1 according to the charge-sheet.

[10] As head of the Pretoria office, the applicant introduced an attendance register which was signed every morning by the staff members including the applicant. Applicant properly maintained the said register. 0n one occasion he failed to sign the said register and count 2 of the charge-sheet, and the letter of suspension alleges that on several occasions the applicant failed to sign the register as instructed by Ms Isola.

[11] Letters addressed to Law Society and first respondent by Dyason Attorneys formed the basis for counts 3 and 4 as contained in the charge-sheet which served before the disciplinary hearing and it was alleged that the applicant falsely accused Ms Isola of abandoning the candidate attorneys at Benoni office. It was further alleged that such behaviour demonstrates that the applicant is not loyal to the first respondent.

[12] In a letter dated 13 December 2002, which was handed to the applicant on 17 December 2002, applicant was suspended from duties pending the outcome of the disciplinary hearing. The disciplinary enquiry commenced on 25 March 2003 and the second respondent was the Chairman thereof.

[13] 0n 30 April 2003 Chairperson of the Legal Aid Board signed a letter or a note authorising Ms Vedalankar, in her capacity as Chief Executive 0fficer of the Legal Aid Board to conduct disciplinary investigations, act as chairperson of any disciplinary hearing involving any employee of the Legal Aid Board, act as appeal authority in respect of any disciplinary hearing and also to authorise any employee of the Legal Aid Board or any other person to act on her behalf in any of the capacities mentioned above.

0n the same date Ms Vedalankar in a written note delegated and/or authorised Jacob Kenneth Molefe Mosime the second respondent to act as chairperson of the disciplinary enquiry in respect of Jan Paul Kriel.

[14] After conclusion of the disciplinary enquiry applicant noted an appeal. Third respondent was the Chairman of the Appeal Tribunal and he dismissed the appeal and confirmed the decision of the disciplinary enquiry to convict him of the charges preferred against him and the sanction imposed by the disciplinary enquiry to dismiss him from his employment.

0n 9 September 2004 the fourth respondent wrote him a letter which partly read as follows:

"In the light of the fact that the Appeal Chairman has dismissed your appeal and upheld the sanction originally imposed, you are hereby dismissed from the employment of the Legal Aid Board with immediate effect."

The above-mentioned letter was hand delivered to him on 10 September 2004.

[15] The initial letter of complainant addressed to the Law Society by Dyason Attorneys was not received by the Law Society. After receiving information that Ms Isola is working at the Centurion office of the Legal Aid Board, three officials of the Law Society visited the Benoni Legal Aid offices.

0n 30 June 2004 they wrote a report in which it is stated inter alia:

"Benoni Justice Centre is contravening the following sections of the Attorneys Act 53 of 1979:

8.1.1 section 6(3) in that candidate attorneys do not serve their articles under the direct personal supervision of their principal as stated in paragraphs 2.1, 2.4, 2.6 and 2.10 above."

The said report also noted that:

"8.2.2 Ms F M S Isola was appointed as Justice Centre Executive and Principal Attorney at the Regional 0ffice in Centurion and she is mainly based at the Centurion office. It is clear that although she pretended to still be supervising the candidate attorneys at Benoni Justice Centre, it is practically impossible."

[16] At the disciplinary enquiry, the second respondent made all the witnesses to make an oath that they will tell the truth, while he was not a Commissioner of 0ath and he did not have authority to swear in witnesses.

0n the first day of hearing, the applicant was sick and could not be present. His counsel produced a medical certificate to that effect, but the chairman of the disciplinary enquiry ruled that the enquiry should proceed and certain witnesses testified and they were cross-examined.

0n the other hand, the second respondent alleges that the applicant's counsel wanted a postponement as he was not properly prepared for the trial (see p.2 of the transcript of the proceedings).

[17] After his conviction and sentence, the appellant noted an appeal. Initially the Chairman of the Appellate Tribunal was supposed to be Mr Mischke. In a delegation note dated 8 0ctober 2003, he was delegated by the Chief Executive 0fficer of the Legal Aid Board, Ms Vedalankar, to act as chairman in the appeal of the applicant. Later, appellant received a call from Mr Lemmer, an attorney in the services of the first respondent, who informed him that he is going to deal with the appeal.

He heard nothing further from Mr Lemmer and when the appeal was ultimately heard, the third respondent was the Chairman.

[18] After the hearing of the disciplinary enquiry the chairman recommended that the applicant be dismissed, and later changed from a recommendation and ruled that the applicant be dismissed.

[19] The applicant alleges that he did not get a fair hearing as provided for in the Labour Relations Act and the Constitution.

[20] In the answering affidavit Mr Brits alleges that this court lacks jurisdiction to hear this matter since it is pre-eminently a labour matter which belongs in the Labour Court in accordance with the provisions of the Labour Relations Act of 1995.

In the replying affidavit the applicant alleges that he brought this application before court in terms of the provisions of section 157 of the Labour Relations Act of 1995 and section 77(3) of the Basic Conditions of Employment Act of 1997.

[21] In his Heads of Argument the respondent's counsel alluded to the fact that in the founding affidavit, the applicant alleges that the application is brought in terms of Rule 53 of the Rules of this Court and the Promotion of Administrative Justice Act 3 of 2000. Counsel also pointed out that the respondents have taken issue with the right of this court to entertain this application.

He further submitted that the respondents accept that the provisions of sections 157 and 158 of the Labour Relations Act 1995 do not oust this court's jurisdiction to hear this matter, but the court can only come to the assistance of the applicant if the court finds that the dismissal of the applicant by the second respondent amounted to administrative action in terms of the Promotion of Administrative Justice Act. He further submitted that the dismissal of the applicant in this case does not amount to an administrative act.

[22] At the beginning of the hearing, by agreement of the parties, the court was requested to deal only with the point in limine raised by the respondents as mentioned in the previous paragraph.

[23] Section 6 of Promotion of Administrative Justice Act supra provides that any person may institute proceedings in a court or tribunal for the judicial review of an administrative action.

The definition clause defines an "administrative action" as any decision taken or any failure to take a decision by:

(a) an organ of state when-

(i) exercising a power in terms of the Constitution or a provincial constitution; or

(ii) exercising a public power or performing a public function in terms of any legislation; or

(b) a natural or juristic person, other than an organ of state, when exercising a public power or performing a public function in terms of an empowering provision which adversely affects the rights of any person and which has a direct external effect.

[24] It is common cause between the parties that the first respondent is an organ of state. What is in dispute is whether or not the dismissal of the applicant in this case amounts to an administrative action as defined in the definition clause of the Promotion of Administrative Justice Act supra.

[25] In Transnet Limited and 0thers v Chirwa (2007) 1 BLLR 10 SCA, at p17-p18 paragraph 14, MTHIYANE JA said the following:

"It is clear from the papers that in terminating the applicant's contract of employment, Transnet, through Smith, was not exercising a public power or performing a public function in terms of any legislation. In President of the RSA v South African Rugby Football Union dealing with the acts of the President of the Republic it was said:

"… the test for determining whether conduct constitutes administrative action is not the question whether the action concerned is performed by a member of the executive arm of government. What matters is not so much the functionary as the function. The question is whether the task itself is administrative or not … As was pointed out by NUGENT JA in Grey's Marine Hout Bay (Pty) Ltd & 0thers v Minister of Public Works & 0thers, whether a particular conduct constitutes administrative action depends primarily on the nature of the power that is being exercised rather than upon the identity of the person who does so."

At p19 paragraph 15 MTHIYANE JA continued and said:

"The power to dismiss is found not in legislation, but in the employment contract between Transnet and the applicant. When it dismissed the applicant, Transnet did not act as a public authority, but simply in its capacity as employer."

At p22 paragraph 27 of the Transnet Limited & 0thers v Chirwa case, supra CONRADIE JA said:

"The important question is whether the structure of the legislation entails that dismissals in the public domain be dealt with as administrative acts; since the advent of the LRA the answer must be no. Nothing could be further from the true effect of the legislation than that every dismissal of an employee from the service of an organ of state or the State itself should at the option of the employee be litigated in either the High Court or the Labour Court. It does not fit in with the state's desired comprehensive scheme of labour regulations."

As one can see from the above-quoted paragraphs, MTHIYANE JA is of the view that a dismissed organ of state's employee cannot rely on the provisions of PAJA to challenge the dismissal, and JAFT JA concurred in the judgment of MTHIYANE JA. CONRADIE JA is of the view that dismissal of an employee in the public sector cannot be dealt with as administrative acts.

My view is that the above-mentioned three judges are of the view that a dismissed employee of an organ of state cannot seek remedy in terms of the provisions of PAJA, but must seek relief in terms of the Labour Relations Act.>

[26] My view mentioned in the previous paragraph is fortified by what CONRADIE JA stated on p24 paragraph 29 where he said

"By extending the benefits of the LRA to, and imposing its restrictions on, employees of the State and its organs the legislature, for them also, took dismissals out of the realm of administrative law. It would thus seem perverse that PAJA should in respect of those matters specially assigned to the Labour Court, and without expressly saying so, effectively have repealed the exclusive jurisdiction provision of the LRA in respect of public sector employees."

In Z Sidumo and Congress of South African Trade Unions v Rustenburg Platinum Mines Ltd and two 0thers case CCT85/06, when dealing with the CCMA arbitration proceedings, NGCOBO J at p83 paragraph 163 said the following:

"… In my view, on a proper understanding of the jurisprudence of this Court in Fedsure, SARFU and Pharmaceutical, the conduct of arbitration proceedings does not constitute administrative action."

MOKGORO J, NKABINDE J and SKWEYIYA J concurred with the judgment of NGCOBO J.

The CCMA arbitration proceedings has the same attributes as a disciplinary enquiry and it can be inferred from the statement by NGCOBO J that a disciplinary enquiry and dismissal of an employee does not constitute an administrative action.

Section 157(1) of the Labour Relations Act 66 of 1995 read in conjunction with section (1)(d)(iv) provides that the Labour Court has exclusive jurisdiction to deal with resolutions of labour disputes.

The question of dismissal of an employee, in my view, falls within the realm of disputes reserved for the exclusive jurisdiction of the Labour Court, and the High Courts have no jurisdiction to deal with such issues.

The above view is fortified by what was stated by NAVSA AJ in Z Sidumo and Congress of South African Trade Unions v Rustenburg Platinum Mines Ltd and two 0thers case CCT85/06 p47, paragraphs 96 and 97 where he said:

"… High Courts will of course always have jurisdiction where a fundamental right is pertinently implicated in the labour regulations field, as for example, when a union seek to interdict an employment practice that is obviously racist. This of course, does not mean that in the ordinary course of reviewing decisions of CCMA commissioners concerning unfair labour practices, the Labour Court does not enjoy exclusive jurisdiction. (97) If PAJA were to apply section 6 thereof would not allow for such exclusivity and would enable the High Court to review CCMA arbitrations. This would mean that the High Court would have concurrent jurisdiction with the Labour Court. This negates the intended exclusive jurisdiction of the Labour Court and provides a platform for forum shopping."

MOSENEKE DCJ, MADALA J, O'REAGAN J and VAN DER WESTHUIZEN J concurred with the judgment of NAVSA AJ.

[27] Counsel for the applicant submitted inter alia that the High Court has jurisdiction to entertain a matter of a dismissed employee of the first respondent. She relied on the decision in Legal Aid Board v Gertruida Cecilia Jordaan (2006) SCA 157 (RSA). The case relied upon by applicant's counsel deals with an interim relief and not a final relief.

[28] The first question that the court had to determine, namely whether the dismissal of the applicant in this case was an administrative action or not, must be answered in the negative. The authorities mentioned above clearly indicate that the dismissal of an employee by the disciplinary tribunal is not an administrative action.

[29] As stated earlier, the applicant also alleged that this application is brought to this court in terms of the provisions of section 157 of the Labour Relations Act of 1995 and section 77(3) of the Basic Conditions of Employment Act of 1997.

[30] The authorities mentioned above indicate that the Labour Court has exclusive jurisdiction to deal with applications of this nature and consequently it means that the applicant approached an incorrect forum for his remedies.

[31] Therefore the court makes the following order:

31.1 The application of the applicant is dismissed as this Court has no jurisdiction to grant orders as prayed for in the notice of motion. 32.2 Applicant is ordered to pay the costs of the respondents on a party and party scale.

W L SERITI JUDGE OF THE HIGH COURT 6579-2005

HEARD ON: 23 OCTOBER 2007 FOR THE APPLICANT: A VAN DER WALT INSTRUCTED BY: McLACHLAN & CO INC FOR THE RESPONDENTS: R G BEATON INSTRUCTED BY: STEGMANNS INC